Flaherty v. Commissioner , 529 F. App'x 861 ( 2013 )

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NOT FOR PUBLICATION JUN 20 2013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