                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-22-2005

In Re: Stephens
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2123




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"In Re: Stephens " (2005). 2005 Decisions. Paper 507.
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APS-362                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-2123
                                   ________________


                            IN RE: ROBERT P. STEPHENS,

                                                 Petitioner

                       ____________________________________

                      On a Petition for Writ of Mandamus from the
                                 United States Tax Court
                               (Related to No. 14219-04)
                        Tax Court Judge: Honorable Joel Gerber
                      _____________________________________

       Submitted under Rule 21, Fed. R. App. Pro. or for Possible Summary Action
                                  September 15, 2005

            Before: SLOVITER, FUENTES and NYGAARD, Circuit Judges

                               (Filed September 22, 2005 )

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       A pro se petitioner, Robert P. Stephens, brings a petition for writ of mandamus.1


   1
    Although Stephens’ petition is styled as a petition for writ of mandamus and
prohibition, it is properly considered a petition for writ of mandamus, because he asks this
Court to mandate action. See United States v. Santtini, 963 F.2d 585, 593 (3d Cir. 1992).
His petition is additionally captioned as a petition for writ of error, the implications of
In his petition, he asks this Court to order the Tax Court to reconsider denied motions; to

state whether he is in “administrative default” and remove any designation of

“administrative default” from the record; to issue summary judgment in his favor; to issue

an order to the Clerk of Tax Court; to recognize that the IRS has no jurisdiction over him;

to correct testimony in the Tax Court record; and to rescind the order dismissing his Tax

Court case.

          To the extent that Stephens seeks a writ of mandamus, we will deny his petition.

Mandamus is an extraordinary remedy. See Kerr v. U.S. Dist. Court, 426 U.S. 394, 402

(1976). Under the All Writs Act, 28 U.S.C. § 1651, we may issue a writ of mandamus

only when it is necessary or appropriate in aid of our jurisdiction. See Allied Chemical

Co. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). A writ of mandamus is not necessary or

appropriate because Stephens can seek the relief he desires in an ordinary appeal. See

Cheney v. U.S. Dist. Court, 124 S. Ct. 2576, 2587 (2004); Westinghouse Elec. Corp. v.

Republic of Philippines, 951 F.2d 1414, 1422 (3d Cir. 1991).

          To the extent that Stephens has filed an appeal, evidenced by his requests for

appellate-type relief and a “writ of error,” we will summarily affirm the Tax Court’s

order.2 As the Tax Court held, it lacked jurisdiction to consider Stephens’ untimely

claims relating to the notices of deficiency for the 2000 and 2001 tax years. See 26



which will be discussed in more detail in the text of this opinion.
   2
       In addition, his request for a writ of error is denied.

                                                  2
U.S.C. § 6213(a) (2005); Andrews v. Comm’r, 563 F.2d 365, 366 (8th Cir. 1977).

Similarly, as the Tax Court concluded, it was without jurisdiction to review Stephens’

claims related to the proposed levy because no notice of determination had issued. See

Moorhous v. Comm’r, 116 T.C. 263, 269 (2001).

       Furthermore, Stephens failed to state a claim upon which relief can be granted. In

addition to bringing claims related to the notice of levy and contesting the assessed

deficiencies for the 2000 and 2001 tax years, Stephens protested a tax deficiency assessed

for the 2002 tax year. He did not allege specific claims of error; instead, he presented

baseless legal arguments to generally object to taxation and the existence of the Internal

Revenue Service and the Internal Revenue Code.

       For the foregoing reasons, we will summarily affirm the order of the Tax Court

insofar as Stephens appeals from the Tax Court’s order. We also will deny Stephens’

petition for writ of mandamus because he is not entitled to the extraordinary remedy of

mandamus.




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