                                                                             FILED
                            NOT FOR PUBLICATION                              JUN 20 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



VINCE FLAHERTY,                                  No. 11-71336

               Petitioner - Appellant,           Tax Ct. No. 5903-09L

  v.
                                                 MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                            Appeal from a Decision of the
                              United States Tax Court

                              Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Vince Flaherty appeals pro se from Tax Court’s decision dismissing for

failure to prosecute his petition challenging the Commissioner of Internal

Revenue’s determination to collect by levy unpaid federal income taxes for 1996.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review for an abuse of

discretion, Noli v. Comm’r, 860 F.2d 1521, 1527 (9th Cir. 1988), and we affirm.

      The Tax Court did not abuse its discretion in dismissing Flaherty’s petition

for failure to prosecute given Flaherty’s failure to appear for trial and his history of

delay, especially since it had already granted two trial continuances and Flaherty

had been warned multiple times that his case could be dismissed. See id. (noting

“dismissal for failure properly to prosecute will normally arise where a party fails

to appear at trial”); see also T.C. R. 123(a), (b) (Tax Court may dismiss a case and

enter a decision against a petitioner where the petitioner fails properly to prosecute

or fails to proceed as required by the Tax Court).

      Flaherty’s contention that the dismissal of his petition violated his due

process rights and his right to trial is unpersuasive.

      We grant Flaherty’s motion to file a substitute reply, and instruct the Clerk

to file the reply brief submitted on March 19, 2013.

      AFFIRMED.




                                            2                                     11-71336
