Kelly Sue Tipton, and Darren L. Darilek, Intervenor v. Commissioner , 127 T.C. No. 15 ( 2006 )

127 T.C. No. 15UNITED STATES TAX COURT
KELLY SUE TIPTON, Petitioner,
AND DARREN L. DARILEK, Intervenor v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10739-05. Filed December 18, 2006.
P petitioned this Court for redetermination of a
deficiency. Subsequently, during a conference with R’s
Appeals Office, P requested relief from joint and
several liability pursuant to sec. 6015, I.R.C.
Pursuant to Rule 325(a), Tax Court Rules of Practice
and Procedure, R notified I of P’s request for sec.
6015, I.R.C., relief and of I’s right to intervene. I
filed a notice of intervention. I was sent a notice of
trial by the Court and was also notified by R that R
would afford P complete sec. 6015, I.R.C., relief if I
failed to appear at trial. I failed to appear at
trial, and R filed a motion to dismiss I for failure to
prosecute.
Held: I, who was sent notice of trial but failed
to appear at the trial of the case in which he
intervened, has failed properly to prosecute any claims
or defenses he may have, and, accordingly, those claims
and defenses may be dismissed. Consequently, R’s
motion will be granted.
- 2 -
Kelly Sue Tipton, pro se.
Darren L. Darilek, pro se.
Jennifer K. Martwick, for respondent.
OPINION
WELLS, Judge: The instant case is before the Court on
respondent’s motion to dismiss Darren L. Darilek (intervenor) for
failure properly to prosecute. Unless otherwise indicated, all
section references are to the Internal Revenue Code, as amended,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
Background
Petitioner and intervenor filed a joint tax return for
taxable year 2002 and divorced in 2003. On March 8, 2005,
respondent issued a notice of deficiency determining a deficiency
of $7,173 in petitioner and intervenor’s Federal income tax for
taxable year 2002. Petitioner timely petitioned this Court for a
redetermination of the deficiency. During her Appeals
conference, petitioner requested relief from joint and several
liability pursuant to section 6015 (section 6015 relief). On
May 25, 2006, as required by Rule 325(a), respondent notified
intervenor of petitioner’s request for section 6015 relief and
of intervenor’s right to intervene. On July 27, 2006, intervenor
timely filed a notice of intervention with this Court in which he
- 3 -
stated that he wished to intervene. On August 18, 2006, the
Court ordered that the caption of the instant case be amended to
add intervenor’s name as a party and that the Clerk of the Court
serve on intervenor notice of trial scheduled for October 30,
2006, in Atlanta, Georgia. On September 26, 2006, respondent
sent intervenor a letter explaining that petitioner would be
afforded complete section 6015 relief if intervenor failed to
appear at trial. The letter asked intervenor to notify
respondent whether intervenor planned to appear at the Court’s
October 30, 2006, trial session in Atlanta, Georgia. Intervenor
did not contact respondent and did not appear at trial. At
trial, respondent made the instant motion to dismiss intervenor
for failure properly to prosecute. Respondent and petitioner
seek to file a proposed decision, stipulated by respondent and
petitioner, but not signed by intervenor, that would grant
section 6015 relief to petitioner.
Discussion
Where a spouse has sought relief from joint and several
liability pursuant to section 6015(b) or (c) (requesting spouse),
section 6015(e)(4) provides the other spouse who signed the
return (nonrequesting spouse) a right of intervention. Corson v.
Commissioner, 114 T.C. 354 (2000). Rule 325(a) provides that the
Commissioner must serve the nonrequesting spouse, within 60 days
of the petition for section 6015 relief, with notice of the
- 4 -
requesting spouse’s petition for section 6015 relief and that the
nonrequesting spouse has a right to intervene in the case by
filing a notice of intervention with the Tax Court. See also
King v. Commissioner, 115 T.C. 118 (2000) (holding that the
nonrequesting spouse is entitled to notice and, if not already a
party, an opportunity to intervene to challenge the propriety of
relieving the requesting spouse of liability).
In Corson v. Commissioner, supra, the taxpayers (Mr. and
Mrs. Corson) filed a joint petition for redetermination with this
Court. Mrs. Corson later amended the petition to assert a claim
for section 6015 relief. Id. at 355-356. Mrs. Corson and the
Commissioner subsequently entered a stipulation in which Mrs.
Corson conceded liability for the deficiency but preserved her
right to pursue her claim for section 6015 relief. Mr. Corson
and the Commissioner signed a similar stipulation settling all
the issues pertaining to Mr. Corson’s tax liability for the year
in issue. Id. at 356-357. After the first two stipulations had
been entered, Mrs. Corson and the Commissioner executed a third
stipulation granting Mrs. Corson complete section 6015 relief.
When Mr. Corson refused to sign a stipulated decision based on
the stipulation granting Mrs. Corson complete section 6015
relief, the Commissioner filed a motion for entry of decision.
In denying the Commissioner’s motion for entry of decision, we
held that the nonrequesting spouse should be afforded an
- 5 -
opportunity to litigate the Commissioner’s decision to grant
section 6015 relief to the requesting spouse. Id. at 365.
Corson, however, did not involve the issue of the nonrequesting
spouse’s failure to appear at trial to contest whether the
requesting spouse should be granted section 6015 relief.
By intervening, the intervenor becomes a party. King v.
Commissioner, supra. The intervening party is not granted rights
or immunities superior to those of the other parties, may not
enlarge the issues or alter the nature of the proceeding, and
must abide by the Court’s Rules. See Vinson v. Washington Gas
Light Co., 321 U.S. 489, 498 (1944) (stating that an intervening
party does not have rights superior to those of the other parties
and may not enlarge the issues or alter the nature of the
proceeding).1
Rule 123(b) states that “For 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,
the Court may dismiss a case at any time and enter a decision
against the petitioner.” The Court may also dismiss a case for
lack of prosecution if a petitioner inexcusably fails to appear
1
In the instant case, it is not necessary to enumerate and
comment upon all of the rights that are available to an
intervening party in a case involving sec. 6015. For present
purposes, it is sufficient to note that those rights, whatever
they may be, are not greater than the rights of the other parties
to the action.
- 6 -
at trial and does not otherwise participate in the resolution of
his claim. Rule 149(a); Rollercade, Inc. v. Commissioner, 97
T.C. 113, 116-117 (1991). Additionally, Rule 123(d) states that
“A decision rendered upon a default or in consequence of a
dismissal, other than a dismissal for lack of jurisdiction, shall
operate as an adjudication on the merits.” However, Rule 123(b)
and (d) does not mention intervenors, and the Court does not
enter a decision in respect of an intervening nonrequesting
spouse. Rather, the decision that is entered with respect to
section 6015 relief is one either granting or denying relief from
joint liability to the requesting spouse.
A nonrequesting spouse is given the right under section
6015(e)(4) to intervene in stand-alone actions involving section
6015 relief. Van Arsdalen v. Commissioner, 123 T.C. 135 (2004).
Rule 325(a), Corson v. Commissioner, supra, and King v.
Commissioner, supra, grant a nonrequesting spouse the right to
intervene as a party and to litigate whether the Commissioner
should grant section 6015 relief to a requesting spouse in a
deficiency suit. As noted above, a nonrequesting spouse who
intervenes as a party does not have rights superior to those of
other parties and is subject to the Court’s Rules. Accordingly,
an intervenor who properly has been notified of trial has no
immunity from dismissal for failure to appear in Court when the
case is called for trial. Although Rule 123(b) and (d) does not
- 7 -
explicitly mention intervenors, Rule 1(a) provides that “Where in
any instance there is no applicable rule of procedure, the Court
* * * may prescribe the procedure, giving particular weight to
the Federal Rules of Civil Procedure to the extent that they are
suitably adaptable to govern the matter at hand.” Rule 41(b) of
the Federal Rules of Civil Procedure provides that a court may
dismiss a plaintiff for failure to prosecute.2 A court’s
authority to dismiss for failure to prosecute is not limited to
plaintiffs but extends to intervening parties. See, e.g.,
Scottsdale Ins. Co. v. Educ. Mgmt. Inc., No. Civ. A. 04-1053
(E.D. La., Aug. 31, 2006) (holding that certain intervening
parties were properly dismissed for failure to prosecute their
claims where they failed to appear at properly noticed
depositions).
At the call of the instant case from the Court’s October 30,
2006, trial session calendar in Atlanta, Georgia, respondent
presented the Court with a proposed decision stipulated by
petitioner and respondent, but not signed by intervenor, that
would grant petitioner complete section 6015 relief. If
intervenor did not agree with the proposed decision stipulated by
respondent and petitioner, he had the right not to sign it, see
Corson v. Commissioner, 114 T.C. 354 (2000), but he does not have
2
We note that the power to dismiss for failure to prosecute
is an inherent power of a court. Link v. Wabash R.R. Co., 370
U.S. 626, 629-630 (1962).
- 8 -
immunity from dismissal for failing to appear at trial and
properly prosecute any claims or defenses he may have after he
was properly given notice of the trial. Despite being sent
notice from the Court and from respondent that trial was
scheduled for October 30, 2006, in Atlanta, Georgia, intervenor
failed to appear for his “day in court” to protect whatever
rights he had to intervene. Accordingly, intervenor has failed
properly to prosecute any claims or defenses he may have, and
those claims or defenses may be dismissed. Consequently, we will
grant respondent’s motion to dismiss for failure properly to
prosecute. Additionally, we will file the proposed stipulated
decision signed by petitioner and respondent as a stipulation of
settled issues between petitioner and respondent and enter a
decision in accordance with that stipulation.
To reflect the foregoing,
An appropriate order and
decision will be entered.