                       127 T.C. No. 15



                UNITED STATES TAX COURT



             KELLY SUE TIPTON, Petitioner,
         AND DARREN L. DARILEK, Intervenor v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 10739-05.                 Filed December 18, 2006.



     P petitioned this Court for redetermination of a
deficiency. Subsequently, during a conference with R’s
Appeals Office, P requested relief from joint and
several liability pursuant to sec. 6015, I.R.C.
Pursuant to Rule 325(a), Tax Court Rules of Practice
and Procedure, R notified I of P’s request for sec.
6015, I.R.C., relief and of I’s right to intervene. I
filed a notice of intervention. I was sent a notice of
trial by the Court and was also notified by R that R
would afford P complete sec. 6015, I.R.C., relief if I
failed to appear at trial. I failed to appear at
trial, and R filed a motion to dismiss I for failure to
prosecute.
     Held: I, who was sent notice of trial but failed
to appear at the trial of the case in which he
intervened, has failed properly to prosecute any claims
or defenses he may have, and, accordingly, those claims
and defenses may be dismissed. Consequently, R’s
motion will be granted.
                                 - 2 -

     Kelly Sue Tipton, pro se.

     Darren L. Darilek, pro se.

     Jennifer K. Martwick, for respondent.



                              OPINION


     WELLS, Judge:   The instant case is before the Court on

respondent’s motion to dismiss Darren L. Darilek (intervenor) for

failure properly to prosecute.    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.

                            Background

     Petitioner and intervenor filed a joint tax return for

taxable year 2002 and divorced in 2003.       On March 8, 2005,

respondent issued a notice of deficiency determining a deficiency

of $7,173 in petitioner and intervenor’s Federal income tax for

taxable year 2002.   Petitioner timely petitioned this Court for a

redetermination of the deficiency.       During her Appeals

conference, petitioner requested relief from joint and several

liability pursuant to section 6015 (section 6015 relief).         On

May 25, 2006, as required by Rule 325(a), respondent notified

intervenor of petitioner’s request for section 6015 relief and

of intervenor’s right to intervene.       On July 27, 2006, intervenor

timely filed a notice of intervention with this Court in which he
                               - 3 -

stated that he wished to intervene.     On August 18, 2006, the

Court ordered that the caption of the instant case be amended to

add intervenor’s name as a party and that the Clerk of the Court

serve on intervenor notice of trial scheduled for October 30,

2006, in Atlanta, Georgia.   On September 26, 2006, respondent

sent intervenor a letter explaining that petitioner would be

afforded complete section 6015 relief if intervenor failed to

appear at trial.   The letter asked intervenor to notify

respondent whether intervenor planned to appear at the Court’s

October 30, 2006, trial session in Atlanta, Georgia.     Intervenor

did not contact respondent and did not appear at trial.     At

trial, respondent made the instant motion to dismiss intervenor

for failure properly to prosecute.     Respondent and petitioner

seek to file a proposed decision, stipulated by respondent and

petitioner, but not signed by intervenor, that would grant

section 6015 relief to petitioner.

                             Discussion

     Where a spouse has sought relief from joint and several

liability pursuant to section 6015(b) or (c) (requesting spouse),

section 6015(e)(4) provides the other spouse who signed the

return (nonrequesting spouse) a right of intervention.     Corson v.

Commissioner, 114 T.C. 354 (2000).     Rule 325(a) provides that the

Commissioner must serve the nonrequesting spouse, within 60 days

of the petition for section 6015 relief, with notice of the
                                  - 4 -

requesting spouse’s petition for section 6015 relief and that the

nonrequesting spouse has a right to intervene in the case by

filing a notice of intervention with the Tax Court.      See also

King v. Commissioner, 115 T.C. 118 (2000) (holding that the

nonrequesting spouse is entitled to notice and, if not already a

party, an opportunity to intervene to challenge the propriety of

relieving the requesting spouse of liability).

     In Corson v. Commissioner, supra, the taxpayers (Mr. and

Mrs. Corson) filed a joint petition for redetermination with this

Court.   Mrs. Corson later amended the petition to assert a claim

for section 6015 relief.      Id. at 355-356.   Mrs. Corson and the

Commissioner subsequently entered a stipulation in which Mrs.

Corson conceded liability for the deficiency but preserved her

right to pursue her claim for section 6015 relief.      Mr. Corson

and the Commissioner signed a similar stipulation settling all

the issues pertaining to Mr. Corson’s tax liability for the year

in issue.   Id. at 356-357.    After the first two stipulations had

been entered, Mrs. Corson and the Commissioner executed a third

stipulation granting Mrs. Corson complete section 6015 relief.

When Mr. Corson refused to sign a stipulated decision based on

the stipulation granting Mrs. Corson complete section 6015

relief, the Commissioner filed a motion for entry of decision.

In denying the Commissioner’s motion for entry of decision, we

held that the nonrequesting spouse should be afforded an
                               - 5 -

opportunity to litigate the Commissioner’s decision to grant

section 6015 relief to the requesting spouse.   Id. at 365.

Corson, however, did not involve the issue of the nonrequesting

spouse’s failure to appear at trial to contest whether the

requesting spouse should be granted section 6015 relief.

     By intervening, the intervenor becomes a party.   King v.

Commissioner, supra.   The intervening party 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.   See Vinson v. Washington Gas

Light Co., 321 U.S. 489, 498 (1944) (stating that an intervening

party does not have rights superior to those of the other parties

and may not enlarge the issues or alter the nature of the

proceeding).1

     Rule 123(b) states that “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 also dismiss a case for

lack of prosecution if a petitioner inexcusably fails to appear



     1
      In the instant case, it is not necessary to enumerate and
comment upon all of the rights that are available to an
intervening party in a case involving sec. 6015. For present
purposes, it is sufficient to note that those rights, whatever
they may be, are not greater than the rights of the other parties
to the action.
                               - 6 -

at trial and does not otherwise participate in the resolution of

his claim.   Rule 149(a); Rollercade, Inc. v. Commissioner, 97

T.C. 113, 116-117 (1991).   Additionally, Rule 123(d) states that

“A decision rendered upon a default or in consequence of a

dismissal, other than a dismissal for lack of jurisdiction, shall

operate as an adjudication on the merits.”   However, Rule 123(b)

and (d) does not mention intervenors, and the Court does not

enter a decision in respect of an intervening nonrequesting

spouse.   Rather, the decision that is entered with respect to

section 6015 relief is one either granting or denying relief from

joint liability to the requesting spouse.

     A nonrequesting spouse is given the right under section

6015(e)(4) to intervene in stand-alone actions involving section

6015 relief.   Van Arsdalen v. Commissioner, 123 T.C. 135 (2004).

Rule 325(a), Corson v. Commissioner, supra, and King v.

Commissioner, supra, grant a nonrequesting spouse the right to

intervene as a party and to litigate whether the Commissioner

should grant section 6015 relief to a requesting spouse in a

deficiency suit.   As noted above, a nonrequesting spouse who

intervenes as a party does not have rights superior to those of

other parties and is subject to the Court’s Rules.   Accordingly,

an intervenor who properly has been notified of trial has no

immunity from dismissal for failure to appear in Court when the

case is called for trial.   Although Rule 123(b) and (d) does not
                              - 7 -

explicitly mention intervenors, Rule 1(a) provides that “Where in

any instance there is no applicable rule of procedure, the Court

* * * may prescribe the procedure, giving particular weight to

the Federal Rules of Civil Procedure to the extent that they are

suitably adaptable to govern the matter at hand.”   Rule 41(b) of

the Federal Rules of Civil Procedure provides that a court may

dismiss a plaintiff for failure to prosecute.2   A court’s

authority to dismiss for failure to prosecute is not limited to

plaintiffs but extends to intervening parties.   See, e.g.,

Scottsdale Ins. Co. v. Educ. Mgmt. Inc., No. Civ. A. 04-1053

(E.D. La., Aug. 31, 2006) (holding that certain intervening

parties were properly dismissed for failure to prosecute their

claims where they failed to appear at properly noticed

depositions).

     At the call of the instant case from the Court’s October 30,

2006, trial session calendar in Atlanta, Georgia, respondent

presented the Court with a proposed decision stipulated by

petitioner and respondent, but not signed by intervenor, that

would grant petitioner complete section 6015 relief.   If

intervenor did not agree with the proposed decision stipulated by

respondent and petitioner, he had the right not to sign it, see

Corson v. Commissioner, 114 T.C. 354 (2000), but he does not have


     2
      We note that the power to dismiss for failure to prosecute
is an inherent power of a court. Link v. Wabash R.R. Co., 370
U.S. 626, 629-630 (1962).
                                 - 8 -

immunity from 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.      Despite being sent

notice from the Court and from respondent that trial was

scheduled for October 30, 2006, in Atlanta, Georgia, intervenor

failed to appear for his “day in court” to protect whatever

rights he had to intervene.   Accordingly, intervenor has failed

properly to prosecute any claims or defenses he may have, and

those claims or defenses may be dismissed.      Consequently, we will

grant respondent’s motion to dismiss for failure properly to

prosecute.   Additionally, we will file the proposed stipulated

decision signed by petitioner and respondent as a stipulation of

settled issues between petitioner and respondent and enter a

decision in accordance with that stipulation.

     To reflect the foregoing,


                                              An appropriate order and

                                         decision will be entered.
