Terilli v. Commissioner of Internal Revenue , 586 F. App'x 818 ( 2014 )

13-4523
Terilli v. Commissioner of Internal Revenue
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of November, two thousand fourteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 REENA RAGGI,
9 Circuit Judges.
10
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12 ALBERT TERILLI,
13 Petitioner-Appellant,
14
15 -v.- 13-4523
16
17 COMMISSIONER OF INTERNAL REVENUE,
18 Respondent-Appellee.
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: ALBERT TERILLI, pro se, Mount
22 Vernon, NY.
23
24 FOR APPELLEE: MICHAEL J. HAUNGS (with John A.
25 Nolet on the brief) for Tamara
26 W. Ashford, Acting Assistant
27 Attorney General, Department of
28 Justice, Tax Division, Appellate
29 Section, Washington, DC.
30
1 Appeal from an Order and Decision of the United States
2 Tax Court (Lauber, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the appeal be DISMISSED.
6
7 Albert Terilli appeals from the Order and Decision of
8 the United States Tax Court (Lauber, J.), ruling (on the
9 parties’ stipulation) that Terilli owed no income tax
10 deficiency for the taxable year 2009. We assume the
11 parties’ familiarity with the underlying facts, the
12 procedural history, and the issues presented for review.
13
14 Terilli failed to file an income tax return for 2009
15 and the Commissioner of the Internal Revenue Service (“IRS”)
16 assessed a tax deficiency in excess of $13 million and
17 penalties. After Terilli provided documentation to the IRS,
18 the parties agreed that Terilli, in fact, owed nothing.
19 Terilli then filed a petition in the Tax Court challenging
20 the deficiency and penalties. The IRS prepared a proposed
21 decision reflecting the parties’ agreement that Terilli owed
22 nothing, and filed a motion for entry of the decision.
23 Terilli objected on the ground that the proposed decision
24 would not result in a determination of the amount of his
25 claimed net operating loss (“NOL”) in 2009. After a
26 hearing, and an order to show cause why the decision should
27 not be entered, the Tax Court granted the motion for entry
28 of judgment. The Tax Court concluded that “[r]esolving a
29 dispute as to the existence and size of a NOL . . . would
30 not affect [its] decision” and “would simply provide an
31 advisory opinion.”
32
33 The Tax Court treated Terilli’s motion for
34 reconsideration as a motion to vacate its decision. The Tax
35 Court determined that Terilli’s motion was untimely and, in
36 any event, meritless because the motion did not show unusual
37 circumstances or substantial error and simply reiterated
38 previously rejected arguments. Terilli appealed.
39
40 “One of the prerequisites to appellate
41 jurisdiction . . . is that the appellant has standing to
42 pursue the appeal. Because standing to appeal is conferred
43 only on parties ‘aggrieved’ by the judgment, a party
44 generally does not have standing to appeal when the judgment
45 terminates the case in his favor.” Concerned Citizens of
46 Cohocton Valley, Inc. v. N.Y.S. Dep’t of Envtl.
47 Conservation, 127 F.3d 201, 204 (2d Cir. 1997) (internal
2
1 citations omitted). Terilli cannot show that he was
2 aggrieved by any aspect of the Tax Court’s Order and
3 Decision. See In re DES Litig., 7 F.3d 20, 25 (2d Cir.
4 1993). The Order and Decision reflected the IRS’s
5 concession that no deficiency or penalties were owed; a
6 determination of a 2009 NOL could not have affected the
7 resolution of the dispute. See Comm’r v. McCoy, 484 U.S. 3,
8 6 (1987) (per curiam) (“[T]he court of appeals lacks
9 jurisdiction to decide an issue that was not the subject of
10 the Tax Court proceeding or to grant relief that is beyond
11 the powers of the Tax Court itself.”); North Carolina v.
12 Rice, 404 U.S. 244, 246 (1971) (“[F]ederal courts are
13 without power to decide questions that cannot affect the
14 rights of litigants in the case before them.”); Roderick v.
15 Comm’r, 57 T.C. 108, 112-13 (1971) (“What petitioners are
16 asking is that we render an advisory opinion . . . . This
17 we cannot do.”).
18
19 For the foregoing reasons, and finding no merit in
20 Terilli’s other arguments, we hereby DISMISS the appeal.
21
22 FOR THE COURT:
23 CATHERINE O’HAGAN WOLFE, CLERK
24
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