If I Can't Hire My Own Reporter, I Won't Show!

[The Observer]

KEVIN D. TEBEDO,
Petitioner - Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent - Appellee.

Release Date: JANUARY 13, 2017


UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

(Tax Court No. 3694-15)

ORDER AND JUDGMENT/*/

Before KELLY, HARTZ, and O'BRIEN, Circuit Judges.

This is a frivolous appeal by Kevin D. Tebedo taken from the United States Tax Court's order dismissing his case for failure to prosecute and its decision in favor of the Commissioner of Internal Revenue (Commissioner) and against him for past-due taxes, penalties, and interest. We have jurisdiction under 26 U.S.C. section 7482, and we affirm.

In 2014, Tebedo received deficiency notices from the Internal Revenue Service for the tax years 2006 to 2012. In response, he filed a petition with the tax court raising several roundly discredited arguments in an attempt to avoid his taxes.

In August 2015, the tax court notified the parties the case was set for trial on January 25, 2016. It informed the parties the "failure to appear may result in dismissal of the case and entry of decision against you." R., Doc. 5. 1 And just a few weeks before the trial date, the court sent another notice to remind the parties the failure to appear for trial could result in the case being dismissed.

Prior to the trial call on January 25, 2016, a court reporter presented herself in the courtroom. In an informal discussion, she told the judge Tebedo had hired her to transcribe the proceedings. The judge informed her he had retained an official court reporter and the court would rely on its reporter to prepare the official transcript. Tebedo's court reporter left the courtroom and did not return. Later, the case was called for trial but Tebedo failed to appear. 2 As a consequence, the tax court granted the Commissioner's motion to dismiss for failure to prosecute. After considering Tebedo's later-filed objection, the court entered a decision in favor of the Commissioner and against him for the amounts requested.

In the interest of conserving its time and resources for those who pursue their claims in good faith, "every court has the inherent power, in the exercise of its discretion, to dismiss a case for want of prosecution." Ducommun v. Comm'r, 732 F.2d 752, 754 (10th Cir. 1983). In addition to this inherent power, tax court rules specifically permit the court to dismiss a case and enter a decision against the petitioner "[f]or failure of a petitioner properly to prosecute or to comply with these Rules or any order of the Court or for other cause which the Court deems sufficient." Rules of Practice and Procedure of the United States Tax Court 123(b).

The "courts should look to Rule 41, F.R.Civ.P., for guidance in determining standards for dismissal." Ducommun, 732 F.2d at 754. This "court will not reverse such a dismissal in the absence of abuse of discretion." Id. "A discretionary decision . . . should only be reversed if we have a definite and firm conviction that the [tax] court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Kurzet v. Comm'r, 222 F.3d 830, 843 (10th Cir. 2000) (internal quotation marks omitted).

"If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed. R. Civ. P. 41(b). "n determining whether to dismiss an action with prejudice under Rule 41(b)" the court should consider: "(1) the degree of actual prejudice to the other party; (2) the amount of interference with the judicial process; (3) the litigant's culpability; (4) whether the court warned the party in advance that dismissal would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions." Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007).

Tebedo does not discuss any of the above factors or advance any other argument as to why the tax court's order to dismiss was error. Nonetheless, we have no difficulty in concluding the court did not abuse its discretion.

Tebedo's failure to comply with the tax court's orders, including those concerning stipulations and pretrial memorandum, prejudiced the Commissioner because more time was spent on trial preparation. And his interference with the judicial process is obvious -- he failed to comply with any of the court's orders, and decided not to appear for trial with no advance notice to the court. Also, there is nothing to suggest anyone other than Tebedo was to blame. Moreover, he was warned the failure to appear for trial could result in dismissal. Finally, because Tebedo consistently failed to obey the court's orders, there is no reason to think a lesser sanction would have been effective. 3

The judgment of the tax court is affirmed.

Entered for the Court

Terrence L. O'Brien
Circuit Judge

//*// After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FOOTNOTES:

/1/ The tax court's standing pretrial order directed the parties to stipulate to facts not in dispute. The parties were also instructed to file a pretrial memorandum "not less than 14 days before the first day of the trial session." Id. The court warned the parties it "may impose appropriate sanctions, including dismissal, for any unexcused failure to comply with this Order." R., Doc. 5 at 2. Tebedo refused to cooperate in the preparation of stipulations or respond to any of the Commissioner's proposed facts. He also ignored the Commissioner's discovery requests and failed to file a pretrial memorandum.

/2/ Because Tebedo hired a court reporter for the January 25, 2016 proceedings, he was obviously aware of the trial date. But because Tebedo failed to appear and object, any issue concerning the court reporter has not been preserved for appellate review. See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1141 (10th Cir. 2007) ("An issue is preserved for appeal if a party alerts the district court to the issue and seeks a ruling.").

/3/ On appeal, Tebedo does not challenge the tax court's merits decision (upholding past-due taxes, penalties, and interest). Instead, he simply contends the decision should be vacated because the tax court did not permit his court reporter to substitute for the official court reporter. In my opically focusing only on procedure he has waived any substantive complaints. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).

[NYGman]

Another example on being too focused on formalities rather than legitimate arguments. Even though their understanding of the formalities of the court are way off base, they cling to these failings as reason to dismiss the case in its entirety, and fail to focus on the actual argument. Not that they have a valid argument here either, it is just amazing on where they focus their attention.

I bet there was much celebration when the Judge sent home their court reporter. Idiots!

[Famspear]

This is a frivolous appeal....

Rule of thumb: When very first sentence in the main body of the text of a Court opinion on a taxpayer's appeal contains the word "frivolous," it's a pretty good bet that things are not going to turn out well for the taxpayer.

[TheNewSaint]

Prior to the trial call on January 25, 2016, a court reporter presented herself in the courtroom. In an informal discussion, she told the judge Tebedo had hired her to transcribe the proceedings. The judge informed her he had retained an official court reporter and the court would rely on its reporter to prepare the official transcript. Tebedo's court reporter left the courtroom and did not return.

What on earth was this supposed to accomplish?

[The Observer]

Prior to the trial call on January 25, 2016, a court reporter presented herself in the courtroom. In an informal discussion, she told the judge Tebedo had hired her to transcribe the proceedings. The judge informed her he had retained an official court reporter and the court would rely on its reporter to prepare the official transcript. Tebedo's court reporter left the courtroom and did not return.

What on earth was this supposed to accomplish?

Some protester gurus tell their followers to hire a court reporter to record all events where they are contesting their tax liability. This even includes situations where the TP is appearing before the IRS for a collection or examination interview, certainly an event that no legitimate tax attorney or CPA would demand a recordation of. What I can make of it is that the guru is only trying to make their marks think that the guru is really on the legal ball and these transcripts can be used in the future to win their case. In addition, it is another way of throwing more impediments on the system by hopefully intimidating the government into getting their own reporter as well or at least relying on a tape recording to back up the conversation.

[NYGman]

Of course, if they wont allow the defendant to hire their own independent court recorder, then the entire process must be rigged, as the court will undoubtedly review and edit the transcript, removing any errors that would have resulted in victory. By denying the court reporter, they are admitting to their lack of authority, and therefore you win by default.

[TheNewSaint]

Some protester gurus tell their followers to hire a court reporter to record all events where they are contesting their tax liability. This even includes situations where the TP is appearing before the IRS for a collection or examination interview, certainly an event that no legitimate tax attorney or CPA would demand a recordation of. What I can make of it is that the guru is only trying to make their marks think that the guru is really on the legal ball and these transcripts can be used in the future to win their case. In addition, it is another way of throwing more impediments on the system by hopefully intimidating the government into getting their own reporter as well or at least relying on a tape recording to back up the conversation.

Thanks for the explanation. Is an unofficial transcript really admissible as evidence, though?

[Judge Roy Bean]

...

Thanks for the explanation. Is an unofficial transcript really admissible as evidence, though?

I find it unfathomable that a trial judge would allow the introduction of an alternative to the official court record unless, of course, there is a provable discrepancy or a demonstrable error on the part of the court-appointed reporter.

[The Observer]

I'm sure that is a question that the attorneys participating on site could answer far better than I can. I suspect that there are rules that allow for admission of transcripts, even if unofficial, and I suspect that such transcripts can be contested by the opposing party or thrown out by the court if it perceives problems or unfairness in admitting the transcript.

But an even better question is what would a guru transcript reveal that would turn it into a win for the TP? I am not sure a transcript showing the TP engaging in frivolous gibberish, stonewalling and avoiding pertinent questions is really going to help their case in a court of law.

[notorial dissent]

Still one of those things I've never really understood. If the alternate court reporter is good, honest, and competent, their record should pretty much match the official record word for word. So the net effect/gain here would still be zero. The other thing as I recall is that they still usually record what is going on as a back up in case something happens with the steno record or if there is a question about exactly what was said. So again, I just don't see what they think it is going to accomplish.

[Pottapaug1938]

Still one of those things I've never really understood. If the alternate court reporter is good, honest, and competent, their record should pretty much match the official record word for word. So the net effect/gain here would still be zero. The other thing as I recall is that they still usually record what is going on as a back up in case something happens with the steno record or if there is a question about exactly what was said. So again, I just don't see what they think it is going to accomplish.

Facts, facts, facts... how inconvenient they can be to someone who thinks that, unless they bring in their own court reporter, the Evil Powers That Be will fiddle with the official transcript to conceal the massive violation of freemens' Magna Carta rights (or something like that).

[notorial dissent]

Damn pesky facts and reality just keep getting in the road of all the really good fantasies.

[fortinbras]

The US Supreme Court determined several years ago that a court has a right (and duty) to protect its decorum and the reliability of its record by exercising the discretion to deny filming/broadcasting or independent taping of court proceedings. It could get nasty and ugly if unscrupulous people start peddling less-than-reliable transcripts of what went on. I might add that a comparable situation exists for some very old English cases at a time when multiple reporters were able to publish their own versions of the cases and decisions; depending on whose version you read, you could get somewhat different accounts of what was said.

In any case, the judge is the ringmaster of that particular circus. It is sufficient that he has a professional reporter taking the official transcript.

[notorial dissent]

Not if you want an outcome different from what really happened. I just keep wondering if they really think the reporter actually is going to alter the record to suit their slant on things. You know, subscribe to a false record, and lose their ability to be a court reporter, ever again, anywhere???

[TheNewSaint]

But an even better question is what would a guru transcript reveal that would turn it into a win for the TP?

I'm guessing they pore over the transcript and try to find some statement they think overrules everything else.

[notorial dissent]

Or else re-interpret words to suit themselves to prove themselves right. You know, alternate non-real world definitions of words of the "understanding" variety.

[noblepa]

Not if you want an outcome different from what really happened. I just keep wondering if they really think the reporter actually is going to alter the record to suit their slant on things. You know, subscribe to a false record, and lose their ability to be a court reporter, ever again, anywhere???

I'm sure that any professional reporter would deliver a transcript that did not materially differ from the official transcript. I seriously doubt that any amount of money would entice a reporter to alter the transcript.

However, the reporter probably delivers the transcript in the form of a text document or a Microsoft Word document on a CD or DVD. After that, it shouldn't be hard for the TP to "correct" the transcript in any way he chooses. Even if it is delivered on paper, it is simple to scan it into a Word document. Even a PDF would not be immune from alteration, with the right software and a little knowledge.

[notorial dissent]

I quite agree, at least they wouldn't more than once, and I would suspect the penalties and repercussions would be downright nasty considering the gravity of what they are dealing in. If you don't have your competence and integrity in that profession, you don't work. The thing that I suspect these legal geniuses don't get is that the ONLY thing from the reporter that has any legal standing is the actual paper and ink signed certified transcript they give, any alteration, and it is just so much waste paper.

[Pottapaug1938]

Not if you want an outcome different from what really happened. I just keep wondering if they really think the reporter actually is going to alter the record to suit their slant on things. You know, subscribe to a false record, and lose their ability to be a court reporter, ever again, anywhere???

Well, that's part of The Conspiracy. The Evil Powers That Be must have fake transcripts so that their suppression of our (reverent bow of head) Common Law Rights (head back up) can be concealed, so these corrupt court reporters must have official protection for their misdeeds.

I've got to stop smoking that stuff....

[TheNewSaint]

By the way, hiring a court reporter for the day will set you back a couple hundred bucks. Doing so for a trial the length of a tax case would add up quickly.