Harold Wilson - Page 8

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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,              
               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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