Opinion
2620-22
04-19-2023
LISHA FAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
Joseph W. Nega, Judge.
This case was called and recalled from the calendar on March 6, 2023, at the Boston, Massachusetts, trial session of the Court. There was no appearance by or on behalf of petitioner. Counsel for respondent appeared and filed a Motion to Dismiss for Lack of Prosecution (respondent's motion to dismiss), which the Court took under advisement.
On January 20, 2023, 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) (respondent's 91(f) motion). In respondent's 91(f) motion, respondent represented that petitioner refused to review a proposed stipulation of facts and refused to stipulate to any of the proposed facts therein.
Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure.
By Order served January 26, 2023, the Court granted respondent's 91(f) motion and directed petitioner to show cause why the matters set forth in respondent's proposed stipulation of facts, attached to respondent's 91(f) motion, should not be deemed admitted. Although petitioner filed a response on February 14, 2023, the response did not directly address why the matters set forth in respondent's proposed stipulation of facts should not be deemed admitted for purposes of the instant case.
Petitioner was warned by multiple Tax Court employees that the failure to appear at calendar call could result in the dismissal of her case. She appeared neither at calendar call nor at the recalling of her case, even after respondent's counsel phoned to tell her the Court had set her case for recall.
The Court, during the hours between the calendar call and the recall, met informally in open court with the administrators and students of at least two local tax clinics. Petitioner apparently never contacted these organizations to seek assistance.
On March 14, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Prosecution (objection). By Order issued March 20, 2023, the Court, inter alia, made respondent's 91(f) motion absolute, ordered petitioner to supplement her objection to respondent's motion to dismiss by attaching any documents she has related to the disputed Cost of Goods Sold (COGs) and itemized deduction for legal and professional services on or before April 12, 2023, and warned petitioner that her failure to timely submit an appropriate supplement may result in the granting of respondent's motion to dismiss and entry of an order and decision against her.
On April 11, 2023, petitioner submitted to the Court a letter, self-styled as a "Notice for Leaving the Court for International Business and Visiting Family Members, and, Attached a Copy of Lisha Fan, MD's Letter to the President of the United States Joe Biden." Petitioner's letter provides no additional documentation relating to either the disputed COGs or the itemized deduction for legal and professional services, as ordered by the Court.
Rule 123(b) provides that, "[f]or failure of a petitioner to properly prosecute or to comply with these Rules or any order of the court or for other cause which the Court deems sufficient, the Court may dismiss a case at any time and enter a decision against the petitioner." Rule 149(a) provides that "[t]he unexcused absence of a party . . . when a case is called for trial will not be ground for delay" and that the Court may dismiss such a case for failure to properly prosecute. The Court's Standing Pretrial Order (SPTO), issued to petitioner on November 4, 2022, provides that, "[i]f you have not settled your case and you do not participate in conference calls and pretrial conferences, or appear at trial, the Judge may dismiss your case and enter a decision against you." The Court's SPTO further explained the requirement that the parties stipulate to all facts and documents to the maximum extent possible and file a stipulation of facts no later than 14 days before the first day of the trial session.
Petitioner refused to participate in the fact-stipulation process with respondent, as ordered by the Court. Petitioner did not appear when her case was called and recalled, despite knowing that her non-appearance could result in the dismissal of her case. Petitioner ignored multiple Court orders, including requests for specific documentation. Any one of these failures would justify the granting of respondent's motion; here, we have all three. See Ruocco v. Commissioner, 346 F.3d 223, 224 (1st Cir. 2003) (no abuse of discretion granting motion to dismiss for lack of prosecution where petitioner refused to participate in fact-stipulation process and failed to present evidence), aff'g T.C. Memo 2002-91, 83 T.C.M. (CCH) 1457; see also Roulett v. Commissioner, 534 Fed.Appx. 915, 916 (11th Cir. 2013) (no abuse of discretion granting motion to dismiss for lack of prosecution where petitioner's case was called and recalled with no appearance by petitioner). We will dismiss this case and enter a decision against petitioner, with the caveat that we accept respondent's concession of several adjustments made in the notice of deficiency.
Accordingly, and upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution, filed March 6, 2023, is granted, and this case is dismissed for lack of prosecution. It is further
ORDERED and DECIDED that for tax year 2019, there is a deficiency in income tax due from petitioner in the amount of $7,387.