Stewart v. Comm'r of Internal Revenue
| Decision Date | 03 October 2006 |
| Docket Number | No. 22510–05.,22510–05. |
| Citation | 127 T.C. 109,127 T.C. No. 8 |
| Parties | William A. STEWART, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent. |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
On Mar. 13, 2006, the Court entered an order of dismissal for lack of jurisdiction because of P's failure to file a proper amended petition and pay the filing fee as previously ordered. On June 8, 2006, 87 days after the Court's order was entered, P mailed a document to the Court requesting an order to vacate the order of dismissal. On June 13, 2006, 92 days after the Court's order of dismissal was entered, the Court received and filed P's document as a motion for leave to file motion to vacate embodying motion to vacate. The Court also received P's amended petition and filing fee on June 13, 2006.
Held: Absent the filing of a notice of appeal or a motion to vacate, the Court's order of dismissal for lack of jurisdiction would become final after the 90–day period for appeal. See secs. 7481(a), 7483, I.R.C.; Fed. R.App. P. 13(a). Our jurisdiction to consider the substantive merits of P's motion for leave depends on whether it is deemed to have been filed within the 90–day appeal period following the Court's order of dismissal.
Held, further: Whether P's motion for leave was filed within the 90–day appeal period depends on whether the timely-mailing/timely-filing provisions of sec. 7502, I.R.C., apply to P's motion for leave. In Manchester Group v. Commissioner, T .C. Memo.1994–604, revd. 113 F.3d 1087 (9th Cir.1997), we held that the timely-mailing/timely-filing provisions of sec. 7502, I.R.C ., did not apply to a motion for leave to file a motion to vacate. Upon reconsideration, we now hold that sec. 7502, I.R.C., applies to P's motion for leave. P's motion for leave is deemed filed on June 8, 2006, the date it was mailed, which was before the date on which the order of dismissal would otherwise have become final.
Held, further: P's motion for leave to file a motion to vacate the Court's order of dismissal will be granted. As a result, P's motion to vacate the order of dismissal also will be deemed filed on June 8, 2006. P's motion to vacate will be granted. P's amended petition will be filed, and we continue to have jurisdiction in this case.
William A. Stewart, pro se.
Edward F. Peduzzi, Jr., for respondent.
This case is before the Court on petitioner's motion for leave to file a motion to vacate the Court's order of dismissal for lack of jurisdiction. At all relevant times, petitioner resided in Fayette City, Pennsylvania.
The primary issue we must decide is whether this Court has jurisdiction to consider the substantive merits of petitioner's motion for leave to file his motion to vacate the Court's order of dismissal.
On September 6, 2005, respondent sent to petitioner a notice of deficiency for the taxable year ending December 31, 2003. On November 22, 2005, petitioner mailed to the Court a document in which he stated:
Tax Court,
Please consider this my petitioning the amounts assessed against me in the included letter. I have contacted the Dept. of Reconsideration and my congressman in regards to this matter. I have NAV's and stock purchase prices that I have sent to the IRS twice now. Again please consider this my petitioning you as the letter said I must do before Dec. 5, 2005.
Attached to this document was a copy of the notice of deficiency. Petitioner's document was received by the Court on November 28, 2005. The document failed to comply with the Rules of the Court 1 as to the form and content of a proper petition. Petitioner also failed to submit the required filing fee. Nevertheless, the Court filed petitioner's document as an imperfect petition.
By order dated December 1, 2005, the Court directed petitioner to file a proper amended petition and to pay the filing fee on or before January 17, 2006. The order stated that if an amended petition and the filing fee were not received on or before January 17, 2006, the case would be dismissed.
On March 13, 2006, the Court entered an order of dismissal for lack of jurisdiction (order of dismissal) because petitioner failed to respond to the December 1, 2005, order. Ninety-two days later, on June 13, 2006, the Court received a document from petitioner which stated:
United States Tax Court,
I am requesting an order vacating the order of dismissal dated March 13, 2006 of case assigned Docket Number 22510–05, and ask that it be REINSTATED. The case was ordered closed through correspondence dated March 13, 2006 (also enclosed). I have enclosed a petition form and form designating place of trial.
The Court filed petitioner's document as a motion for leave to file motion to vacate embodying motion to vacate order of dismissal for lack of jurisdiction (motion for leave).2 The envelope that contained petitioner's motion for leave was postmarked June 8, 2006, 87 days after the Court entered its order of dismissal. The envelope also contained petitioner's amended petition and a check for the filing fee.
An order of dismissal for lack of jurisdiction is treated as the Court's decision. Hazim v. Commissioner, 82 T.C. 471, 476, 1984 WL 15547 (1984). Section 7459(c) provides, in relevant part:
SEC. 7459(c). Date of Decision.—* * *. * * * if the Tax Court dismisses a proceeding for lack of jurisdiction, an order to that effect shall be entered in the records of the Tax Court, and the decision of the Tax Court shall be held to be rendered upon the date of such entry.
The word “decision” refers to decisions determining a deficiency and orders of dismissal for lack of jurisdiction. Ryan v. Commissioner, 517 F.2d 13, 16 (7th Cir.1975); Commissioner v. S. Frieder & Sons Co., 228 F.2d 478, 480 (3d Cir.1955).
Rule 162 provides that “Any motion to vacate or revise a decision, with or without a new or further trial, shall be filed within 30 days after the decision has been entered, unless the Court shall otherwise permit.” (Emphasis added.) Petitioner did not file a motion to vacate or revise within 30 days after the Court's order of dismissal was entered. Therefore, in order for his motion to vacate to be considered timely filed, Rule 162 required petitioner to file a motion for leave to file a motion to vacate or revise, the granting of which lies within the sound discretion of the Court. See Rule 162; Heim v. Commissioner, 872 F.2d 245, 246 (8th Cir.1989), affg. T.C. Memo.1987–1; Brookes v. Commissioner, 108 T.C. 1, 7, 1997 WL 1226 (1997).
This Court can proceed in a case only if it has jurisdiction, and either party, or the Court sua sponte, can question jurisdiction at any time. Estate of Young v. Commissioner, 81 T.C. 879, 880–881, 1983 WL 14898 (1983). We have jurisdiction to determine whether we have jurisdiction. Brannon's of Shawnee, Inc. v. Commissioner, 69 T.C. 999, 1002, 1978 WL 3327 (1978). As we stated in Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 179, 1960 WL 1136 (1960): “[Q]uestions of jurisdiction are fundamental and whenever it appears that this Court may not have jurisdiction to entertain the proceeding that question must be decided.”
In order for us to consider the substantive merits of petitioner's motion for leave, we must still have jurisdiction. Except for very limited exceptions, none of which applies here,3 this Court lacks jurisdiction once a decision becomes final within the meaning of section 7481. Abatti v. Commissioner, 859 F.2d 115, 117–118 (9th Cir.1988), affg. 86 T.C. 1319, 1986 WL 22149 (1986); Lasky v. Commissioner, 235 F.2d 97, 98 (9th Cir.1956), affd. 352 U.S. 1027, 77 S.Ct. 594, 1 L.Ed.2d 598 (1957). As relevant here, a decision of the Tax Court becomes final “Upon the expiration of the time allowed for filing a notice of appeal, if no such notice has been duly filed within such time”. Sec. 7481(a)(1). Section 7483 provides that a notice of appeal may be filed within 90 days after a decision is entered. As previously explained, an order of dismissal for lack of jurisdiction is treated as the Court's decision.
Pursuant to rule 13(a) of the Federal Rules of Appellate Procedure, if under the Tax Court's Rules a party makes a timely motion to vacate or revise a decision, “the time to file a notice of appeal runs from the entry of the order disposing of the motion or from the entry of a new decision, whichever is later.” 4 The Court entered the order of dismissal on March 13, 2006, and petitioner did not file a notice of appeal within the time prescribed by section 7483. Unless petitioner is deemed to have filed a timely motion for leave and a timely motion to vacate that terminated the running of time for appeal pursuant to rule 13(a) of the Federal Rules of Appellate Procedure, the Court's order of dismissal became final on June 12, 2006, 91 days after the Court entered it.5
The Court received and filed petitioner's motion for leave on June 13, 2006, 92 days after the Court entered its order of dismissal. The envelope that contained petitioner's motion for leave was postmarked on June 8, 2006, 87 days after the Court entered its order of dismissal. Accordingly, we would have jurisdiction to consider the merits of petitioner's motion for leave only if it were deemed to have been filed on the date it was mailed, which was within the 90–day appeal period. If we grant petitioner's motion for leave, then petitioner's motion to vacate would also have to be deemed timely filed within that 90–day period in order to terminate the running of time for appeal pursuant to rule 13(a) of the Federal Rules of Appellate Procedure.
Section 7502(a), the so-called timely-mailing/timely-filing rule, provides, in relevant part:
SEC. 7502(a). General Rule.—
(1) Date of delivery.—If any return, claim, statement, or other document required to be filed* * * within a prescribed period or on or before a prescribed date under authority of any provision of the internal revenue...
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