Opinion
9371-14
10-21-2021
MARK FEATHERS & NATALIE E. FEATHERS, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Mark V. Holmes Judge
This case was originally on the Court's October 19, 2015 trial calendar for San Francisco, California. We continued it because there was a receivership in District Court that seemed to subject these proceedings to the stay imposed by 26 U.S.C § 6871(c). It turned out, however, that the preliminary injunction creating the receivership had a carve-out for Tax Court litigation. Mr. Feathers then challenged our jurisdiction by suggesting that he may have filed his petition starting this case while his own bankruptcy case was pending. Years then passed when Mr. Feathers was subjected to criminal prosecution and imprisoned. After his release, the case was again assigned to this division of the Court and put on the October 25, 2021 San Francisco trial calendar. In a subsequent order we set it for trial on October 28.
On October 20, 2021 petitioners moved for a continuance in this now-aged case, and to be allowed to amend their petition.
Continuance
Tax Court Rule 133 states that a motion for continuance that is filed less than 30 days before a trial date will ordinarily be deemed dilatory and "will be denied unless the ground therefor arose during that period or there was good reason for not making the motion sooner."
Petitioners cite as their causes for the last-minute request:
. respondent's need for more time to digest petitioners' answers to his interrogatories;
. respondent's need for more time to respond to petitioners' recently served requests for admissions and interrogatories; and
. the prevention of respondent's gaining an advantage in this litigation "employing (or citing) procedural elements to gain a favorable outcome (i.e., Respondent's pleadings through this date cite that Petitioners' 'nonresponse(s)' may be considered 'an admission')."
The first two reasons are not reasons petitioners may justly raise --respondent's capable counsel would have to raise her own lack of time as a reason for a last-minute continuance. She has not done so. And petitioners' requests for admissions, filed a mere 8 days before trial, are themselves untimely. See Rule 90(a). They, too, can not provide a reasonable basis for delaying this already long-delayed trial.
Petitioners do have standing to make their third argument. But any default in petitioners' own failure to timely respond to respondent's requests for admission is entirely of their own making. Rule 90(c) requires responses within 30 days of the service of such requests, and plainly provides that if a response isn't forthcoming by that deadline the "matter is deemed admitted." Petitioners could have asked for more time before that deadline, and even now might ask for relief under Rule 90(d). But they can not reasonably use their own dilatoriness as a reason to continue this case.
Motion to Amend the Petition
Petitioners also moved on October 20, 2021 to amend their petition to include innocent-spouse relief for petitioner Natalie Feathers. In their motion, they state that she requested such relief in 2014, but that it was denied. Allowing such an amendment a mere 8 days before trial would be wholly unfair to respondent --the fact that go into deciding an innocent-spouse claim are wholly different from the issues that the parties put at issue many years ago in their original pleadings. Rule 41 does say that leave to amend pleadings "shall be given freely when justice so requires." In determining the justice of allowing a proposed amendment, we examine the particular circumstances of the case, and consider, among other factors (a)whether an excuse for the delay exists; and, (b)whether the opposing party would suffer unfair surprise, disadvantage, or prejudice. Estate of Ravetti v. Commissioner, T.C. Memo. 1992-697.
We can see no excuse for such a long delay, and petitioners don't even make one. And respondent would necessarily suffer unfair surprise and disadvantage if a new issue, whose determination would require factfinding far beyond the issues framed by the existing pleadings, were to be injected into the case this close to trial.
It is therefore
ORDERED that petitioners' October 20, 2021 motion for continuance is denied. It is also
ORDERED that petitioners' October 20, 2021 motion "to refile petition to include innocent spouse relief consideration" is denied.
The Court will consider petitioners' evidentiary motion at trial.