We all know Rule 123(b) is Tax Court’s 24-second rule; it lets the judge toss any petitioner who holds the basketball in the backcourt, and fails to go forward. But is it confined to delay in Tax Court, i.e., failure to comply with the Rules or orders? Or does it reach, say, to Appeals?

Judge David Gustafson says it’s confined to Tax Court proceedings, in Tameka Lavern Brown & Jamal Travin Brown, Docket No. 12931-20L, filed 1/28/22.

Tam & Jam are fighting a sustained levy out of a CDP, but IRS moved to remand after Appeals sustained, and Judge Gustafson granted the remand. The problem is, that Tam & Jam went off-screen after the remand, not replying to letters from Appeals to deal with the issues, so Appeals again sustained the levy. IRS’ counsel then filed a status report, advising of the confirmation by default.

Judge Gustafson then ordered another status report by 2/8/22, as Jam says Tam is supposed to be handling this. Tam, however, remains off-screen. So IRS moves to toss.

Judge Gustafson denies the motion without prejudice, saying IRS is offside. That would be enough to persuade me not to waste your time with this.

But wait! There’s more, as the midnight telehucksters say.

Judge Gustafson faults IRS’ counsel for conflating non-communication and non-cooperation with Appeals with same conduct with IRS.

“… the Commissioner’s motion does not ask us to grant summary judgment sustaining Appeals’ supplemental determination. Rather, it asks us to dismiss the case without addressing its merits, on the grounds that the Browns have failed to properly prosecute their case before this Court. The motion is based on (though it does not cite) Rule 123(b), which provides: ‘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 ‘failure’ pertinent to this motion is a petitioner’s failure ‘ to prosecute’–i.e., a failure to prosecute the case before the Court. Failure to fulfill obligations in agency-level proceedings with the IRS is a different matter, not targeted by Rule 123(b).

“The motion cites no Tax Court rule or order with which the Browns have failed to comply since the relatively recent date on which Appeals issued its supplemental notice of determination in December 2021. The sole order issued since that date has been our order of December 14, 2021 (Doc. 11), which requires only the filing of a status report by February 8, 2022–a date still in the future.” Order, at p. 2.

Word to IRS: Note well Rule 123(b)’s exact language: “or for other cause which the Court deems sufficient.” I suggest y’all consider arguing that when a petitioner goes off-screen on a remand to Appeals, and stays there, maybe so that’s an “other cause which the Court deems sufficient” to toss. Broad discretion there. As the hockey players say, “Shoot the puck, it might go in.”