Opinion
1989-22
10-19-2022
CYNTHIA JO ROSSI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
This case, with about a hundred others, was scheduled for trial at the Court's upcoming trial session in St. Louis, beginning October 24, 2022. On September 30, 2022, the Commissioner filed a pretrial memorandum ("PTM", Doc. 7) that seems to show that there are no factual disputes. Rather, petitioner Cynthia Jo Rossi admits in her petition her receipt of the unreported retirement income; and her purported dispute is not that she does not owe the tax but that her liability has already been satisfied by withholding from that retirement income. In this case, however, the issue is not whether she has paid the tax. The IRS is able to retain her payment only if it has assessed the tax, and the issue in this case is whether she owes it so that it can be assessed. We refrain from deciding the case on its merits without having called for a response from Ms. Rossi; but given Ms. Rossi's own statements in her petition, it does appear likely that there is no issue for trial and that we should sustain the IRS's notice of deficiency.
On October 7, 2022, we issued an order (Doc. 8) requiring petitioner to telephone the Court so that we could schedule a telephone conference with the parties, but she has not telephoned our chambers or made any other response. (This failure to comply with our order could justify dismissal of this case.)
On October 14, 2022, the Commissioner filed a motion (Doc. 10) to dismiss the case for lack of prosecution. The motion alleges that for several months Ms. Rossi has not responded to the IRS's attempts to communicate with her about this case. In light of our own experience attempting to communicate with Ms. Rossi, these allegations are plausible. In some circumstances we would simply order that the motion to dismiss be heard at the beginning of the trial session; and, if the petitioner failed to appear, we would grant the motion and dismiss the case. However, it appears that all of the other cases set for trial at this session have been resolved, and that this case would be the only one left to be called at the trial session. Experience teaches that, when a petitioner is failing or refusing to communicate with her opponent and the Court, it is likely that she will fail to appear at the trial session. We are reluctant to incur the Court's expense of this session (including travel expenses for judge and trial clerk and the fees of the court reporter), and we are reluctant to require the Commissioner to incur the time and expense of his attorneys' appearance at the session, if the sole petitioner will not appear.
It is therefore
ORDERED that this case is continued and is stricken from the calendar of the upcoming St. Louis session, that the case will not be called at that session, and that the parties need not appear on October 24, 2022. It is further
ORDERED that the judge signing this order retains jurisdiction over this case. It is further
ORDERED that, no later than November 14, 2022, Ms. Rossi shall file a response to the Commissioner's "Motion to Dismiss for Lack of Prosecution". She should expect that if she fails to respond, then the Court will grant the motion and will enter decision sustaining the determinations in the IRS's notice of deficiency. It is further
ORDERED that, no later than December 5, 2022, the Commissioner shall file either (a) a reply to Ms. Rossi's response or, if she has filed no response, then (b) a status report so stating. If Ms. Rossi does file a response, then the Commissioner may, if appropriate, file a motion for summary judgment in the alternative along with his reply in support of the motion to dismiss. (If he files a motion for summary judgment, then we will order Ms. Rossi to file a response to it.)