Opinion
12031-20L
02-18-2022
Marvin L. Delossantos & Jennifer A. Delossantos Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
DAVID GUSTAFSON JUDGE
Now pending in this case are two motions filed by the Commissioner: (1) a motion (Doc. 10) to dismiss the case for petitioners' "lack of prosecution", which the Commissioner recently supplemented (see Doc. 22), and (2) a motion (Doc. 20) for summary judgment, arguing that the Commissioner is entitled to prevail on the basis of facts that are not in dispute. If we grant either of the motions, that will have the effect of deciding this case in favor of the Commissioner. We will require petitioners to respond to both motions.
Motion for lack of prosecution
We have previously explained the nature of the motion to dismiss for lack of prosecution and the response that the petitioners should make. See orders of September 15, 2021 (Doc. 12), and January 21, 2022 (Doc. 19). Petitioners should consult those orders. We will now order petitioners to file a response.
Motion for summary judgment
The Commissioner's motion for summary judgment asserts that no trial is necessary in this case, because (the Commissioner says) no relevant facts are in dispute. The motion contends that, on the basis of the undisputed facts, the case can be decided in the IRS's favor. The Court will order petitioners to file a response to the motion.
If petitioners disagree with the facts set out in paragraphs 1-31 of the IRS's motion, then their response should point out the specific facts in dispute. The response should state, by number, any assertion with which they disagree, should explain the reason for the disagreement, and should cite whatever evidence supports their position. If they disagree with the IRS's argument as to the law (in paragraphs 32-44), then their response should also set out their position on the disputed legal issues. Q&As that the Court has prepared on the subject "What is a motion for summary judgment? How should I respond to one?" are available at the Court's website and are printed on the page attached to this order.
Petitioners should note that, under Tax Court Rule 121(d), if they do not respond to the motion for summary judgment, then a decision may be entered against them.
To enable the Court to resolve the Commissioner's motions, it is
ORDERED that, no later than March 16, 2022, petitioners shall file with the Court both a response to the Commissioner's motion to dismiss (as supplemented) and a response to the Commissioner's motion for summary judgment. It is further
ORDERED that, no later than April 6, 2022, the Commissioner shall file and serve replies to both responses (or, if petitioners have failed to file responses, then the Commissioner shall file a status report).