From Casetext: Smarter Legal Research

Tello v. C.I.R

United States Court of Appeals, Fifth Circuit
Apr 18, 2005
410 F.3d 743 (5th Cir. 2005)

Summary

holding that the Fifth Circuit generally only affirms dismissals with prejudice if one of the three aggravating factors is present

Summary of this case from Cullum v. Siemens

Opinion

No. 04-60955 Summary Calendar.

April 18, 2005.

John Tello, Mesquite, TX, pro se.

Anthony T. Sheehan, Kenneth L. Greene, Tax Div., Eileen J. O'Connor, Asst. Atty. Gen., U.S. Dept. of Justice, Charles Casazza, Clerk, U.S. Tax Court, Donald L. Korb, Chief Counsel, IRS, Washington, DC, for CIR.

Appeal from a Decision of the United States Tax Court.

Before GARZA, DeMOSS and CLEMENT, Circuit Judges.


John Tello, pro se, appeals the decision of the United States Tax Court. The Tax Court dismissed Tello's petition for failure to prosecute and sanctioned him under Internal Revenue Code § 6673 in the amount of $2,500 for advancing frivolous positions and instituting and maintaining the proceeding primarily for delay. We review both dismissals for failure to prosecute and the imposition of sanctions under I.R.C. § 6673 for abuse of discretion. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992); Sandvall v. Commissioner, 898 F.2d 455, 459 (5th Cir. 1990).

"We will affirm dismissals with prejudice for failure to prosecute only when (1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile." Berry, 975 F.2d at 1191. We generally will affirm a dismissal only if we find at least one of three aggravating factors: (1) delay caused by the plaintiff himself; (2) actual prejudice to the defendant; or (3) delay as a result of the intentional conduct. Id.

The record shows that Tello failed to appear at the calendar call and recall of his case; failed to cooperate with the Commissioner in preparing a stipulation of facts (including refusing to stipulate to his birth date); refused to address the merits of his case; ignored warnings to stop making frivolous arguments; and simply wasted the time and resources of the Tax Court and of the Commissioner. Tello ignored numerous threats of sanctions, including of dismissal, by the Tax Court. Tello also makes several arguments on appeal similar to those that he raised below. We agree with the Tax Court that "without exception, the arguments that [Tello] makes are arguments that this Court and other courts have found to be frivolous" and that he was "instituting or maintaining this proceeding primarily, if not exclusively, as a protest against the Federal income tax system and his proceedings in this Court is merely a continuation of [Tello's] refusal to acknowledge and satisfy his tax obligations." Tello's pro se status does not excuse his actions. See Parker v. Commissioner, 117 F.3d 785, 787 (5th Cir. 1997). Furthermore, the Tax Court did not abuse its discretions in sanctioning Tello in the amount of $2,500 under I.R.C. § 6673(a), which allows sanctions whenever a taxpayer institutes or maintains a proceeding primarily for delay or that the taxpayer's position in the proceeding is frivolous or groundless. We therefore AFFIRM the judgment of the Tax Court.

The Commissioner also moves to sanction Tello $6,000 for maintaining a frivolous appeal so that the government can be compensated for the costs of defending the appeal. A party who continues to advance long-defunct arguments invites sanctions. Lonsdale v. Commissioner, 661 F.2d 71, 72 (5th Cir. 1981). We GRANT the Commissioner's motion for sanctions of $6,000 for pursuing a frivolous appeal, pursuant to 26 U.S.C. § 7482(c)(4) and FED. R. App. P. 38. See Parker, 117 F.3d at 787 (approving the practice of imposing a lump sum sanction in lieu of costs because it "saves the government the additional cost of calculating its expenses, and also saves the court the time and expense of reviewing the submission of costs").


Summaries of

Tello v. C.I.R

United States Court of Appeals, Fifth Circuit
Apr 18, 2005
410 F.3d 743 (5th Cir. 2005)

holding that the Fifth Circuit generally only affirms dismissals with prejudice if one of the three aggravating factors is present

Summary of this case from Cullum v. Siemens

granting motion for $6,000 in sanctions for frivolous appeal

Summary of this case from Montero v. Commr. of Internal Revenue

approving the practice of imposing a lump sum sanction

Summary of this case from Gittinger v. C.I.R

In Tello, we affirmed the Tax Court's dismissal for failure to state a claim, labeling the claims as "patently frivolous."

Summary of this case from Stearman v. C.I.R

In Tello, we found that the Tax Court had properly dismissed the case because of the plaintiff's (1) failure to appear at the calendar call and recall of his case; (2) failure to cooperate with the Commissioner in preparing a stipulation of facts; (3) refusal to address the merits of the case; (4) wilful ignorance of warnings to stop making frivolous arguments; and (5) wasting the time and resources of the Tax Court.

Summary of this case from Stearman v. C.I.R

awarding the same amount in a case where petitioner advanced similar arguments

Summary of this case from Stearman v. C.I.R

explaining that dismissal with prejudice is reserved for egregious cases, usually where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one of three aggravating factors: delay attributable to the plaintiff rather than attorney, actual prejudice to the defendant, and delay caused by intentional conduct

Summary of this case from Choate v. Victoria's Secret Stores LLC

explaining that dismissal with prejudice is reserved for egregious cases, usually where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one of three aggravating factors: delay attributable to the plaintiff rather than attorney, actual prejudice to the defendant, and delay caused by intentional conduct

Summary of this case from Minix-Carrier v. Victoria's Secret

explaining that dismissal with prejudice is reserved for egregious cases, usually where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one of three aggravating factors: delay attributable to the plaintiff rather than attorney, actual prejudice to the defendant, and delay caused by intentional conduct

Summary of this case from Alfaro v. Victoria's Secret
Case details for

Tello v. C.I.R

Case Details

Full title:John TELLO; et al., Petitioners, John Tello, Petitioner-Appellant, v…

Court:United States Court of Appeals, Fifth Circuit

Date published: Apr 18, 2005

Citations

410 F.3d 743 (5th Cir. 2005)

Citing Cases

Stearman v. C.I.R

I. We review de novo the dismissal for failure to state a claim, Lowrey v. Tex. A M Univ. Sys., 117 F.3d 242,…

Franklin v. C.I.R

This court reviews a dismissal for failure to prosecute for abuse of discretion. Stearman v. Comm'r, 436 F.3d…