Wardell v. Commissioner ( 2002 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    OCT 9 2002
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    WENDEL ROBERT WARDELL, JR.,
    Petitioner - Appellant,
    v.                                                   No. 01-9004
    (Tax Court No. 13738-99)
    COMMISSIONER OF INTERNAL
    REVENUE,
    Respondent - Appellee.
    ORDER AND JUDGMENT            *
    Before HENRY , ANDERSON , and HARTZ , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist 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    This order and judgment is not binding precedent, except under the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. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Petitioner Wendel R. Wardell appeals from two rulings by the Tax Court:
    denial of his Motion for a Continuance and grant of respondent’s Motion to
    Dismiss. We have jurisdiction over this appeal by virtue of 
    26 U.S.C. § 7482
    .
    We review the Tax Court’s rulings on these motions only for an abuse of
    discretion. See Colon v. Comm’r , 
    252 F.3d 662
    , 662 (2d Cir. 2001) (failure to
    prosecute); Manzoli v. Comm’r , 
    904 F.2d 101
    , 103 (1st Cir. 1990) (continuance).
    Petitioner also seeks leave to proceed on appeal without prepayment of costs or
    fees, which is granted pursuant to 
    28 U.S.C. § 1915
    (b)(1).
    After careful consideration of the record on appeal and the arguments in the
    parties’ briefs, we conclude that the Tax Court did not abuse its discretion in
    either of its rulings. The court denied the Motion for a Continuance and granted
    respondent’s Motion to Dismiss, which was based on petitioner’s alleged failure
    to prosecute, after petitioner failed to communicate with the respondent before
    trial and failed to appear at trial. The Tax Court’s scheduling notice and standing
    pre-trial order had previously warned petitioner that failure to cooperate with
    respondent or to appear at trial could result in sanctions, including dismissal.
    The court concluded that, even had petitioner appeared at trial, he would have
    been unable to establish a case. On appeal, petitioner has not demonstrated that
    he was unable to communicate with respondent at all times before the scheduled
    trial date, and has not addressed the basis of the Tax Court’s rulings. The Tax
    -2-
    Court was well within its discretion to both deny the Motion for a Continuance
    and dismiss petitioner’s case.
    The judgment of the United States Tax Court is AFFIRMED.
    Entered for the Court
    Stephen H. Anderson
    Circuit Judge
    -3-
    

Document Info

Docket Number: 01-9004

Judges: Henry, Anderson, Hartz

Filed Date: 10/9/2002

Precedential Status: Non-Precedential

Modified Date: 11/6/2024