No. 06-1161.United States Court of Appeals, District of Columbia Circuit.
Filed On: February 1, 2007.
BEFORE: Henderson and Tatel, Circuit Judges.
Per Curiam
ORDER
Upon consideration of the motion to seal the court’s records, the response thereto, and the reply; appellant’s brief, the supplement thereto, and appendix; the petition for writ of habeas corpus ad prosequendum; the motion to dismiss for improper venue or, alternatively, to transfer the appeal to the Fifth Circuit, and the response and supplements thereto; the notice pursuant to Federal Rule of Appellate Procedure 28(j) and affidavit filed November 2, 2006; and the motion for extension of time for appellee’s brief filed November 6, 2006, and the response thereto, it is
ORDERED the motion to transfer be granted. The proper venue for appellate review of the United States Tax Court’s dismissal of appellant’s petition seeking redetermination of tax liability is the United States Court of Appeals for the circuit encompassing appellant’s legal residence at the time his Tax Court petition was filed or, if his legal residence is not located in any circuit, this court. See26 U.S.C. § 7482(b)(1); Estate of Israel v. Comm’r of IRS, 159 F.3d 593, 595 (D.C. Cir. 1998). Even though appellant has submitted documentation to show he was born outside the United States, that same documentation indicates he has lived in the United States since the age of one year. Appellant does not dispute that he was incarcerated in Texas when he filed the petition and has offered no evidence to support his claim that his legal residence was anywhere other than Texas. Moreover, appellant’s designation of Washington, D.C. as the place of trial by the Tax Court has no bearing on the venue for appeal. Because the parties have not jointly agreed that the appeal may be heard by this court, venue is not proper here. See26 U.S.C. § 7482(b)(2); In re Stone, 569 F.2d 156, 158 (D.C. Cir. 1978) (per curiam). Because appellant’s legal residence is in Texas, which is located within the Fifth Circuit, this appeal, along with the pending motion to seal the record, will be transferred to the United States Court of Appeals for the Fifth Circuit. See Alexander v.Comm’r, 825 F.2d 499 (D.C. Cir. 1987) (per curiam). It is
FURTHER ORDERED that the petition for writ of habeas corpus ad prosequendum and motion for extension of time be dismissed as moot.
The Clerk is directed to transmit the original file and a certified copy of this order to the United States Court of Appeals for the Fifth Circuit. Pursuant to the court’s order filed September 15, 2006, the Clerk is further directed to maintain under seal appellant’s brief and the appendix contained therein, the supplement to the brief filed June 19, 2006, and the original Tax Court record received by this court on August 7, 2006. This instruction, directed to the Clerk of this court pending transfer of the case, is without prejudice to the Fifth Circuit’s consideration of appellant’s motion to seal the record.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.