T.C. Memo. 1999-125

UNITED STATES TAX COURT

JOHN G. JONES, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 22579-96. Filed April 16, 1999.

John G. Jones, pro se.

Michelle K. Loesch, for respondent.

MEMORANDUM OPINION

PARR, Judge: This case is before the Court on respondent's

motion to dismiss for failure to properly prosecute, filed March

18, 1999.

Respondent determined a deficiency of $216,042 in

petitioner's 1994 Federal income tax and an accuracy-related
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1All section references are to the Internal Revenue Code in

effect for the taxable year in issue, and all Rule references are

to the Tax Court Rules of Practice and Procedure, unless

otherwise indicated.

2Petitioner's residence was sold in 1992, and no replacement

residence was purchased. Respondent concedes that the gain on

the sale of petitioner's residence is not taxable in 1994, the

only year presently before the Court.

penalty under section 66621 in the amount of $43,208. After a

concession by respondent,2 the resulting deficiency and accuracyrelated penalty for 1994 are $151,392 and $30,278, respectively.

The sole issue for decision is whether respondent's motion

to dismiss for failure properly to prosecute should be granted. 

We hold it should.

At the time the petition in this case was filed, petitioner

resided in Kent, Washington.

Background

This case was originally scheduled for trial in Hartford,

Connecticut, on March 16, 1998. Petitioner twice requested a

continuance from the March 16, 1998, Hartford trial session. 

Both requests were denied. By letter dated November 26, 1997,

respondent's counsel in Hartford asked petitioner to provide

documents pertinent to the issues in the case. Petitioner did

not. On January 27, 1998, counsel for respondent sent petitioner

a proposed stipulation of facts. Petitioner did not sign it.
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In a telephone conference with the Court on February 10,

1998, petitioner informally requested the place of trial be

changed to Seattle, Washington. The Court granted petitioner's

request, struck the case from the March 16, 1998, Hartford trial

session, and scheduled the case for trial on May 4, 1998, in

Seattle.

By letter dated March 23, 1998, counsel for respondent

requested documents and a meeting with petitioner, explained the

necessity for a stipulation of facts, and again enclosed a

proposed stipulation of facts. In addition, this letter

explained the Court's requirement that documents which the

parties intended to rely upon at trial be timely exchanged. 

Petitioner did not execute the proposed stipulation of facts and

did not provide any of the requested documents. 

On April 28, 1998, the Court held a conference call with the

parties. During that call, petitioner agreed that if he were

unable to or failed to provide documents to respondent with

respect to the issues in the case, petitioner would concede the

issue or item for which no documentation was presented. The

Court directed petitioner to provide the Court and respondent

with a written outline of a plan to make petitioner's documents,

which were located in Connecticut, available to respondent within

90 days. The plan was to be presented to the Court and

respondent at calendar call on May 4, 1998. 
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This case was called for trial on May 4, 1998, in Seattle,

Washington. No appearance was made by or on behalf of

petitioner. Thus, petitioner did not provide the Court or

respondent with a written outline of a plan to produce the

documentation necessary to resolve this case, as he was directed

to do during the April 28, 1998, telephone conference. 

The case was set for recall on May 6, 1998. At the request

of the Court, respondent drafted a proposed joint stipulation for

pretrial preparation. Respondent communicated the Court's

direction to petitioner and, after conversing with petitioner,

drafted a proposed joint stipulation. On May 6, 1998, the Court

approved the proposed stipulation, lodged it, and continued the

case. On May 7, 1998, the stipulation was forwarded to

petitioner. 

On May 14, 1998, petitioner wrote respondent stating that he

would wait to sign the proposed joint stipulation until he had

met with an Internal Revenue Service revenue agent to discuss the

sale of his residence in 1992. Respondent had previously

informed petitioner by letter, in telephone conversations, and by

respondent's trial memorandum, that the sale of his residence in

1992 was no longer an issue in the case, since 1994 was the only

year before the Court.

On May 22, 1998, respondent tried again to obtain a

stipulation for pretrial preparation from petitioner. Respondent
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also asked petitioner to identify and explain the particular

items which he disputed or which were of concern to him. 

Petitioner did not reply. On June 4, 1998, respondent called

petitioner and was told that he had not received the letter. 

Respondent sent petitioner a second copy of the letter. On June

30, 1998, respondent received a reply. The reply consisted of a

copy of part of respondent's letter with discursive notes written

on it and certain words and letters crossed out. 

On August 6, 1998, respondent's counsel spoke with

petitioner to ascertain what action, if any, petitioner had

taken, or intended to take, to make available the documents he

would rely upon in the case. Petitioner said that due to his

medical condition and upon order of his doctors, he was unable to

travel to Connecticut, but that he intended to have his wife and

friends return to Connecticut in September in order to retrieve

the documents. Petitioner stated he was not willing to incur an

expense of approximately $500 to have the boxed documents mailed

to him in Washington. 

On August 11, 1998, respondent wrote petitioner requesting

that he provide a letter from his doctor confirming his inability

to travel as well as stating, if possible, an opinion as to when

petitioner might be able to travel. Petitioner has provided no

letter. Respondent's August 11, 1998, letter also set forth all

the issues and items in dispute in this case. Respondent
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requested petitioner to identify the type of evidence,

testimonial or documentary, that he would rely upon in support of

his positions. 

On September 29, 1998, petitioner was served with a notice

setting this case for trial at the trial session in Seattle

beginning March 1, 1999. That notice states in large type, "YOUR

FAILURE TO APPEAR MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY

OF DECISION AGAINST YOU." It also states:

Your attention is called to the Court's

requirement that, if the case cannot be settled on a

mutually satisfactory basis, 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 FAILURE TO COOPERATE MAY ALSO RESULT IN DISMISSAL

OF THE CASE AND ENTRY OF DECISION AGAINST YOU.

Petitioner was also served with the Court's standing

pretrial order which set forth requirements for continuances and

for exchange of information and cooperation between the parties.

On January 13, 1999, respondent wrote petitioner yet again,

asking him to identify the type of evidence, testimonial or

documentary, that he intended to rely upon at trial. This letter

also reminded petitioner of the Court's standing pretrial order

requiring the parties to identify and exchange any documents they

intended to rely upon at trial at least 15 days prior to trial. 

Petitioner did not respond. On February 9, 1999, respondent
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wrote petitioner of an intent to oppose any further continuance

of the case. 

When petitioner, an elderly gentleman, appeared at the call

of the calendar on March 1, 1999, in Seattle, he stated he was in

poor health. He had not complied with respondent's several

requests to obtain documents purportedly stored in Connecticut,

and he had no plan to obtain the documents. In light of the

large deficiency, the Court advised petitioner to obtain an

attorney or at least to consult with one of two pro bono

attorneys who were present in the courtroom, either to seek a

continuance (if there was good cause) or to prepare for trial. 

We set the case for trial on March 5, 1999.

On March 5, 1999, the case was recalled by the Court. 

Petitioner, who had not filed a motion to continue, did not

appear. Counsel for respondent informed the Court that in a

conversation with petitioner that morning, petitioner said he

intended to retrieve the documents from Connecticut and wanted a

continuance of the trial. Respondent's counsel also gave the

Court a handwritten letter from petitioner. Petitioner did not

file the letter directly. As an accommodation to petitioner, we

filed the letter as petitioner's motion to continue.
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Discussion

Petitioner bears the burden of proof as to the deficiency

and accuracy-related penalty at issue. See Welch v. Helvering,

290 U.S. 111 (1933); Rule 142(a).

This case has consumed the time and effort of three judges

of this Court and has been scheduled for trial on three separate

occasions and in two cities. Although petitioner has apparently

been sick, he has been able to file papers with the Court, to

write letters to respondent, and to appear at the call of the

trial session. Petitioner’s letters to respondent and to the

Court are lucid, though evasive and noncommittal. We believe he

has the capacity to retrieve his documents and to cooperate with

respondent in preparing this case for trial. For reasons of his

own, he has declined to do so for more than 2 years.

It is well established that this Court can dismiss a case

against a party if that party fails to follow our Rules or

otherwise fails to properly prosecute his or her case. See

Ducommun v. Commissioner, 732 F.2d 752, 754 (10th Cir. 1983). 

Rule 123(b) provides for the dismissal of a case when a taxpayer

fails to prosecute his or her case, fails to comply with the

Court's Rules or any order of the Court, or for any cause which

the Court deems sufficient. See Smith v. Commissioner, 91 T.C.

1049 (1988), affd. 926 F.2d 1470 (6th Cir. 1991); Basic Bible

Church v. Commissioner, 86 T.C. 110, 112 (1986). Dismissal of a
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case is a sanction resting in the discretion of the trial court. 

See Levy v. Commissioner, 87 T.C. 794, 803 (1986).

As set forth above, petitioner has consistently failed to

cooperate with respondent or the Court in an attempt to either

reach a settlement or to prepare properly for trial. 

Petitioner's tactics of delay and failure to cooperate have made

it impossible for respondent to conduct negotiations or otherwise

proceed with this case.

Accordingly, we grant respondent's motion to dismiss for

failure to properly prosecute and deny petitioner's motion to

continue. Therefore, respondent prevails on the remaining issues

and the accuracy-related penalty.

An appropriate order and

decision will be entered.