T.C. Memo. 2007-99



                     UNITED STATES TAX COURT



  CONNIE LUCIC, Petitioner, AND MICHEL J. LUCIC, Intervenor v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21310-04.             Filed April 24, 2007.



     Timothy J. Burke, for petitioner.

     Michel J. Lucic, pro se.

     Nina P. Ching, for respondent.



                        MEMORANDUM OPINION


     THORNTON, Judge:   This case is before the Court on

respondent’s motion for entry of decision.
                                - 2 -

                             Background

     Petitioner and intervenor filed a joint tax return for

taxable year 2000.    Taxes were reported on the joint tax return

but were not paid.

     Petitioner submitted to respondent a Form 8857, Request for

Innocent Spouse Relief, with respect to her 2000 joint liability.

Respondent denied the requested relief.    Petitioner timely

petitioned this Court, seeking relief pursuant to section

6015(f).1    When she filed her petition, petitioner resided in

Norwood, Massachusetts.

     On December 29, 2004, respondent notified intervenor of

petitioner’s filing of her petition and of intervenor’s right to

intervene.    On January 7, 2005, intervenor filed a timely notice

of intervention.    On February 23, 2005, intervenor filed an

answer to petitioner’s amended petition, praying that the Court

deny petitioner’s request for relief.

     On May 17, 2005, the parties, including intervenor, were

served with the Court’s notice setting the case for trial at this

Court’s Boston, Massachusetts, trial session beginning October

17, 2005.2    The notice stated, among other things:   “YOUR FAILURE


     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
     2
       By Order dated Sept. 14, 2005, there was also set for
hearing at the Oct. 17, 2005, Boston trial session respondent’s
                                                   (continued...)
                                - 3 -

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

DECISION AGAINST YOU.”

     On October 17, 2005, this case was called from the calendar

at the Boston trial session.    Counsel for respondent and counsel

for petitioner appeared and filed a stipulation of settled issues

between petitioner and respondent, indicating that petitioner was

entitled to relief from joint and several liability pursuant to

section 6015(f) for 2000 and that no income taxes or additions to

tax were due from petitioner.   Respondent’s counsel reported to

the Court:   “We are unable to obtain an agreement from the

intervenor to sign any sort of decision document.”   Intervenor

failed to appear at the calendar call and did not communicate

with the Court beforehand about the scheduled trial.

     On November 10, 2005, respondent filed a motion for entry of

decision pursuant to the stipulation of settled issues.   On

November 21, 2005, intervenor filed objections to respondent’s

motion for entry of decision.   Intervenor objected to

respondent’s motion for entry of decision on the grounds that he

was improperly excluded from pretrial conferences that allegedly

occurred between respondent and petitioner, that he relied on

respondent to fully prosecute this matter against petitioner’s



     2
      (...continued)
motion to impose sanctions with respect to respondent’s motions
to compel discovery, filed Aug. 31, 2005. This Order did not
displace the May 17, 2005, notice setting the case for trial.
                               - 4 -

request for relief, and that respondent and petitioner are

perpetrating a fraud on the Court.     Intervenor’s objections

indicated that respondent had notified him approximately 2 weeks

before the scheduled trial session of respondent’s intentions to

concede the case but that intervenor had nevertheless decided,

for financial reasons, not to appear for the trial.

     On December 20, 2005, respondent filed a response to

intervenor’s objections.   On January 9, 2006, petitioner filed a

response to intervenor’s objections, urging that intervenor’s

objections be denied and that respondent’s motion for entry of

decision be granted.

     On July 25, 2006, this Court issued its Opinion in Billings

v. Commissioner, 

(2006), holding that the Court does

not have jurisdiction to review the Commissioner’s denial of

relief under section 6015(f) in a case where no deficiency has

been asserted.   Our holding in Billings was in accord with the

appellate courts’ opinions in Bartman v. Commissioner, 

(8th Cir. 2006), affg. in part and vacating T.C. Memo. 2004-

93, and Commissioner v. Ewing, 

(9th Cir. 2006),

revg. 

(2002).

     On August 17, 2006, this Court ordered the parties,

including intervenor, to file responses addressing the Court’s

jurisdiction over this case in light of the Court’s holding in

Billings v. 

.     In his response, filed
                                - 5 -

September 19, 2006, respondent contended that in light of

Billings v. 

, the Court lacked jurisdiction

over this case.   Petitioner’s response contended that the Court

possessed the requisite authority to enter the stipulated

decision in this case.   The Court received no response from

intervenor.

     In the Tax Relief and Health Care Act of 2006, Pub. L. 109-

432, div. C, sec. 408, 120 Stat. 3061, Congress reinstated our

jurisdiction to review the Commissioner’s determinations under

section 6015(f) with respect to tax liability remaining unpaid on

or after December 20, 2006.    By Order dated January 10, 2007, we

ordered the parties, including intervenor, to file responses

addressing the Court’s jurisdiction in this case.   In his

response filed February 5, 2007, respondent indicated that

petitioner’s liability for tax year 2000 remained unpaid as of

December 20, 2006, so that under the recent amendment to section

6015, this Court has jurisdiction over this case.   Similarly, in

her response filed January 9, 2007, petitioner maintained that

this Court has jurisdiction over this case.   The Court has

received no response from intervenor.

                              Discussion

     It is undisputed that petitioner’s liability for tax year

2000 remained unpaid as of December 20, 2006.   Accordingly,

pursuant to the recent amendment to section 6015 by the Tax
                                 - 6 -

Relief and Health Care Act of 2006, this Court has jurisdiction

over this case to review the Commissioner’s determination under

section 6015(f).

     Intervenor, as the nonelecting spouse, had the right to

intervene in this proceeding by filing a notice of intervention.

Sec. 6015(e)(4); Rule 325; Corson v. Commissioner, 

,

364-365 (2000).     By exercising that right, intervenor became a

party to this case.     Tipton v. Commissioner, 

, 217

(2006).   An intervenor, however, “is not granted rights or

immunities superior to those of the other parties, may not

enlarge the issues or alter the nature of the proceeding, and

must abide by the Court’s Rules”.

has

been properly notified of trial has no immunity from dismissal

for failure to appear in Court when the case is called for trial.

   This Court may dismiss an intervenor for failure to

prosecute.

2005, this Court served on the parties, including

intervenor, a notice setting case for trial at the session of the

Court commencing in Boston, Massachusetts, on October 17, 2005.

When the case was called from the calendar on October 17, 2005,

respondent’s and petitioner’s counsels appeared and filed a

stipulation of settled issues between petitioner and respondent.

Intervenor, however, failed to appear, did not notify the Court

in advance that he was unable to appear, did not move for a
                                - 7 -

continuance, and did not otherwise communicate his intentions to

the Court.   In addition, intervenor has never responded to the

Court’s Orders of August 17, 2006, and January 10, 2007.

     Intervenor has offered no cognizable reason for failing to

appear for trial.3    Instead, intervenor contends that he relied

on respondent to prosecute this matter against petitioner’s

request for relief.    Intervenor’s reliance on respondent in this

regard was misplaced.    Respondent was under no obligation to

represent intervenor’s interests in prosecuting this case.    In

any event, according to intervenor’s own representations,

respondent’s counsel informed intervenor about 2 weeks before the

scheduled trial session that respondent was conceding the case.

Intervenor was on notice, then, well before the scheduled trial,

that respondent would not be representing his interests in this

matter.   Intervenor has only himself to blame for failing to

avail himself of his opportunity to protect his interests as an

intervenor in this proceeding by appearing for the scheduled

trial.

     Although intervenor has the right not to sign a decision

document with which he disagrees, he “does not have immunity from



     3
       In his objections to respondent’s motion for entry of
decision, intervenor suggests, with little elaboration, that
traveling to Boston for the trial might have been a financial
hardship for him. Intervenor did not move, however, to change
the place of trial or otherwise communicate with the Court
beforehand about any such financial hardship.
                                - 8 -

dismissal for failing to appear at trial and properly prosecute

any claims or defenses he may have after he was properly given

notice of the trial”.    Tipton v. 

at 218.

Intervenor failed to appear at trial and properly prosecute any

claims or defenses he may have after he was properly given notice

of the trial.   Accordingly, on our own motion, we shall dismiss

intervenor.   For the sake of completeness, however, we shall

address intervenor’s remaining objections to respondent’s motion

for entry of decision.

     Intervenor contends that respondent and petitioner had

pretrial conferences from which he was improperly excluded.

Petitioner and respondent contend that no pretrial conferences

took place; rather, they contend, as a result of petitioner’s

responses to respondent’s discovery requests (which were also

served on intervenor without objection thereto), respondent

decided to concede that petitioner was entitled to relief from

the 2000 joint and several tax liability.   Intervenor concedes

that respondent informed him 2 weeks before trial of respondent’s

decision to settle the case.   Intervenor has failed to allege any

specific facts which tend to show that respondent and petitioner

engaged in any misconduct by agreeing to the stipulation of

settled issues.

     Intervenor also contends that respondent and petitioner are

perpetrating a fraud on the Court by seeking to have this Court
                                - 9 -

enter their stipulated decision.   Intervenor has failed to

allege, however, specific facts which would show “an intentional

plan of deception designed to improperly influence the Court in

its decision”, as necessary to show fraud on the Court.       Abatti

v. Commissioner, 

, 1325 (1986), affd. 

(9th Cir. 1988).   To the contrary, when the parties filed the

stipulation of settled issues at the calendar call, respondent’s

counsel expressly advised the Court that intervenor was not in

agreement.   Intervenor’s allegations do not suggest that

respondent and petitioner engaged in any wrongdoing by entering

into a stipulation of settled issues or made any

misrepresentation to him about the settlement.

     In conclusion, intervenor has failed to prosecute this case

properly or to comply with this Court’s Rules and orders.      He has

raised no valid objection to respondent’s motion for entry of

decision.    Accordingly, we shall dismiss intervenor for lack of

prosecution and grant respondent’s motion for entry of decision.


                                             An appropriate order and

                                        decision will be entered.