                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-4-2009

David Jahn v. Comm IRS
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3793




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"David Jahn v. Comm IRS" (2009). 2009 Decisions. Paper 1236.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 08-3793
                                       ___________

                                      DAVID JAHN

                                             v.

                     COMMISSIONER OF INTERNAL REVENUE
                      ____________________________________

                       On Appeal from the United States Tax Court
                                  (T.C. No. 06-21387)
                       Tax Court Judge: Honorable Joseph H. Gale
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 3, 2009

            Before: RENDELL, FUENTES and ALDISERT, Circuit Judges

                               (Opinion filed: June 4, 2009)
                                      ___________

                                        OPINION
                                       ___________


PER CURIAM

       Appellant, David Jahn, appeals from the Tax Court’s decision dismissing his case

for lack of prosecution. For the following reasons, we will affirm.

                                             I.

       Jahn failed to file a tax return for 2001. In due course, the Internal Revenue
Service (“IRS”) assessed the deficiency and demanded payment. Jahn did not pay the

assessment. The IRS then notified him of its intent to collect by levy his unpaid liability.

In response, Jahn requested a collection-due-process (“CDP”) hearing before the Office

of Appeals. See 26 U.S.C.A. § 6330 (requiring opportunity for hearing before levy can

be made). The Office of Appeals subsequently determined that the IRS’s proposed

collection action was appropriate. Jahn sought review of this determination in the United

States Tax Court.

       On May 31, 2007, the Tax Court issued a “Notice Setting Case for Trial”

informing the parties that the matter was slated for the November 5, 2007 trial session.

The Notice specified that, “[t]he calendar for that Session will be called at 10:00 A.M. on

that date and both parties are expected to be present at that time and be prepared to try the

case. YOUR FAILURE TO APPEAR MAY RESULT IN DISMISSAL OF THE CASE

AND ENTRY OF DECISION AGAINST YOU.” (App. 17.) The Notice also instructed

the parties to “contact each other promptly” in order to prepare a stipulation of undisputed

facts and exhibits, and again warned that, “FAILURE TO COOPERATE MAY ALSO

RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST

YOU.” (App. 17.)

       In addition to this Notice, the parties were also given a copy of the court’s

Standing Pretrial Order, which likewise ordered them to stipulate to facts to the maximum

extent possible. The Order further instructed the parties to submit pretrial memoranda 14



                                              2
days before the trial date, and warned that an unexcused failure to comply could result in

dismissal of the case. (Admin. Record. Doc. 15 (citing Tax Ct. R 131(b)).

       When the case was called on November 5, 2007, Jahn failed to appear. As a result,

counsel for the Commissioner moved to dismiss the case for lack of prosecution. In

support of its motion, the Commissioner alleged that, during the preceding months, it had

made at least five attempts to contact Jahn to prepare the case for trial, but that

Jahn—aside from declining to attend one proposed meeting—had failed to respond to any

of its efforts. (Admin. Record. Doc. 15.)

       Jahn filed objections to the Commissioner’s motion in which he claimed that the

Commissioner’s allegations were “off base and misleading;” according to Jahn, the

Commissioner’s counsel never attempted to contact him via voice mail, and, contrary to

counsel’s contention, he had attempted to cooperate by suggesting certain meeting times.

(Admin. Record. Doc. 19.) In his objections, Jahn also argued that it was unnecessary to

hold a trial on his appeal because the Tax Court could adjudicate the matter on the

administrative record. (Admin. Record. Doc. 19.)

       By order entered May 28, 2008, the Tax Court granted the Commissioner’s

motion, and dismissed the case. The court found that Jahn had violated the court’s rules

and orders by failing to: (1) cooperate sufficiently with the Commissioner in order to

prepare the case for trial; (2) submit a pretrial memorandum; and (3) appear for trial. For

these reasons, the court dismissed the case for lack of prosecution and authorized the



                                               3
Commissioner to proceed with the collection action. Jahn now appeals from the Tax

Court’s Order of Dismissal and Decision.

                                             II.

       We have jurisdiction over this appeal pursuant to 26 U.S.C. § 7482. We review

the dismissal for failure to prosecute under an abuse of discretion standard. Sauers v.

Comm’r, 771 F.2d 64, 66 (3d Cir. 1985). The Tax Court has discretion to dismiss a case

at any time for “failure of a [taxpayer] properly to prosecute or to comply with [the

Court’s] Rules or any order of the Court or for other cause which the Court deems

sufficient.” Tax Ct. R. 123(b).

       Upon review of the record, we hold that the Tax Court did not abuse its discretion

in granting the Commissioner’s motion to dismiss. As the Tax Court explained in its

Order of Dismissal and Decision, Jahn failed to sufficiently cooperate with the

Commissioner, failed to submit a pretrial memorandum, and failed to appear for trial.

Furthermore, although the court gave him an opportunity to explain his actions, he failed

to provide any meaningful excuse for his dilatory conduct.

       On appeal, Jahn argues that the Tax Court adopted the wrong standard of review

when it dismissed his appeal from the Appeals Office’s determination. According to

Jahn, “the Tax Court erred, in that it adopted a trial de novo standard and admitted new

evidence into the appeal, instead of the correct ‘review of the record’ standard.”

(Appellant’s Brief 6.) Contrary to Jahn’s contention, however, the Tax Court did not



                                             4
review the agency’s determination at all; rather, as discussed above, the Tax Court

dismissed the appeal because of Jahn’s disregard for the court’s procedures. We see no

error in its decision to do so.

                                           III.

          Accordingly, we will affirm the Tax Court’s decision.




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