                         T.C. Summary Opinion 2017-18



                         UNITED STATES TAX COURT



                    WALTER CANCEL, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 30096-14S.                         Filed March 23, 2017.



      Walter Cancel, pro se.

      Nancy M. Gilmore, for respondent.



                               SUMMARY OPINION


      LAUBER, Judge: This case was heard pursuant to the provisions of section

7463 of the Internal Revenue Code in effect when the petition was filed.1 Under



      1
       All statutory references are to the Internal Revenue Code in effect for the
tax years in issue, and all Rule references are to the Tax Court Rules of Practice
and Procedure. We round all monetary amounts to the nearest dollar.
                                        -2-

section 7463(b), the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other case.

      With respect to petitioner’s Federal income tax for 2011 and 2012, the Inter-

nal Revenue Service (IRS or respondent) determined deficiencies of $8,067 and

$7,078, respectively. These deficiencies are attributable to respondent’s disallow-

ance, for lack of substantiation, of deductions that petitioner claimed on his Sched-

ules A, Itemized Deductions, and Schedules E, Supplemental Income and Loss, for

2011 and 2012. After several continuances this case was set for trial in Baltimore,

Maryland, on January 30, 2017. Petitioner failed to appear, and respondent moved

to dismiss the case for lack of proper prosecution by petitioner. We will grant the

motion.

                                    Background

      The facts set forth below are derived from the parties’ pleadings and motion

papers and the exhibits attached thereto. Petitioner worked as an operations man-

ager for a blood donor service during 2011 and 2012. He also owned rental real

estate. He filed a timely return for each year on Form 1040, U.S. Individual In-

come Tax Return. On a Schedule A for each year he claimed deductions for mort-

gage interest, real estate taxes, charitable contributions, and unreimbursed em-
                                        -3-

ployee business expenses. On a Schedule E for each year he claimed deductions

for mortgage interest, real estate taxes, depreciation expenses, and repairs.

      The IRS examined petitioner’s returns for 2011 and 2012. He provided sub-

stantiation for some of the expenses, and the IRS allowed the claimed deductions

to that extent. The IRS disallowed the remaining deductions for lack of substan-

tiation. The Schedule E deductions for depreciation were partially disallowed

because petitioner failed to exclude land from his depreciable basis.

      Petitioner timely petitioned this Court and requested Baltimore, Maryland,

as his place of trial. The case was calendared for trial in Baltimore on October 19,

2015. On October 15, 2015, after failing to respond to prior communications from

respondent, petitioner informed respondent’s counsel that he had moved to Texas,

that he would be unable to attend the Baltimore trial session, and that he had addi-

tional documents to substantiate expenses underlying his claimed deductions. The

case was continued at petitioner’s request.

      The case was rescheduled for trial in Baltimore on June 13, 2016. On June

3, 2016, after failing to respond to prior communications from respondent, peti-

tioner provided respondent’s counsel with additional documents that appeared to

include some new information. At the parties’ request the Court granted a contin-

uance to enable respondent to review these documents. Respondent concluded
                                          -4-

that the documents did not substantiate expenses underlying any of the disallowed

deductions.

      On October 25, 2016, respondent filed a motion to calendar the case on the

Court’s January 30, 2017, Baltimore trial session. Before filing this motion re-

spondent spoke with petitioner, who indicated that he had since moved to Florida

but nevertheless wished to have his case tried in Baltimore. We directed petitioner

to file, by November 15, 2016, an objection (if any) to respondent’s motion to

calendar the case for trial in Baltimore. Petitioner did not respond to that order.

On November 30, 2016, we granted respondent’s motion and calendared the case

for trial in Baltimore on January 30, 2017.

      On January 13, 2017, respondent filed a motion to dismiss for lack of prose-

cution. In her motion counsel for respondent represented that she had telephoned

petitioner twice in an effort to secure his assistance in preparing this case for trial.

Although she left voice messages for him on each occasion, he failed to respond in

any way. On January 25, 2017, respondent’s counsel telephoned petitioner again,

informing him that she had filed a motion to dismiss the case for lack of prosecu-

tion and that, if he did not appear for trial, the Court might grant this motion.
                                         -5-

      The case was called from the calendar in Baltimore on January 30, 2017.

There was no appearance by or on behalf of petitioner. Counsel for respondent

appeared and asked that we grant her motion to dismiss.

      On February 6, 2017, we received from petitioner a document that we filed

as his response to respondent’s motion to dismiss for lack of prosecution.2 This

document was mailed on January 31, 2017, from an address in Baltimore, Mary-

land. In this document petitioner requested an “emergency continuance” of the

January 30 trial session, stating that he now lived in Florida, that “it will be very

expensive for petitioner to come to Maryland at the last minute,” and that “his

employer will not authorize him to take off for more than 3 days.” If respondent

declined to “settle the case by including additional expenses,” petitioner requested

that “the case be moved to Orlando, Florida” for trial.

                                      Discussion

      Rule 123(b) provides that, “[upon] failure of a petitioner properly to prose-

cute or to comply with these Rules or any order of the Court * * *, the Court may

dismiss a case at any time and enter a decision against the petitioner.” We have


      2
         On March 6, 2017, we received from petitioner a second document that we
filed as a first supplement to his response to respondent’s motion to dismiss for
lack of prosecution. In this document he reiterated the same requests made in his
first letter.
                                        -6-

interpreted Rule 123 to permit entry of a judgment of default or dismissal consis-

tently with our sound discretion and the interests of justice. See Stringer v. Com-

missioner, 84 T.C. 693, 706 (1985), aff’d without published opinion, 789 F.2d 917

(4th Cir. 1986). We have entered judgments of default or dismissal where a tax-

payer (among other things) failed to appear at trial. Ritchie v. Commissioner, 72

T.C. 126 (1979).

      We conclude that respondent’s motion to dismiss this case for lack of proper

prosecution should be granted. Petitioner originally designated Baltimore, Mary-

land, as his place of trial. Although he later moved to Texas and eventually to

Florida, he informed respondent’s counsel in October 2016 that he nevertheless

wished to have his case tried in Baltimore. Respondent accordingly filed a motion

to calendar the case for trial in Baltimore. We directed petitioner to respond to

that motion, but he did not. In the absence of any objection from petitioner, we

calendared the case for trial in Baltimore as respondent requested.

      On November 30, 2016, we sent petitioner a pre-trial notice informing him

that his case was set for trial in Baltimore on January 30, 2017. This notice in-

formed him that, unless previously excused by the Court, “the parties must appear

at the calendar call and be ready for trial.” The notice emphasized that “cases will

not be continued (i.e., postponed) other than under exceptional circumstances” and
                                         -7-

that “[f]ailure to appear may result in a dismissal of the case and a decision against

the nonappearing party.”

       Petitioner did not appear at the calendar call, and he did not request (or

justify a request for) a continuance before the calendar call. Instead, on the day

after his case was called for trial, he responded to the IRS motion to dismiss by

requesting an “emergency continuance.” The only justification he put forth was

the asserted inconvenience of traveling from Florida to Baltimore for trial. But

that inconvenience, if such it was, should have been obvious to petitioner for the

previous three months. He nevertheless informed respondent’s counsel that he

wished to have his case tried in Baltimore. He ignored our order inquiring wheth-

er he objected to trial in Baltimore. And he did not communicate to the Court, at

any time before the trial date, any objection to trial in Baltimore.

      All of the issues in this case involve substantiation of expenses. The case

was continued twice on petitioner’s representation that he had additional docu-

ments to substantiate expenses underlying his claimed deductions. But the

documents he supplied to respondent in June 2016 did not advance his cause. Our

November 2016 pre-trial notice advised him of the need to “[o]rganize any docu-

ments you have to support your case” and “provide copies of documents to the

IRS.” Yet he ignored respondent’s communications before the trial date and sup-
                                        -8-

plied respondent’s counsel with no documentation. In his January 31, 2017,

response he asserted that he has a “meritorious defense” to the disallowed deduc-

tions and “has undisputed receipts.” But he has again failed to supply respond-

ent’s counsel with any of these alleged documents.

      Petitioner has displayed a repeated pattern of ignoring all of respondent’s

communications until shortly before the trial date, then requesting a last-minute

continuance on the ground that he had additional documentation to supply. On the

third iteration he inexcusably delayed in requesting a continuance until after the

case was called for trial, and the justification he advanced was wholly unconvinc-

ing. We are unwilling to let petitioner kick the can down the road any longer. He

has failed to cooperate with respondent in preparing this case for trial, and he has

failed to respond to this Court’s orders and comply with its Rules. We will ac-

cordingly grant respondent’s motion to dismiss this case for lack of proper prose-

cution by petitioner.

      To implement the foregoing,


                                              An appropriate order of dismissal and

                                       decision will be entered.
