Derksen v. Commissioner
United States Tax Court
Rules 30 and 41(a), Tax Court Rules of Practice and Procedure. -- Respondent filed a motion to dismiss for failure to state a claim; subsequently, petitioner sought leave to file an amended petition. Held: Leave to file amended petition is not necessary where no responsive pleading has been filed; motion to dismiss is not a responsive pleading. Rules 41(a) and 30, Tax Court Rules of Practice and Procedure.
Read the full summary
Rules 30 and 41(a), Tax Court Rules of Practice and Procedure. -- Respondent filed a motion to dismiss for failure to state a claim; subsequently, petitioner sought leave to file an amended petition. Held: Leave to file amended petition is not necessary where no responsive pleading has been filed; motion to dismiss is not a responsive pleading. Rules 41(a) and 30, Tax Court Rules of Practice and Procedure. Amended petition relates back to time of filing original petition and will be considered in light of the motion to dismiss. Amended petition fails to state a claim upon which relief can be…
1Opinion of the Court
OPINION
Featherston, Judge:
This case was assigned to Special Trial Judge Helen A. Buckley pursuant to the provisions of section 7456(d) and Rule 180.1 The Court agrees with and adopts her opinion which is set forth below.
OPINION OF THE SPECIAL TRIAL JUDGE
Buckley, Special Trial Judge: This case is before the Court on respondent’s motion pursuant to Rule 40 to dismiss for failure to state a claim upon which relief can be granted. Additionally, we consider petitioner’s motion for leave to file an amended petition.
Petitioner resided-in Brandon, Wisconsin, at the time the petition was filed.
Responde…
2Cases cited21 opinions
- Foman v. DavisSupreme Court of the United States · 1962
- Welch v. HelveringSupreme Court of the United States · 1933
- Rowlee v. CommissionerUnited States Tax Court · 1983
- McCoy v. CommissionerUnited States Tax Court · 1981
- Norman E. McCoy and Mary Louise McCoy v. Commissioner of Internal RevenueCourt of Appeals for the Ninth Circuit · 1983
16 more not listed; retrieve them via the Exa API.
3Cited by11 opinions
- Wheeler v. Comm'rUnited States Tax Court · 2006
- Barbados 6, Ltd. v. CommissionerUnited States Tax Court · 1985
- Logan v. CommissionerUnited States Tax Court · 1986
- Guralnik v. Comm'rUnited States Tax Court · 2016
- Barbados 6, Ltd. v. CommissionerUnited States Tax Court · 1985
6 more not listed; retrieve them via the Exa API.