Opinion
7073-22
08-20-2024
JOSE MEDINA RETA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
DAVID GUSTAFSON JUDGE.
Pursuant to notice previously given (Docs. 21-22), this case will be called for trial at the Court's San Antonio trial session beginning September 30, 2024. On August 16, 2024, the Commissioner filed a motion (Doc. 24) to dismiss this case for lack of prosecution. We will order Mr. Reta to file a response, to initiate a telephone call to the Court, and to appear on September 30, 2024, for a hearing on that motion.
Background
This case was previously set for trial at a San Antonio session held a year and a half ago in January 2023. The session was eventually held remotely via Zoomgov. (See Doc. 10.) Before that session, the Commissioner filed a motion (Doc. 7) to dismiss the case for lack of prosecution, alleging a series of unsuccessful attempts to communicate with Mr. Reta. The Court ordered (see Doc. 8) that Mr. Reta file a response to the motion, but he did not do so.
Mr. Reta made an appearance at the remote trial session, during which he spoke with an LITC volunteer. When the Court called his case, he orally moved for a continuance, explaining
MR. RETA: ... I was going to need an extension so I can -- I thought I had sent the info I needed, but I guess I'll resend it. I just need a little time so I can resend everything so I can reach out to them so they can let me know what I'm going to need to move on.
THE COURT: Okay.
MR. RETA: All the info that they need. I should have everything, but it's just lack of communication that I hadn't done correctly.
THE COURT: All right. So you'd like a continuance?
MR. RETA: Yes.
THE COURT: Ms. Ortiz, any objection?
MS. ORTIZ [IRS counsel]: As long as we'll make sure that he has my correct contact information and everything like that that way we can communicate properly, that would be fine with me, Your Honor. [Doc. 16 at 3.]
The Court granted Mr. Reta's request, continued the case, and ordered "a Status Report or a Decision document by February 22nd." (Doc. 16 at 4.)
Mr. Reta did not file a status report and did not sign a decision document. On February 17, 2023, the Commissioner filed a status report (Doc. 14) alleging that he had again made a series of attempts to communicate with Mr. Reta but that Mr. Reta failed to respond. The Court therefore set this case for trial at its upcoming session in San Antonio beginning September 30, 2024 (see Docs. 21-22).
On August 16, 2024, the Commissioner filed a second motion to dismiss this case for lack of prosecution. (The document was filed twice, as Docs. 23 and 24. The first filing lacked the supporting exhibit, and we will strike it. The second filing, Doc. 24, was complete.) The Commissioner's motion alleges that Mr. Reta 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. The motion sets out the Commissioner's unsuccessful attempts by telephone and mail to communicate with Mr. Reta. In the motion, the Commissioner moves the Court to enter a decision for tax year 2020 in the amount set forth in the notice of deficiency.
Discussion
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. 22) 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, then the dismissal will have the effect of upholding the tax deficiency for 2020 that the IRS determined against Mr. Reta. See I.R.C. sec. 7459(d).
In view of the foregoing, it is
ORDERED that, immediately upon receiving this order, and in any event, no later than Friday, August 30, 2024, Mr. Reta shall telephone the Chambers Administrator of the judge signing this order (at 202-521-0850) for the purpose of scheduling a prompt pretrial telephone conference. It is further
ORDERED that, no later than September 13, 2024, Mr. Reta shall file with the Court a response to the Commissioner's motion to dismiss. It is further
ORDERED that the Commissioner's motion to dismiss for lack of prosecution is set for hearing during the Court's September 30, 2024, San Antiono, Texas, trial session beginning at 10:00 a.m. (ET). If he wishes to oppose the motion, then Mr. Reta shall appear and be heard at that time. If Mr. Rivera fails to appear, we would expect to grant the Commissioner's motion and to dismiss this case for failure to properly prosecute. Such a dismissal would have the effect of upholding the income tax deficiency for 2020 in the amount sought by the Commissioner. If the motion is denied, then the Court expects that the case will promptly proceed to trial at the session beginning September 30, 2024. It is further
ORDERED that the incomplete version of the Commissioner's motion (Doc. 23) shall be stricken.