T.C. Memo. 2007-99
UNITED STATES TAX COURT
CONNIE LUCIC, Petitioner, AND MICHEL J. LUCIC, Intervenor v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21310-04. Filed April 24, 2007.
Timothy J. Burke, for petitioner.
Michel J. Lucic, pro se.
Nina P. Ching, for respondent.
MEMORANDUM OPINION
THORNTON, Judge: This case is before the Court on
respondent’s motion for entry of decision.
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Background
Petitioner and intervenor filed a joint tax return for
taxable year 2000. Taxes were reported on the joint tax return
but were not paid.
Petitioner submitted to respondent a Form 8857, Request for
Innocent Spouse Relief, with respect to her 2000 joint liability.
Respondent denied the requested relief. Petitioner timely
petitioned this Court, seeking relief pursuant to section
6015(f).1 When she filed her petition, petitioner resided in
Norwood, Massachusetts.
On December 29, 2004, respondent notified intervenor of
petitioner’s filing of her petition and of intervenor’s right to
intervene. On January 7, 2005, intervenor filed a timely notice
of intervention. On February 23, 2005, intervenor filed an
answer to petitioner’s amended petition, praying that the Court
deny petitioner’s request for relief.
On May 17, 2005, the parties, including intervenor, were
served with the Court’s notice setting the case for trial at this
Court’s Boston, Massachusetts, trial session beginning October
17, 2005.2 The notice stated, among other things: “YOUR FAILURE
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
2
By Order dated Sept. 14, 2005, there was also set for
hearing at the Oct. 17, 2005, Boston trial session respondent’s
(continued...)
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TO APPEAR MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF
DECISION AGAINST YOU.”
On October 17, 2005, this case was called from the calendar
at the Boston trial session. Counsel for respondent and counsel
for petitioner appeared and filed a stipulation of settled issues
between petitioner and respondent, indicating that petitioner was
entitled to relief from joint and several liability pursuant to
section 6015(f) for 2000 and that no income taxes or additions to
tax were due from petitioner. Respondent’s counsel reported to
the Court: “We are unable to obtain an agreement from the
intervenor to sign any sort of decision document.” Intervenor
failed to appear at the calendar call and did not communicate
with the Court beforehand about the scheduled trial.
On November 10, 2005, respondent filed a motion for entry of
decision pursuant to the stipulation of settled issues. On
November 21, 2005, intervenor filed objections to respondent’s
motion for entry of decision. Intervenor objected to
respondent’s motion for entry of decision on the grounds that he
was improperly excluded from pretrial conferences that allegedly
occurred between respondent and petitioner, that he relied on
respondent to fully prosecute this matter against petitioner’s
2
(...continued)
motion to impose sanctions with respect to respondent’s motions
to compel discovery, filed Aug. 31, 2005. This Order did not
displace the May 17, 2005, notice setting the case for trial.
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request for relief, and that respondent and petitioner are
perpetrating a fraud on the Court. Intervenor’s objections
indicated that respondent had notified him approximately 2 weeks
before the scheduled trial session of respondent’s intentions to
concede the case but that intervenor had nevertheless decided,
for financial reasons, not to appear for the trial.
On December 20, 2005, respondent filed a response to
intervenor’s objections. On January 9, 2006, petitioner filed a
response to intervenor’s objections, urging that intervenor’s
objections be denied and that respondent’s motion for entry of
decision be granted.
On July 25, 2006, this Court issued its Opinion in Billings
v. Commissioner, 127 T.C. 7 (2006), holding that the Court does
not have jurisdiction to review the Commissioner’s denial of
relief under section 6015(f) in a case where no deficiency has
been asserted. Our holding in Billings was in accord with the
appellate courts’ opinions in Bartman v. Commissioner, 446 F.3d
785 (8th Cir. 2006), affg. in part and vacating T.C. Memo. 2004-
93, and Commissioner v. Ewing, 439 F.3d 1009 (9th Cir. 2006),
revg. 118 T.C. 494 (2002).
On August 17, 2006, this Court ordered the parties,
including intervenor, to file responses addressing the Court’s
jurisdiction over this case in light of the Court’s holding in
Billings v. Commissioner, supra. In his response, filed
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September 19, 2006, respondent contended that in light of
Billings v. Commissioner, supra, the Court lacked jurisdiction
over this case. Petitioner’s response contended that the Court
possessed the requisite authority to enter the stipulated
decision in this case. The Court received no response from
intervenor.
In the Tax Relief and Health Care Act of 2006, Pub. L. 109-
432, div. C, sec. 408, 120 Stat. 3061, Congress reinstated our
jurisdiction to review the Commissioner’s determinations under
section 6015(f) with respect to tax liability remaining unpaid on
or after December 20, 2006. By Order dated January 10, 2007, we
ordered the parties, including intervenor, to file responses
addressing the Court’s jurisdiction in this case. In his
response filed February 5, 2007, respondent indicated that
petitioner’s liability for tax year 2000 remained unpaid as of
December 20, 2006, so that under the recent amendment to section
6015, this Court has jurisdiction over this case. Similarly, in
her response filed January 9, 2007, petitioner maintained that
this Court has jurisdiction over this case. The Court has
received no response from intervenor.
Discussion
It is undisputed that petitioner’s liability for tax year
2000 remained unpaid as of December 20, 2006. Accordingly,
pursuant to the recent amendment to section 6015 by the Tax
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Relief and Health Care Act of 2006, this Court has jurisdiction
over this case to review the Commissioner’s determination under
section 6015(f).
Intervenor, as the nonelecting spouse, had the right to
intervene in this proceeding by filing a notice of intervention.
Sec. 6015(e)(4); Rule 325; Corson v. Commissioner, 114 T.C. 354,
364-365 (2000). By exercising that right, intervenor became a
party to this case. Tipton v. Commissioner, 127 T.C. 214, 217
(2006). An intervenor, however, “is not granted rights or
immunities superior to those of the other parties, may not
enlarge the issues or alter the nature of the proceeding, and
must abide by the Court’s Rules”. Id. An intervenor who has
been properly notified of trial has no immunity from dismissal
for failure to appear in Court when the case is called for trial.
Id. at 218. This Court may dismiss an intervenor for failure to
prosecute. Id.
On May 17, 2005, this Court served on the parties, including
intervenor, a notice setting case for trial at the session of the
Court commencing in Boston, Massachusetts, on October 17, 2005.
When the case was called from the calendar on October 17, 2005,
respondent’s and petitioner’s counsels appeared and filed a
stipulation of settled issues between petitioner and respondent.
Intervenor, however, failed to appear, did not notify the Court
in advance that he was unable to appear, did not move for a
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continuance, and did not otherwise communicate his intentions to
the Court. In addition, intervenor has never responded to the
Court’s Orders of August 17, 2006, and January 10, 2007.
Intervenor has offered no cognizable reason for failing to
appear for trial.3 Instead, intervenor contends that he relied
on respondent to prosecute this matter against petitioner’s
request for relief. Intervenor’s reliance on respondent in this
regard was misplaced. Respondent was under no obligation to
represent intervenor’s interests in prosecuting this case. In
any event, according to intervenor’s own representations,
respondent’s counsel informed intervenor about 2 weeks before the
scheduled trial session that respondent was conceding the case.
Intervenor was on notice, then, well before the scheduled trial,
that respondent would not be representing his interests in this
matter. Intervenor has only himself to blame for failing to
avail himself of his opportunity to protect his interests as an
intervenor in this proceeding by appearing for the scheduled
trial.
Although intervenor has the right not to sign a decision
document with which he disagrees, he “does not have immunity from
3
In his objections to respondent’s motion for entry of
decision, intervenor suggests, with little elaboration, that
traveling to Boston for the trial might have been a financial
hardship for him. Intervenor did not move, however, to change
the place of trial or otherwise communicate with the Court
beforehand about any such financial hardship.
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dismissal for failing to appear at trial and properly prosecute
any claims or defenses he may have after he was properly given
notice of the trial”. Tipton v. Commissioner, supra at 218.
Intervenor failed to appear at trial and properly prosecute any
claims or defenses he may have after he was properly given notice
of the trial. Accordingly, on our own motion, we shall dismiss
intervenor. For the sake of completeness, however, we shall
address intervenor’s remaining objections to respondent’s motion
for entry of decision.
Intervenor contends that respondent and petitioner had
pretrial conferences from which he was improperly excluded.
Petitioner and respondent contend that no pretrial conferences
took place; rather, they contend, as a result of petitioner’s
responses to respondent’s discovery requests (which were also
served on intervenor without objection thereto), respondent
decided to concede that petitioner was entitled to relief from
the 2000 joint and several tax liability. Intervenor concedes
that respondent informed him 2 weeks before trial of respondent’s
decision to settle the case. Intervenor has failed to allege any
specific facts which tend to show that respondent and petitioner
engaged in any misconduct by agreeing to the stipulation of
settled issues.
Intervenor also contends that respondent and petitioner are
perpetrating a fraud on the Court by seeking to have this Court
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enter their stipulated decision. Intervenor has failed to
allege, however, specific facts which would show “an intentional
plan of deception designed to improperly influence the Court in
its decision”, as necessary to show fraud on the Court. Abatti
v. Commissioner, 86 T.C. 1319, 1325 (1986), affd. 859 F.2d 115
(9th Cir. 1988). To the contrary, when the parties filed the
stipulation of settled issues at the calendar call, respondent’s
counsel expressly advised the Court that intervenor was not in
agreement. Intervenor’s allegations do not suggest that
respondent and petitioner engaged in any wrongdoing by entering
into a stipulation of settled issues or made any
misrepresentation to him about the settlement.
In conclusion, intervenor has failed to prosecute this case
properly or to comply with this Court’s Rules and orders. He has
raised no valid objection to respondent’s motion for entry of
decision. Accordingly, we shall dismiss intervenor for lack of
prosecution and grant respondent’s motion for entry of decision.
An appropriate order and
decision will be entered.