Opinion
35853-21
10-20-2023
JAMES N. JOHNSON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Cary Douglas Pugh, Judge.
This case was set for trial at the Court's October 16, 2023, Phoenix, Arizona, trial session. On September 25, 2023, respondent filed a Motion to Dismiss for Lack of Prosecution advising that petitioner's counsel, David M. Kozak, had been unresponsive. We directed petitioner to file a response and set respondent's Motion to Dismiss for hearing on October 16, 2023.
On October 2, 2023, rather than responding to the Motion to Dismiss, petitioner filed a Motion for Continuance which we set also for hearing on October 16, 2023. In the motion, petitioner's counsel provided information regarding his unresponsiveness to respondent's communications and requested that this case be continued to allow the parties additional time to work toward settlement.
On October 12, 2023, respondent filed a response to petitioner's Motion for Continuance advising that there was no objection to the Motion for Continuance, so long as "the Court set specific deadlines for the parties to move this case toward trial or other disposition."
On October 13, 2023, we held a conference call with the parties. We discussed our concern regarding petitioner's counsel's lack of responsiveness and noted that this was not the first time the Court identified issues (as we recounted in our January 19, 2023, and September 28, 2023, Orders). We advised the parties that the Motion to Dismiss and the Motion for Continuance remained set for hearing so that we could discuss the status of the case and the steps that would be taken to advance it toward resolution or trial on the record.
We called this case from the calendar of the Court's October 16, 2023, Phoenix, Arizona, trial session for a hearing on respondent's Motion to Dismiss for Lack of Prosecution and petitioner's Motion for Continuance. Both parties appeared and were heard. Prior to the calendar the parties conferred and respondent provided to petitioner an updated bank deposits analysis and petitioner's counsel provided additional documents to respondent, which reinforced the parties' stated intention to work constructively toward resolution if the Court grants petitioner's Motion for Continuance.
Upon due consideration therefore and for cause more fully appearing in the transcripts of the proceeding, it is hereby
ORDERED that petitioner's Motion for Continuance, filed October 2, 2023, is granted and this case is continued, and jurisdiction is retained by this Division of the Court. It is further
ORDERED that, on or before November 17, 2023, petitioner shall provide a response to the updated bank deposits analysis and petitioner's position on the unreported income issue to respondent's counsel. It is further
ORDERED that, on or before December 1, 2023, petitioner shall provide all documents to respondent that he intends to use or rely on at trial, including all documents in support of any summary exhibits. It is further
ORDERED that, on or before December 8, 2023, the parties shall file a status report with the Court detailing the status of the case and providing any further scheduling issues for a trial or other disposition of this case.
Petitioner is advised that respondent's Motion to Dismiss for Lack of Prosecution remains pending. The Court will view failure to respond by the deadlines set forth in this Order without good cause shown as a failure to prosecute resulting in the Court's granting respondent's Motion to Dismiss and entering an order and decision in favor of respondent.