T.C. Memo. 2008-1



                      UNITED STATES TAX COURT



                 ANTHONY D. LONG, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21515-05L.             Filed January 2, 2008.



     Anthony D. Long, pro se.

     Benjamin J. Peeler, for respondent.



                        MEMORANDUM OPINION


     MARVEL, Judge:   This matter is before the Court on

respondent’s motion to dismiss for lack of prosecution and to

impose a penalty under section 6673(a)(1).1     For purposes of this



     1
      All section references are to the Internal Revenue Code,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
                               - 2 -

opinion, we shall treat respondent’s motion as a motion to

dismiss for lack of prosecution only.2

                            Background

     Petitioner resided in Los Alamitos, California, when the

petition in this case was filed.

     Petitioner filed multiple 2001 Federal income tax returns

and amended returns at various times.    Respondent determined that

the positions taken by petitioner on his returns were frivolous.

As a result, respondent prepared a substitute return for 2001

under section 6020(b).   By a notice of deficiency dated

November 12, 2003, respondent determined a deficiency in

petitioner’s Federal income tax for 2001 of $11,994 and additions

to tax for 2001 under sections 6651(a)(1) and 6654(a) of

$1,966.50 and $296.03, respectively.

     On May 5, 2005, respondent mailed petitioner a Final Notice

of Intent to Levy and Notice of Your Right to a Hearing, and

petitioner timely requested a hearing under section 6330.    On

May 12, 2005, respondent mailed petitioner a Notice of Federal

Tax Lien Filing and Your Right to a Hearing Under IRC 6320, and

petitioner timely requested a hearing under section 6320.

Respondent offered petitioner a face-to-face hearing if

petitioner identified any relevant issues regarding the proposed

collection actions.   Petitioner refused to raise any relevant


     2
      We deny respondent’s request for a penalty under sec. 6673.
                               - 3 -

issues or offer his reasons for requesting the hearing, and

respondent elected to schedule a telephone conference instead of

a face-to-face hearing.   Petitioner notified respondent that he

could not participate in the telephone conference and reiterated

his desire for a face-to-face hearing.   On October 7, 2005,

respondent issued petitioner a notice of determination because

petitioner refused to cooperate with the Appeals officer.   In the

notice, the Appeals officer determined that respondent had met

all legal and administrative requirements and that respondent

could proceed with the proposed collection actions.

     In response to the notice of determination, petitioner

mailed a letter dated November 3, 2005, to the Court, which we

received on November 14, 2005, and filed as a timely but

imperfect petition.   By order dated November 17, 2005, petitioner

was given until January 3, 2006, to file a proper amended

petition and pay the filing fee.   No response to that order was

received, and on February 22, 2006, we dismissed this case for

lack of jurisdiction.   On May 11, 2006, we received and filed

petitioner’s request for permission to file a motion to vacate

the order of dismissal, along with petitioner’s motion to vacate

the order of dismissal, a designation of place of trial, and an

amended petition.   The motion to vacate the order of dismissal,

the designation of place of trial, and the amended petition were

lodged on May 11, 2006.   On May 16, 2006, we granted petitioner’s
                                 - 4 -

request for permission to file a motion to vacate the order of

dismissal.   The motion to vacate the order of dismissal was filed

and granted on May 16, 2006, and the designation of place of

trial and the amended petition were filed on that date.     The

amended petition alleges, among other things, that respondent

improperly denied petitioner a valid section 6330 hearing.

     On August 31, 2006, we issued petitioner a notice setting

his case for trial during the Court’s February 5, 2007, Los

Angeles, California, trial session.      The notice warned petitioner

that “YOUR FAILURE TO APPEAR MAY RESULT IN DISMISSAL OF THE CASE

AND ENTRY OF DECISION AGAINST YOU.”      Accompanying the notice was

the Court’s standing pretrial order, which directed the parties

to take specific action to prepare for trial.     The standing

pretrial order also stated that “The Court may impose appropriate

sanctions, including dismissal, for any unexcused failure to

comply with this Order.”

     Respondent asserts in his motion that on or about September

20, 2006, he contacted petitioner by telephone.     During this

conversation, respondent explained to petitioner the Court’s

required stipulation process.3    Respondent also warned petitioner

that he should not raise any of the frivolous or groundless

arguments that he had previously advanced.     Petitioner requested



     3
      The standing pretrial order requires that “all facts shall
be stipulated to the maximum extent possible.”
                                - 5 -

more time to build his case and gather necessary information, and

the parties decided to wait until September 26, 2006, to schedule

a meeting.

     On September 26, 2006, respondent sent petitioner a letter

detailing the informal discovery process under Rule 91 and

requesting that petitioner send copies of all relevant documents

to respondent pursuant to Branerton Corp. v. Commissioner, 

(1974).    Respondent also warned petitioner of the

penalty under section 6673(a)(1) for raising frivolous arguments

and instituting proceedings primarily for delay.    On the same

day, respondent received a telephone message from petitioner

stating that he did not intend to meet with respondent or provide

any other documentation.    Petitioner also informed respondent

that he would not respond to informal discovery requests and that

any further communication would be made only by written

correspondence.

     On October 6, 2006, respondent sent petitioner another

letter emphasizing the Court’s requirement to conduct informal

discovery and requesting that petitioner respond to the discovery

requests.    Respondent proposed a deadline of October 31, 2006,

for responses to or requests for informal discovery.    Respondent

informed petitioner that the Court has characterized arguments

like the ones made by petitioner as frivolous and groundless and
                                - 6 -

that respondent planned to file a motion for summary judgment and

to impose a penalty under section 6673(a)(1).

     In a letter dated October 23, 2006, petitioner asserted that

discovery was unnecessary because review of petitioner’s case by

the Court should be limited to the administrative record.    On

December 8, 2006, petitioner filed a motion to set aside the

trial date and to set a briefing schedule, arguing that the Court

should not conduct a trial but instead should look at the

administrative record to review respondent’s determination.    The

Court denied petitioner’s motion, and on January 16, 2007,

petitioner filed a motion for reconsideration.   The motion for

reconsideration was calendared for hearing at the February 5,

2007, Los Angeles, California, trial session.

     On January 23, 2007, respondent filed a motion for summary

judgment, which the Court also calendared for hearing on the

February 5, 2007, trial date.   On February 2, 2007, petitioner

filed a statement under Rule 50(c) in lieu of appearing at the

trial session.4

     On February 5, 2007, petitioner failed to appear at the

scheduled trial session.   The Court denied petitioner’s motion




     4
      Rule 50(c) permits a party subject to a hearing on a motion
to submit a statement of his position with supporting documents
in lieu of or in addition to attendance at the hearing. It does
not authorize the submission of a statement in lieu of an
appearance at trial.
                                - 7 -

for reconsideration.5   Because petitioner did not appear and did

not cooperate with respondent in preparing the case for trial,

respondent orally requested that the Court dismiss this case for

lack of prosecution.    The Court gave respondent a period of time

to file a written motion, and respondent’s motion to dismiss for

lack of prosecution and to impose a penalty under section

6673(a)(1) was filed on February 12, 2007.

     On March 7, 2007, petitioner filed an opposition to

respondent’s motion.    Petitioner argues only that respondent’s

motion to dismiss for lack of prosecution and to impose a penalty

under section 6673(a)(1) is an impermissible joinder of motions

under Rule 54.   However, petitioner did not address the merits of

respondent’s motion or contest the facts alleged therein.

Because we conclude that petitioner failed to properly prosecute

this case for the reasons set forth below, we shall grant

respondent’s motion insofar as it seeks a dismissal of this case.

In addition, because we conclude that we must grant respondent’s

motion to dismiss, we shall deny respondent’s motion for summary

judgment as moot.

                             Discussion

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

decision against the taxpayer for failure properly to prosecute


     5
      Because of petitioner’s failure to appear at the trial
session, the Court did not hear respondent’s motion for summary
judgment.
                                - 8 -

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

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

sufficient.   Rule 123(b).   Dismissal is appropriate where the

taxpayer’s failure to comply with the Court’s Rules and orders is

due to willfulness, bad faith, or fault.    See Dusha v.

Commissioner, 

, 599 (1984).     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 claim.    Rule 149(a);

Rollercade, Inc. v.   Commissioner, 

, 116-117 (1991);

Smith v. Commissioner, T.C. Memo. 2003-266, affd. sub nom. Hook

v. Commissioner, 

(10th Cir. 2004).

     Petitioner disregarded the Court’s Rules and standing

pretrial order by failing to cooperate with respondent in

preparing his case for trial.    Respondent’s counsel repeatedly

asked petitioner to comply with respondent’s informal discovery

requests and to cooperate in preparing a stipulation of facts.

Despite those requests, petitioner failed to respond to or

produce any documents supporting his position.    Petitioner’s

continuous refusal to meet respondent’s requests for discovery

made it impossible for the parties to exchange information,

conduct negotiations, or prepare a stipulation of facts before

trial.   Petitioner failed to prepare and submit a pretrial

memorandum before the scheduled trial session as required by the
                                - 9 -

Court’s order, and he has yet to produce any documents relevant

to his case.   In addition, petitioner failed to appear at the

scheduled trial session.

     Petitioner’s course of conduct throughout the proceedings

demonstrates that these failures are due to petitioner’s

willfulness, bad faith, or fault, and we conclude that dismissal

of this case is appropriate.6   Petitioner has failed to comply

with the Court’s Rules and orders and has failed properly to

prosecute this case.   See Rollercade, Inc. v. 

at 116-117; Smith v. 

.   Accordingly, we shall

grant respondent’s motion to dismiss this case for lack of

prosecution.


                                              An appropriate order

                                         of dismissal and decision

                                         will be entered.




     6
      Petitioner has not raised any issue upon which respondent
has the burden of proof. See Rule 142(a); Welch v. Helvering,

, 115 (1933). Because petitioner failed to cooperate
with respondent’s request for information and documents, the
burden of proof does not shift to respondent. See sec. 7491(a).