Opinion
22590-19
06-21-2022
NEIL R. CLEMENT & MEREDITH M. CLEMENT, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Eunkyong Choi Special Trial Judge
Pending before the Court is petitioners' Motion for Certification of an Interlocutory Order to Permit Immediate Appeal, filed May 23, 2022. Petitioners move the Court, pursuant to Rule 193 and section 7482(a)(2), 1 to include in its April 22, 2022 Order granting Respondent's Motion for Partial Summary Judgment a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion, and that an immediate appeal from that Order may materially advance the ultimate termination of the litigation.
Respondent filed a Motion for Partial Summary Judgment on August 11, 2021, to which petitioners filed a Response on October 28, 2021. The issue presented in respondent's motion pertained to petitioners' claim for a withholding credit of $26,135 for taxable year 2016 in relation to a $130,674 distribution reported on a 2016 Form 1099-R. Respondent argued that the amount of withholding reported in the form was $0 and that this Court lacked jurisdiction to redetermine the credit and change it from $0 to $26,135. In its Order filed April 22, 2022, the Court granted respondent's motion and dismissed petitioners' claim for withholding credit of $26,135.
Discussion
This Court may certify an interlocutory order for an immediate appeal if we conclude that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion, and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. See I.R.C. § 7482(a)(2)(A); see also Rule 193(a); Rosenberg v. Commissioner, 117 T.C. Memo. 2019-52 at *23; Lander v. Commissioner, No. 20-12120-J, 2020 WL 5506476, at *1 (11th Cir. Sept. 2, 2020); Kovens v. Commissioner, 91 T.C. 74, 75 (1988), aff'd without published opinion 933 F.2d 1021 (11th Cir. 1991). The purpose of section 7482(a)(2) is to provide an exception to the "final judgment rule" which limits a litigant's right of appeal to only final decisions of the Tax Court. Gen. Signal Corp. v. Commissioner, 104 T.C. 248, 251 (1995), aff'd, 142 F.3d 546 (2d Cir. 1998). If any one of the three requirements of section 7482 are not satisfied, petitioners' request for certification must be denied. See Id.
All statutory references are to the Internal Revenue Code in effect at all relevant times, and all rule references are to the Tax Court Rules of Practice and Procedure.
Petitioner contends the Court's April 22, 2022 Order involves a controlling question of law where there is a substantial ground for difference of opinion, which is whether this Court lacks jurisdiction to redetermine a withholding credit. Petitioner further contends an interlocutory appeal of the Court's Order is materially important toward advancing, and ultimately terminating, the current litigation. We disagree.
There is no substantial ground for difference of opinion as to whether this Court has jurisdiction to redetermine the amount of a withholding credit. It is well established that this Court does not have jurisdiction to do so. This Court's jurisdiction pursuant to section 6211(b)(1) to determine the amount of a deficiency does not include the authority to redetermine the amount of a withholding credit because credit for withholding "is not a factor in determining the tax deficiency." Trimble v. Commissioner, T.C. Memo. 2018-36, at *7 (citing Forrest v. Commissioner, T.C. Memo. 2011-4, 2011 WL 13626, at *3); see also Pope v. Commissioner, T.C. Memo. 2020-62, at *6. Immediate appeal of the Court's April 22, 2022 Order would not materially advance the ultimate termination of the litigation in this case, but instead would cause unnecessary delay.
Upon due consideration of the foregoing, it is
ORDERED that petitioner's motion for certification of an interlocutory order to permit immediate appeal, filed May 23, 2022, is denied.