JEAN L. MAY, PETITIONER-APPELLEE, CLIFFORD MAGEE MAY, INTERVENOR-APPELLANT,
v.
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
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The denial of a motion to intervene, when intervention is a matter of discretion, is appealable only upon a clear abuse of discretion.
Clifford Magee May sought to intervene in a tax redetermination proceeding initiated by his former wife, Jean L. May. The Tax Court denied his motion …
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PER CURIAM:
Clifford Magee May appeals from the denial by the Tax Court of his motion to intervene in a proceeding initiated by Jean L. May, his former wife, for redetermination of a tax deficiency determined against her. Intervention in a proceeding before it has been held to be within the sound discretion of the Tax Court. See Levy Trust v. Commissioner, 341 F. 2d 93, 94 (5th Cir. 1965); Cincinnati Transit, Inc. v. Commissioner, 55 T.C. 879, 883 (1971), aff’d, 455 F. 2d 220, 221 (6th Cir. 1972); Central Union Trust Co. v. Commissioner, 18 B.T.A. 300, 303 (1929).
Under Federal Rule of Civil Procedure 24(b), where intervention is a matter of discretion and not of right, the denial of a motion to intervene is appealable only where there is a clear abuse of discretion, Allen Calculators, Inc. v. National Cash Register Co., 322 U.S. 137, 142, 64 S.Ct. 905, 88 L.Ed. 1188 (1944); Brennan v. Silvergate Dist. Lodge No. 50, 503 F. 2d 800, 803 (9th Cir. 1974); Van Hoomissen v. Xerox Corp., 497 F. 2d 180, 181 (9th Cir. 1974), and we have been directed to no authority holding that a different principle should apply upon review of a denial by the Tax Court of leave to intervene.
After a careful review of the record, we conclude that the Tax Court did not abuse its discretion in denying said motion, and that, therefore, the denial of the motion to intervene is not appealable. See Hodgson v. United Mine Workers, 153 U.S.App.D.C. 407, 473 F. 2d 118, 126-27 & n. 40 (1972) (under Rule 24(b), whether discretion was abused is treated as a jurisdictional question; upon concluding that the district court’s denial was proper, the appellate court will dismiss the appeal rather than affirm); cf. O’Donnell v. Wien Air Alaska, Inc., 551 F. 2d 1141, 1148 (9th Cir. 1977) (federal appellate jurisdiction depends upon determination whether a dispute under the Railway Labor Act is “major” or “minor”).
APPEAL DISMISSED.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Allen Calculators, Inc. v. Nat'l Cash Register Co., 322 U.S. 137 (U.S. 1944)
- Hodgson v. United Mine Workers of Am., 473 F.2d 118 (D.C. Cir. 1972)
- Brennan v. Silvergate Dist. Lodge NO. 50, Int'l Ass'n OF MacHinists & Aerospace Workers, AFL-CIO, 503 F.2d 800 (9th Cir. 1974)
- van Hoomissen v. Xerox Corp., 497 F.2d 180 (9th Cir. 1974)
- O'Donnell v. Wien AIR Alaska, Inc., 551 F.2d 1141 (9th Cir. 1977)
- Sadie v. Levy Tr., 341 F.2d 93 (5th Cir. 1965)
- Cincinnati Transit, Inc. v. Commissioner OF Internal Revenue, 455 F.2d 220 (6th Cir. 1972)