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Duggan v. Commissioner of Internal Revenue

United States Court of Appeals, Ninth Circuit

January 12, 2018

Philip A. Duggan, Petitioner-Appellant,
v.
Commissioner of Internal Revenue, Respondent-Appellee.

          Submitted December 7, 2017 [*] Seattle, Washington

         Appeal from a Decision of the United States Tax Court Tax Ct. No. 4100-15 L

          Philip A. Duggan, Deer Park, Washington, pro se Petitioner-Appellant.

          Janet A. Bradley, Robert W. Metzler, and Gilbert S. Rothenberg, Attorneys; Caroline D. Ciarolo, Acting Assistant Attorney General; Tax Division, United States Department of Justice, Washington, D.C., for Respondent-Appellee.

          Carlton M. Smith, New York, New York; Professor T. Keith Fogg, Director, Harvard Federal Tax Clinic, Jamaica Plain, Massachusetts; for Amicus Curiae Linda Jean Matuszak.

          Before: Michael Daly Hawkins, M. Margaret McKeown, and Morgan Christen, Circuit Judges.

         SUMMARY [**]

         Tax

         The panel affirmed the Tax Court's dismissal of a petition for review of two Internal Revenue Service Notices of Determination, for lack of jurisdiction.

         Petitioner mistakenly counted the first day after the date of the IRS's notices as day "zero" for purposes of calculating the 30-day period for filing a petition for review. The panel held that the 30-day deadline in I.R.C. § 6330(d)(1) is jurisdictional, and that petitioner's failure to meet the deadline divested the Tax Court of the power to hear his case and foreclosed any argument for equitable tolling.

          OPINION

          CHRISTEN, Circuit Judge:

         I.R.C. § 6330(d)(1) gives taxpayers aggrieved by an Internal Revenue Service (IRS) determination thirty days to file a petition for review in the Tax Court. Philip Duggan mistakenly counted the first day after the date of the IRS's determination as day "zero, " and filed his petition for review on what was in fact the thirty-first day. The Tax Court held that Duggan's failure to meet § 6330(d)(1)'s filing deadline deprived it of jurisdiction to hear his case. We affirm.

         BACKGROUND

         The IRS mailed to Duggan two Notices of Determination dated January 7, 2015, which proposed collection of unpaid income taxes for 2008, 2010, 2012, and 2013. Both notices informed Duggan that he could dispute the IRS's determinations by "fil[ing] a petition with the United States Tax Court within a 30-day period beginning the day after the date of this letter." The notices cautioned that § 6330(d)(1):

. . . limits the time for filing your petition to the 30-day period mentioned above. The courts cannot consider your case if you file late. If you file an appeal in an incorrect court (e.g., United States District Court), you won't be able to refile in the ...

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