Opinion
16767-21
07-22-2022
JOSEPH A. ETIENNE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
David Gustafson, Judge.
The Court on its own motion will dismiss this case for failure by petitioner Joseph A. Etienne to prosecute his case, and will enter decision sustaining the notice of deficiency issued to him by the Internal Revenue Service.
The petition in this case and the IRS's notice of deficiency attached to it indicate that petitioner Joseph A. Etienne received compensation from Lyft and Uber that he did not report on his tax return. This case was set for trial at the Court's Boston session beginning June 6, 2022. Our standing pretrial order (Doc. 7) required each of the parties to file a pretrial memorandum ("PTM"), which the Commissioner did (see Doc. 8) but Mr. Etienne did not, and to file proposed trial exhibits, which the Commissioner did (Doc. 10) but Mr. Etienne did not. We issued an order on May 20, 2022, requiring Mr. Etienne to telephone chambers so that we could conduct a telephone conference among the Court and the parties, but he did not comply.
Because the transmission rate of the coronavirus became high in Boston as the trial date approached, we issued an order (Doc. 11) continuing this case. We gave this instruction to Mr. Etienne:
Given this repeated non-compliance with our orders, we cannot rule out the possibility that Mr. Etienne no longer wishes to litigate this case. Mr. Etienne should note that, under Rule 123(b), a petitioner who fails to comply with the Court's rules and orders is subject to having his petition dismissed, with the IRS's deficiency determination sustained. . . .
. . . Mr. Etienne shall (1) file a pretrial memorandum that shall itemize by type and amount the expenses that he claims as deductions and (2) file as "proposed trial exhibits" all the documents that he will offer at the trial of this case to substantiate those expenses (including presumably the "Summary Statement from Uber" and "Cell phone statements" referred to in his petition). If Mr. Etienne fails to comply with these instructions, then we would expect to dismiss his case under Rule 123(b) and to sustain the IRS's deficiency determinations. [Underlining in original.]
The Court has received no filings or other communications from Mr. Etienne since he filed his petition in May 2021. We will therefore dismiss his case under Rule 123(b). We point out to Mr. Etienne that under Rule 162 a party may file a motion to vacate a decision within 30 days after the decision is entered. We would consider such a motion, if it were timely filed, if it were accompanied by the pretrial memorandum and proposed trial exhibits called for by our previous orders, and if it explained good reason for Mr. Etienne's previous noncompliance with our orders.
It is
ORDERED that, on the Court's own motion and pursuant to Rule 123(b), this case is dismissed for Mr. Etienne's failure properly to prosecute his case, and his failure to comply with our orders. It is further
ORDERED AND DECIDED that there is a deficiency in income tax due from petitioner Joseph A. Etienne for tax year 2018, in the amount of $8,876, and accuracy-related penalty under section 6662(a) in the amount of $1,775, as set forth in the notice of deficiency dated February 22, 2021.