                        T.C. Memo. 2005-270



                      UNITED STATES TAX COURT



               JOHN T. HIGGINBOTHAM, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4945-04L.              Filed November 21, 2005.



     John T. Higginbotham, pro se.

     Alex Shlivko, for respondent.



                        MEMORANDUM OPINION


     MARVEL, Judge:   This matter is before the Court on

respondent’s motion to dismiss for lack of prosecution.
                                - 2 -

                             Background

     By notice of determination dated March 4, 2004, respondent

determined that, pursuant to section 6330,1 he could proceed to

collect by levy the following income tax liabilities:

     Tax year                           Unpaid income tax liability

         1992                                   $24,288.47
         1993                                    11,297.73
         1994                                    12,000.59
         1995                                     3,530.29
         1996                                     8,788.57
         1997                                     4,199.26
         1998                                     2,055.46
         1999                                       814.34
            Total                                66,974.71

     On March 12, 2004, petitioner mailed a letter to the Court,

which we filed on March 16, 2004, as petitioner’s imperfect

petition.    Because the imperfect petition did not meet the

requirements of Rule 331(b), the Court ordered petitioner to file

a proper amended petition by May 3, 2004.      On April 26, 2004, the

Court filed petitioner’s amended petition seeking review of

respondent’s determination to proceed by levy with collection of

petitioner’s Federal income tax liabilities and seeking a

redetermination of petitioner’s employment status2 with respect

     1
      All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code in effect at all relevant times.
     2
      Although petitioner checked the box on the petition form
indicating that his petition was for a redetermination of
employment status, petitioner appears to have done so as a result
of a misunderstanding. Petitioner is appealing respondent’s
                                                   (continued...)
                                 - 3 -

to his 1992, 1993, 1994, 1995, 1996, 1997, 1998, and 1999 taxable

years.   Petitioner resided in New York, New York, when his

petition was filed.3

     By letter dated July 26, 2004, respondent contacted

petitioner to schedule a meeting for August 16, 2004, to discuss

a stipulation of facts in this case.     By letter dated August 10,

2004, petitioner informed respondent that he would be unable to

attend the scheduled meeting due to physical injuries received

during the previous month.    Petitioner also stated that he had

begun gathering documentation for his case and needed respondent

to send him copies of his tax returns because petitioner’s copies

were “in storage”.     By letter dated October 8, 2004, respondent

rescheduled the meeting for November 10, 2004.    Petitioner

canceled the November 10, 2004, meeting by a telephone call to

respondent.   Respondent rescheduled the meeting for December 3,

2004, and sent petitioner copies of his 1993, 1994, 1995, 1998,

     2
      (...continued)
determination that respondent could proceed to collect by levy
petitioner’s unpaid income tax liabilities. One of petitioner’s
arguments in support of his claim that he does not owe the
liabilities is that he was an employee, and his employers should
have withheld income tax from his wages. Petitioner apparently
checked the employment status redetermination box because of this
argument. For reasons stated in this opinion, we do not
separately address petitioner’s argument.
     3
      Petitioner alleges that the unpaid income tax liabilities
are the responsibility of his various employers throughout the
years in question. Petitioner also alleges that his 1992 and
1993 income tax liabilities were discharged in a ch. 7 bankruptcy
proceeding on Dec. 7, 1993.
                                 - 4 -

and 1999 tax returns.4   Petitioner failed to attend the December

3, 2004, meeting, and he did not contact respondent to discuss

rescheduling options.

     This case was first set for trial during the Court’s March

14, 2005, New York, New York, trial session.    A notice setting

case for trial, dated October 8, 2004, and a standing pretrial

order were sent to petitioner.    On December 27, 2004, respondent

filed requests for admission.    Petitioner’s response to the

request for admissions was due on January 24, 2005.    The Court

did not receive a response to the request for admissions from

petitioner, and, as a result, the statements of fact in the

request for admissions were deemed admitted pursuant to Rule

90(c).

     By letter dated February 4, 2005, petitioner stated that he

did not attend the December 3, 2004, meeting because respondent

had not mailed him his remaining tax returns.    Petitioner also

stated that he had contacted his previous employers, who informed

him that they no longer had his records for the years in issue.

He requested copies of his Forms W-2, Wage and Tax Statements,

and Forms 1099 from respondent for years 1989 through 1993.

     On March 2, 2005, petitioner, via teleconference with the

Court and respondent’s counsel, requested a continuance due to


     4
      Respondent contends that these were the only returns of
petitioner that respondent possessed as of that date.
                               - 5 -

his recent hospitalization.   The Court ordered petitioner to file

a written motion for continuance, supported by a doctor’s

statement, by the end of the business day on March 8, 2005.

Petitioner did not file a written motion at that time, nor did he

attend the March 14, 2005, trial session.   At trial, respondent

moved to dismiss for lack of prosecution, and the Court granted

the motion.

     In a letter to the Court dated March 10, 2005, petitioner

requested a continuance.   Petitioner’s March 10, 2005, letter was

filed on March 14, 2005, as petitioner’s motion for continuance.

On March 29, 2005, petitioner supplemented his motion for a

continuance with a letter from his doctor stating that petitioner

was disabled and bedridden.   By order dated April 5, 2005, the

Court vacated its oral direction on the record granting

respondent’s motion to dismiss, denied the motion to dismiss, and

granted petitioner’s motion for a continuance.    The April 5,

2005, order specifically warned petitioner that “No further

continuances will be granted, barring unusual circumstances” and

scheduled the case for trial during the Court’s New York, New

York, trial session beginning on June 13, 2005.

     By letter dated May 12, 2005, respondent scheduled a

conference with petitioner for May 26, 2005, to discuss the

preparation of a stipulation of facts in anticipation of the June

13, 2005, trial.   In the letter, respondent stressed the
                                 - 6 -

importance of complying with Rule 91, which requires the parties

to stipulate undisputed facts.    Respondent also advised

petitioner of the possibility of a penalty resulting from the

initiation of a proceeding for the purposes of delay or to raise

frivolous or groundless arguments and the possibility of

dismissal of the case if he did not attend either the scheduled

meeting or the June 13, 2005, trial session.    By letter dated

June 3, 2005, respondent scheduled a conference with petitioner

for June 8, 2005.   The June 3, 2005, letter contained the same

warnings as the May 12, 2005, letter.

     On or about June 9, 2005, the parties had a teleconference

with the Court.   Petitioner requested that the case be continued

again for medical reasons.   The Court advised petitioner to

attend the trial session and warned him that his motion for a

second continuance would be denied unless he had not been given

an opportunity to present his case before respondent’s Appeals

Office.5

     5
      As summarized in both the notice of determination and in
attachments to the motion to dismiss, respondent repeatedly
offered petitioner opportunities to meet with respondent and to
present information concerning his allegations that collection by
levy should not proceed. As part of a remarkably consistent
pattern of nonresponsiveness, petitioner failed to appear at
meetings or to respond to requests for information. Because
petitioner failed to meet and present information in support of
his contention that collection should not proceed, the Appeals
officer assigned to petitioner’s sec. 6330 proceeding determined,
after reviewing the administrative record and making the
determinations required by sec. 6330, that collection by levy
                                                   (continued...)
                                - 7 -

     On June 13, 2005, petitioner failed to appear at the

calendar call.   Respondent’s counsel appeared and presented a

second motion to dismiss for lack of prosecution, along with

documentary evidence in support of the motion to dismiss.    The

Court took respondent’s motion to dismiss under advisement.

     Respondent’s motion to dismiss represents that (1) all

material allegations of fact set forth in the amended petition in

support of the assignments of error have been denied in the

answer; (2) petitioner has not raised any issues upon which

respondent has the burden of proof, and respondent has not

conceded any error assigned in the amended petition; (3)

petitioner has not produced any evidence to support the

assignments of error in the amended petition; and (4) petitioner

has failed to respond to respondent’s letters requesting that

petitioner attend conferences and produce his records for

respondent’s review.

                             Discussion

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

decision against the taxpayer for failure properly to prosecute

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


     5
      (...continued)
could proceed.
                               - 8 -

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

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

82 T.C. 592, 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, 97 T.C. 113, 116-117 (1991); Smith v. Commissioner,

T.C. Memo. 2003-266, affd. sub nom. Hook v. Commissioner, 103

Fed. Appx. 661 (10th Cir. 2004).

     Petitioner has disregarded the Court’s Rules and standing

pretrial order by failing to cooperate meaningfully with

respondent to prepare this case for trial.    Petitioner’s pattern

of canceling or missing scheduled conferences, providing belated

notice, if any, of his intent not to attend them, and ignoring

respondent’s requests for admission made it impossible for the

parties to exchange information, conduct negotiations, or prepare

a stipulation of facts before trial.   Petitioner also failed to

prepare and submit a pretrial memorandum before either of the

scheduled trial sessions, and he still has not produced documents

relevant to his case.   Petitioner’s most recent request for

continuance was made fewer than 30 days before the June 13, 2005,

trial session and failed to allege exceptional circumstances as
                                 - 9 -

required by Rule 133,6 which further underscores what appears to

be petitioner’s intentional attempt to unreasonably delay the

proceedings.    See Williams v. Commissioner, 119 T.C. 276, 279-280

(2002).

     Petitioner was repeatedly warned by respondent’s counsel and

by the Court of the consequences of failing to prepare for trial

and of failing to appear at trial.       Despite those warnings,

petitioner repeatedly failed to make any reasonable effort to

demonstrate his good faith and his willingness to prepare his

case for trial.    Although petitioner stated that he would forward

numerous documents to respondent, he never sent anything.         In

fact, respondent had to send petitioner copies of eight of

petitioner’s tax returns to get petitioner to communicate with

him at all.    Furthermore, petitioner did not appear at the June

13, 2005, trial session or document any legitimate reason for his

failure to do so.

     We find that petitioner has failed to comply with the

Court’s Rules and orders and has failed properly to prosecute

this case.     See Rollercade, Inc. v. Commissioner, supra at 116-

117; Smith v. Commissioner, supra.       Petitioner’s course of

conduct throughout the proceedings demonstrates that these


     6
      Under Rule 133, a motion for continuance filed 30 days or
less before the trial date will be denied unless the ground for
continuance arose within that period or there was good reason for
not making the motion sooner.
                              - 10 -

failures are due to his willfulness, bad faith, or fault, and we

conclude that dismissal of this case is appropriate.   Petitioner

has not raised any issue upon which respondent has the burden of

proof.   See Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115

(1933) (Commissioner’s determinations are presumed correct, and

taxpayer bears the burden of proving them wrong).7

     Accordingly, we shall grant respondent’s motion to dismiss

this case for lack of prosecution, and we shall enter a decision

holding that the Appeals Office did not abuse its discretion in

determining that respondent may proceed with the proposed

collection action.


                                              An appropriate order

                                         of dismissal and decision

                                         will be entered.




     7
      Because petitioner failed to cooperate with respondent’s
requests for information, documents, meetings, and interviews,
the burden of proof does not shift to respondent. See sec.
7491(a).
