TPs squashed by the 2nd?

[The Observer]

Although there is no mention of frivolous arguments, it does appear this group of plaintiffs were engaging in behavior that gives rise to TP hijinks...


Phyllis M. Pickett, Leonard Martin,
Stella Maris-Martin, Mark S. Heinonen, and Nancy M. Heinonen,
Petitioners,
v.
Commissioner of Internal Revenue,
Respondent.

Release Date: JUNE 14, 2007


UNITTED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/), THE PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 14th day of June, two thousand and seven.

PRESENT:

HON. AMALYA L. KEARSE,
HON. CHESTER J. STRAUB,
HON. ROSEMARY S. POOLER,
Circuit Judges.

Phyllis M. Pickett, pro se, Jewett City, Connecticut; Leonard Martin and Stella Maris-Martin, pro se, Warwick, Rhode Island; Mark S. and Nancy M. Heinonen, pro se, Franklin, Connecticut.

Eileen J. O'Connor, Assistant Attorney General, Department of Justice (Bruce R. Ellisen and Deborah K. Snyder, Attorneys, Tax Division, on the brief), Washington, D.C., for Defendant-Appellee.

AFTER SUBMISSION AND UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgments of the United States Tax Court are AFFIRMED.

Petitioners-appellants Phyllis M. Pickett, Leonard Martin, Stella Maris-Martin, and Mark S. and Nancy M. Heinonen, pro se, appeal from the judgments of the United States Tax Court (Robert A. Wherry, Jr., Judge) dismissing their petitions challenging notices of deficiency issued by the Commissioner of Internal Revenue ("IRS"). The Tax Court dismissed their petitions for failure to prosecute pursuant to Tax Court Rule of Practice and Procedure 123(b). We assume the parties' familiarity with the balance of the facts, procedural history, and issues on appeal.

As an initial matter, it is hereby ORDERED that these cases are consolidated under lead docket number 06-2952-ag for the ease and purpose of disposition.

We review the Tax Court's decision to dismiss for failure to prosecute for an excess of discretion. See Colon v. Commissioner of Internal Revenue, 252 F.3d 662, 662-63 (2d Cir. 2001) (per curiam). We consider "1) the duration of petitioner's failures or non-compliance; 2) whether petitioner had notice that such conduct would result in dismissal; 3) whether prejudice to the respondent is likely to result; 4) whether the court balanced its interest in managing its docket against petitioner's interest in receiving an opportunity to be heard; and 5) whether the court adequately considered the efficacy of a sanction less draconian than dismissal." Id. (internal quotation marks omitted and alterations incorporated). "We also note that pro se litigants . . . are given some latitude in prosecuting their cases." Moretti v. C.I.R., 77 F.3d 637, 644 (2d Cir. 1996).

We affirm the Tax Court's judgments because these factors weigh strongly in favor of dismissal. Regarding the duration of the failure to prosecute, the delays at issue here were at least eight months. These delays were directly attributable to petitioners, who explicitly stated that they would not appear at trial. Petitioners not only substantially delayed the proceedings in the Tax Court but also demonstrated a "lack of respect for [that] court." Peart v. City of New York, 992 F.2d 458, 461 (2d Cir. 1993).

Concerning notice, the Tax Court warned petitioners in several orders that failure to appear and cooperate in pretrial proceedings, negotiations, and trial could result in dismissal of the petitions. Petitioners ignored these warnings and even declined to reply to the IRS's motion to dismiss for failure to prosecute.

As to the third factor, the IRS was prejudiced to some extent, as petitioners' tactics forced the agency to waste its resources in pointless litigation, thus diverting its ability to collect taxes elsewhere. The fourth factor also supports dismissal. Since petitioners explicitly stated that they would not appear, they effectively waived their right to be heard and left the Tax Court little option but to dismiss their cases. As to the last factor, it is unclear whether the court considered other sanctions. However, any sanction other than dismissal would have been inadequate given petitioners' failure to respond to telephone calls from the court, appear in court, or meaningfully participate in the proceedings.

We disagree with petitioners' contention that dismissal was inappropriate because the IRS had the burden of proof in this case. A petitioner bears the burden of showing that a deficiency notice is flawed. Douge v. C.I.R., 899 F.2d 164, 167 (2d Cir. 1990) ("The Commissioner's determination of an income tax deficiency enjoys a presumption of correctness, requiring a taxpayer petitioning for review to prove it wrong."). Finally, we note that the merits of the petitions are not properly before us.

We have considered all of petitioners' remaining arguments and find them without merit.

For the foregoing reasons, we AFFIRM the Tax Court's judgments.

FOR THE COURT:
Catherine O'Hagan Wolfe,
Clerk of Court

By: _____________________

[Nikki]

Phyllis Pickett 008071-04

0001 05/17/2004 PETITION Filed:Fee Paid
0002 05/17/2004 DESIGNATION of Trial at Hartford, CT
0003 07/06/2004 ANSWER (C/S 07/02/04).
0004 05/19/2005 NOTICE of Trial on 10/24/05 at Hartford, CT
0005 05/19/2005 STANDING PRE-TRIAL ORDER attached to Notice of Trial
0006 09/01/2005 MOTION by petr. to cont. trl. gen. (C/S 8-25-05) DN 09/14/2005
0007 09/01/2005 ORDER Resp. by 9/16/05 file response to mot. to cont.
0008 09/12/2005 OBJECTION by resp. to mot. to cont. (C/S 9/9/05)
0009 09/20/2005 RESPONSE by petr. to obj. to mot. to cont. (Filed for the Record)
0010 09/21/2005 MOTION by petr. to recons. the Dn. of mot. to cont. (Per Judge)
0011 09/23/2005 ORDER mot. to recons. is Dn.
0012 10/17/2005 MOTION by petr. to cont. trl. DN 10/26/2005
0013 10/21/2005 MOTION by petr. to dismiss. (Per Judge) DN 10/26/2005
0014 10/24/2005 HEARING before Judge Wherry at Hartford, CT
0015 10/24/2005 MOTION by resp. to dismiss for LOP. w/Exhs. ORD 01/26/2006
0016 10/24/2005 OBJECTION by Resp. to Petr. mot. to dismiss. w/Exhs.
0017 11/30/2005 TRANSCRIPT of 10/26/05 rec'd. (Recall)
0018 01/26/2006 ORDER OF DISMISSAL AND DECISION ENTERED, Judge Wherry. Mot. to Dismiss Gr.
0019 03/02/2006 MOTION Petr. to vacate order of dismissal and decision. DN 03/24/2006
0020 03/03/2006 ORDER that Resp. by 3-24-06 file a response to Petr's. Mot to
0021 03/24/2006 OBJECTION by Resp. to mot. to vacate.
0022 06/19/2006 NOTICE OF APPEAL by petr(s). to U.S.C.A., 2nd Cir. No Fee
0023 06/19/2006 NOTICE of Filing with copy of Not. of App. sent to the parties.
0024 07/19/2006 RECORD ON APPEAL mailed to Clerk,U.S.C.A., 2nd Cir. (1

[LPC]

Procedurally, this seems peculiar, because these were three separate cases before the Tax Court, and yet the 2nd Circuit issued but a single opinion for all three cases. How (or why) did they get consolidated?

It does look as though all three cases were decided at about the same time by the same Tax Court judge, but that doesn't seem like grounds to consolidate.

[Dr. Caligari]

Procedurally, this seems peculiar, because these were three separate cases before the Tax Court, and yet the 2nd Circuit issued but a single opinion for all three cases. How (or why) did they get consolidated?

As an initial matter, it is hereby ORDERED that these cases are consolidated under lead docket number 06-2952-ag for the ease and purpose of disposition.

[wserra]

As an initial matter, it is hereby ORDERED that these cases are consolidated under lead docket number 06-2952-ag for the ease and purpose of disposition.

AKA "Flush-O-Matic".

[ASITStands]

This seems reminiscent of Freedom Law School whose method of operation is "delay, delay, delay."

They do everything they can to postpone or dismiss a case, so they can take it on appeal, reopen or in some other way claim failure of due process or abuse of discretion. Frustrating stuff.