Opinion
12377-23
09-06-2024
DAN OLVERA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson, Judge.
This case is set for trial at the Court's San Antonio, Texas, trial session beginning Monday, September 30, 2024, pursuant to our notice of trial and standing pretrial order served May 6, 2024, (Docs. 6-7).
On Wednesday, September 4, 2024, the Commissioner filed a motion (Doc. 9) to dismiss this case for lack of prosecution. The Commissioner's motion alleges that petitioner Dan Olvera has not provided any documents or records to support his claims, and that he has been unresponsive to the Commissioner's requests for information throughout the pendency of this case. In the motion, the Commissioner moves the Court to enter a decision in the amount of the deficiencies originally determined for 2020 and 2021 and with accuracy related penalties due under section 6662(a) for the tax years 2020 and 2021. The motion sets out the Commissioner's unsuccessful attempts by telephone and mail to communicate with Mr. Olvera.
The Court has not yet heard from Mr. Olvera and does not prejudge the case based on the Commissioner's allegations. However, the Court concluded that a pretrial telephone conference with the Court and the parties would be expedient, but so far the Court has not be able to reach Mr. Olvera, as his telephone mailbox is full and is not accepting messages.
In this Court, a petitioner has the duty, as part of properly "prosecuting" his case, to cooperate and communicate with his opponent (counsel for the Commissioner) in order to prepare his case for trial (and so that the parties can resolve among themselves any issues that can be resolved without the Court's involvement). A petitioner's failure to fulfill this duty can result in dismissal of the case "for failure ... properly to prosecute", pursuant to Rule 123(b). Our standing pretrial order (Doc. 7) served in this case on May 6, 2024, stated: "The parties must begin discussing settlement and/or preparation of a stipulation of facts (facts on which the parties agree) as soon as possible.... If a party has trouble communicating with another party or complying with this Order, that party should tell the Judge right away ...."
The Commissioner so advised the Court by his motion to dismiss. If the facts are as the Commissioner alleges, and if the Commissioner's motion to dismiss is granted, it will have the effect of upholding the tax deficiencies and penalties for 2020 and 2021 that the IRS determined against Mr. Olvera. In view of the foregoing, it is
ORDERED that, immediately upon receiving this order, and in any event, no later than September 13, 2024, Mr. Olvera shall telephone (at 202-521-0850) the Chambers Administrator of the judge signing this order for the purpose of conducting a pretrial telephone conference among the judge and the parties. It is further
ORDERED that, no later than September 20, 2024, petitioner shall file with this Court a response to the Commissioner's motion to dismiss for lack of prosecution. That response should correct any factual errors in the Commissioner's motion and, more important, should describe Mr. Olvera's current compliance with our pretrial order and his cooperation with his opponent in preparing this case for trial. (Or, if Mr. Olvera has decided to concede this case, then his response should so state, and he should cooperate with his opponent in filing a stipulated decision reflecting that concession.) Failure to comply with this order may result in the granting of that motion and entry of a decision against petitioner Dan Olvera in the amount sought by the IRS. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution is set for hearing at the Court's San Antonio, Texas trial session beginning Monday, September 30, 2024, at 10:00 a.m. in the Hipolito F. Garcia Federal Building & Courthouse, 300 Booth Street, Room 371, 3rd Floor, San Antonio, Texas 78206. If respondent's motion is denied, the Court expects to proceed with the trial of this case. It is further
ORDERED that the Clerk of the Court shall serve with the copy of this order served on petitioner, copies of the Court's (1) Notice of Trial (Doc. 6) and (2) Standing Pretrial Order (Doc. 7) for the Court's September 30, 2024, trial session.