Hillig v. Commissioner

916 F.2d 171
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 16, 1990
DocketNos. 89-2224, 90-2021
StatusPublished
Cited by41 cases

This text of 916 F.2d 171 (Hillig v. Commissioner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hillig v. Commissioner, 916 F.2d 171 (4th Cir. 1990).

Opinion

BUTZNER, Senior Circuit Judge:

In this appeal, taxpayers assign error to the Tax Court’s dismissal of their petitions as a sanction for violations of Tax Court Rules by the taxpayers’ counsel. We vacate and remand for reinstatement of the petitions and consideration of sanctions against their lawyers.

I

The taxpayers, Bernard J. Hillig, Louis D. Napoli, Joel B. Bowers, Barry G. Brot-man, Alfred P. Coccaro, and Robert L. Hamm are physicians who formed a partnership to purchase and lease medical equipment. The physicians also are shareholders of a professional services corporation, formed for the practice of medicine.

The Commissioner served the taxpayers in June 1988 with notices of deficiency for tax years 1981, 1982, and 1984. According to the notices, the taxpayers had taken improper investment tax credits for medical equipment purportedly leased by the partnership to the corporation. The taxpayers retained their corporate attorney to contest the notices. Because he lacked experience in Tax Court litigation, the taxpayers through their corporate counsel engaged special tax counsel. The attorneys filed petitions contesting the notices in September 1988.

In December 1988 the Tax Court issued a notice setting the case for trial on May 22, 1989. The notice warned that failure to cooperate may result in dismissal of the case. The court also issued its standing pretrial order, which required the parties to stipulate undisputed facts. The order also required that 15 days before the trial the [173]*173parties file with the court and exchange with each other documentary and written evidence, a trial memorandum, and reports of any expert witness. It stated: “If any unexcused failure to comply with this Order adversely affects the timing or conduct of the trial, the Court may impose appropriate sanctions, including dismissal, to prevent prejudice to the other party or imposition on the Court.”

In January 1989, informal discovery began with a letter from the Commissioner to the taxpayers’ counsel requesting eight categories of documents. The court held a discovery conference in February. Counsel for the Commissioner claims that taxpayers’ counsel agreed to furnish the requested documents by March 13, 1989. Taxpayers claim that the Commissioner’s counsel agreed to send a revised list of documents that had not been reviewed in the tax audit.

On March 15, 1989, the Commissioner’s counsel sent taxpayers’ counsel a list of documents in his possession. The list included some of the categories of documents requested in January. The Commissioner’s efforts to get the remaining documents through informal discovery channels proved futile. On March 23, 1989, the Commissioner’s counsel filed a formal request asking for the same eight categories of documents and answers to interrogatories by April 24. Taxpayers’ counsel did not respond to this request.

On April 27, the Commissioner moved to compel production of documents, asking for dismissal if counsel did not comply. The Commissioner’s counsel mailed a proposed stipulation of facts on May 2 but received no response. Taxpayers' counsel did not file a trial memorandum or expert witness report by the pretrial order deadline.

On May 10, the court granted the Commissioner’s motion to compel production of the documents. On May 16, taxpayers’ counsel responded by a letter that included two documents and indicated that they would forward an expert witness report. The letter explained that they would send other documents when located and that the Commissioner had the remaining documents. Additionally, taxpayers’ counsel filed motions for a continuance and to vacate the court’s order to compel. The tax counsel moved to withdraw.

On May 17, in a hearing before the Tax Court, the corporate attorney explained that because of his inexperience litigating before the Tax Court, he assumed that the tax attorney had taken responsibility for the litigation. The tax attorney maintained that he was unable to get the documents he needed from the corporate attorney. The delays and violations of the court rules apparently stemmed from the miscommuni-cation between taxpayers’ counsel. The court stated at the hearing: “The conduct of counsel for Petitioners in this case is inexcusable_ The two of you are basically pointing fingers at each other and saying that each other of you is responsible for the failure to act in accordance with the Court orders.”

The court dismissed the case under Tax Court Rule 123(b) for failure to prosecute and under Tax Court Rule 104(c)(3) for failure to comply with the order to compel production of documents. The court subsequently denied taxpayers’ motion to vacate. In its opinion, it explained that taxpayers’ counsel had violated the order compelling discovery, ignored a proposed stipulation of fact in violation of Tax Court Rule 91(a)(1), violated the standing pretrial order by failing to submit a trial memorandum, failed to submit an expert witness report in violation of Tax Court Rule 143(f), and moved for a continuance five days prior to trial. According to the court, “dismissal was justified in order to protect the integrity of the Court’s rules and orders.”

II

The legal standard for involuntary dismissals under Federal Rule of Civil Procedure 41(b) governs Tax Court dismissals under Tax Court Rule 123(b). Crandall v. Commissioner of Internal Revenue, 650 F.2d 659, 660 (5th Cir.1981). “While the power to dismiss clearly lies with the district courts, it is appropriately exercised only with restraint. ‘Against the power to prevent delays must be weighed [174]*174the sound public policy of deciding cases on their merits.’ ” Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir.1978) (quoting Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir.1974)). This Circuit requires that the trial court consider four factors before dismissing a case for failure to prosecute: (1) the plaintiffs degree of personal responsibility; (2) the amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. See, e.g., Herbert v. Saffell, 877 F.2d 267, 270 (4th Cir.1989). The standard of our review is whether the Tax Court abused its discretion. Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).

A dismissal sanction is usually inappropriate when it unjustly penalizes a blameless client for the attorney’s behavior. See Dove, 569 F.2d at 810; McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir.1976); Reizakis, 490 F.2d at 1135; see also Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1077-79 (D.C.Cir.1986). There is no evidence in this record that the taxpayers were responsible for their attorneys’ noncompliance.

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916 F.2d 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillig-v-commissioner-ca4-1990.