Opinion
15197-21SL
10-20-2023
VALLEY MISSIONS, INC., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Diana L. Leyden Special Trial Judge
This case is calendared for the Court's October 23, 2023, Fresno, California, remote trial session. Pending in this case is respondent's Motion for Summary Judgment, filed June 6, 2023.
Background
The Petition in this case was filed on May 4, 2021. Petitioner requested Fresno, California, as the place of trial. The case was set for trial on the Court's Fresno, California, trial session scheduled for September 6, 2022.
On August 23, 2022, petitioner's power of attorney, Mike Austin, informed respondent that he had contacted COVID and was not able to prepare for trial due to the illness. Respondent filed a Motion for Continuance on August 26, 2023, to which petitioner did not object and the case was continued generally.
The Court by Notice of Trial dated June 1, 2023, informed the parties that the case was calendared for the October 23, 2023, Fresno, California, trial session. The parties also received a Standing Pretrial Order which informed the parties that (1) no later than 60 days before the first day of the trial session a party may ask the Judge to decide all or part of the case without trial by filing a Motion for Summary Judgment; (2) no later than 45 days before the first day of the trial session the parties should file any motions related to discovery or stipulations; (3) no later than 31 days before the first day of the trial session the parties may file any motions for continuance, which the judge will grant only in exceptional circumstances, or a motion to proceed remotely, (4) no later than 21 days before the first day of the trial session the parties should file either a Proposed Stipulated Decision, a Pretrial Memorandum, a Motion to Dismiss for Lack of Prosecution, or a Status Report; (5) no later than 14 days before the first day of the trial session the parties must file a Stipulation of Facts and Exhibits or Proposed Trial Exhibits; and (6) no later than 7 days before the first day of the trial session the parties should file with the Court either a Supplemental Stipulation of Facts with any agreed Proposed Trial Exhibits.
On June 6, 2023, respondent timely filed a Motion for Summary Judgment (motion), accompanied by a Declaration of June Lee in support of the motion. The Court, by Order served June 7, 2023, directed petitioner to file a response to the motion. Petitioner, through Michael Austin, Vice President, filed a Motion for Extension of Time on July 3, 2023, (first motion for extension of time) requesting additional time to respond to the motion. Respondent did not object. The Court extended the time for petitioner to respond to the motion to August 7, 2023.
On July 12, 2023, in accordance with Rule 93(a), respondent filed the administrative record in this case. Petitioner did not file any objection to this filing.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
On August 7, 2023, petitioner filed another Motion for Extension of Time (second motion for extension of time) to respond to the motion and requested an extension of 120 days, which time would be beyond the date of the trial session. Respondent filed an Objection to petitioner's second motion for extension. Nevertheless, the Court granted petitioner a second extension of time to respond to the motion until August 31, 2023. After the Order permitting an extension of time, petitioner filed on August 23, 2023, a Response to respondent's objection to petitioner's second motion for extension of time.
On August 30, 2023, petitioner filed a Response to Motion for Summary Judgment. Petitioner complained that the Court's orders did not consider the serious health condition of Michael Austin's wife and asked for the "Removal & Reassignment" of Judge Leyden and respondent's counsel Kara L. Davidson Duyck.
On October 4, 2023, petitioner filed a Pretrial Memorandum.
On October 16, 2023, the undersigned conducted a conference call with the respondent counsel, Kara L. Davidson Duyck and Catherine Caballero, and Michael Austin, on behalf of petitioner. During that conference call the parties were informed that the trial session was being changed from in-person to remote. The parties agreed that a hearing on respondent's motion would be conducted during the remote trial session on Monday, October 23, 2023, at 1:30 p.m. PDT. Respondent agreed to file a supplement to his motion to include documents that respondent's counsel had mailed to petitioner and Michael Austin agreed to file by paper a supplement to petitioner's objection to the motion.
On October 19, 2023, petitioner sent an email to Judge Leyden's chambers administrator and objected to a remote trial or hearing.
Discussion
As petitioner has been informed, the Court may consider a motion for summary judgment without a hearing. Nevertheless, Judge Leyden offered the parties an opportunity to have a hearing on the motion. In this case, the Court must first dispose of the motion before a trial can be conducted. Accordingly, given petitioner's objection to proceeding with a hearing remotely, the Court will continue the case, jurisdiction will be retained by the undersigned, the motion will be taken under advisement and petitioner will be allowed 14 days to file the supplement Michael Austin agreed to file. The Court will not conduct a hearing on the motion. The Court has granted one continuance and two extensions of time and will not grant another.
Premises considered, it is
ORDERED that this case is stricken for trial from the Court's October 23, 2023, Fresno, California, remote Trial Session. It is further
ORDERED that respondent's Motion for Summary Judgment filed June 6, 2023, is taken under advisement. It is further
ORDERED that jurisdiction is retained by the undersigned. It is further
ORDERED that, on or before November 6, 2023, petitioner shall file a First Supplement to petitioner's Response to Motion for Summary Judgment.