Opinion
9108-20
01-07-2022
Dennis Richtmyer Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson, Judge.
The Commissioner has filed a motion to dismiss, and we will order petitioner Dennis Richtmyer to respond.
This is case will be tried during the Court's Winston-Salem session beginning at 10:00 a.m., on February 7, 2022, pursuant to our notice of trial and standing pretrial order (Docs. 6-7) served September 23, 2021. On January 6, 2022, the Commissioner filed a motion (Doc. 8) to dismiss this case for failure to properly prosecute. The Commissioner's motion alleges that Mr. Richtmyer has been unresponsive in pretrial preparation. The motion sets out the Commissioner's unsuccessful attempts by telephone and mail to communicate with Mr. Richtmyer. If the Court were to grant the motion, then pursuant to I.R.C. section 7459(d) the Court would enter a decision sustaining the deficiency of $4,654 as determined in the IRS's notice of deficiency for tax year 2017, a full copy of which was attached to the Commissioner's answer (Doc. 5).
In this Court, a petitioner has the duty, as part of properly "prosecuting" his case, to cooperate and communicate with his opponent (counsel for the Commissioner) in order to prepare his case for trial (and so that the parties can resolve among themselves any issues that can be resolved without the Court's involvement). A petitioner's failure to fulfill this duty can result in dismissal of the case "for failure ... properly to prosecute", pursuant to Rule 123(b). Our standing pretrial order (Doc. 7) served in this case on September 23, 2021, stated: "The parties must begin discussing settlement and/or preparation of a stipulation of facts (facts on which the parties agree) as soon as possible.... If a party has trouble communicating with another party or complying with this Order, that party should tell the Judge right away ...."
The Commissioner so advised the Court by his motion to dismiss. If the facts are as the Commissioner alleges, and if the Commissioner's motion to dismiss is granted, it will have the effect of upholding the income tax deficiency and additions to tax for 2016 that the IRS determined against Mr. Richtmyer.
In view of the foregoing, it is
ORDERED that, immediately upon receiving this order, Mr. Richtmyer shall telephone the Chambers Administrator of the undersigned judge (at 202-521-0850) for the purpose of scheduling a prompt pretrial telephone conference among the Court and the parties. It is further
ORDERED that no later than January 21, 2022, Mr. Richtmyer shall file with the Court and serve on the Commissioner's attorney a response to the Commissioner's motion to dismiss. That response should correct any factual errors in the Commissioner's motion and, more important, should describe Mr. Richtmyer's current compliance with our pretrial order and his cooperation with his opponent in preparing this case for trial. (Or, if Mr. Richtmyer has decided to concede this case, then his response should so state, and he should cooperate with his opponent in filing a stipulated decision reflecting that concession.) Failure to comply with this order may result in the granting of that motion and the entry of a decision against Mr. Richtmyer in the amount sought by the IRS. It is further
ORDERED that the Commissioner's motion to dismiss for failure to properly prosecute is set for hearing during or immediately after the calendar call for the Court's Winston-Salem trial session beginning at 10:00 a.m. (ET) on Monday, February 7, 2022. If Mr. Richtmyer wishes to oppose the motion, he shall appear and be heard at that time. If Mr. Richtmyer fails to appear, then we expect to grant the Commissioner's motion and to dismiss this case for lack of prosecution. Such a dismissal would have the effect of upholding the income tax deficiency for 2017 in the amount sought by the Commissioner. If the motion to dismiss is denied, then the Court expects that this case will proceed promptly to trial at that trial session.