Pejouhesh v. CIR

Case: 22-60469 Document: 00516743974 Page: 1 Date Filed: 05/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 9, 2023
No. 22-60469 Lyle W. Cayce
____________ Clerk
Hassan Ali Pejouhesh,
Petitioner—Appellant,
versus
Commissioner of Internal Revenue,
Respondent—Appellee.
______________________________
Appeal from a Decision of the
United States the Tax Court
Agency No. 34748-21
______________________________
Before Clement, Graves, and Higginson, Circuit Judges.
James E. Graves, Jr., Circuit Judge:
Hassan Ali Pejouhesh, a federal prisoner proceeding pro se, moves for
leave to proceed in forma pauperis and a change of venue for his tax appeal to
the United States Court of Appeals for the District of Columbia Circuit.
However, for the reasons stated below, we dismiss this appeal for lack of
jurisdiction.
In November 2021, Pejouhesh petitioned the Tax Court alleging that
he had not received economic impact payments (“EIPs”) under the CARES
Act despite being eligible. See 26 U.S.C. § 6428 et seq. The Commissioner of
Case: 22-60469 Document: 00516743974 Page: 2 Date Filed: 05/09/2023
No. 22-60469
Internal Revenue (“CIR”) moved to dismiss the claim, arguing that no notice
of deficiency, as authorized by 26 U.S.C. § 6212(a), and required by 26
U.S.C. § 6213(a), had been sent to Pejouhesh.
On February 14, 2022, the Tax Court directed Pejouhesh to submit an
objection to the motion to dismiss. Following the request and subsequent
approval of two extensions to file an objection, Pejouhesh moved once more
for an extension of time. On July 29, 2022, the Tax Court denied the motion
for an extension of time, granted the CIR’s motion to dismiss, and ordered
that the case be dismissed after finding that Pejouhesh failed to establish
jurisdiction.
However, after the court entered its Order, Pejouhesh filed a pleading
entitled “Motion Petitioner Objection to Respondent Motion to Dismiss for
Lack of Jurisdiction.” 1 In it, he asserts that he attached a valid notice of
deficiency to his petition. In addition, he argues that he submitted a Form
3531, titled “Request for Signature or Missing Information to Complete
Return,” which details how his tax return for the 2020 tax year was
incomplete because it lacked a valid original signature.
A few weeks later, Pejouhesh filed a notice of appeal in this court from
the Order where, inter alia, he challenges the failure of the Tax Court to
consider his newest pleading. To date, the Tax Court has not issued a ruling
on Pejouhesh’s “Motion Petitioner Objection to Respondent Motion to
Dismiss for Lack of Jurisdiction.”
_____________________
1
Generally, this court construes pro se filings liberally. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993). Read broadly, this motion will be construed as a Motion to Vacate
or Revise as the substance of Pejouhesh’s pleading directly challenges the basis of the Tax
Court’s Order. See Tax Ct. Rule 162.
2
Case: 22-60469 Document: 00516743974 Page: 3 Date Filed: 05/09/2023
No. 22-60469
The United States Courts of Appeals have exclusive jurisdiction to
review decisions of the Tax Court. 26 U.S.C. § 7482(a)(1). For a Tax Court’s
decision to be reviewable, it must be final. Nixon v. Comm’r, 167 F.3d 920,
920 (5th Cir. 1999); see also 28 U.S.C. § 1291 (“The courts of ap-
peals . . . shall have jurisdiction of appeals from all final decisions of the dis-
trict courts of the United States . . . .”). A “final decision” typically is one
that puts an end to the litigation on the merits and “leaves nothing for the
court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437
U.S. 463, 467 (1978). “This finality rule is designed to avoid piecemeal trial
and appellate litigation and the delays and costs of multiple appeals upon both
parties and courts, as well as to provide a clear test so that needless precau-
tionary appeals need not be taken lest substantive rights be lost.” Newpark
Shipbuilding & Repair, Inc., v. Roundtree, 723 F.2d 399, 401 (5th Cir. 1984).
As such, absent certification under 28 U.S.C. § 1292(b) or a separate
Rule 54(b) type order, an order disposing of fewer than all parties or claims
in an action is unappealable, subject to exceptions not applicable here. Nixon,
167 F.3d at 920. That is what we have here. Since no certification under
§ 1292(b) or a separate Rule 54(b) type order exists, and Pejouhesh’s plead-
ing is still pending before the Tax Court, we lack jurisdiction over this appeal.
It is therefore ORDERED that this appeal is dismissed sua sponte for
lack of jurisdiction without prejudice. All pending motions are DENIED as
moot.
3