Opinion
12931-20L
01-28-2022
Tameka Lavern Brown & Jamal Travin Brown Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
DAVID GUSTAFSON JUDGE
The Commissioner has filed a motion (Doc. 12) to dismiss this case for failure to properly prosecute. We will deny the motion without prejudice.
Background
This "collection due process" ("CDP") case concerns an IRS notice of intent to levy against petitioners Tameka Lavern Brown and Jamal Travin Brown. The notice of intent to levy was first sustained by the IRS's Office of Appeals in a notice of determination issued to the Browns on September 30, 2020 (a copy of which is attached to the petition, Doc. 1). The Commissioner filed a motion (Doc. 7) to remand the matter to the IRS's Office of Appeals for further consideration, and we issued an order (Doc. 9) granting that motion and remanding the case. That remand resulted in the issuance of a "Supplemental Notice of Determination . . ." (Doc. 10, Ex. A) dated December 8, 2021, which states (at 1), "You have failed to provide any response to letters mailed to you by the Appeals Officer", and which determined that penalty will be abated but that otherwise the notice of intent to levy is sustained. Appeals' failed attempts at communicating with the Browns are elaborated in an attachment to the supplemental notice of determination.
The Commissioner provided the Court with a copy of that supplemental notice of determination as an exhibit to a status report (Doc. 10) that the Commissioner filed December 8, 2021. On December 14, 2021, we issued an order (Doc. 11) requiring the parties to file a joint status report including "the parties' recommendations as to a schedule for further proceedings in this case." Mindful of the upcoming holidays, we set the due date for that status report as February 8, 2022.
On January 21, 2022, the Commissioner filed his motion to dismiss. The motion alleges that the Browns failed to communicate with Appeals before the issuance of the September 2020 notice of determination (see Doc. 12, para. 2), that the Browns failed to communicate with counsel after the petition was filed in this Court and until the Commissioner's motion to remand (Doc. 12, paras. 4-6), and that the Browns failed to communicate with Appeals during the remand and prior to the issuance of the December 2021 supplemental notice of determination (see Doc. 12, paras. 9-10).
As for communication since the issuance of the December 8, 2021, supplemental notice of determination, the facts alleged in the motion to dismiss consist entirely of the following:
11. On December 8, 2021 [i.e., before the Court's order of December 14, 2021 (Doc. 11)], respondent's counsel left a voice message with both petitioner wife and petitioner husband in which he stated that he would move to dismiss petitioners' case for failure to properly prosecute. Later that day, petitioner husband called respondent in which he stated that his wife was handling the case and that he would have her call respondent's counsel back. Respondent's counsel never heard back from petitioner wife. . . .
15. On January 13, 2022, respondent attempted to call petitioner wife, but the call could not go through. Respondent left a voicemail with petitioner husband regarding this motion. Respondent has not heard back from either petitioner . . . .
Discussion
In this Court, petitioners have the duty, as part of properly "prosecuting" their case, to cooperate and communicate with their opponent (counsel for the Commissioner) in order to prepare their case for trial (and so that the parties can resolve among themselves any issues that can be resolved without the Court's involvement). Petitioners' failure to fulfill this duty can result in dismissal of the case "for failure ... properly to prosecute", pursuant to Rule 123(b). The Commissioner's allegations about the the Browns's failures to respond to his attempts to communicate are very concerning; and such failures (if they occurred) may ultimately lead to a decision against the Browns. However, the pending motion stresses allegations of the Browns' non-communication and non-cooperation with the Office of Appeals. These allegations might well be relevant to a motion for summary judgment asking us to sustain Appeals' determinations. Appeals does not abuse its discretion when it sustains collection of tax owed by a taxpayer who requested a CDP hearing but then failed to participate in that hearing.
However, the Commissioner's motion does not ask us to grant summary judgment sustaining Appeals' supplemental determination. Rather, it asks us to dismiss the case without addressing its merits, on the grounds that the Browns have failed to properly prosecute their case before this Court. The motion is based on (though it does not cite) Rule 123(b), which provides: "For failure of a petitioner properly to 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 "failure" pertinent to this motion is a petitioner's failure "to prosecute"--i.e., a failure to prosecute the case before the Court. Failure to fulfill obligations in agency-level proceedings with the IRS is a different matter, not targeted by Rule 123(b).
The motion cites no Tax Court rule or order with which the Browns have failed to comply since the relatively recent date on which Appeals issued its supplemental notice of determination in December 2021. The sole order issued since that date has been our order of December 14, 2021 (Doc. 11), which requires only the filing of a status report by February 8, 2022--a date still in the future. It is therefore
ORDERED that the Commissioner's motion to dismiss (Doc. 12) is denied without prejudice. It is further
ORDERED that our order of December 14, 2021 (Doc. 11), remains in full force and effect. That order requires "that, no later than February 8, 2021, the parties shall file a joint status report that shall include the parties' recommendations as to a schedule for further proceedings in this case." Petitioners must comply with that order. If the Browns fail to cooperate with their opponent (counsel for the Commissioner) in readying this case for presentation to the Court, then they may indeed become at risk for dismissal "for failure . . . properly to prosecute". If the Browns have any questions about how to proceed, then they should telephone the Chambers Administrator (at 202-521-0850) for the purpose of scheduling a telephone conference among the parties and the Court.