Fisher v. Commissioner

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
FED. R. A PP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 5, 2010*
Decided May 7, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09-3239
CYBIL FISHER, Appeal from the United States Tax Court.
Petitioner-Appellant,
No. 17045-07L
v.
Elizabeth Crewson Paris,
COMMISSIONER OF INTERNAL Judge.
REVENUE,
Respondent-Appellee.
ORDER
The Tax Court dismissed Cybil Fisher’s case against the Commissioner of Internal
Revenue for lack of prosecution. We affirm the dismissal.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).
No. 09-3239 Page 2
Fisher’s prosecution of her case has been marked by delay and disregard of court
orders. Based on Fisher’s failure to file federal income tax returns (she has not filed one
since 1996), the Internal Revenue Service notified her that it planned to collect
approximately $10,500 in unpaid taxes assessed against her for 2001 and 2002. Fisher then
petitioned for a Collection Due Process Hearing, see 26 U.S.C. § 6330(b). The IRS Office of
Appeals began a lengthy correspondence with Fisher and eventually determined that her
tax liabilities had been properly assessed. Fisher filed a petition in the Tax Court, and the
Commissioner moved for summary judgment. The court ordered Fisher to respond to the
Commissioner’s motion within 14 days; she did not. She also failed to appear at the
calendar call and recall of her case, despite having been notified that her presence was
required. The Commissioner then moved for dismissal for failure to prosecute. After the
Commissioner unsuccessfully attempted to serve Fisher with the motion to dismiss, the Tax
Court ordered her to respond to the motion. Instead, Fisher filed—a month
late—objections to the summary judgment motion. The court denied the summary
judgment motion but granted the motion to dismiss, concluding that based on Fisher’s
failure to comply with the court’s deadlines, appear in court, or present any evidence, she
had “foregone her opportunity” to make her case. See T.C.R. 123(b), 149.
On appeal Fisher does not challenge the dismissal. Instead, she argues that the Tax
Court improperly “conduct[ed] a trial de novo” and contends that the IRS cannot show that
she ever received the initial notice about owing back taxes. These issues are not before us.
Because Fisher failed to comply with the Tax Court’s orders or appear in court when
required, the court did not abuse its discretion by dismissing her case. See id.; Stearman v.
Comm’r, 436 F.3d 533, 535-37 (5th Cir. 2006); Tello v. Comm’r, 410 F.3d 743, 744 (5th Cir.
2005); Bauer v. Comm’r, 97 F.3d 45, 48-49 (4th Cir. 1996).
Accordingly, we AFFIRM the decision of the Tax Court. The mandate shall issue
immediately. Because we conclude that Fisher’s appeal is frivolous, she is hereby
ORDERED to pay a monetary sanction to the clerk of this court in the amount of $4,000,
the presumptive sanction for filing a frivolous appeal in a tax case. See Szopa v. United
States, 460 F.3d 884, 887 (7th Cir. 2006).