T.C. Memo. 2008-1
UNITED STATES TAX COURT
ANTHONY D. LONG, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21515-05L. Filed January 2, 2008.
Anthony D. Long, pro se.
Benjamin J. Peeler, for respondent.
MEMORANDUM OPINION
MARVEL, Judge: This matter is before the Court on
respondent’s motion to dismiss for lack of prosecution and to
impose a penalty under section 6673(a)(1).1 For purposes of this
1
All section references are to the Internal Revenue Code,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
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opinion, we shall treat respondent’s motion as a motion to
dismiss for lack of prosecution only.2
Background
Petitioner resided in Los Alamitos, California, when the
petition in this case was filed.
Petitioner filed multiple 2001 Federal income tax returns
and amended returns at various times. Respondent determined that
the positions taken by petitioner on his returns were frivolous.
As a result, respondent prepared a substitute return for 2001
under section 6020(b). By a notice of deficiency dated
November 12, 2003, respondent determined a deficiency in
petitioner’s Federal income tax for 2001 of $11,994 and additions
to tax for 2001 under sections 6651(a)(1) and 6654(a) of
$1,966.50 and $296.03, respectively.
On May 5, 2005, respondent mailed petitioner a Final Notice
of Intent to Levy and Notice of Your Right to a Hearing, and
petitioner timely requested a hearing under section 6330. On
May 12, 2005, respondent mailed petitioner a Notice of Federal
Tax Lien Filing and Your Right to a Hearing Under IRC 6320, and
petitioner timely requested a hearing under section 6320.
Respondent offered petitioner a face-to-face hearing if
petitioner identified any relevant issues regarding the proposed
collection actions. Petitioner refused to raise any relevant
2
We deny respondent’s request for a penalty under sec. 6673.
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issues or offer his reasons for requesting the hearing, and
respondent elected to schedule a telephone conference instead of
a face-to-face hearing. Petitioner notified respondent that he
could not participate in the telephone conference and reiterated
his desire for a face-to-face hearing. On October 7, 2005,
respondent issued petitioner a notice of determination because
petitioner refused to cooperate with the Appeals officer. In the
notice, the Appeals officer determined that respondent had met
all legal and administrative requirements and that respondent
could proceed with the proposed collection actions.
In response to the notice of determination, petitioner
mailed a letter dated November 3, 2005, to the Court, which we
received on November 14, 2005, and filed as a timely but
imperfect petition. By order dated November 17, 2005, petitioner
was given until January 3, 2006, to file a proper amended
petition and pay the filing fee. No response to that order was
received, and on February 22, 2006, we dismissed this case for
lack of jurisdiction. On May 11, 2006, we received and filed
petitioner’s request for permission to file a motion to vacate
the order of dismissal, along with petitioner’s motion to vacate
the order of dismissal, a designation of place of trial, and an
amended petition. The motion to vacate the order of dismissal,
the designation of place of trial, and the amended petition were
lodged on May 11, 2006. On May 16, 2006, we granted petitioner’s
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request for permission to file a motion to vacate the order of
dismissal. The motion to vacate the order of dismissal was filed
and granted on May 16, 2006, and the designation of place of
trial and the amended petition were filed on that date. The
amended petition alleges, among other things, that respondent
improperly denied petitioner a valid section 6330 hearing.
On August 31, 2006, we issued petitioner a notice setting
his case for trial during the Court’s February 5, 2007, Los
Angeles, California, trial session. The notice warned petitioner
that “YOUR FAILURE TO APPEAR MAY RESULT IN DISMISSAL OF THE CASE
AND ENTRY OF DECISION AGAINST YOU.” Accompanying the notice was
the Court’s standing pretrial order, which directed the parties
to take specific action to prepare for trial. The standing
pretrial order also stated that “The Court may impose appropriate
sanctions, including dismissal, for any unexcused failure to
comply with this Order.”
Respondent asserts in his motion that on or about September
20, 2006, he contacted petitioner by telephone. During this
conversation, respondent explained to petitioner the Court’s
required stipulation process.3 Respondent also warned petitioner
that he should not raise any of the frivolous or groundless
arguments that he had previously advanced. Petitioner requested
3
The standing pretrial order requires that “all facts shall
be stipulated to the maximum extent possible.”
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more time to build his case and gather necessary information, and
the parties decided to wait until September 26, 2006, to schedule
a meeting.
On September 26, 2006, respondent sent petitioner a letter
detailing the informal discovery process under Rule 91 and
requesting that petitioner send copies of all relevant documents
to respondent pursuant to Branerton Corp. v. Commissioner, 61
T.C. 691 (1974). Respondent also warned petitioner of the
penalty under section 6673(a)(1) for raising frivolous arguments
and instituting proceedings primarily for delay. On the same
day, respondent received a telephone message from petitioner
stating that he did not intend to meet with respondent or provide
any other documentation. Petitioner also informed respondent
that he would not respond to informal discovery requests and that
any further communication would be made only by written
correspondence.
On October 6, 2006, respondent sent petitioner another
letter emphasizing the Court’s requirement to conduct informal
discovery and requesting that petitioner respond to the discovery
requests. Respondent proposed a deadline of October 31, 2006,
for responses to or requests for informal discovery. Respondent
informed petitioner that the Court has characterized arguments
like the ones made by petitioner as frivolous and groundless and
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that respondent planned to file a motion for summary judgment and
to impose a penalty under section 6673(a)(1).
In a letter dated October 23, 2006, petitioner asserted that
discovery was unnecessary because review of petitioner’s case by
the Court should be limited to the administrative record. On
December 8, 2006, petitioner filed a motion to set aside the
trial date and to set a briefing schedule, arguing that the Court
should not conduct a trial but instead should look at the
administrative record to review respondent’s determination. The
Court denied petitioner’s motion, and on January 16, 2007,
petitioner filed a motion for reconsideration. The motion for
reconsideration was calendared for hearing at the February 5,
2007, Los Angeles, California, trial session.
On January 23, 2007, respondent filed a motion for summary
judgment, which the Court also calendared for hearing on the
February 5, 2007, trial date. On February 2, 2007, petitioner
filed a statement under Rule 50(c) in lieu of appearing at the
trial session.4
On February 5, 2007, petitioner failed to appear at the
scheduled trial session. The Court denied petitioner’s motion
4
Rule 50(c) permits a party subject to a hearing on a motion
to submit a statement of his position with supporting documents
in lieu of or in addition to attendance at the hearing. It does
not authorize the submission of a statement in lieu of an
appearance at trial.
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for reconsideration.5 Because petitioner did not appear and did
not cooperate with respondent in preparing the case for trial,
respondent orally requested that the Court dismiss this case for
lack of prosecution. The Court gave respondent a period of time
to file a written motion, and respondent’s motion to dismiss for
lack of prosecution and to impose a penalty under section
6673(a)(1) was filed on February 12, 2007.
On March 7, 2007, petitioner filed an opposition to
respondent’s motion. Petitioner argues only that respondent’s
motion to dismiss for lack of prosecution and to impose a penalty
under section 6673(a)(1) is an impermissible joinder of motions
under Rule 54. However, petitioner did not address the merits of
respondent’s motion or contest the facts alleged therein.
Because we conclude that petitioner failed to properly prosecute
this case for the reasons set forth below, we shall grant
respondent’s motion insofar as it seeks a dismissal of this case.
In addition, because we conclude that we must grant respondent’s
motion to dismiss, we shall deny respondent’s motion for summary
judgment as moot.
Discussion
The Court may dismiss a case at any time and enter a
decision against the taxpayer for failure properly to prosecute
5
Because of petitioner’s failure to appear at the trial
session, the Court did not hear respondent’s motion for summary
judgment.
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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
taxpayer’s failure to comply with the Court’s Rules and orders is
due to willfulness, bad faith, or fault. See 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 disregarded the Court’s Rules and standing
pretrial order by failing to cooperate with respondent in
preparing his case for trial. Respondent’s counsel repeatedly
asked petitioner to comply with respondent’s informal discovery
requests and to cooperate in preparing a stipulation of facts.
Despite those requests, petitioner failed to respond to or
produce any documents supporting his position. Petitioner’s
continuous refusal to meet respondent’s requests for discovery
made it impossible for the parties to exchange information,
conduct negotiations, or prepare a stipulation of facts before
trial. Petitioner failed to prepare and submit a pretrial
memorandum before the scheduled trial session as required by the
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Court’s order, and he has yet to produce any documents relevant
to his case. In addition, petitioner failed to appear at the
scheduled trial session.
Petitioner’s course of conduct throughout the proceedings
demonstrates that these failures are due to petitioner’s
willfulness, bad faith, or fault, and we conclude that dismissal
of this case is appropriate.6 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. Accordingly, we shall
grant respondent’s motion to dismiss this case for lack of
prosecution.
An appropriate order
of dismissal and decision
will be entered.
6
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). Because petitioner failed to cooperate
with respondent’s request for information and documents, the
burden of proof does not shift to respondent. See sec. 7491(a).