Duran v. Commissioner

12 F. App'x 588

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 25, 2001
• Docket: No. 00-70923; Tax Ct. No. 9651-99
• Status: Published

Opinion

MEMORANDUM

**

John Duran and Rosemary Duran appeal pro se the tax court’s judgment dismissing for failure to prosecute their petition for redetermination of income tax deficiencies asserted against them by the Commissioner of Internal Revenue (“CIR”). We have jurisdiction under 26 U.S.C. § 7482. We review for abuse of discretion the tax court’s dismissal for failure to prosecute, Noli v. Commissioner, 860 F.2d 1521, 1527 (9th Cir.1988), and denial of a motion to vacate, Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir.1991). We affirm.

The tax court did not abuse its discretion in dismissing the Durans’ case due to failure to prosecute because the tax court warned the Durans that if they failed to appear for trial, their petition might be dismissed. See Tax Ct. R. 123(b); Noli, 860 F.2d at 1527. The tax court did not abuse its discretion in denying the Durans’ motion to vacate the dismissal of their petition because they failed to provide the tax court with any explanation for their failure to appear at the trial. See Thomas, 945 F.2d at 1123.

The Durans’ remaining contentions lack merit and we deny their pending motions.

The CIR moves for sanctions pursuant to Fed. R.App. P. 38 and 28 U.S.C. § 1912. “This appeal is frivolous because the result is obvious and the arguments of error are wholly without merit.” Gattuso v. Pecorella, 733 F.2d 709, 710 (9th Cir.1984) (per curiam). Accordingly, we impose a sanction of $1,000.

AFFIRMED.

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