Wardell v. Commissioner

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This order and judgment is not binding precedent, except under the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
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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
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