1 of 12 DOCUMENTS
Erma Schrader, Petitioner-Appellant,
UNITED STATES COURT OF APPEALS FOR
F.2d 361; 1990 U.S. App. LEXIS 18220; 90-2 U.S. Tax Cas. (CCH)
A.F.T.R.2d (RIA) 5701
January 30, 1990, Argued
October 18, 1990, Decided
October 18, 1990, Filed
PRIOR HISTORY: [**1]
from the United States Tax Court; Tax Ct. No. 4724-88.
for Petitioner-Appellant: Barbara C.
Applegarth, argued, Frost & Jacobs, Cincinnati, Ohio, Erma
Counsel for Respondent-Appellee: William F. Nelson,
Revenue Service, Washington, District of Columbia, Gary R. Allen,
William S. Rose, Robert S. Pomerance, David English Carmack, Joel
Rabinovitz, argued, United States Department of Justice, Appellate
Division, Washington, District of Columbia.
JUDGES: Nathaniel R. Jones and James
L. Ryan, Circuit Judges, [**2] and Douglas W. Hillman,
Chief District Judge.
* The Honorable
United States District Court for the Western District of
Michigan, sitting by designation.
Appellant, Erma Schrader appeals the Tax Court's dismissal of
for review of a
deficiency in her 1983 federal income tax. Because we find
dismissal of one
year of a multi-year petition is not a final
appealable order, we
dismiss this appeal for lack of jurisdiction.
Appellee, the Commissioner of Internal
Revenue, determined a deficiency in appellant's federal income tax
years: 1983, 1984 and 1985. On March 8,
1988, the taxpayer filed a pro se petition for redetermination in
the Tax Court
objecting to any income tax deficiencies for all three years. The
moved to dismiss the taxpayer's petition as to tax year
1983 for the reason that it
untimely pursuant to 26 U.S.C. § 6213. On
3, 1988, the
Tax Court issued an order
granting the Commissioner's motion and dismissing the 1983 claim,
leaving the claims for 1984 and 1985 to be adjudicated. This appeal
While neither party addressed the issue of this Court's
its briefs and argument, we are obliged to raise it sua sponte
whenever reason for inquiry exists. Liberty
Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S. Ct.
1202, 47 L. Ed. 2d 435 (1976);Ambrose v. Welch, 729 F.2d 1084
1984) (per curiam).
Our jurisdictional authority to
review decisions of
the Tax Court stems from 26 U.S.C. § 7482(a),
provides in pertinent part: "The
United States Court of Appeals . . . shall have exclusive
review the decisions of the Tax Court
. . . in the same manner and to the same extent as decisions
the district courts in civil actions tried without a jury." An
this nature, challenging the dismissal of one year in a multi-year
the civil context would require certification from the district
court in order to be appealable. Fed. R.
Civ. P. 54(b). However, because no analogue to this certification
to the Tax Court, the appealability
remains an open question.
The definition of "decision" for the purposes of
appealability [**4] under 26 U.S.C. §
7482(a) was specifically addressed by this
in Sampson v. Commissioner of Internal Revenue, 710
F.2d 262 (6th Cir. 1983). Factors we considered relevant to
appealability question there included whether the order would be
later, should the immediate appeal be refused, [*363]
of the entire case. See also, Louisville Builders Supply Co.
Commissioner of Internal Revenue, 294 F.2d 333 (6th Cir. 1961).
Applying these factors to the instant
case counsels us to conclude that the Tax Court's order is not
this juncture. Obviously an order pertaining only to one year
of a multi-year petition does not dispose of the entire case.
taxpayer is in no way impeded from challenging the Tax Court's
the 1983 deficiency upon resolution of the remaining claims.
We reach the same conclusion under the
analysis applied with respect to district court cases under the
final judgment rule embodied in 28 U.S.C. §
Determining whether or not an order is a final decision
that 'the inconvenience
[**5] and costs of piecemeal
review' be weighed against 'the danger of denying justice by
delay.'"United States v. Michigan,
F.2d 503, 506 (6th Cir. 1990), quoting
Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.
311, 13 L. Ed. 2d 199 (1964). The court, as well as the
has a compelling interest in avoiding multiple appeals from a
proceeding whenever possible. Justice will not be compromised by
that appeals from
a multi-year petition be
brought together upon final disposition of
Indeed, in many
instances consideration of all related claims together enhances
Other circuits confronted with this
issue have reached divergent results. While at least two other
implicitly held such orders would be appealable, see,
of Internal Revenue v. Smith Paper, Inc.,
F.2d 126, 129 (1st Cir. 1955); Wilson v.
Commissioner of Internal Revenue, 564 F.2d 1317 (9th Cir. 1977)
cert. denied, 439 U.S.
832, 99 S. Ct. 110, 58 L. Ed. 2d 127 (1978), only the
Circuit squarely addressed the [**6]
In Estate of Yaeger v. Commissioner of
Internal Revenue, 801 F.2d 96, 98 (2nd Cir. 1986) the Second
Circuit held that "Tax
Court decisions are appealable only if they dispose of an entire
we adopt the Second Circuit's reasoning and hold that until the Tax
dispositively rules upon the taxpayer's claims for 1984 and 1985,
does not have jurisdiction over the appeal.
Therefore, this appeal is DISMISSED
lack of appellate jurisdiction.