Tebedo v. Commissioner

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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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