In the United States Court of Appeals For the Second Circuit ______________

August Term, 2023

(Motion submitted: February 13, 2024 Decided: March 13, 2024)

Docket No. 23-1296 ______________

JOSEPH WILLIAM FOLEY,

Petitioner-Appellant,

–v.–

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

______________

Before: KEARSE, PARK, and ROBINSON, Circuit Judges. ______________

Petitioner-Appellant Joseph William Foley appeals the dismissal of his deficiency protest as untimely by the United States Tax Court (Kerrigan, C.J.). Respondent-Appellee Commissioner of Internal Revenue moves to dismiss Foley’s appeal for lack of appellate jurisdiction. We conclude that the Tax Court’s decision dismissing Foley’s petition as untimely is unreviewable under 26 U.S.C. § 7463(b). We thus GRANT the Commissioner’s motion to dismiss.

______________ Audrey Patten & T. Keith Fogg, Harvard Tax Clinic, Jamaica Plain, MA; Carlton M. Smith, Esq., New York, NY, for Petitioner-Appellant.

David A. Hubbert, Deputy Assistant Attorney General, Michael J. Haungs, Isaac B. Rosenberg, U.S. Department of Justice, Tax Division, Washington, D.C., for Respondent-Appellee. ______________ PER CURIAM:

Petitioner-Appellant Joseph William Foley appeals the dismissal of his deficiency protest as untimely by the United States Tax Court (Kerrigan, C.J.). The Commissioner of Internal Revenue moves to dismiss Foley’s appeal, asserting that this Court lacks jurisdiction to review small tax case decisions under 26 U.S.C. § 7463(b), which provides that “[a] decision entered in any case in which the proceedings are conducted under this section shall not be reviewed in any other court . . . .” Foley responds that because the Tax Court dismissed his petition on jurisdictional grounds, rather than on the merits, § 7463(b) is not an impediment to our appellate jurisdiction.

For the reasons set forth below, we agree with the Commissioner and GRANT the motion to dismiss.

2 BACKGROUND

The IRS issued a notice of deficiency to Joseph Foley in 2018 for taxes owed for the 2014 and 2015 tax years. Per 26 U.S.C. § 6213(a), he had 90 days to file a petition in the Tax Court for redetermination of the deficiency. Foley filed a petition disputing the deficiency in 2022, 1,393 days after the deadline, asserting that he never received notice of the deficiency. His petition, filed on a standard form of the United States Tax Court, reflects his election to have his petition reviewed under small tax case procedures.

A taxpayer can elect to seek redetermination of a deficiency under § 7463 if the deficiency amount is under $50,000. 26 U.S.C. § 7463. This process is less formal, and taxpayers often receive a “speedier disposition.” Guidance for Petitioners: About the Court, United States Tax Court, https://www.ustaxcourt.gov/ petitioners_about.html [https://perma.cc/SYY9-S27C] (last visited Feb. 26, 2024)