Opinion
8645-21
04-04-2022
NANCY M. ALIOTO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
This case is set for trial at the Court's Philadelphia trial session beginning April 18, 2022. On March 28, 2022, the Commissioner filed a motion (Doc. 7) to dismiss this case for lack of prosecution, under Rule 123(b). The Commissioner's motion alleges that petitioner Nancy M. Alioto has not provided documents or records to support her claims, and that she has been unresponsive to the Commissioner's requests for information and multiple attempts to communicate. In the motion, the Commissioner moves the Court to enter a decision in the amount of the deficiency originally determined for 2018.
The Court has attempted to reach petitioner by telephone on March 29 and March 30. Petitioner did not answer the calls and her voicemail box was full, so the Chambers Administrator of the judge signing this order was unable to leave a message for petitioner. We therefore have a concern, congruent with the Commissioner's motion, that Ms. Alioto may be failing to prepare for trial.
In this Court, a petitioner has the duty, as part of properly "prosecuting" her case, to cooperate and communicate with her opponent (counsel for the Commissioner) in order to prepare her 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. 6) served in this case on January 11, 2022, 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 tax deficiency for 2018 that the IRS determined against Ms. Alioto.
In view of the foregoing, it is
ORDERED that, immediately upon receiving this order, and in any event no later than April 8, 2022, Ms. Alioto shall telephone (at 202-521-0850) the Chambers Administrator of the judge signing this order for the purpose of conducting a pretrial telephone conference among the judge and the parties. It is further
ORDERED that the Commissioner's motion to dismiss for lack of prosecution is set for hearing during the Court's trial session in Philadelphia beginning April 18, 2022. If Ms. Alioto wishes to oppose the motion, she should appear and be heard at that time. If Ms. Alioto fails to appear, we expect to grant the Commissioner's motion and to dismiss this case for lack of prosecution. Such a dismissal has the effect of upholding the income tax deficiency determined against Ms. Alioto. If the Court denies the Commissioner's motion, then we expect that this case will proceed promptly to trial. It is further
ORDERED that the Clerk of the Court shall serve, with the copy of this order served on petitioner, copies of the Court's Notice of Trial (Doc. 5) and Standing Pretrial Order (Doc. 6) for the Court's April 18, 2022, trial session.