11-2170-ag
Byrne v. Comm’r

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
29th day of January, two thousand thirteen.

Present:    PIERRE N. LEVAL,
            ROSEMARY S. POOLER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

LESLIE A. BYRNE,

                              Petitioner-Appellant,

                        -v-                                         11-2170-ag

COMMISSIONER OF INTERNAL REVENUE,

                        Respondent-Appellee.
_____________________________________________________

Appearing for Appellant:      DEVIN B. DINGLER, Simsbury, CT.

Appearing for Appellee:       CURTIS C. PETT (Joan I. Oppenheimer, Kathryn Keneally,
                              Assistant Attorney General, Tax Division, on the brief)
                              Department of Justice, Washington, DC.

       Appeal from the United States Tax Court (Kroupa, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the Tax Court be and it hereby is VACATED and
REMANDED.
        Petitioner-Appellant Leslie A. Byrne (“Petitioner”) appeals from a February 28, 2011
order of the Tax Court granting Respondent-Appellee Commissioner of Internal Revenue’s
motion to dismiss for failure to prosecute, and from the Tax Court’s March 22, 2011 denial of
Petitioner’s motion to vacate the dismissal.

       “For failure of a petitioner properly to prosecute or to comply with [Tax Court 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.” T.C. R. 123(b). We
review the Tax Court’s dismissal due to failure to prosecute for abuse of discretion. Colon v.
Comm’r, 252 F.3d 662, 662 (2d Cir. 2001). We also review the Tax Court’s denial of a motion
to vacate for abuse of discretion. See LaBow v. Comm’r, 763 F.2d 125, 129 (2d Cir. 1985).

         “To determine whether the Tax Court has abused its discretion in dismissing an action for
failure to prosecute, we consider the same factors that we look to in determining whether a
district court has abused its discretion in dismissing an action for failure to prosecute.” Colon,
252 F.3d at 663 (listing factors for consideration). However, “[d]ismissal is a drastic remedy
that should be imposed only in extreme circumstances, usually after consideration of alternative,
less drastic sanctions.” World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694
F.3d 155, 159 (2d Cir. 2012) (internal quotation marks and ellipsis omitted). “In deciding on the
suitability of lesser sanctions, and whether the sanctions should be aimed primarily against the
party or the attorney, it can be important for the [Tax Court] to assess the relative roles of
attorney and client in causing the delay, as well as whether a tactical benefit was sought by the
delay.” Dodson v. Runyon, 86 F.3d 37, 40 (2d Cir. 1996).

        Here, “[t]he record strongly suggests that it was [Petitioner’s] lawyer, not [Petitioner],
who was responsible for failing to advance the case.” Id. at 41. “Furthermore, it appears that the
attorney caused the delay in derogation of, rather than to benefit, his client’s interests.” Id. The
Tax Court, while understandably frustrated with Petitioner’s failure to prosecute, failed to
consider lesser sanctions. Accordingly, we conclude that the Tax Court should not have
dismissed the action. As we vacate the dismissal, we need not consider the Tax Court’s denial of
Petitioner’s motion to vacate.

         On remand, the Tax Court is free to reconsider the issue of sanctions consistent with this
order.

       The judgment is VACATED and REMANDED to the Tax Court for further
proceedings.


                                                      FOR THE COURT:
                                                      Catherine O=Hagan Wolfe, Clerk




                                                  2
