Opinion
25974-17
03-30-2022
MICHAEL ZORN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Courtney D. Jones Judge
I. Background
A. First Trial Date - Petitioner's Motion for Continuance
Petitioner filed the Petition in this case on December 14, 2017. The Court originally scheduled trial on November 5, 2018 (docket entry no. 6) and reminded the parties of this trial date by Notice (docket entry no. 18). On October 16, 2018, petitioner filed an unopposed Motion for Continuance (docket entry no. 14), which was granted (docket entry no. 15).
B. Second Trial Date - Petitioner's Second Motion for Continuance
Thereafter, the Court scheduled trial for May 13, 2019 (docket entry no. 16) and reminded the parties of this second trial date by Notice (docket entry no. 18). Respondent then filed a Motion for Time and Date Certain, asking the Court to issue an order to show cause why the case should not be scheduled for trial on May 15, 2019 (docket entry no. 24). The Court granted respondent's motion and issued the requested Order to Show Cause, which directed petitioner to respond by May 8, 2019 (docket entry no. 25). Receiving no response by the due date, the Court then issued an Order setting the trial for a time and date certain of 11:00 a.m. on May 15, 2019 (docket entry no. 26). On May 15, 2019, petitioner appeared and made an oral motion for a continuance (docket entry no. 27), which the Court granted over respondent's objection (docket entry no. 29).
C. Motion for Sanctions - Petitioner's Refusal to Sit for Deposition
On October 10, 2019, respondent filed a Motion to Impose Sanctions in which he requested that the Court impose sanctions upon petitioner under Tax Court Rule 104(a) in light of petitioner's refusal to participate in a properly-noticed deposition.
Petitioner's refusal included appearing for the deposition, engaging in aggressive behavior, shouting, and abruptly leaving respondent's office before the deposition could begin (docket entry no. 48). On February 14, 2020, the Court denied, without prejudice, respondent's motion (docket entry no. 56).
D. Third Trial Date - Petitioner's Bankruptcy Case
Respondent then filed a Motion to Calendar the case for trial at the session of the Court scheduled to commence on March 2, 2020 (docket entry no. 46). The Court granted the Motion to Calendar and again scheduled the case for trial (docket entry no. 51).
But On February 12, 2020, respondent filed a Notice of Proceeding in Bankruptcy, informing the Court of petitioner's filing of a petition, on February 10, 2020, with the U.S. Bankruptcy Court for the District of Maryland (docket entry no. 55). In accordance with 11 U.S.C. §362(a)(8), the Court stayed the proceedings in this case and struck the case from the March 2, 2020 trial calendar (docket entry no. 56).
E. Fourth Trial Date - Court's Order for Continuance
On January 4, 2021, respondent filed a Status Report and a Motion to Calendar (docket entry nos. 59, 60). In the Status Report, respondent reported that the U.S. Bankruptcy Court for the District of Maryland issued an order, discharging petitioner's bankruptcy case, on December 2, 2020 and attached the Order of Discharge to his Status Report. In his Motion to Calendar, respondent referred to the Order of Discharge and asked the Court to set the case for trial between March 15, 2021 and the end of April 2021 so that the case could be resolved without further delay (docket entry no. 60).
By Order dated February 24, 2021, the Court lifted the stay of proceedings and granted respondent's Motion to Calendar, in that the case would be calendared for trial at the next regular Baltimore, Maryland trial session of the Court (docket entry no. 61).
By Notice dated April 20, 2021, the Court notified the parties that trial was scheduled for the Court's September 20, 2021 remote trial session for Baltimore, Maryland (docket entry no. 62). But on its own motion the next day, the Court struck this case from the September 20, 2021 calendar and continued the case generally (docket entry no. 64).
F. Fifth Trial Date (Remote Partial Trial)
By Notice dated June 2, 2021, the Court notified the parties that trial was scheduled for the Court's November 1, 2021 remote trial session for Baltimore, Maryland (docket entry no. 65).
By Order dated October 26, 2021, the Court informed the parties that this trial would be conducted in a hybrid format; a remote partial trial, to be held on November 4, 2021, and an in-person further trial at a time to be determined (docket entry no. 71). The Court's Order stated that "the in-person portion of the trial will consist of petitioner's testimony and that of any other witnesses the Court designates for in-person testimony." The Court conducted the remote portion of the trial on November I, 2021 (docket entry no. 72)
G. Further In-Person Trial - Petitioner's Report of Symptoms
By Order dated November 10, 2021, the Court scheduled the in-person further trial for January 31, 2022, to be held at a special session in Washington, D.C. (docket entry no. 77). But due to concerns related to COVID-19, on January 11, 2022, the Court struck the trial from the special session and indicated that the further in-person trial would be scheduled at a later date (docket entry no. 109).
By Order dated February 22, 2022, the Court re-scheduled the in-person further trial for a special session of the Court, to be held on March 31, 2022 in Washington, D.C. (docket entry no. 117). In its Order of February 22, the Court reminded the parties that the Court provides protocols for attending in-person proceedings in the Washington, D.C. courthouse and that those protocols are available on the Court's website. The Order further provided a link to the Court's "COVID-19 Resources" webpage, which includes a link to the Court's Standards and Protocols to Protect Public Health (Protocols).
In relevant part, the Protocols provide that visitors to the courthouse (including trial participants), will be asked to complete a health screening and to self-certify that the answer to each of the health screening questions is "no". The Protocols further provide that if the answer to any of the screening questions is "yes", the visitor should not enter the courthouse. The first screening question asks whether the visitor has experienced any of several symptoms in the past 48 hours, including "fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, and diarrhea."
On March 29, petitioner contacted the Court to report that he was experiencing certain symptoms, each of which is included on the list in the first screening question. Petitioner further reported that he scheduled a doctor's appointment for that day.
II. Documentation of Medical Appointment and Warning to Petitioner
In light of the significant delay that resolution of this case has already experienced, the Court is concerned about a further delay. The Court recognizes that one delay was caused by the Court's Order of April 21, 2021 and another by the Court's Order of January 11, 2022.
However, the Court notes that resolution of the case has also been delayed due to petitioner's two Motions for Continuance, refusal to sit for a properly-noticed deposition, and filing of a petition in U.S. Bankruptcy Court. Though the Court will reschedule the in-person further trial on report of petitioner's symptoms, the Court will direct petitioner to provide documentation of his medical appointment and will consider sanctions, including dismissal, if petitioner initiates an additional delay.
Recognizing that petitioner's report of symptoms on March 29, 2022, if true, renders it inadvisable for him to enter the courthouse on March 31, 2022, for in-person trial, and in light of the foregoing, it is
ORDERED that this case is stricken from the special session of the Court, scheduled to commence on March 31, 2022, in Washington, D.C., and the aforementioned session is canceled. The Court will reschedule the in-person trial in due course. It is further
ORDERED that, on or before, April 13, 2022, petitioner shall file documentation with the Court, showing that he met with a medical provider on March 29, 2022, regarding the symptoms he reported to the Court.