Opinion
11649-23S
03-29-2024
MARK GIBSON & VALERIE GIBSON, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
Currently pending before the Court is petitioners' Motion for Leave to File Motion to Vacate or Revise Pursuant to Rule 162 (Embodying Motion to Vacate), filed February 29, 2024, and supplemented on February 29, 2024. On March 18, 2024, respondent filed an Objection to Motion for Leave to File Motion to Vacate or Revise Pursuant to Rule 162 (Embodying Motion to Vacate) and, thereafter, petitioners filed a Response to Objection to Motion for Leave to File Motion to Vacate or Revise Pursuant to Rule 162 (Embodying Motion to Vacate).
The record in this case reflects that, on July 22, 2023, using the Court's DAWSON system petitioners electronically filed as the petition to commence this case a three-page notice of final determination for disallowance of interest abatement claim, dated February 3, 2023. No completed petition form was part of that filing. Signing up for and using DAWSON constitutes consent to electronic service. See DAWSON Self-Represented Training Guide at www.ustaxcourt.gov. Petitioners who have consented to electronic service are required to regularly log on to DAWSON to view any new activity in their case. Id. When a party consents to receive electronic service, the Court serves documents on that party only by electronic means.
Because the above-referenced document filed as a petition did not contain "a clear and concise assignment of each error, set forth in separate lettered subparagraphs, which the petitioner alleges the Commissioner committed in the determination", see Rule 281(b)(4), Tax Court Rules of Practice and Procedure, the Court issued an Order on July 24, 2023, which directed petitioners, on or before September 22, 2023, to file an amended petition bearing the docket number of this case and to which was attached a form for petitioners to use for that purpose. That Order also advised petitioners that failure to file an amended petition could result in the dismissal of their case for lack of jurisdiction. No response was received from petitioners. Accordingly, by Order of Dismissal for Lack of Jurisdiction, entered October 17, 2023, this case was dismissed for lack of jurisdiction. A motion to vacate or revise a decision may be filed within 30 days of entry of that decision. See Rule 162. A decision of the Tax Court becomes final if no appeal is filed within 90 days of the date of entry. See Internal Revenue Code §§7481, 7483.
On February 29, 2024, more than 90 days after entry of the Court's Order of Dismissal for Lack of Jurisdiction, petitioners filed an Answer to Amended Petition and a Declaration of Mark W. and Valerie A. Gibson in Support of Answer to Amended Petition, which the Court recharacterized as a Motion for Leave to File Motion to Vacate or Revise Pursuant to Rule 162 (Embodying Motion to Vacate) and a First Supplement to Motion for Leave to File Motion to Vacate or Revise Pursuant to Rule 162 (Embodying Motion to Vacate). Petitioners request therein that this Court reconsider and vacate its Order of Dismissal for Lack of Jurisdiction. As grounds for their request, petitioners assert that the Court's communications, including its Orders, went into their email spam folder without their knowledge and they never received any communications from the Court in paper form. Petitioners further state that they only learned of the issue on February 28, 2024, when, wanting to check the status of their case, they logged into the Court's DAWSON system and afterward checked their email spam folder.
Unless the Court permits otherwise, a motion to reconsider or to vacate generally must be filed within 30 days after the entry of the Court's decision. See Rules 161 and 162, Tax Court Rules of Practice and Procedure. The disposition of a motion to vacate or revise a decision rests within this Court's discretion. See, e.g., Vaughn v. Commissioner, 87 T.C. 164, 166-167 (1986). Such motions are "intended to correct substantial errors of fact or law." Knudsen v. Commissioner, 131 T.C. 185, 185 (2008). A motion to reconsider or to vacate typically is not granted in the absence of substantial error or unusual circumstances, such as mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud. Knudsen v. Commissioner, 131 T.C. at 186; Brannon's of Shawnee, Inc. v. Commissioner, 69 T.C. 999 (1978). See also Rule 60(b), Federal Rules of Civil Procedure. None of those factors appear present in this case, and petitioners' motion, as supplemented, and response to respondent's objection do not persuade us otherwise.
Upon due consideration of the foregoing, it is
ORDERED that petitioners' Motion for Leave to File Motion to Vacate or Revise Pursuant to Rule 162 (Embodying Motion to Vacate), as supplemented, is denied.