In Uncategorized on 07/30/2013 at 16:44

It’s an old family joke that dates back to a high school choral presentation, wherein one of my nearest and dearest performed a song of that name, but I’ll spare the participants any further elaboration. As there were no Tax Court opinions or designated orders today, July 31, I decided to blog David Franklin & Ronda Ching Day, Docket No. 1770-12L, filed 7/30/13, at which the old memories came flooding back.

Getting to the order, when Dave agrees to move the trial of his CDP from Honolulu, so as to “have petitioners’ case tried in any west coast city”, Judge Gale relents and doesn’t toss Dave and Ronda for failure to prosecute.

Apparently, Dave and Ronda actually live in Hawaii. Dave claims he skipped his trial date (even though he knew about it six months in advance), because he had to teach an MBA course, given by the University of Hawaii, in Vietnam, and couldn’t get any substitute professor in time.

When I was scheduled to go to Vietnam I couldn’t find a substitute either. But my trip was under rather different circumstances. And there weren’t a lot of MBA students around at the time.

Dave sought a continuance (that’s an adjournment) by fax, but he sent the fax on the eve of his departure to the fax number reserved for Final Status Reports. Dave claimed IRS counsel told him to use that number, even though the Pre-Trial Order expressly stated that any other faxes would be tossed unread.  Judge Gale said it wasn’t IRS counsel’s job to teach Dave what to do.  And of course the time difference between Honolulu and 400 Second Street, NW, in Our Nation’s Capital, means his fax was too late anyway.

Moreover, Dave never participated in the pre-trial stipulation process nor did he file a pre-trial memorandum. Dave was a trifle nonchalant in his litigation techniques.

Judge Gale has little patience for Dave’s tactics, and is about to deny his motion to vacate the order dismissing his petition for want of prosecution, when Dave agrees to move the place of trial to any West Coast city.

Judge Gale: “Nevertheless, dismissal of a case is a harsh sanction and trial courts should consider less drastic sanctions than dismissal when they are available. See eg, Edelson v. Commissioner, 829 F.2d 828, 831 (9th Cir. 1987); Henderson v. Duncan, 779 F.2d 1421, 1434 (9th Cir. 1986); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). While petitioner’s conduct of this litigation thus far is not flawless, we are now satisfied that his (and his co-petitioner’s) failure to appear for trial on June 10 did not evidence a disregard of their obligations to pursue their claims. We are also satisfied that an alternative to dismissal exists. Petitioner–recognizing that his failure to appear at the trial set for June 10 could postpone a trial in this case for an additional year if the trial were to be held in Honolulu–offered in his June 7, 2013 letter, and reiterates in his Motion to Vacate Decision, a willingness to have petitioners’ case tried in any west coast city. As this is a collection case where prompt resolution is especially important, petitioner’s suggestion of an alternate place of trial offers a means to minimize the delays that would otherwise arise from his untimely disclosure of his commitments conflicting with the original trial date. In these circumstances, the Court will vacate its decision of dismissal and, as a less drastic alternative to dismissal, set this case for trial at the Court’s trial session in Los Angeles, California….” Order, at p. 3.

Dave is saved.

Interestingly, on this same date we have another order in a case set for trial in Honolulu, Adina & Haim Shechter, Docket No. 23677-12, filed 7/30/13. But trial didn’t take place when the case was called. The parties had reached a stipulated decision, said IRS counsel, and had exchanged a copy by fax, but needed more time to get a signed original, because petitioners live in Israel.

Sound familiar? See my blogpost “Delay of the Game”, 7/12/13. Petitioners were going to try the case in Honolulu, presumably bringing themselves, counsel, witnesses, physical and documentary evidence from Israel or wherever to Hawaii, but couldn’t overnight a stipulated decision?

As Judge Gale noted above, petitioner’s failure to appear in Honolulu could result in a year’s delay of the trial.

Maybe it’s time to reconsider Rule 140(a), which provides in pertinent part (as the expensive lawyers say) that “The petitioner, at the time of filing the petition, shall file a request for place of trial showing the place at which the petitioner would prefer the trial to be held…. The Court will make reasonable efforts to conduct the trial at the location most convenient to that requested where suitable facilities are available.”

If by choosing a place for trial as far distant from one’s own location as possible, not showing up and providing some lame excuse based on one’s own actions, one can get a year’s delay, why not delay the game, as there’s no appreciable sanction?

How about requiring that the taxpayer-petitioner show minimal nexus between the place of trial and the location of petitioner, counsel, witnesses or evidence, before giving petitioner a one-year free adjournment?


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