T.C. Memo. 2009-25
UNITED STATES TAX COURT
DAVID DE HAAS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12330-07L. Filed February 4, 2009.
David De Haas, pro se.
Fred E. Green, Jr., for respondent.
MEMORANDUM OPINION
GALE, Judge: This case is before the Court on respondent’s
motion to dismiss for lack of prosecution.
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Background
Petitioner seeks review under section 6330(d)1 of
respondent’s determination to proceed with a levy to collect
unpaid income taxes for petitioner’s 2002 and 2003 taxable years.
Petitioner resided in Nevada when the petition was filed.
Respondent’s determination was contained in a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 issued after petitioner requested a hearing
concerning the proposed levy.
A notice setting case for trial, setting the trial in this
case for November 17, 2008, was served on petitioner on June 12,
2008. This notice stated:
The parties are hereby notified that the above-entitled
case is set for trial at the Trial Session beginning on
November 17, 2008.
The calendar for that Session will be called at 10:00
A.M. on that date and both parties are expected to be
present at that time and be prepared to try the case. YOUR
FAILURE TO APPEAR MAY RESULT IN DISMISSAL OF THE CASE AND
ENTRY OF DECISION AGAINST YOU.
Your attention is called to the Court’s requirement
that * * * the parties, before trial, must agree in writing
to all facts and documents about which there should be no
disagreement. Therefore, the parties should contact each
other promptly and cooperate fully so that the necessary
steps can be taken to comply with this requirement. YOUR
FAILURE TO COOPERATE MAY ALSO RESULT IN DISMISSAL OF THE
CASE AND ENTRY OF JUDGMENT AGAINST YOU.
1
Unless otherwise noted, all section references are to the
Internal Revenue Code of 1986 as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
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The notice setting case for trial was accompanied by a
standing pretrial order, which likewise ordered the parties to
stipulate facts to the maximum extent possible, ordered the
parties to submit pretrial memoranda not less than 14 days before
the first day of the trial session, and warned that an unexcused
failure to comply with the standing pretrial order might result
in sanctions, including dismissal.
On October 28, 2008, the Court received a document from
petitioner styled as a motion to set aside trial date, in which
petitioner contended that a trial was unnecessary because the
Court’s review of his case was confined to what took place during
his administrative hearing. The motion accordingly requested
that the Court set a briefing schedule.
By order dated November 6, 2008, the Court denied
petitioner’s motion. The order advised petitioner that the
parties’ pleadings set forth differing views of what occurred in
connection with petitioner’s hearing and that a trial would give
each party the opportunity to offer evidence to support his
version of the hearing. The order further directed petitioner to
Rule 122, which would provide a means for disposing of the case
without trial if the parties were to stipulate regarding the
contents of the administrative file. The order again cautioned
petitioner that his failure to appear at trial could result in
dismissal of the case and entry of judgment against him.
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Finally, the order advised petitioner that a written statement
pursuant to Rule 50(c) may not be submitted in lieu of appearing
for trial.
On November 14, 2008, 3 days before the scheduled trial, the
Court received a document from petitioner styled as a statement
under Rule 50(c) that was “in lieu of attending the Trial date”.
When this case was called for trial on November 17, 2008,
there was no appearance by or on behalf of petitioner.
Respondent thereupon filed a motion to dismiss for lack of
prosecution, attached to which was a copy of the notice of
determination issued to petitioner. Petitioner was subsequently
granted leave to file an objection to respondent’s motion.
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 this Court or any
order of the Court, or for any cause which the Court deems
sufficient. Rule 123(b); Edelson v. Commissioner, 829 F.2d 828,
831 (9th Cir. 1987), affg. T.C. Memo. 1986-223; McCoy v.
Commissioner, 696 F.2d 1234, 1236 (9th Cir. 1983), affg. 76 T.C.
1027 (1981). 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
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claim. Rule 149(a); Brooks v. Commissioner, 82 T.C. 413 (1984),
affd. without published opinion 772 F.2d 910 (9th Cir. 1985).
Petitioner has failed properly to prosecute this case. In
the motion to dismiss, respondent’s counsel contends that he
received no communication from petitioner with respect to any
aspects of the Tax Court proceeding, even though respondent’s
counsel made several attempts to contact petitioner. In his
objection to the motion to dismiss, petitioner does not deny this
claim; he simply ignores it. We take it as established for
purposes of respondent’s motion.
Petitioner was aware that this case had been set for trial,
as evidenced by his motion to set aside trial date, which refers
to the November 17, 2008, trial date. In his motion to set aside
trial date, his purported Rule 50(c) statement, and in his
objection to respondent’s motion to dismiss, petitioner, citing
Robinette v. Commissioner, 439 F.3d 455 (8th Cir. 2006), revg.
123 T.C. 85 (2004), contends that a trial is unnecessary because
the Court may consider only the administrative record–-that is,
the matters raised and considered at his administrative hearing.
However, even where the Tax Court is confined to a review of the
record compiled in a section 6330 hearing, a trial is often
appropriate to allow the reviewing court “to receive evidence
concerning what happened during the agency proceedings.” Id. at
461. Here, the pleadings of the parties differ with respect to
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what occurred at the hearing. Yet in addition to failing to
appear for trial, petitioner also failed to stipulate concerning
the contents of the administrative record. The Court is thus
left with no means of resolving the parties’ competing versions
thereof.
We are also satisfied that petitioner was on fair notice
that he was required to appear for trial and that a statement
under Rule 50(c) was not an acceptable substitute for his
appearance. This Court has held that a statement under Rule
50(c) is not an acceptable substitute for an appearance at trial
in a section 6330 proceeding, see Klootwyk v. Commissioner, T.C.
Memo. 2008-214, and petitioner was so advised in the Court’s
order of November 6, 2008.
Petitioner disregarded the Court’s warning that a statement
under Rule 50(c) would not relieve him of his obligation to
appear, disregarded the order that he engage in an effort to
stipulate, disregarded his obligation to submit a pretrial
memorandum, and disregarded his obligation to cooperate with
respondent to prepare the case for trial. We accordingly
conclude that petitioner has failed to properly prosecute this
case. All of the material allegations set forth in the amended
petition in support of assignments of error have been denied in
respondent’s answer, and respondent has not conceded any error
assigned in the amended petition. The notice of determination
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submitted by respondent contains a verification that the
requirements of any applicable law or administrative procedure
were met, addresses the issues raised by petitioner, and
concludes that the proposed levy balances the need for efficient
collection with the concern that any collection action be no more
intrusive than necessary.
We therefore conclude that dismissal under Rule 123(b) is
warranted and respondent is entitled to a decision in his favor.
Accordingly, respondent may proceed with the proposed levy to
collect petitioner’s outstanding 2002 and 2003 income tax
liabilities.
To reflect the foregoing,
An appropriate order and
decision will be entered.