Opinion
15419-19
01-03-2022
Makebia Jenkins, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER OF DISMISSAL AND DECISION
Joseph H. Gale Judge
This case was calendared for a remote trial at the Atlanta, Georgia trial session commencing February 1, 2021. The Petition seeks redetermination of a deficiency and section 6662(a) accuracy-related penalty for petitioner's taxable year 2016. On January 11, 2021, respondent filed a Status Report representing that the parties had reached a basis of settlement and that he had sent a proposed decision document to petitioner for signature. The Court thereafter continued the case and directed the parties to file, on or before March 3, 2021, a proposed stipulated decision or, in the alternative, a joint status report. To date, the parties have filed neither a stipulated decision nor a status report.
All section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
On March 3, 2021, respondent filed a Motion to Dismiss for Failure to Properly Prosecute (Motion to Dismiss). In his Motion to Dismiss, respondent requests that this case be dismissed for failure to properly prosecute and that a decision be entered sustaining a deficiency for petitioner's 2016 taxable year in the amount of $1,000, reduced from $4,358 as determined in the notice of deficiency. In addition, respondent concedes that petitioner is not liable for an accuracy-related penalty under section 6662(a). On March 12, 2021, the Court issued an Order to Show Cause directing petitioner to file, on or before April 2, 2021, a response in writing showing cause why respondent's Motion to Dismiss should not be granted and this case should not be dismissed for failure to properly prosecute. The Order to Show Cause advised petitioner that she could avoid dismissal for failure to properly prosecute by signing and returning to respondent's counsel before April 2, 2021, the decision document respondent's counsel had previously provided to her. The copy of the Order to Show Cause mailed to petitioner at the address listed in the Petition was not returned. To date, petitioner has not responded to the Order to Show Cause.
Respondent's Motion to Dismiss alleges, and petitioner has not disputed, that respondent sent petitioner a proposed decision document for signature on December 28, 2020, reflecting the parties' agreement to settle this case.Respondent further alleges that he has been unable to contact petitioner since the parties agreed to settle, despite several attempts to reach her by telephone and email.
Respondent's specific allegations concerning the proposed settlement and petitioner's failure to cooperate in reaching a final resolution of this case are detailed in the Motion to Dismiss, and petitioner had an opportunity to dispute those allegations by responding to the Order to Show Cause. Given petitioner's failure to dispute respondent's allegations, and the absence of any contrary evidence, we treat them as established for purposes of the Motion to Dismiss.
The Court may dismiss a case at any time and enter a decision against the taxpayer for failure properly to prosecute her 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); Stearman v. Commissioner, 436 F.3d 533, 535-537 (5th Cir. 2006), aff'g T.C. Memo. 2005-39; Bauer v. Commissioner, 97 F.3d 45, 48-49 (4th Cir. 1996); Edelson v. Commissioner, 829 F.2d 828, 831 (9th Cir. 1987), aff'g T.C. Memo. 1986-223. Although we advised petitioner that she could avoid dismissal by signing the proposed decision document and returning it to respondent, she has not done so. Petitioner has also failed to comply with the Court's Order to Show Cause directing her to file a response to respondent's Motion to Dismiss. We therefore conclude that petitioner does not wish to continue prosecuting this case or to dispute the amount of the deficiency that respondent seeks in his Motion to Dismiss. We will accordingly dismiss petitioner's case for failure to properly prosecute.
In the notice of deficiency, respondent determined a deficiency of $4,358 in petitioner's 2016 Federal income tax. The Commissioner's determinations in a notice of deficiency are generally entitled to a presumption of correctness. See Rule 142(a). All of the material allegations set forth in the Petition in support of the assignments of error have been denied in respondent's Answer. Petitioner has not claimed or shown entitlement to any shift in the burden of proof under section 7491(a). See sec. 7491(a)(2)(B). Accordingly, the burden of proof rests with petitioner concerning any error in the deficiency determination. As petitioner has adduced no evidence in support of the assignments of error in the Petition, she has failed to satisfy her burden of proof. We thus sustain the reduced deficiency of $1,000 that respondent seeks in his Motion to Dismiss.
Respondent also determined in the notice of deficiency that petitioner is liable for an accuracy-related penalty under section 6662(a) of $871.60. Because respondent now concedes that petitioner is not liable for the penalty, we do not sustain it.
The foregoing considered, it is
ORDERED that the Court's Order to Show Cause served March 12, 2021, is hereby made absolute. It is further
ORDERED that respondent's Motion to Dismiss for Failure to Properly Prosecute, filed March 3, 2021, is granted, and this case is hereby dismissed for failure to properly prosecute. It is further
ORDERED and DECIDED that there is a deficiency in petitioner's 2016 Federal income tax due in the amount of $1,000; and there is no penalty due from petitioner for the taxable year 2016 under the provisions of I.R.C. section 6662(a).