Shealy v. Commissioner, IRS , 155 F. App'x 717 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1670
DAVID J. SHEALY,
Petitioner - Appellant,
versus
COMMISSIONER OF INTERNAL REVENUE,
Respondent - Appellee.
On Appeal from the United States Tax Court. (Tax Ct. Nos. 04-
15630; 04-23850)
Submitted: November 22, 2005 Decided: December 1, 2005
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
David J. Shealy, Appellant Pro Se. Bruce Raleigh Ellisen, Michael
J. Haungs, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David J. Shealy noted his appeal from the tax court’s
orders dismissing his two petitions in which he challenged the
Commissioner’s deficiency determinations for the tax years 1997 and
1998 and 2001 and 2002. Shealy has filed a motion to dismiss his
appeal, asserting that the underlying tax court orders are now null
and void. Because Shealy’s motion to dismiss his appeal is based
on the incorrect conclusion that the tax court’s orders are null
and void, we deny his motion to dismiss his appeal.
With regard to the tax court’s dismissal of Shealy’s
petition for the 2001 and 2002 tax years, we have reviewed the
record and the tax court’s opinion and find no reversible error.
Accordingly, we affirm this portion of the appeal for the reasons
stated by the tax court. See Shealy v. Comm’r, No. 04-15630 (U.S.
Tax Ct. Apr. 11, 2005).
We dismiss the appeal from the tax court’s dismissal of
Shealy’s petition for the 1997 and 1998 tax years for lack of
jurisdiction because the notice of appeal was not timely filed.
The notice of appeal from a decision of the tax court must be filed
within ninety days of the entry of the order. 26 U.S.C. § 7483(2000); Fed. R. App. P. 13(a). This appeal period is
jurisdictional. Spencer Med. Assocs. v. Comm’r, 155 F.3d 268, 269
(4th Cir. 1998). The tax court’s order was entered on the docket
on March 8, 2005. Shealy had until June 6, 2005, to file his
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notice of appeal. Shealy’s notice of appeal was filed on June 7,
2005.* Because Shealy failed to file a timely notice of appeal
from the dismissal order, we dismiss this portion of the appeal.
see Spencer Med. Assocs., 155 F.3d at 269.
Shealy has filed a motion for oral rehearing of his cases
by the tax court. We deny this motion. Accordingly, we affirm the
tax court’s order in No. 04-15630, and dismiss the appeal from the
tax court’s order in No. 04-23850. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
*
When a document is mailed to the tax court, it is deemed
filed in the tax court on the date on which it was postmarked. 26
U.S.C. § 7502(a); Fed. R. App. P. 13(b).
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