Opinion
12031-20L
09-15-2021
Marvin L. Delossantos & Jennifer A. Delossantos Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson Judge
This is a "collection due process" ("CDP") case filed pursuant to I.R.C. section 6330(d), in which petitioners Marvin L. and Jennifer A. Delossantos ask us to review a determination by the IRS Office of Appeals, sustaining proposed collection (by levy) of tax liabilities for two years--2013 and 2014 (see Doc. 1). As for 2013, the Court issued its order (Doc. 9) on July 26, 2021, granting the Commissioner's motion to dismiss and to strike (Doc. 6) on grounds of mootness, dismissing so much of the petition that pertains the Delossantos's tax year 2013 as moot. The tax year 2014 was not dismissed and remain pending here.
This CDP case will be tried during a Columbia, South Carolina, session of the Court beginning October 4, 2021 (to be conducted as a remote proceeding) pursuant to our notice of trial and standing pretrial order served May 5, 2021 (Docs. 4-5). However, on Wednesday, September 1, 2021, the Commissioner filed a motion (Doc. 10) to dismiss this case for lack of prosecution, in which the Commissioner moves the Court to enter a decision sustaining the filing of a proposed levy to collect the Delossantos's unpaid income tax liability for 2014. In the motion, the Commissioner describes his difficulty in obtaining documents and information that had been previously requested from petitioners, and alleges that they been unresponsive in pretrial preparation. On that same date, petitioners filed their response to the motion to dismiss, that states "We disagree with the statements written in the motion filed on September 1, 2021 to dismiss for lack of prosecution."
To learn more about the status of this case, the Court concluded that a pretrial telephone conference with the Court and the parties would be expedient, and the Court's staff began placing calls to the parties on September 2, 2021, but so far, petitioners have not responded to voice-mail messages left by the undersigned judge's Chambers Administrator, nor have petitioners responded to our additional attempts to reach them by email. The Court made additional efforts to contact petitioners by phone on September 14, 2021, but the calls were instead met by a recorded message saying that the number (ending -5069) was no longer in service.
In this Court, a petitioner has the duty, as part of properly "prosecuting" his case, to cooperate and communicate with his opponent (counsel for the Commissioner) in order to prepare his 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. 5) served in this case on May 5, 2021, 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 sustaining the proposed collection (by levy) of the Delossantos's unpaid tax liability for 2014.
It is therefore
ORDERED that, immediately upon receiving this order, and in any event, no later than September 20, 2021, petitioners Marvin L. and Jennifer A. Delossantos, shall telephone the Chambers Administrator of the undersigned judge (at 202-521-0850) for the purpose of scheduling a prompt pretrial telephone conference. We take this occasion to remind petitioners of their obligation under Tax Court Rule 24(b) to keep the Court advised of their up-to-date contact information. It is further
ORDERED that the Commissioner's motion to dismiss for lack of prosecution is set for hearing during the Court's October 4, 2021, Columbia, South Carolina, trial session to be conducted as a remote proceeding at 10:00 a.m. (ET). If petitioners Marvin L. and Jennifer A. Delossantos wish to oppose the motion, they should appear remotely and be heard at that time. If petitioners fail to appear, we expect to grant the Commissioner's motion and dismiss this case for lack of prosecution. Such a dismissal has the effect of sustaining the filing of a proposed levy to collect petitioners' unpaid Federal income tax liability for the year 2014. It is further
ORDERED that, the parties shall refer to the notice setting case for trial (Doc. 4) served May 5, 2021, for the Zoomgov Meeting ID and Passcode. It is further
ORDERED that, the Clerk of the Court shall serve with the copy of this order served on petitioners, copies of the Court's (1) Notice of Trial (Doc. 4) and (2) Standing Pretrial Order (Doc. 5) for the Court's October 4, 2021, remote trial session. It is further
ORDERED that, in addition to regular service on the parties, the Clerk of the Court serve a copy of this order on petitioners by U.S. Mail at their address of record in this case (in Fort Mill, South Carolina, see Doc. 1).