Opinion
11457-21L
05-11-2022
PAMELA WILLIAMS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
JOSEPH W. NEGA, JUDGE
This collection due process case was calendared for trial at the session of the Court scheduled to commence May 2, 2022, in San Diego, California. On May 2, 2022, respondent filed a Motion to Dismiss for Lack of Prosecution (motion to dismiss), therein requesting that the Court dismiss this case for lack of prosecution and enter a decision sustaining the determinations set forth in the Notice of Determination Concerning Collection Actions Under Sections 6320 or 6330, issued to petitioner on March 1, 2021, for petitioner's income tax liabilities for taxable years 2013 and 2014. We find that petitioner failed to properly prosecute her case and therefore we shall dismiss this case pursuant to Rule 123.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
1. Background
By Notice of Trial served January 25, 2022, this case was set for trial on May 2, 2022, in San Diego, California. Served with the notice setting case for trial was a Standing Pretrial Order, which set forth the steps required of the parties in preparation for trial or other resolution. The Court's notice of that date warned: "Your failure to appear may result in dismissal of the case and entry of decision against you."
That warning was based on Rule 123, which provides:
(a) Default: If any party has failed to plead or otherwise proceed as provided by these Rules or as required by the Court, then such party may be held in default by the Court either on motion of another party or
on the initiative of the Court. Thereafter, the Court may enter a decision against the defaulting party, upon such terms and conditions as the Court may deem proper, or may impose such sanctions (see, e.g., Rule 104) as the Court may deem appropriate. . . .
(b) Dismissal: For failure of a petitioner to properly prosecute or to comply with these Rules or any order of the Court or for other cause which the Court deems sufficient, the Court may dismiss a case at any time and enter a decision against the petitioner. . . .
The Standing Pretrial Order directed petitioner, inter alia: (1) to communicate and cooperate with respondent's counsel regarding settlement or, if the case could not be settled, the preparation of a stipulation of facts; (2) to serve on respondent's counsel and file with the Court a pretrial memorandum no later than 21 days before the first day of the trial session; (3) unless otherwise excused, to appear at the calendar call; and (4) to be prepared to try the case during the trial session of the Court. The Standing Pretrial Order warned: "If you do not follow this Order, the Judge may dismiss your case and enter a Decision against you." The copies of the notice setting case for trial and Standing Pretrial Order mailed to petitioner at the address listed on the petition were not returned as undeliverable.
During the period after this case was set for trial, respondent's counsel sent a letter to petitioner on February 15, 2022, at the address listed on the Petition, scheduling a telephone conference for February 22, 2022. Petitioner did not call respondent's counsel for the scheduled telephone conference and did not otherwise respond to the letter. On February 24, and March 2, March 4, March 28, 2022, respondent's counsel called petitioner at the telephone number listed on the Petition and left a voicemail each time. However, petitioner did not call respondent's counsel back or otherwise respond to the voicemails. On March 28, 2022, respondent's counsel emailed petitioner at the email listed on the Petition notifying her that recent documentation that was mailed to her was returned to respondent by the United States Postal Service as undeliverable and requesting that she call respondent's counsel to discuss her case. Petitioner responded via email stating, "I'm sorry I'm not aware of a court case. If this is legit the IRS has my current mailing address. Which I'm currently receiving their correspondence." On March 29, 2022, respondent's counsel responded to petitioner via email instructing her on how she can view her Tax Court case and stating that respondent's counsel would mail another letter to her at the address listed on the Petition as well as the PO Box listed on the Petition. Petitioner responded via email noting that she had been advised to only respond to IRS mailed correspondence and that she does not trust the stated information because she was previously a victim of fraud which is why she established her PO Box. Later on March 29, 2022, respondent's counsel sent to petitioner letters at the address listed on the Petition and the PO Box listed on the Petition, requesting that she meet with respondent's counsel to discuss her case, warning her that if she failed to contact respondent's counsel respondent would file a motion to dismiss for lack of prosecution, and scheduling a telephone conference for April 5, 2022. On April 4, 2022, respondent's counsel sent to petitioner an email reminding her of the scheduled telephone conference for April 5, 2022. Petitioner did not call respondent's counsel for the scheduled telephone conference and did not otherwise respond to the letters mailed on March 29, 2022, or the email sent on April 4, 2022.
On March 4, 2022, respondent's counsel was unable to leave a voicemail because petitioner's voicemail inbox was full.
On May 2, 2022, this case was called and recalled from the calendar during the Court's San Diego, California, trial session. There was no appearance by or on behalf of petitioner. Counsel for respondent appeared and filed with the Court a motion to dismiss. Respondent's motion was taken under advisement by the undersigned.
II. Dismissal
The Court may dismiss a case at any time and enter a decision against the taxpayer for failure to properly prosecute his or her case, failure to comply with the Rules of the 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), aff'g, T.C. Memo. 1986-223. The Court may also 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 the taxpayer's case. Rule 149(a); Harper v. Commissioner, 99 T.C. 533, 540 (1992); see also Brooks v. Commissioner, 82 T.C. 413, 429-430 (1984), aff'd without published opinion, 772 F.2d 910 (9th Cir. 1985).
Petitioner has failed to properly prosecute this case. Petitioner did not appear for trial on May 2, 2022, despite being warned by the Notice of Trial and Standing Pretrial Order that failure to appear could result in dismissal of the case and entry of decision against her. Petitioner has failed to communicate and cooperate with respondent's counsel to prepare for trial or otherwise resolve this case as directed by the Standing Pretrial Order. Additionally, petitioner failed to file a pretrial memorandum as directed by the Standing Pretrial Order. Accordingly, we conclude that it is appropriate to dismiss petitioner's case for lack of prosecution.
Upon due consideration and for cause more fully appearing in the transcript of the proceedings, it is
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution, filed May 2, 2022, is granted and this case is dismissed for lack of prosecution. It is further
ORDERED AND DECIDED that respondent's determinations set forth in the Notice of Determination Concerning Collection Actions Under Sections 6320 or 6330, dated March 1, 2021, upon which this case is based, is sustained, and respondent may proceed with the collection actions as determined in the notice of determination for tax years 2013 and 2014.