Opinion
5384-23S
02-13-2024
JOSEPH L. DOWNS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
Peter J. Panuthos Special Trial Judge
By Notice served September 14, 2023, this case was calendared for trial at the Court's San Francisco, California trial session commencing February 5, 2024. On January 31, 2024, respondent filed a Motion to Dismiss for Failure to Properly Prosecute. In his motion, respondent advises that petitioner became nonresponsive after a settlement was reached with respondent's Office of Appeals. The Notice of Trial and Standing Pretrial Order issued in this case make clear that failure to communicate and failure to appear may result in dismissal.
When this case was called from the calendar on February 5, 2024, there was no appearance by or on behalf of petitioner. Counsel for respondent appeared and was heard on the motion.
Upon due consideration, and for cause more fully appearing in the transcript of the proceeding, it is
ORDERED that respondent's Motion to Dismiss for Failure to Properly Prosecute, filed January 31, 2024, is granted, and this case is dismissed for failure to properly prosecute. It is further
ORDERED and DECIDED that there is no deficiency in income tax due from petitioner for the taxable year 2021; and
That there is an overpayment in income tax for the taxable year 2021 in the amount of $951.00 which amount was paid on April 15, 2022, and for which amount a claim for refund could have been filed, under the provisions of I.R.C. § 6511(b)(2), on February 3, 2023, the date of the mailing of the notice of deficiency.