Opinion
449-15
02-14-2023
DAVID L. COMEY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
Elizabeth Crewson Paris Judge
This case was calendared for trial at the December 13, 2021, Milwaukee, Wisconsin Remote Trial Session of the Court. The Notice Setting Case For Trial was issued on July 15, 2021, docket entry 44.
On October 28, 2021, docket entry 49, respondent filed a Motion for Order to Show Cause Why Proposed Facts and Evidence Should Not be Accepted as Established Pursuant to Rule 91(f), which requested that the Court issue an Order to Show Cause requiring petitioner to show cause why the facts and evidence set forth in respondent's proposed Stipulation of Facts, (attached to respondent's Motion as Exhibit A), should not be accepted as established for the purposes of this case.
By Order dated November 3, 2021, docket entry 58, as amended on November 16, 2021, docket entry 59, the Court (1) granted respondent's Motion; (2) directed petitioner, on or before December 10, 2021, to file a response in compliance with the provisions of Rule 91(f)(2), with proof of service of a copy thereof on opposing counsel, showing cause why the facts and evidence set forth in respondent's proposed Stipulation of Facts (attached to respondent's motion as Exhibit A) should not be accepted as established for purposes of this case. The Order stated that if no response was filed within the period specified above, with respect to any matter or portion thereof, or if the response was evasive or not fairly direct to the proposed stipulation of portion thereof, that matter or portion would be deemed stipulated for the purposes of the pending case and an Order would be entered pursuant to Rule 91(f)(3). The case was set for a HEARING on respondent's motion at the December 13, 2021, Milwaukee, Wisconsin remote Trial Session of the Court for a time and date certain on Monday, December 13, 2021 and the Clerk of the Court was directed to serve a copy on petitioner David L. Comey c/o Mr. Richberger at 1900 Pewaukee Road, Suite B, Waukesha, Wisconsin 53188.
On November 22, 2021, docket entry 61, respondent filed with the Court Motion to Dismiss for Lack of Prosecution.
On December 13, 2021, this case was called from the calendar for the remote Trial Session of the Court at Milwaukee, Wisconsin. Counsel for respondent and Petitioner Mr. David L. Comey appeared and were heard; as reflected on the transcript of the proceeding, filed on the Court's record January 12, 2022, docket entry 69.
By Order dated December 20, 2021, docket entry 67, the Court (1) made absolute the Court's amended Order to Show Cause, filed November 16, 2021, docket entry 59; (2) accepted as established the Stipulation of Facts consisting of paragraphs 1 through 6 and Exhibits 12-J, 26-J, 29-J, and 30-J, the First Supplemental Stipulation of Fact consisting of paragraphs 7 through 16 and Exhibits 1-J through 10-J, the Second Supplemental Stipulation of Facts consisting of paragraphs 17 through 26 and Exhibits 11-J and 13-J through 19-J, and the Third Supplemental Stipulation of Facts consisting of paragraphs 27 through 31 and Exhibits 24-J through 25-J, 27-J through 28-J and 31-J; (3) discharged the Court's Order to Show Cause why this case should not be dismissed for lack of prosecution, filed November 24, 2021, docket entry 62; (4) denied without prejudice respondent's Motion to Dismiss for Lack of Prosecution, filed November 22, 2021, docket entry 61, (upon petitioner's representation of cooperation); and (5) directed respondent, on or before March 1, 2022, to file a status report.
On November 9, 2022, docket entry 82, respondent filed with the Court a subsequent Motion to Dismiss for Lack of Prosecution requesting that the Court dismiss this case for lack of prosecution and find in its order that there is a deficiency, as set forth in the notice of deficiency dated October 28, 2014, as modified by the deemed Stipulations, due from petitioner as follows:
Year
Deficiency
6651(f)
Additions to Tax/Penalties I.R.C.§§ 6651(a)(2)
6654
2001
$ 8,184.00
$ 5,933.40
$2,046.00
$ 327.05
2002
$ 4,698.00
$ 3,406.50
$1,174.50
$ 157.01
2003
$ 7,789.00
$ 5,647.03
$1,947.25
$ 200.97
2004
$ 2,759.00
$ 2,000.28
$ 689.75
--
2005
$35,034.00
$25,399.65
$8,758.50
$1,405.27
2006
$20,285.00
$14,706.63
$5,071.25
$ 959.96
2007
$10,340.00
$ 7,496.50
$2,585.00
$ 470.60
2008
$24,343.00
$17,648.68
$6,085.75
$ 782.31
2009
$10,117.00
$ 7,334.83
$2,529.25
$ 242.21
By Order dated December 8, 2022, at docket entry 91, the Court issued an Order to Show Cause which (1) directed petitioner, on or before January 20, 2023, to file a response to the Court's Order showing cause why this case should not be dismissed for lack of prosecution and why a decision should not be entered against petitioner for the amounts and years set forth in respondent's Motion to Dismiss for Lack of Prosecution, filed November 9, 2022, docket entry 82; and (2) directed the Clerk of the Court, in addition to regular service of this Order to petitioner c/o Nicole Drzadinski, Parole Agent, to serve a second copy of this Order on petitioner c/o Taylor Burge, Parole Agent, also located at the current address listed on the Court's record. The Court also advised petitioner that failure to comply with this Order may result in the dismissal of this case.
To date, there has been no response from petitioner to the Court's December 8, 2022, Order to Show Cause, docket entry 91.
After due consideration, and for cause, it is
ORDERED that, the Court's Order to Show Cause, dated December 8, 2022, docket entry 91, is hereby made absolute. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution, filed November 9, 2022, docket entry 82, is granted, and this case is dismissed for lack of prosecution. It is further
ORDERED AND DECIDED that there are deficiencies in tax and penalties/additions to tax as set forth in the Notice of Deficiency dated October 28, 2014, as modified, due from petitioner as follows:
Year
Deficiency
6651(f)
Additions to Tax/Penalties I.R.C.§§ 6651(a)(2)
6654
2001
$ 8,184.00
$ 5,933.40
$2,046.00
$ 327.05
2002
$ 4,698.00
$ 3,406.50
$1,174.50
$ 157.01
2003
$ 7,789.00
$ 5,647.03
$1,947.25
$ 200.97
2004
$ 2,759.00
$ 2,000.28
$ 689.75
--
2005
$35,034.00
$25,399.65
$8,758.50
$1,405.27
2006
$20,285.00
$14,706.63
$5,071.25
$ 959.96
2007
$10,340.00
$ 7,496.50
$2,585.00
$ 470.60
2008
$24,343.00
$17,648.68
$6,085.75
$ 782.31
2009
$10,117.00
$ 7,334.83
$2,529.25
$ 242.21