PS3-023                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2715
                                       ___________

                               BARBARA KUPERSMIT,
                                           Appellant

                                             v.

                     COMMISSIONER OF INTERNAL REVENUE
                      ____________________________________

                       On Appeal from the United States Tax Court
                                  (T.C. No. 13428-14)
                      Tax Court Judge: Honorable David Gustafson
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 20, 2015
               Before: FISHER, SHWARTZ and COWEN, Circuit Judges

                           (Opinion filed: November 23, 2015)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Barbara Kupersmit appeals pro se from the Tax Court’s order and decision of July

2, 2015, which found in favor of Kupersmit that she was not liable for a $5000 frivolous-


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent
return penalty assessed pursuant to I.R.C. § 6702(a). Kupersmit also appeals the Tax

Court’s order denying her motion to consolidate her case with Tax Court proceedings

involving her husband, Harold Kupersmit. For the reasons that follow, we will dismiss

the appeal of the Tax Court’s order and decision in favor of Kupersmit for lack of

jurisdiction, and we will affirm the Tax Court’s order denying Kupersmit’s motion to

consolidate.

      This appeal concerns a joint 2007 Form 1040 tax return that Kupersmit and her

husband Harold signed and filed in 2012 amidst disputes between the IRS and the

Kupersmits. The IRS determined that the return was frivolous and assessed a $5000

penalty, then sought to levy Kupersmit’s assets to collect on the penalty. Although both

Kupersmit and her husband Harold had signed the return, the IRS did not then also

attempt to levy Harold’s assets. The dispute eventually came before the Tax Court, with

a trial set for June 2015. On May 18, 2015, less than a month before trial in the Tax

Court, Kupersmit moved to join the case involving her frivolous-return penalty with other

tax proceedings involving her husband Harold, which had been set for trial in September

2015. The Tax Court construed the motion as a motion to consolidate, and denied the

motion as untimely and because Harold Kupersmit’s tax matters did not share a common

question of law or fact with Kupersmit’s frivolous-return matter.

      At trial, the Tax Court concluded that the IRS had not met its burden to show that

the 2007 return was frivolous, and thus found that Kupersmit was not liable for the $5000

penalty. During those proceedings, Kupersmit requested that the Tax Court join Harold’s
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potential liability for the frivolous return with her own case, but the Tax Court denied that

request. The Tax Court then issued a written Order and Decision on July 2, 2015, which

held that Kupersmit was not liable for the frivolous-return penalty. Kupersmit timely

appealed, seeking to reverse the Tax Court’s denial of her request for consolidation and

requesting various other forms of relief.

       As an initial matter, the Commissioner argues that we have no appellate

jurisdiction over the Tax Court’s ruling concerning Kupersmit’s frivolous-return penalty.

Appellate jurisdiction over Tax Court orders is established by I.R.C. § 7482(a)(1), which

provides: “The United States Courts of Appeals . . . shall have exclusive jurisdiction to

review the decisions of the Tax Court . . . in the same manner and to the same extent as

decisions of the district courts in civil actions tried without a jury . . . .” A party may not

appeal a Tax Court decision that went in his or her favor. Ryan v. Comm’r, 680 F.2d

324, 325 (3d Cir. 1982). Here, Kupersmit seeks to appeal a ruling that went in her favor.

As a result, we lack jurisdiction over Kupersmit’s appeal from the July 2, 2015 Order and

Decision concerning the government’s attempt to impose a frivolous-return penalty on

Kupersmit.

       That leaves us to consider the denial of Kupersmit’s motion to consolidate her

frivolous-return case with tax proceedings involving her husband Harold. We may

consider that denial on appeal because for purposes of our jurisdiction, that “Tax Court

ruling was a final order in that there was nothing left to do but appeal.” See id. at 326.


                                               3
The Tax Court may order a joint hearing or trial of matters in issue when cases involving

a common question of law or fact are pending before the court. Tax Ct. R. 141(a). The

decision on whether to consolidate matters is reviewed for an abuse of discretion. Cohen

v. Comm’r, 176 F.2d 394, 396 (10th Cir. 1949). Here, there is no indication that the Tax

Court abused its discretion. Kupersmit’s husband Harold has had multiple pending tax

matters that will likely eventually determine any tax deficiency he owes—including,

perhaps, whether he owes any frivolous-return penalties. Adding issues from those

matters to Kupersmit’s comparatively simple case involving a single collection effort

would not conserve judicial resources or assist the parties. Whatever deficiency Harold

might owe, and any collection efforts that might follow from that deficiency, is best

determined in his already-pending tax litigation.

       In light of the foregoing, we will dismiss the appeal in part and affirm the

judgment in part. Kupersmit’s other requests for relief are denied, including the requests

set out in Kupersmit’s opposition filed on November 5, 2015.




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