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


5-4-2009

Thomas D. Tuka v. Commissioner of Inte
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2846




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-2846
                                       ___________

                                   THOMAS D. TUKA,
                                                             Appellant

                                             v.

                     COMMISSIONER OF INTERNAL REVENUE
                      ____________________________________

                      On Appeal from the United States Tax Court
                                (Tax Court No. 05-1402)
                      Tax Court Judge: Honorable Harry A. Haines
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 1, 2009
            Before: SLOVITER, AMBRO and GREENBERG, Circuit Judges

                              (Opinion filed: May 04, 2009 )

                                       ___________

                                        OPINION
                                       ___________

PER CURIAM

       Thomas D. Tuka appeals pro se from the order of the Tax Court dismissing his

petition for failure to prosecute. For the following reasons, we will affirm.

                                             I.

       The parties’ underlying dispute arises from Tuka’s alleged income tax liability for
the 1999 and 2000 calendar years. The Commissioner decided to collect on that liability

by levy. Before the Commissioner could proceed, Tuka was entitled to a “collection due

process hearing” before an IRS Appeals Officer. See 26 U.S.C. §§ 6320 and 6330;

Robinette v. CIR, 439 F.3d 455, 458 (8th Cir. 2006).1 An IRS Appeals Officer afforded

Tuka a hearing and, on December 17, 2004, issued a Notice of Determination approving

the Commissioner’s request to proceed with the levy.

       Tuka challenged that decision by filing a petition with the Tax Court and, after

procedural developments not relevant here, ultimately filed an amended petition on

August 3, 2005. Among other things, Tuka asserted that the Appeals Officer improperly

denied his request for a recorded face-to-face conference, wrongfully prevented him from

challenging his underlying tax liability, and failed to consider collection alternatives. The

Tax Court, by order issued October 12, 2006, scheduled the matter for trial on March 12,

2007. The order stated that “YOUR FAILURE TO APPEAR MAY RESULT IN

DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST YOU.”




  1
    By way of background, collection due process hearings are informal proceedings that
need not be conducted face-to-face and may instead consist of a telephonic conference or
correspondence. Living Care Alternatives of Utica v. United States, 411 F.3d 621, 624
(6th Cir. 2005). During the hearing, the taxpayer is permitted, inter alia, to propose
collection alternatives such as a settlement or payment schedule, and the Appeals Officer
ultimately must determine whether the proposed levy “balances the need for the efficient
collection of taxes with the legitimate concern of the person that any collection action be
no more intrusive than necessary.” 26 U.S.C. § 6330(c)(3); Kindred v. Comm’r, 454 F.3d
688, 695 (7th Cir. 2006). The Appeals Officer’s decision generally is reviewable by the
Tax Court for abuse of discretion. See id. at 694.

                                              2
       In February 2007, the Commissioner filed a motion to continue trial and a motion

to remand the matter to the Appeals Office so that it could afford Tuka the face-to-face

hearing to which he claimed to be entitled. Two days later, Tuka filed a “motion to set

aside trial date and set a briefing schedule.” Tuka argued that, under 26 U.S.C. §

6330(d)(1) and Robinette, 439 F.3d at 459-62, the Tax Court was not permitted to hold a

trial de novo and that its review was limited to the record before the Appeals Office.

Accordingly, Tuka argued that the Tax Court should set a briefing schedule and decide

the matter on the parties’ briefs rather than proceed with a trial. He reiterated that

argument in opposition to the Commissioner’s motion for a continuance. By order

entered February 26, 2007, the Tax Court denied Tuka’s motion, granted the

Commissioner’s motions, struck the trial date and remanded the matter to the Appeals

Office for a new collection due process hearing to be held by April 23, 2007. The Tax

Court also retained jurisdiction over the case and directed the parties to file a joint status

report by May 7, 2007.

       The parties thereafter submitted independent status reports. On April 17, the

Commissioner reported that Tuka had failed for three weeks to respond to a letter from

the Appeals Officer regarding the scheduling of his hearing. Tuka responded on May 3

that he had never received the Appeals Officer’s letter, that he has sent a letter of his own

to which the Appeals Officer never responded, and that the face-to-face hearing on which

he had insisted might not be necessary. Finally, on May 7, the Commissioner’s trial



                                               3
attorney reported that the Appeals Officer had never received any correspondence from

Tuka but would offer another face-to-face hearing if he desired. She also reported that

she had twice mailed Tuka a proposed joint status report but that he had not responded

and that she was unable to contact him at the phone number he had provided.

       On May 14, 2007, the Tax Court issued an order restoring this matter to its active

docket. On September 27, 2007, the Tax Court issued another order scheduling the case

for trial on March 3, 2008. That order too stated that “YOUR FAILURE TO APPEAR

MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION

AGAINST YOU.” Counsel for the Commissioner appeared on that date, but Tuka did

not. The Commissioner reported that he had been unable to contact Tuka by phone or by

mail since Tuka filed his May 3 status report and that Tuka had never responded to any of

the Commissioner’s correspondence. Accordingly, the Commissioner moved to dismiss

Tuka’s petition for lack of prosecution. The Tax Court granted that motion by order

entered March 27, 2008, on the grounds that Tuka had failed to appear for trial and “for

cause more fully appearing in the transcript of the proceedings” (i.e., Tuka’s failure to

cooperate with the Commissioner and the Commissioner’s inability to contact Tuka at his

address and telephone number of record).

       On April 7, 2008, Tuka filed what the Tax Court properly construed as a motion to

vacate the March 27 order. Tuka admitted that he had received some correspondence

from the Commissioner but insisted that he had not received others because the



                                              4
Commissioner sent his correspondence to an “invalid address” (which was the only

address appearing of record). Tuka did not claim that he did not receive the Tax Court’s

September 27 order or that he was unaware of the trial date, and he provided no

explanation for failing to appear for trial. The Tax Court denied the motion to vacate on

May 1, 2008. The court explained that Tuka had “ample warning” of the trial date and

the potential consequences for failing to appear. The Tax Court further concluded that

the Commissioner repeatedly had tried to contact Tuka at his address of record, but that,

even if the Commissioner were somehow at fault in that regard, such fault did not excuse

Tuka from appearing for trial. Tuka timely appeals.

                                             II.

       We have jurisdiction pursuant to 26 U.S.C. § 7482(a). Tuka does not mention the

Tax Court’s denial of his motion to vacate in his notice of appeal or take issue with that

ruling in his brief, and instead appeals only the Tax Court’s order dismissing his petition

for failure to prosecute. We review that ruling for abuse of discretion. See Spain v.

Gallegos, 26 F.3d 439, 454 n.17 (3d Cir. 1994); Sauers v. CIR, 771 F.2d 64, 66 (3d Cir.

1985). We perceive no abuse of discretion here.

       On appeal, Tuka once again does not claim to have been unaware of the trial date

and does not argue that his failure to appear for trial was anything other than intentional.

He also raises no issue regarding misdirected mail. Instead, he argues only that the Tax

Court should not have scheduled his petition for trial and thus should not have penalized



                                              5
him for refusing to participate in that unauthorized proceeding. He also characterizes his

“motion to set aside trial date and set a briefing schedule,” in which he raised that

argument in the Tax Court, as a statement “in lieu” of trial. The Tax Court, however,

denied that motion and later rescheduled the matter for trial. The merits of that ruling are

not before us.2

       Even if Tuka were correct that the Tax Court should not have scheduled his

petition for trial, his disagreement with the Tax Court’s ruling did not excuse his

obligation to go forward with his petition. As we have explained, “[a] party disappointed

with a court’s ruling may not refuse to proceed and then expect to obtain relief on appeal

from an order of dismissal or default.” Spain, 26 F.3d at 454 (explaining also that, when

a plaintiff willfully refuses to proceed, a court need not weigh the six factors set forth in

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984), before dismissing

the case for lack of prosecution). That is precisely what Tuka has attempted to do here.

Accordingly, we will affirm the dismissal of his petition.




  2
   In Robinette, on which Tuka relies, the court held that the Tax Court’s review of a
notice of determination following a collection due process hearing generally is limited to
the agency record, but that the Tax Court may, in some instances, receive additional
evidence regarding what transpired during agency proceedings. See Robinette v. CIR,
439 F.3d at 459-62. We have not addressed that precise issue, and we need not do so for
purposes of this appeal.                        6
