Tebedo v. Commissioner , 676 F. App'x 750 ( 2017 )


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  •                                                                                  FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                         Tenth Circuit
    FOR THE TENTH CIRCUIT                          January 13, 2017
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    KEVIN D. TEBEDO,
    Petitioner - Appellant,
    v.                                                          No. 16-9002
    (Tax Court No. 3694-15)
    COMMISSIONER OF INTERNAL
    REVENUE,
    Respondent - Appellee.
    _________________________________
    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. § 7482,
    and we affirm.
    *
    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 This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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.
    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
    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
    (continued)
    2
    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.”
    (10th Cir. 2007) (“An issue is preserved for appeal if a party alerts the district court
    to the issue and seeks a ruling.”).
    3
    Fed. R. Civ. P. 41(b). “[I]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
    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
    (continued)
    4
    The judgment of the tax court is affirmed.
    Entered for the Court
    Terrence L. O’Brien
    Circuit Judge
    substitute for the official court reporter. In myopically focusing only on procedure
    he has waived any substantive complaints. See Bronson v. Swensen, 
    500 F.3d 1099
    ,
    1104 (10th Cir. 2007).
    5
    

Document Info

Docket Number: 16-9002

Citation Numbers: 676 F. App'x 750

Judges: Kelly, Hartz, O'Brien

Filed Date: 1/13/2017

Precedential Status: Non-Precedential

Modified Date: 10/19/2024