Opinion
9342-19
10-21-2021
James Manka, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER OF DISMISSAL AND DECISION
Joseph H. Gale Judge
Pending before the Court is respondent's Motion to Dismiss for Lack of Prosecution (Motion to Dismiss), filed January 11, 2021, wherein respondent requests that this case be dismissed for lack of prosecution and that a decision be entered sustaining the deficiency and additions to tax for petitioner's 2014 taxable year as determined in the notice of deficiency. On May 3, 2021, respondent filed a First Supplement to his Motion to Dismiss.
For the reasons discussed below, we will grant respondent's Motion to Dismiss, as supplemented, in that we will dismiss this case for failure to properly prosecute and enter a decision in respondent's favor.
Background
This case was set for trial on February 1, 2021. However, on January 29, 2021, respondent filed a Status Report, reporting that petitioner had advised respondent's counsel by telephone on January 26, 2021, that he was conceding the case in full. Respondent further advised that he had prepared decision documents and would be mailing a proposed stipulated decision to petitioner for his signature.
In view of the foregoing, the Court directed, by Order served February 1, 2021, that the case be continued and stricken from the calendar of the aforementioned trial session. The Court further directed that the parties file, on or before April 2, 2021, a proposed stipulated decision or, in the alternative, a joint status report. Respondent accordingly mailed a copy of the proposed stipulated decision to petitioner at the address he had provided in a Notice of Change of Address he filed on September 23, 2020. However, on April 2, 2021, respondent filed a Status Report, advising that he had been unable to reach petitioner and requesting an additional 30 days to continue his efforts to secure a signed proposed stipulated decision from petitioner.
The Court had directed petitioner to provide his current mailing address in view of the fact that petitioner's former counsel had withdrawn from the case.
By Order served April 14, 2021, the Court extended, to May 3, 2021, the deadline for the parties to file a proposed stipulated decision. The Court further directed that, in the alternative, respondent file a supplement to his Motion to Dismiss. On May 3, 2021, respondent filed his First Supplement, therein advising that petitioner had failed to return a signed copy of the proposed stipulated decision or to respond to respondent's counsel's subsequent attempts at communication. The Court thereupon issued an Order to Show Cause, served May 12, 2021, directing petitioner to show cause in writing by July 12, 2021, why respondent's Motion to Dismiss, as supplemented, should not be granted and this case should not be dismissed for failure to properly prosecute. To date, petitioner has not responded.
Discussion
The Court may dismiss a case at any time and enter a decision against the taxpayer for failure properly to prosecute his case, failure to comply with the Rules of this Court or any order of the Court, or for any cause which the Court deems sufficient. Rule 123(b); Stearman v. Commissioner, 436 F.3d 533, 535-537 (5th Cir. 2006), aff'g T.C. Memo. 2005-39; Bauer v. Commissioner, 97 F.3d 45, 48-49 (4th Cir. 1996); Edelson v. Commissioner, 829 F.2d 828, 831 (9th Cir. 1987), aff'g T.C. Memo. 1986-223. In addition, the Court may dismiss a case for failure to properly prosecute if the taxpayer does not participate in the resolution of his claim. Rule 149(a); Tello v. Commissioner, 410 F.3d 743, 744 (5th Cir. 2005); Rollercade, Inc. v. Commissioner, 97 T.C. 113, 116-117 (1991).
Rule references are to the Tax Court Rules of Practice and Procedure, and section references are to the Internal Revenue Code in effect at all relevant times.
We are satisfied that petitioner has conceded this case. Nevertheless, he has failed to cooperate with respondent's counsel by executing a stipulated decision to effect that result. His failure to execute a stipulated decision has impeded the orderly and expeditious resolution of this litigation. Given the foregoing, and his failure to comply with our Order to Show Cause, we conclude that it is appropriate to dismiss this case for failure to properly prosecute and enter a decision against him in all respects.
Petitioner had an opportunity to challenge respondent's assertion to that effect by responding to our Order to Show Cause, and he did not.
In the notice of deficiency, respondent determined a deficiency of $35,924 in petitioner's 2014 Federal income tax. The notice of deficiency indicates that petitioner failed to file a Federal income tax return for 2014, and that, pursuant to section 6020(b), respondent prepared and filed a substitute for return reporting several items of income based on information returns filed by third-party payers for 2014 reporting that the amounts in question were paid to petitioner. In conceding this case, petitioner does not dispute his receipt of these income items. Accordingly, we sustain the deficiency in full.
A copy of the notice of deficiency is attached to the Petition.
Respondent also determined in the notice of deficiency that petitioner is liable for additions to tax under section 6651(a)(1) and (2). In conceding this case, petitioner does not dispute that he failed to file a return for 2014 or pay the tax shown on the substitute for return filed by respondent. Accordingly, we sustain respondent's determinations of the additions to tax in this case.
The foregoing considered, it is
ORDERED that the Court's Order to Show Cause served May 12, 2021, is hereby made absolute. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution, filed January 11, 2021, as supplemented by respondent's First Supplement to Motion to Dismiss for Lack of Prosecution, filed May 3, 2021, is granted in that this case is hereby dismissed for failure to properly prosecute. It is further
ORDERED and DECIDED that there is a deficiency in petitioner's 2014 Federal income tax due in the amount of $35,924 and additions to tax under section 6651(a)(1) and (2) due of $1,429.65 and $1,588.50, respectively.