Edwin Jones Montgomery, Sr. And Dorothy Scott Montgomery v. Commissioner of Internal Revenue

The Tax Court, without a written opinion, granted the Commissioner’s motion to dismiss a petition for redetermination of income tax deficiencies. It also denied a motion to set aside the order of dismissal. The petitioners, husband and wife, seek review, invoking our jurisdiction under 26 U.S.C. § 7482 .

The noticed deficiencies were for the taxable years 1957, 1958, 1959, and 1960. The Commissioner’s notice of his determination was mailed on December 12, 1963. The taxpayer, within the prescribed ninety-day period, filed his petition for redetermination with the Tax Court on March 12, 1964. Thirty-five days thereafter, on April 17, 1964, the Commissioner moved that the petition be dismissed for taxpayer’s failure properly to prosecute. The taxpayer amended his petition, and at a hearing held on May 27, 1964, the Tax Court held that the petition remained defective and ordered that an adequate amended petition be filed not later than August 20, 1964, or that taxpayer, on August, 26, 1964, show cause as to why the motion to dismiss his petition should not be granted. On August 18,1964, the amended petition was filed. The Commissioner answered on September 17, 1964, and on December…