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has jurisdiction over the petition filed herein. See Blore v.
Commissioner, T.C. Memo. 2000-326.
2. Timeliness of Respondent’s Motion To Dismiss
The record in this case demonstrates that respondent’s
motion to dismiss was timely filed. In particular, the Court’s
records indicate that the petition was served on respondent on
January 16, 2001. See Rule 21(a). Consequently, respondent had
45 days from that date to file his motion to dismiss. See Rule
36(a). We are satisfied that respondent timely mailed his motion
to dismiss to the Court on March 2, 2001--exactly 45 days after
January 16, 2001. See Rule 25(a). Because respondent’s motion
to dismiss was timely mailed (and thus timely filed), the Court
will direct the Clerk of the Court to return to petitioner
unfiled petitioner’s letter (with attachments) dated March 26,
2001.
3. Respondent’s Motion To Dismiss
Rule 40 provides that a party may file a motion to dismiss
for failure to state a claim upon which relief can be granted.
We may grant such a motion when it appears beyond doubt that the
party's adversary can prove no set of facts in support of a claim
which would entitle him or her to relief. See Conley v. Gibson,
355 U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th
Cir. 1982). Respondent contends that, even assuming the facts
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