1 Unless otherwise noted, all section references are to the

Internal Revenue Code of 1986 as amended, and all Rule references

are to the Tax Court Rules of Practice and Procedure.

T.C. Memo. 2008-214

UNITED STATES TAX COURT

NORMAN KLOOTWYK, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 21030-06L. Filed September 15, 2008.

Norman Klootwyk, pro se.

Chris J. Sheldon, for respondent.

MEMORANDUM OPINION

GALE, Judge: This case is before the Court on respondent<s

motions to dismiss for lack of prosecution and to impose a

penalty under section 6673.1 Petitioner<s motion to strike
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certain portions of respondent<s motion to dismiss for lack of

prosecution and petitioner<s motion for sanctions are also

pending.

Background

Petitioner seeks review under section 6330(d) of

respondent<s determination to proceed with a levy to collect

unpaid income taxes for petitioner<s 1999 and 2000 taxable years,

which totaled $102,501 and $116,281, respectively, when the

notice of intent to levy was issued. Petitioner resided in

Arizona when the petition was filed. Respondent<s determination

was contained in a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 issued after petitioner

requested a hearing concerning the proposed levy.

A notice setting case for trial, setting the trial in this

case for January 7, 2008, was served on petitioner on August 6,

2007. This notice stated:

The parties are hereby notified that the above-entitled

case is set for trial at the Trial Session beginning on

January 7, 2008.

The calendar for that Session will be called at 10:00

A.M. on that date and both parties are expected to be

present at that time and be prepared to try the case. YOUR

FAILURE TO APPEAR MAY RESULT IN DISMISSAL OF THE CASE AND

ENTRY OF DECISION AGAINST YOU.

Your attention is called to the Court<s requirement

that * * * the parties, before trial, must agree in writing

to all facts and all documents about which there should be

no disagreement. Therefore, the parties should contact each

other promptly and cooperate fully so that the necessary

steps can be taken to comply with this requirement. YOUR
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2 Respondent served both motions on petitioner by mail on

Jan. 8, 2008. 

FAILURE TO COOPERATE MAY ALSO RESULT IN DISMISSAL OF THE

CASE AND ENTRY OF JUDGMENT AGAINST YOU.

The notice setting case for trial was accompanied by a

standing pretrial order, which likewise ordered the parties to

stipulate facts to the maximum extent possible, ordered the

parties to submit pretrial memoranda not less than 14 days before

the first day of the trial session, and warned that an unexcused

failure to comply with the standing pretrial order might result

in sanctions, including dismissal.

On January 3, 2008, the Court received a document from

petitioner styled as a motion to set aside trial date, in which

petitioner contended that a trial was unnecessary because the

Court<s review of his case was confined to what took place during

his administrative hearing. The motion accordingly requested

that the Court set a briefing schedule. That same day

petitioner<s motion was denied.

When this case was called for trial on January 7, 2008,

there was no appearance by or on behalf of petitioner. Counsel

for respondent appeared and moved to dismiss for lack of

prosecution. Respondent also filed a motion to impose penalties

under section 6673.2 A hearing was conducted at which respondent

introduced documents from petitioner<s administrative file

pursuant to rules 803(6) and 902(11) of the Federal Rules of
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3 In addition, petitioner filed a motion to strike, in which

he moved that any references to “anti-tax rhetoric” be stricken

from respondent<s motion to dismiss for lack of prosecution and

respondent<s motion to impose a penalty, and he filed a motion

for sanctions.

Evidence. That same day petitioner mailed to the Court a

document styled as a statement under Rule 50(c) “in lieu of

physically attending the trial”, which was filed as petitioner<s

“report” on January 11, 2008.

Petitioner filed an objection to respondent<s motion to

dismiss and an objection to respondent<s motion to impose a

penalty under section 6673 on February 19, 2008.3 Petitioner

filed a supplement to his objection to respondent<s motion to

dismiss for lack of prosecution on March 4, 2008.

Discussion

Dismissal for Lack of Prosecution

The Court may dismiss a case at any time and enter a

decision against the taxpayer for failure properly to prosecute

his case, failure to comply with the Rules of this Court or any

order of the Court, or for any cause which the Court deems

sufficient. Rule 123(b); Edelson v. Commissioner, 829 F.2d 828,

831 (9th Cir. 1987), affg. T.C. Memo. 1986-223; McCoy v.

Commissioner, 696 F.2d 1234, 1236 (9th Cir. 1983), affg. 76 T.C.

1027 (1981). In addition, the Court may dismiss a case for lack

of prosecution if the taxpayer inexcusably fails to appear at

trial and does not otherwise participate in the resolution of his
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claim. Rule 149(a); Brooks v. Commissioner, 82 T.C. 413 (1984),

affd. without published opinion 772 F.2d 910 (9th Cir. 1985).

Petitioner has failed to properly prosecute this case. In

his motion to dismiss, respondent<s counsel contends that he

received no communication from petitioner with respect to any

aspect of the Tax Court proceeding. In his objection to

respondent<s motion to dismiss, petitioner does not deny this

claim; he simply ignores it. We take it as established for

purposes of respondent<s motion. In addition, respondent<s

counsel also contends in his motion to dismiss, and petitioner

fails to dispute in his objection, that petitioner disregarded

respondent<s attempts to reach agreement on a stipulation of

facts, in contravention of the Court<s standing pretrial order. 

This likewise represents a failure to participate meaningfully in

preparing the case for trial or otherwise resolving it.

Petitioner was obviously aware that this case had been set

for trial, as evidenced by his motion to set aside trial date

submitted days before the scheduled trial. In his motion to set

aside trial date, his purported Rule 50(c) statement (filed as

petitioner<s report), and in his objection to respondent<s motion

to dismiss, petitioner, citing Robinette v. Commissioner, 439

F.3d 455 (8th Cir. 2006), revg. 123 T.C. 85 (2004), contends that

a trial is unnecessary because the Court may consider only the

administrative record--that is, the matters raised and considered
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4 We note that were we to decide this case on the

administrative record available to us, as petitioner contends we

should, the decision would be for respondent. Petitioner<s two

principal contentions are that he was improperly denied the

opportunity to dispute the underlying tax liabilities and the

opportunity for a face-to-face conference. The record of the

administrative hearing in evidence demonstrates that the Appeals

Office employee conducting petitioner<s hearing verified that a

notice of deficiency covering the liabilities at issue had been

issued to petitioner and mailed to him at his last known address. 

The foregoing was sufficient to preclude consideration of the

underlying liabilities at the hearing under sec. 6330(c)(2)(B),

(continued...)

as part of the hearing under section 6330. Petitioner<s reliance

on Robinette is misplaced. Even where the Tax Court is confined,

under the principles of Robinette, to a review of the record

compiled in a section 6330 hearing, a trial is often appropriate

to allow the reviewing court “to receive evidence concerning what

happened during the agency proceedings.” Id. at 461. Here, upon

petitioner<s failure to appear for trial, respondent offered into

evidence pursuant to rules 803(6) and 902(11) of the Federal

Rules of Evidence certain documents from petitioner<s

administrative file that had been relied on by respondent<s

Appeals Office in reaching the determination in the notice of

determination. These documents fully support the determination. 

Whether the documents in evidence constitute a complete and fair

representation of the administrative hearing is an issue that

would be resolved at a trial if petitioner contended they do not. 

Yet petitioner maintains that a trial is unnecessary. His

contention is meritless.4
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4(...continued)

absent some indication from petitioner that he was not residing

at the address used or there was some other irregularity in

connection with the mailing, which petitioner did not provide. 

Likewise, the documents in evidence show that petitioner was

offered a face-to-face conference on a range of dates, on

condition that petitioner identify nonfrivolous issues that he

wished to raise. Petitioner neither identified the issues nor

designated a date. As a consequence, the Appeals Office employee

conducting the hearing offered petitioner a telephone hearing,

which he spurned. See, e.g., Stephens v. Commissioner, T.C.

Memo. 2005-183 n.2.

We are also satisfied that petitioner was on fair notice (i)

that he was required to appear for trial on the scheduled trial

date and (ii) that a statement under Rule 50(c) was not an

acceptable substitute for his appearance. The notice setting the

case for trial advised petitioner that he was expected to be

present on the trial date and warned that a failure to appear

“MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION

AGAINST YOU.” Rule 50(c) provides as follows:

(c) Attendance at Hearings: If a motion is noticed for

hearing, then a party to the motion may, prior to or at the

time for such hearing, submit a written statement of such

party<s position together with any supporting documents. 

Such a statement may be submitted in lieu of or in addition

to attendance at the hearing.

Rule 50(c) by its clear terms applies only to hearings or, more

specifically, to hearings on motions. Petitioner is no stranger

to this Court, having filed a petition at docket No. 7604-04 for

redetermination of a deficiency for his 2001 taxable year. See

Klootwyk v. Commissioner, T.C. Memo. 2006-130. In that case

petitioner did not personally appear but requested and received a
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5 We have also reviewed petitioner<s motion to strike and

motion for sanctions. We conclude that they are meritless, and

we shall deny them.

time and date certain for his trial, at which he was represented

by counsel. On the basis of the foregoing, we conclude that

petitioner was aware of his obligation to appear for trial. His

failure to appear is therefore unexcused and, when combined with

the other previously discussed derelictions in prosecuting his

case, renders a dismissal for lack of prosecution fully

justified.

All of the material allegations set forth in the amended

petition in support of assignments of error have been denied in

respondent<s answer, and respondent has likewise not conceded any

error assigned in the amended petition. Accordingly, respondent

is entitled to a decision in his favor and may proceed with the

proposed levy to collect petitioner<s outstanding 1999 and 2000

income tax liabilities.5

Section 6673 Penalty

Respondent has moved for the maximum penalty under section

6673(a)(1) on the grounds that petitioner instituted and

maintained this proceeding primarily for delay. Whenever it

appears to the Court that proceedings have been instituted or

maintained primarily for delay, the Court may require the

taxpayer to pay a penalty not in excess of $25,000. Id. Section
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6673(a)(1) applies to proceedings under section 6330. Pierson v.

Commissioner, 115 T.C. 576, 581 (2000).

Having carefully reviewed petitioner<s submissions in this

case, we are satisfied that he instituted and maintained the

proceedings primarily for delay. One principal reason for our

conclusion is that a number of the positions petitioner has taken

are frivolous. Petitioner seizes upon, and repeatedly rails

against, the fact that respondent alleges that the notice of

deficiency for 1999 and 2000 was mailed to petitioner<s “last

known address” but then lists two addresses to which the notice

was sent. At no point in his repeated discussions of this topic

does petitioner ever deny that he resided or received

correspondence at the addresses respondent listed or suggest that

some other address was his last known address. Petitioner also

advances a litany of charges to the effect that his due process

rights have been egregiously violated by Internal Revenue Service

personnel. He made no such claims under oath at trial; instead,

he deliberately avoided his trial date. The foregoing positions

and actions damage petitioner<s credibility.

Moreover, as noted, petitioner had a previous case in this

Court. See Klootwyk v. Commissioner, supra. In that case

petitioner did not personally appear but had counsel to represent

him. His counsel, however, “neither presented a case nor offered
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6 In the previous case, petitioner also failed to submit a

pretrial memorandum or a posttrial brief as ordered by the Court.

any evidence on petitioner<s behalf”.6 Id. The Court concluded

that petitioner had instituted and maintained the proceedings

primarily for delay and imposed a penalty of $1,000 under section

6673(a)(1). The opinion in Klootwyk, was issued on June 22,

2006, approximately 4 months before petitioner filed the original

petition herein (October 16, 2006). 

We perceive here a pattern of trifling with this Court<s

process. Petitioner has again wasted the time and resources of

this Court and respondent. It is apparent that a $1,000 penalty

has not deterred petitioner from this course of conduct. We are

also mindful that the sums for which petitioner has attempted to

delay collection are substantial. Accordingly, a more

substantial penalty is warranted, and we shall impose one under

section 6673(a)(1) of $5,000.

To reflect the foregoing,

An appropriate order and

decision will be entered.