Opinion
23585-17 23593-17 23594-17 25174-18 25175-18
01-20-2022
Yosef Sehati a.k.a. Joseph Sehati and Lilly Kohanim-Sehati, et al., Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
L. Paige Marvel Judge
On October 27, 2021, petitioners filed a motion under section 7482(a)(2)(A)for certification of an interlocutory order to permit immediate appeal of the Court's October 21, 2021, Order denying petitioners' motion for partial summary judgment. Respondent filed a response objecting to petitioners' motion on November 22, 2021.
Unless otherwise indicated, all section 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.
Section 7482(a)(2)(A) permits this Court to certify an interlocutory order for immediate appellate review only if the Court concludes 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". See Rule 193(a); Kovens v. Commissioner, 91 T.C. 74, 77 (1988); N.Y. Football Giants, Inc. v. Commissioner, T.C. Memo. 2003-28. Certification of an interlocutory order for immediate appeal is an exceptional measure that courts employ sparingly. See Gen. Signal Corp. v. Commissioner, 104 T.C. 248, 251 (1995); Kovens, 91 T.C. at 78.
The application of section 7482(a)(2) requires a balancing of the policies favoring interlocutory appeals - avoidance of wasted trial time and harm to litigants - against the policies underlying the final judgment rule - avoidance of piecemeal litigation and dilatory and harassing appeals. Kovens, 91 T.C. at 78. Interlocutory orders should be granted only in exceptional cases. Kovens, 91 T.C. at 78 (citing 1958 U.S.C.C.A.N. 5255, 5259, 5260-5261). This is not one of those cases.
As this Court explained in detail in its order denying petitioners' motion for partial summary judgment, which was served on October 21, 2021, petitioners' reliance on the affirmative defense of res judicata was properly rejected because petitioners had waived the right to rely on the defense by not pleading it as required by Rule 39, and because the affirmative defense of res judicata did not apply in any event. In their motion for certification of an interlocutory order to permit an immediate appeal of the Court's October 21, 2021, Order, petitioners have failed to identify a controlling question of law with respect to which there is a substantial ground for difference of opinion, and have failed to demonstrate that an immediate appeal from that order will materially advance the ultimate termination of this litigation. See Kovens, 91 T.C. at 78.
The foregoing considered and for the reasons stated in respondent's response filed November 22, 2021, it is
ORDERED that petitioners' motion for certification of an interlocutory order to permit immediate appeal filed October 27, 2021, is denied.