Opinion
13056-22SL
08-16-2024
MICHAEL C. MARQUART, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Emin Toro, Judge
On May 30, 2024, we entered and served an Order of Dismissal and Decision in this case, granting respondent's Motion to Dismiss for Failure to Properly Prosecute on the grounds that Mr. Marquart failed to appear at the Court's May 20, 2024, trial session in Helena, Montana, to prosecute his case and that he had not provided any reason for missing the trial date. The following day the Court received a Letter from Mr. Marquart dated May 23, 2024, informing the Court for the first time that he could not appear at the trial session. We issued an Order on June 17, 2024, addressing the May 23 Letter. Because the May 23 Letter was dated before the Decision in this case, we did not treat it as a motion to vacate or revise under Rule 162;1 however, the June 17 Order reminded the parties of Rule 162 and the deadline for filing such a motion.
On August 1, 2024, the Court received another Letter from Mr. Marquart dated July 26, 2024, protesting the Court's Order of Dismissal and Decision. We will recharacterize this Letter as a Motion to Vacate or Revise Pursuant to Rule 162 and deny the Motion for the reasons set out below.
Tax Court Rule 162 addresses the circumstances in which a party may file a motion to vacate or revise a decision. Rule 162 provides that, unless otherwise permitted by the Court, any motion to vacate or revise a decision "shall be filed within 30 days after the decision has been entered." A party that wishes to file a motion to vacate or revise outside of the 30-day period must file a motion for leave to file its motion. See Stewart v. Commissioner, 127 T.C. 109, 111-12 (2006). The granting of a motion for leave "lies within the sound discretion of the Court." Id. at 112.
In this case, Mr. Marquart's Motion to Vacate or Revise the Court's Decision was untimely as it is dated 57 days after the Court's Order of Dismissal and Decision. And Mr. Marquart has not filed a proper motion for leave along with the Motion to Vacate or Revise setting out the reasons why he could not have filed the motion timely. We could reject his Motion on that basis alone.
Even if Mr. Marquart's Motion were timely, however, we would deny it because it does not describe any valid grounds for vacating or revising the Decision entered in this case. Rule 162 does not provide a standard for evaluating a motion to vacate or revise, so we have often referred to Rule 60 of the Federal Rules of Civil Procedure and cases applying it to assist us in applying the Rule. See, e.g., Cinema '84 v. Commissioner, 122 T.C. 264, 267-68 (2004); Brannon's of Shawnee, Inc. v. Commissioner, 69 T.C. 999, 1001 (1978). Rule 60(b) specifies six reasons why a court may relieve a party from a final judgment, order, or proceeding.2 Mr. Marquart has not shown that any of the specific circumstances contemplated by Rule 60(b) are present here. Nor do the reasons he advances in his Motion supply a "reason that justifies relief."
Mr. Marquart first references how in prior filings with the Court he expressed a desire for afternoon hearing times because of his disabilities and needs. Yet, once the Notice Setting Case for Trial was served on the parties on February 6, 2024, notifying the parties of the May 20, 2024, trial session, Mr. Marquart raised no concerns about the date and time of the trial session despite having approximately three-and-a-half months before the trial session to do so. And a review of his Letter to the Court dated April 22, 2024 (Doc. 64), indicates that he was aware of the trial session before it took place. Specifically, in that letter, Mr. Marquart stated that he was "in receipt of the Court's March 26, 2024 Order" that directed him to file a response to respondent's Motion for Summary Judgment. The first sentence of the Court's March 26 Order read: "This case is currently calendared for trial during the Court's May 20, 2024, Helena, Montana, trial session." Despite receiving that Order and responding to it, nowhere in Mr. Marquart's April 22 Letter did he express that he could not attend the scheduled trial session.
Mr. Marquart next describes various troubles that he has experienced receiving his mail. But once again, nowhere does he make any allegations that those mail troubles prevented him from appearing at the trial session or otherwise notifying the Court that he could not attend prior to May 20, 2024. At bottom, it was incumbent on Mr. Marquart to tell the Court that he could not participate in the trial session at the time it was scheduled-something he did not do until several days after the trial session had already taken place. Put simply, Mr. Marquart made a conscious decision not to appear at the date and time scheduled for his trial. That is not a valid reason for setting aside the Decision.
Finally, Mr. Marquart argues that "he's been steadfast in arguing and submitting counterclaims to the IRS's . . . positions" and that the Court should not have dismissed the case for failure to properly prosecute. But, while Mr. Marquart has continued to file documents with this Court, his engagement with our processes has been selective at best. And even were this not the case, under our rules, failure to attend "when a case is called for trial will not be ground for delay" and the "case may be dismissed for failure to properly prosecute." Rule 149(a). As discussed above, Mr. Marquart was notified of the trial session three-and-a-half months before it took place. He was again reminded of the session date when respondent filed his Pretrial Memorandum on April 24, 2024 (Doc. 50), stating that "Respondent will file a motion to dismiss for lack of prosecution if petitioner fails to appear at the calendar call scheduled for May 20, 2024." At no time did Mr. Marquart inform the Court that he was unable to attend the calendar call until after the fact, despite having access to both these documents. Court personnel also attempted to reach the parties by email on May 13, 2024, for purposes of scheduling a pre-trial conference call, but Mr. Marquart never responded. Furthermore, on the day of the trial session and after the case was initially called from the calendar, Court personnel informally notified Mr. Marquart in an email that his case would be recalled in the afternoon that day, but again he did not respond to say that he could not attend. While we are sympathetic to the challenges Mr. Marquart faces in communicating, we cannot hold his case open indefinitely (and require further efforts from respondent) in the hope that Mr. Marquart may attend a future in-person trial session when, to date, he has given us no reason to believe that he will do so. Nor has Mr. Marquart explained in any detail how a trial might change the ultimate outcome here, especially since respondent has already placed Mr. Marquart's account for the relevant year in currently-not-collectible status. Cf. Estate of Egger v. Commissioner, 92 T.C. 1079, 1083 (1989) (In considering a motion for leave to file an untimely motion to vacate, "[w]e are guided primarily by whether it would be in the interest of justice to vacate the prior decision. But, we also recognize that litigation must end at sometime." (citing Koufman v. Commissioner, 69 T.C. 473, 476-77 (1977))); Brannon's of Shawnee, Inc., 69 T.C. 999, 1002-04 (considering the substantive merits of a proposed motion to vacate in determining whether to grant a motion for leave).
In consideration of the foregoing, it is hereby
ORDERED that petitioner's Letter received August 1, 2024, is recharacterized as petitioner's Motion to Vacate or Revise Decision, and the Clerk of Court is directed to serve such Motion on respondent. It is further
ORDERED that petitioner's Motion to Vacate or Revise Pursuant to Rule 162, filed August 1, 2024, is denied.
The case remains closed.