T.C. Memo. 2005-270
UNITED STATES TAX COURT
JOHN T. HIGGINBOTHAM, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4945-04L. Filed November 21, 2005.
John T. Higginbotham, pro se.
Alex Shlivko, for respondent.
MEMORANDUM OPINION
MARVEL, Judge: This matter is before the Court on
respondent’s motion to dismiss for lack of prosecution.
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Background
By notice of determination dated March 4, 2004, respondent
determined that, pursuant to section 6330,1 he could proceed to
collect by levy the following income tax liabilities:
Tax year Unpaid income tax liability
1992 $24,288.47
1993 11,297.73
1994 12,000.59
1995 3,530.29
1996 8,788.57
1997 4,199.26
1998 2,055.46
1999 814.34
Total 66,974.71
On March 12, 2004, petitioner mailed a letter to the Court,
which we filed on March 16, 2004, as petitioner’s imperfect
petition. Because the imperfect petition did not meet the
requirements of Rule 331(b), the Court ordered petitioner to file
a proper amended petition by May 3, 2004. On April 26, 2004, the
Court filed petitioner’s amended petition seeking review of
respondent’s determination to proceed by levy with collection of
petitioner’s Federal income tax liabilities and seeking a
redetermination of petitioner’s employment status2 with respect
1
All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code in effect at all relevant times.
2
Although petitioner checked the box on the petition form
indicating that his petition was for a redetermination of
employment status, petitioner appears to have done so as a result
of a misunderstanding. Petitioner is appealing respondent’s
(continued...)
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to his 1992, 1993, 1994, 1995, 1996, 1997, 1998, and 1999 taxable
years. Petitioner resided in New York, New York, when his
petition was filed.3
By letter dated July 26, 2004, respondent contacted
petitioner to schedule a meeting for August 16, 2004, to discuss
a stipulation of facts in this case. By letter dated August 10,
2004, petitioner informed respondent that he would be unable to
attend the scheduled meeting due to physical injuries received
during the previous month. Petitioner also stated that he had
begun gathering documentation for his case and needed respondent
to send him copies of his tax returns because petitioner’s copies
were “in storage”. By letter dated October 8, 2004, respondent
rescheduled the meeting for November 10, 2004. Petitioner
canceled the November 10, 2004, meeting by a telephone call to
respondent. Respondent rescheduled the meeting for December 3,
2004, and sent petitioner copies of his 1993, 1994, 1995, 1998,
2
(...continued)
determination that respondent could proceed to collect by levy
petitioner’s unpaid income tax liabilities. One of petitioner’s
arguments in support of his claim that he does not owe the
liabilities is that he was an employee, and his employers should
have withheld income tax from his wages. Petitioner apparently
checked the employment status redetermination box because of this
argument. For reasons stated in this opinion, we do not
separately address petitioner’s argument.
3
Petitioner alleges that the unpaid income tax liabilities
are the responsibility of his various employers throughout the
years in question. Petitioner also alleges that his 1992 and
1993 income tax liabilities were discharged in a ch. 7 bankruptcy
proceeding on Dec. 7, 1993.
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and 1999 tax returns.4 Petitioner failed to attend the December
3, 2004, meeting, and he did not contact respondent to discuss
rescheduling options.
This case was first set for trial during the Court’s March
14, 2005, New York, New York, trial session. A notice setting
case for trial, dated October 8, 2004, and a standing pretrial
order were sent to petitioner. On December 27, 2004, respondent
filed requests for admission. Petitioner’s response to the
request for admissions was due on January 24, 2005. The Court
did not receive a response to the request for admissions from
petitioner, and, as a result, the statements of fact in the
request for admissions were deemed admitted pursuant to Rule
90(c).
By letter dated February 4, 2005, petitioner stated that he
did not attend the December 3, 2004, meeting because respondent
had not mailed him his remaining tax returns. Petitioner also
stated that he had contacted his previous employers, who informed
him that they no longer had his records for the years in issue.
He requested copies of his Forms W-2, Wage and Tax Statements,
and Forms 1099 from respondent for years 1989 through 1993.
On March 2, 2005, petitioner, via teleconference with the
Court and respondent’s counsel, requested a continuance due to
4
Respondent contends that these were the only returns of
petitioner that respondent possessed as of that date.
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his recent hospitalization. The Court ordered petitioner to file
a written motion for continuance, supported by a doctor’s
statement, by the end of the business day on March 8, 2005.
Petitioner did not file a written motion at that time, nor did he
attend the March 14, 2005, trial session. At trial, respondent
moved to dismiss for lack of prosecution, and the Court granted
the motion.
In a letter to the Court dated March 10, 2005, petitioner
requested a continuance. Petitioner’s March 10, 2005, letter was
filed on March 14, 2005, as petitioner’s motion for continuance.
On March 29, 2005, petitioner supplemented his motion for a
continuance with a letter from his doctor stating that petitioner
was disabled and bedridden. By order dated April 5, 2005, the
Court vacated its oral direction on the record granting
respondent’s motion to dismiss, denied the motion to dismiss, and
granted petitioner’s motion for a continuance. The April 5,
2005, order specifically warned petitioner that “No further
continuances will be granted, barring unusual circumstances” and
scheduled the case for trial during the Court’s New York, New
York, trial session beginning on June 13, 2005.
By letter dated May 12, 2005, respondent scheduled a
conference with petitioner for May 26, 2005, to discuss the
preparation of a stipulation of facts in anticipation of the June
13, 2005, trial. In the letter, respondent stressed the
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importance of complying with Rule 91, which requires the parties
to stipulate undisputed facts. Respondent also advised
petitioner of the possibility of a penalty resulting from the
initiation of a proceeding for the purposes of delay or to raise
frivolous or groundless arguments and the possibility of
dismissal of the case if he did not attend either the scheduled
meeting or the June 13, 2005, trial session. By letter dated
June 3, 2005, respondent scheduled a conference with petitioner
for June 8, 2005. The June 3, 2005, letter contained the same
warnings as the May 12, 2005, letter.
On or about June 9, 2005, the parties had a teleconference
with the Court. Petitioner requested that the case be continued
again for medical reasons. The Court advised petitioner to
attend the trial session and warned him that his motion for a
second continuance would be denied unless he had not been given
an opportunity to present his case before respondent’s Appeals
Office.5
5
As summarized in both the notice of determination and in
attachments to the motion to dismiss, respondent repeatedly
offered petitioner opportunities to meet with respondent and to
present information concerning his allegations that collection by
levy should not proceed. As part of a remarkably consistent
pattern of nonresponsiveness, petitioner failed to appear at
meetings or to respond to requests for information. Because
petitioner failed to meet and present information in support of
his contention that collection should not proceed, the Appeals
officer assigned to petitioner’s sec. 6330 proceeding determined,
after reviewing the administrative record and making the
determinations required by sec. 6330, that collection by levy
(continued...)
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On June 13, 2005, petitioner failed to appear at the
calendar call. Respondent’s counsel appeared and presented a
second motion to dismiss for lack of prosecution, along with
documentary evidence in support of the motion to dismiss. The
Court took respondent’s motion to dismiss under advisement.
Respondent’s motion to dismiss represents that (1) all
material allegations of fact set forth in the amended petition in
support of the assignments of error have been denied in the
answer; (2) petitioner has not raised any issues upon which
respondent has the burden of proof, and respondent has not
conceded any error assigned in the amended petition; (3)
petitioner has not produced any evidence to support the
assignments of error in the amended petition; and (4) petitioner
has failed to respond to respondent’s letters requesting that
petitioner attend conferences and produce his records for
respondent’s review.
Discussion
The Court may dismiss a case at any time and enter a
decision against the taxpayer for failure properly to prosecute
his case, failure to comply with the Rules of the Court or any
order of the Court, or for any cause that the Court deems
sufficient. Rule 123(b). Dismissal is appropriate where the
5
(...continued)
could proceed.
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taxpayer’s failure to comply with the Court’s Rules and orders is
due to willfulness, bad faith, or fault. Dusha v. Commissioner,
82 T.C. 592, 599 (1984). In addition, the Court may dismiss a
case for lack of prosecution if the taxpayer inexcusably fails to
appear at trial and does not otherwise participate in the
resolution of his claim. Rule 149(a); Rollercade, Inc. v.
Commissioner, 97 T.C. 113, 116-117 (1991); Smith v. Commissioner,
T.C. Memo. 2003-266, affd. sub nom. Hook v. Commissioner, 103
Fed. Appx. 661 (10th Cir. 2004).
Petitioner has disregarded the Court’s Rules and standing
pretrial order by failing to cooperate meaningfully with
respondent to prepare this case for trial. Petitioner’s pattern
of canceling or missing scheduled conferences, providing belated
notice, if any, of his intent not to attend them, and ignoring
respondent’s requests for admission made it impossible for the
parties to exchange information, conduct negotiations, or prepare
a stipulation of facts before trial. Petitioner also failed to
prepare and submit a pretrial memorandum before either of the
scheduled trial sessions, and he still has not produced documents
relevant to his case. Petitioner’s most recent request for
continuance was made fewer than 30 days before the June 13, 2005,
trial session and failed to allege exceptional circumstances as
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required by Rule 133,6 which further underscores what appears to
be petitioner’s intentional attempt to unreasonably delay the
proceedings. See Williams v. Commissioner, 119 T.C. 276, 279-280
(2002).
Petitioner was repeatedly warned by respondent’s counsel and
by the Court of the consequences of failing to prepare for trial
and of failing to appear at trial. Despite those warnings,
petitioner repeatedly failed to make any reasonable effort to
demonstrate his good faith and his willingness to prepare his
case for trial. Although petitioner stated that he would forward
numerous documents to respondent, he never sent anything. In
fact, respondent had to send petitioner copies of eight of
petitioner’s tax returns to get petitioner to communicate with
him at all. Furthermore, petitioner did not appear at the June
13, 2005, trial session or document any legitimate reason for his
failure to do so.
We find that petitioner has failed to comply with the
Court’s Rules and orders and has failed properly to prosecute
this case. See Rollercade, Inc. v. Commissioner, supra at 116-
117; Smith v. Commissioner, supra. Petitioner’s course of
conduct throughout the proceedings demonstrates that these
6
Under Rule 133, a motion for continuance filed 30 days or
less before the trial date will be denied unless the ground for
continuance arose within that period or there was good reason for
not making the motion sooner.
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failures are due to his willfulness, bad faith, or fault, and we
conclude that dismissal of this case is appropriate. Petitioner
has not raised any issue upon which respondent has the burden of
proof. See Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115
(1933) (Commissioner’s determinations are presumed correct, and
taxpayer bears the burden of proving them wrong).7
Accordingly, we shall grant respondent’s motion to dismiss
this case for lack of prosecution, and we shall enter a decision
holding that the Appeals Office did not abuse its discretion in
determining that respondent may proceed with the proposed
collection action.
An appropriate order
of dismissal and decision
will be entered.
7
Because petitioner failed to cooperate with respondent’s
requests for information, documents, meetings, and interviews,
the burden of proof does not shift to respondent. See sec.
7491(a).