Opinion
7337-22
08-01-2023
MICHELLE MUNN POLAND, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
David Gustafson Judge
Now before the Court in this case is a motion (Doc. 17) filed by the Commissioner, asking us to dismiss the case for lack of prosecution. Petitioner Michelle Munn Poland has failed to file a response to the motion. We will grant the motion and will dismiss the case.
Background
This case involves an asserted tax deficiency of $7,058 and penalty of $1,412, determined in a statutory notice of deficiency dated January 3, 2022, that the Internal Revenue Service issued to Ms. Munn for the taxable year 2019. The case had been previously scheduled for trial at a session beginning May 15, 2023, but the case was continued so that the IRS's Independent Office of Appeals could consider with petitioner the possibility of settling this case.
On May 31, 2023, we scheduled this case for trial at the Court's session in Columbia, South Carolina, beginning October 23, 2023, and we issued our standing pretrial order (Doc. 16), which 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."
On June 15, 2023, the IRS filed a motion to dismiss for lack of prosecution. The motion alleges that over the last several months Ms. Poland had failed to respond to communications from IRS Appeals and from IRS counsel in this case.
On June 15, 2023, we issued an order (Doc. 18) directing Ms. Poland to file a response by July 14, 2023, and we instructed that her response "should correct any factual errors in the IRS's motion and, more important, should describe Ms. Poland's current compliance with our pretrial order and her cooperation with their opponent in preparing this case for trial."
That July 14 due date has come and gone, and two additional weeks have passed, but we have received no filing from Ms. Poland.
Discussion
In this Court, a petitioner has the duty, as part of properly "prosecuting" her case, to cooperate and communicate with her opponent (counsel for the IRS) in order to prepare their case for trial (and to resolve between 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).
The Commissioner's showing of Ms. Poland's non-communication is unanswered. She has not complied with our standing pretrial order, and she has not complied with our recent order requiring a response to the Commissioner's motion. It is therefore
ORDERED that the Commissioner's "Motion to Dismiss for Lack of Prosecution" (Doc. 17) is granted. It is further
ORDERED AND DECIDED that, as is set forth in the statutory notice of deficiency dated January 3, 2022, there is due from petitioner for the taxable year 2019 a deficiency in income tax in the amount of $7,058, and an accuracy related penalty under section 6662(a) in the amount of $1,412.