Filed: October 8, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-1735

(Tax Ct. No. 92-6721)

Herbert H. Bauer,

Petitioner - Appellant,

versus

Commissioner of the Internal Revenue Service,

Respondent - Appellee.

ORDER

The Court amends its opinion filed July 30, 1996, as follows:

On the cover sheet, section 1 -- the status is changed from

UNPUBLISHED to "PUBLISHED."

On the cover sheet, section 6 -- the status line is corrected

to read "Affirmed by published per curiam opinion."

On page 2, section 1 -- the section dealing with use of unpublished opinions as precedent is deleted.

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HERBERT H. BAUER,

Petitioner-Appellant,

v.

No. 95-1735

COMMISSIONER OF THE INTERNAL

REVENUE SERVICE,

Respondent-Appellee.

On Appeal from the United States Tax Court.

(Tax Ct. No. 92-6721)

Argued: July 9, 1996

Decided: July 30, 1996

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

_________________________________________________________________

Affirmed by published per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Allen Worth, Greensboro, North Carolina, for

Appellant. Andrea R. Tebbets, Tax Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON

BRIEF: Loretta C. Argrett, Assistant Attorney General, Gary R.

Allen, Ann B. Durney, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

_________________________________________________________________
OPINION

PER CURIAM:

Herbert H. Bauer appeals the United States Tax Court's decision

and order dismissing his case for lack of prosecution and sustaining

the Commissioner of Internal Revenue's determination that Bauer

owed $176,655 in United States federal income taxes and additions.1

We affirm.

I.

In November 1991 Bauer, a citizen and resident of Hamburg, Germany, received a Notice of Deficiency from the Commissioner of

Internal Revenue (the "Commissioner") informing him that he was

deficient in his United States federal income taxes for the tax years

1984 through 1987, as well as for penalties accrued from his failure

to pay federal income taxes. Bauer's tax deficiencies resulted from his

failure to report as income monies he received from Carolina Parachute Corporation ("CPC"), a North Carolina corporation owned by

two German companies of which Bauer was the sole owner.

On March 30, 1992, Bauer filed a pro se petition in the Tax Court

for redetermination of the deficiencies and additions to tax, contending that the monies he had received from CPC were interest payments

on advancements in excess of one million dollars that his German

corporations had loaned CPC. He further informed the Tax Court of

his present inability to come to the United States to resolve his defi-

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1 This sum includes a $133,315 tax deficiency for tax years 1984

through 1987, plus additions to tax for failure to file timely returns or pay

tax in violation of 26 U.S.C. § 6651(a)(1); for negligence in violation of

26 U.S.C. §§ 6653(a)(1) and (2); for failure by individual to pay estimated income tax in violation of 26 U.S.C. § 6654; and for substantial

understatement of liability in violation of 26 U.S.C. § 6661.

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ciencies because he was detained in Tripoli, Libya without permission

to leave. Attached to Bauer's petition was a statement from the German Embassy in Tripoli indicating Bauer's residence permit had

expired and that efforts to obtain an exit visa for him were underway.

On July 23, 1992, Bauer's secretary in Hamburg, Germany, filed

a motion for leave to file an amendment to the petition. Although the

motion was delivered through his Hamburg office, Bauer apparently

signed it in Tripoli, Libya. The Tax Court granted the motion and

filed the amended petition on September 9, 1992.

On September 16, 1992, the Tax Court notified the parties (1) that

the case was set for trial on February 22, 1993, in Winston-Salem,

North Carolina; (2) that both parties were expected to be present on

that date and be prepared to try the case; (3) that a party's failure to

appear may result in dismissal of the case and entry of decision

against it; and (4) that although the Tax Court will try to accommodate the parties in fixing a trial date, the final determination rests in

the court's discretion. A standing pre-trial order accompanied the

notice.

On January 21, 1993, the Commissioner filed a motion for continuance of trial asking the Tax Court to strike the case from its calendar

and to restore it to the general docket because she had been unable

to reach either Bauer or his secretary, and that she had not received

any communications from them since July 16, 1992. In her motion the

Commissioner also requested that the Tax Court order the parties to

file status reports by July 14, 1993. The Tax Court granted the Commissioner's motion.

The Commissioner's status report of July 8, 1993, indicated, inter

alia, that Bauer's secretary wrote the Commissioner on June 15 and

July 7, 1993. The June 15 letter requested that Bauer have until September 30, 1993, to file his status report. The Commissioner

responded that under the Tax Court rules Bauer's secretary could not

be recognized as petitioner's legal representative. The July 7 correspondence indicated that Bauer was unable to timely file his report

because he was still in Libya and that he would be returning to the

United States as soon as possible for trial preparation. Because of the

correspondence the Commissioner's status report stressed:

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[T]here can be no meaningful trial preparation without the

personal participation of [Bauer]. This case is not currently

on a calendar, and so [Bauer's] inability to begin trial preparation is not a critical matter. At such time as this case does

appear on a calendar, it will be a critical matter, and if petitioner's inability continues at that time, [the Commissioner]

will be obliged to move to dismiss this case for lack of prosecution.

Bauer was served with the Commissioner's status report at his identified Hamburg address.

On July 16, 1993, the Tax Court ordered the case restored to the

general docket. Eleven months later, on June 15, 1994, the Tax Court

notified the parties that the case was set for trial on November 28,

1994, in Winston-Salem, North Carolina. The trial notice was identical to the one issued by the Tax Court in September 1992, and it contained the same standing pre-trial order.

At the November 28, 1994, calendar call, neither Bauer nor his

counsel were present. Counsel for the Commissioner, therefore,

moved to have the case dismissed for lack of prosecution. The following exchange occurred:

THE COURT: I have not received anything in this case

either from [the Commissioner] or from [Bauer]. So what is

the status of the Bauer case?

THE COMMISSIONER: Your Honor, [the Commissioner] intends to file a motion to dismiss this case for lack

of prosecution. The reasons are stated in the motion, which

I have prepared in writing to serve this morning. In particular, I had to file a status report about a year ago in this case,

and in that status report I indicated that this case would be

dismissed for lack of prosecution -- or at any rate I would

move for dismissal -- if [Bauer] did not contact [the Commissioner] to get ready for trial preparation.

THE COURT: Now what efforts have you made since the

case was noticed for trial back in June -- June 15, 1994 --

what efforts have you made to contact [Bauer]?

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THE COMMISSIONER: Your Honor, I have made no

efforts. The last communication I received -- it is very difficult to contact [Bauer]. I received communications from his

secretary [ ] in Germany. Bauer was allegedly in Libya and

was not at liberty to leave.

After the notice of trial was issued, [Bauer's secretary]

sent me a facsimile indicating that she had received the

notice of trial and that Bauer would be shortly leaving and

intended to contact me and would contact me and meet with

me in Greensboro for trial preparation. That is the last communication I have received from [Bauer] as is set forth in

my motion.

THE COURT: Okay. Do you have a copy of that communication attached to your motion?

THE COMMISSIONER: No, but I can make a copy of it

and attach it. I only have one copy, so --

THE COURT: If you would make a copy -- make copies

and attach them to your motion later during the session --

THE COMMISSIONER: All right, Your Honor.

THE COURT: The motion to dismiss for lack of prosecution will be granted based upon the circumstances recited by

[the Commissioner].

THE COMMISSIONER: Thank you, Your Honor. And if

it is all right, at the time that I have the copies I will also

file the written motion.

THE COURT: Fine.

THE COMMISSIONER: Thank you.

(Whereupon, the calendar call was concluded.)

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On December 22, 1994, the Tax Court entered an order and decision dismissing Bauer's case for failure to prosecute and sustaining

the Commissioner's deficiency determinations. On March 20, 1995,

Bauer retained an attorney, who on March 22, 1995, ninety days after

the entry of decision, entered his appearance as Bauer's counsel and

contemporaneously filed a motion to vacate under Tax Court Rule

162, and a motion for leave to file motion to vacate under Tax Court

Rule 123(c) and 26 U.S.C. § 7481. Bauer's counsel also filed a notice

of appeal of the Tax Court's December 22, 1994, dismissal order,

requesting that it be held in abeyance until the Tax Court ruled on the

motion for leave to file motion to vacate. In each motion, Bauer's

counsel asserted that Bauer had been prevented from returning to the

United States by "significant health problems" as well as "certain

immigration and business problems in Africa." The Tax Court denied

the motion for leave to file the motion to vacate, explaining that its

ruling was made after careful consideration of the entire case history

from the filing of Bauer's petition through the motion currently before

the court. The Tax Court also noted that Bauer had neither met with

the Commissioner's counsel as of the trial date nor had made any

attempt to contact the Tax Court between September 1992 and March

1995.

Bauer appeals the Tax Court's December 22, 1994, decision and

order.

II.

Bauer contends that the Tax Court's decision and order granting

the Commissioner's motion to dismiss for lack of prosecution violated his due process rights because the Commissioner failed to serve

him notice of its intent to move on that motion in violation of Tax

Court Rules 50(a) and (f) and Rule 21.2 The Tax Court's decision to

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2 Tax Court Rule 50(a) provides:"An application to the Court for an

Order shall be by motion in writing. . . . The motion shall show that prior

notice thereof has been given to each other party or counsel for each

other party and shall state whether there is any objection to the motion."

Rule 50(f) provides: "The Rules applicable to service of pleadings

apply to service of motions. See Rule 21."

Rule 21 provides: "Except as otherwise required by these Rules or

directed by the Court, all pleadings, motions . . . shall be served on each

of the parties . . . ."

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dismiss a case for lack of prosecution is not to be overturned, absent

an abuse of discretion. Hillig v. Commissioner, 916 F.2d 171, 174

(4th Cir. 1990).

Although the Tax Court Rules that Bauer cites required the Commissioner to serve Bauer with her motion to dismiss, he ignores the

fact that the Tax Court has discretional authority to dismiss any case

sua sponte pursuant to Tax Court Rule 123(b), regardless of whether

the Commissioner files a motion to dismiss.

Thus, Tax Court Rule 123(b) provides:

For failure of a petitioner properly to prosecute or to comply

with these Rules or any order of the Court or for other cause

which the Court deems sufficient, the Court may dismiss a

case at any time and enter a decision against the petitioner.

The Court may, for similar reasons, decide against any party

any issue as to which he has the burden of proof; and such

decision shall be treated as a dismissal for purposes of paragraphs (c) and (d) of this Rule.

Dismissal for failure to prosecute typically occurs where a party fails

to appear at trial. Noli v. Commissioner, 860 F.2d 1521, 1527 (9th Cir.

1988).

In determining whether to dismiss a case for failure to prosecute,

a court considers the following four factors: (1) the plaintiff's degree

of personal responsibility; (2) the presence of a drawn out history of

deliberately proceeding in a dilatory fashion; (3) the amount of prejudice caused the defendant; and (4) the effectiveness of sanctions less

drastic than dismissal. Hillig, 916 F.2d at 174.

In the instant case, Bauer was solely responsible for his attendance

at the calendar call. His secretary wrote the Commissioner on August

9, 1994, acknowledging the November 28, 1994, trial date and reporting Bauer's intention to be present. The secretary wrote:

Mr. Bauer is now in the process of returning from Africa

and will therefore come to the United States in a very short

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period of time to prepare for trial. He intends to meet with

you as necessary for trial preparations in Greensboro. If the

time available until the trial is not sufficient he will advise

the Court after his meeting with you how much time he may

need.

Other than the German Embassy's statement that Bauer was in Libya

in 1992, there is no substantiated evidence before the Tax Court indicating that Bauer was unable to attend the November 28, 1994 proceedings. Bauer was obligated either to appear at the calendar call or

to inform the Tax Court of his inability to be present.

Bauer's petition for redetermination languished for close to three

years because he intentionally stalled the proceedings by filing for

continuances and failing to submit status reports. Not once did he ever

meet with the Commissioner to prepare for litigation, nor did he provide either the Tax Court or the Commissioner with any means of

contacting him other than by his Hamburg address. Furthermore,

Bauer never contacted the Tax Court regarding his inability to appear

on November 28, 1994. In fact, Bauer had failed to contact the Tax

Court after September 1992.

Bauer's delay of the proceedings prejudiced the Commissioner

because it prevented her from preparing for trial and from obtaining

a judicial resolution of the tax monies in dispute it sought to collect.

Bauer's stonewalling left the Tax Court with no alternative other

than dismissal for failure to prosecute. No lesser sanctions exist that

would have remedied Bauer's failure to appear to prosecute his case.

Accordingly, the Tax Court did not abuse its discretion in dismissing

Bauer's case for failure to prosecute.

III.

Bauer also contends that the Tax Court erred in not affording him

special protection as a pro se petitioner. We disagree.

Evidence of record shows that, despite the fact that Bauer represented himself, he was savvy enough to forestall litigating his case for

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close to three years since he received notice of his deficiencies in

November 1991. In spite of his alleged detention in Libya, Bauer filed

both a pro se petition and a motion for leave to file an amendment

to the petition during 1992. And, in 1993, he successfully moved for

an extension of time to file his status report. Bauer's failure to appear

for trial, of which he had notice, is not excusable merely because he

is a pro se litigant.

Furthermore, Bauer had the ability to obtain a lawyer to represent

him in his absence. He was an international businessman with an

established corporation in North Carolina. He had the ability to communicate with persons in the United States either directly or through

his secretary in Germany. In fact, within ninety days after receiving

the judgment against him, Bauer secured representation even though

he was still outside of the United States. We see no reason why he

could not have obtained counsel earlier.

Bauer's access to the Tax Court was barred by his own actions, not

by the Tax Court's disposition of his case. Although trial courts are

encouraged to liberally treat procedural errors made by pro se litigants, especially when a technical or arcane procedural rule is

involved, such tolerance does not extend to a litigant's failure to

appear in court without explanation or without contacting the court

beforehand. Bauer was twice put on notice that his failure to appear

may result in dismissal of his case and entry of decision against him.

Accordingly, Bauer was not entitled to any preferential treatment.

IV.

Having reviewed Bauer's other arguments and finding them to be

without merit, we affirm the Tax Court's decision and order dismissing Bauer's case for lack of prosecution.

AFFIRMED

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