Unpublished Disposition, 851 F.2d 360 (9th Cir. 1984)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 360 (9th Cir. 1984)

Victor HARDER and Margaret Harder, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 87-7267.

United States Court of Appeals, Ninth Circuit.

Submitted May 19, 1988.* Decided June 27, 1988.

Before JAMES R. BROWNING, Chief Judge, and HUG and BEEZER, Circuit Judges.


Victor and Margaret Harder appeal the Tax Court's grant of the Commissioner's motion to dismiss their petition for redetermination for failure to prosecute. We reverse.

On May 23, 1984, the Commissioner issued a notice of deficiency to the Harders for the tax years 1979 and 1980, disallowing certain deductions. The Commissioner also imposed additions to tax for negligent or intentional disregard of IRS rules and regulations under 26 U.S.C. § 6653(a). The Harders petitioned the Tax Court for a redetermination of the asserted deficiencies and additions to tax.

Neither the Harders nor their counsel appeared at trial. A representative did appear, however, and moved for a continuance on the ground that the Harders' counsel was unable to attend due to car trouble. The Commissioner moved to dismiss the Harders' petition on the ground that the Harders had failed to enter into a stipulation of facts. The Tax Court denied the Harders' motion for a continuance, dismissed the Harders' petition for failure to prosecute, and assessed the asserted deficiencies and additions to tax. The Harders timely appeal.

We review decisions of the Tax Court on the same basis as we review decisions entered after civil bench trials in the district court. Mayors v. Commissioner, 785 F.2d 757, 759 (9th Cir. 1986). We review the Tax Court's dismissal of a petition for failure to prosecute under Tax Ct.R. 123(b) for an abuse of discretion. Edelson v. Commissioner, 829 F.2d 828, 831 (9th Cir. 1987).

The Harders contend that the Tax Court erroneously dismissed their petition for failure to appear at trial. The Commissioner contends that the Tax Court properly dismissed the Harders' petition for failure to stipulate to facts. Neither the transcript of the hearing nor the Tax Court's written order indicates the basis of the dismissal. Nevertheless, this court may independently review the record to determine whether the Tax Court abused its discretion in dismissing the Harders' petition. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986).

The record does not support the Commissioner's contention that the Harders' petition was properly dismissed for failure to stipulate to facts. First, the Harders orally stipulated to some of the deductions. Second, the Government submitted a proposed stipulation with the understanding that the stipulation would be deemed accepted if the Harders did not object. The Harders did not object to the proposed stipulation. Thus, there was a written stipulation as to the facts the Harders were apparently willing to concede.

Nor does the record support a dismissal for the failure of the Harders' counsel to appear at trial. A dismissal for failure to prosecute must be supported by a showing of unreasonable delay. Henderson, 779 F.2d at 1423. The record reveals no unreasonable delay; the failure of the Harders' counsel to appear at trial due to car trouble does not justify the dismissal. Accordingly, we reverse the Tax Court's dismissal of the Harders' petition for failure to prosecute and remand the case for further proceedings consistent with this opinion. On remand, the Harders should be advised that they have an obligation to stipulate to agreed facts in Tax Court; failure to do so may result in dismissal. See Tax Ct.R. 123(b).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3