Foley v. Commissioner of Internal Revenue, No. 23-1296 (2d Cir. 2024)
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The case in question involves an appeal by Joseph William Foley against the United States Tax Court's dismissal of his deficiency protest due to untimeliness. Foley filed a protest against a notice of deficiency issued by the Internal Revenue Service (IRS) for the 2014 and 2015 tax years, but his filing came 1,393 days after the 90-day deadline.
Foley's petition was filed under small tax case procedures, which is a less formal process meant for cases where the deficiency amount is under $50,000. The IRS moved to dismiss Foley’s petition for redetermination due to its untimeliness. Foley then appealed to the United States Court of Appeals for the Second Circuit, arguing that the Tax Court's decision was made on jurisdictional grounds, not on merit, and therefore should not be impeded by the non-reviewability provision of the small tax case procedures.
The Court of Appeals disagreed with Foley's argument. It held that the Tax Court's dismissal of his petition did constitute a "decision", as defined by the Internal Revenue Code. The Court of Appeals explained that a "decision" includes a dismissal for lack of jurisdiction, which was the case for Foley’s petition. Therefore, according to the language of the Internal Revenue Code, jurisdictional dismissals like Foley's are indeed unreviewable under small tax case procedures.
The Court of Appeals also disagreed with Foley's alternative argument that his case never became a "small case" due to the Tax Court's jurisdictional dismissal, and thus falls outside of the non-reviewability provision. The court noted that Foley had initially requested small-case procedures, and despite the Commissioner’s motion to dismiss his petition as untimely, Foley never moved to rescind his small-case election. Hence, the Tax Court dismissed a case that was subject to small tax case procedures, and the Court of Appeals is without jurisdiction to review Foley's appeal. Consequently, the court granted the Commissioner's motion and dismissed Foley’s appeal.
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