Tello v. CIR

410 F.3d 743, 2005 WL 1269579

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 31, 2005
• Docket: 04-60955
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 18, 2005 FIFTH CIRCUIT Charles R. Fulbruge III _________________ Clerk No. 04-60955

(Summary Calendar) _________________

JOHN TELLO; ET AL,

Petitioners,

JOHN TELLO

Petitioner - Appellant,

versus

COMMISSIONER OF INTERNAL REVENUE,

Respondent - Appellee.

Appeal from a Decision of the United States Tax Court

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:

John Tello, pro se, appeals the decision of the United States Tax Court. The Tax Court

dismissed Tello’s petition for failure to prosecute and sanctioned him under Internal Revenue Code § 6673 in the amount of $2,500 for advancing frivolous positions and instituting and maintaining the

proceeding primarily for delay. We review both dismissals for failure to prosecute and the imposition

of sanctions under I.R.C. § 6673 for abuse of discretion. Berry v. CIGNA/RSI-CIGNA, 975 F.2d

1188, 1191 (5th Cir. 1992); Sandvall v. Commissioner, 898 F.2d 455, 459 (5th Cir. 1990).

“We will affirm dismissals with prejudice for failure to prosecute only when (1) there is a clear

record of delay or contumacious conduct by the plaintiff, and (2) the district court has expressly

determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the

district court employed lesser sanctions that proved to be futile.” Berry, 975 F.2d at 1191. We

generally will affirm a dismissal only if we find at least one of three aggravating factors: (1) delay

caused by the plaintiff himself; (2) actual prejudice to the defendant; or (3) delay as a result of the

intentional conduct. Id.

The record shows that Tello failed to appear at the calender call and recall of his case; failed

to cooperate with the Commissioner in preparing a stipulation of facts (including refusing to stipulate

to his birth date); refused to address the merits of his case; ignored warnings to stop making frivolous

arguments; and simply wasted the time and resources of the Tax Court and of the Commissioner.

Tello ignored numerous threats of sanctions, including of dismissal, by the Tax Court. Tello also

makes several arguments on appeal similar to those that he raised below. We agree with the Tax

Court that “without exception, the arguments that [Tello] makes are arguments that this Court and

other courts have found to be frivolous” and that he was “instituting or maintaining this proceeding

primarily, if not exclusively, as a protest against the Federal income tax system and his proceedings

in this Court is merely a continuation of [Tello’s] refusal to acknowledge and satisfy his tax

obligations.” Tello’s pro se status does not excuse his actions. See Parker v. Commissioner, 117

-2- F.3d 785, 787 (5t h Cir. 1997). Furthermore, the Tax Court did not abuse its discretions in

sanctioning Tello in the amount of $2,500 under I.R.C. § 6673(a), which allows sanctions whenever

a taxpayer institutes or maintains a proceeding primarily for delay or that the taxpayer’s position in

the proceeding is frivolous or groundless. We therefore AFFIRM the judgment of the Tax Court.

The Commissioner also moves to sanction Tello $6,000 for maintaining a frivolous appeal so

that the government can be compensated for the costs of defending the appeal. A party who

continues to advance long-defunct arguments invites sanctions. Longsdale v. Commissioner, 661

F.2d 71, 72 (5th Cir. 1981). We GRANT the Commissioner’s motion for sanctions of $6,000 for

pursuing a frivolous appeal, pursuant to 26 U.S.C. § 7482(c)(4) and FED. R. APP. P.38. See Parker,

117 F.3d at 787 (approving the practice of imposing a lump sum sanction in lieu of costs because it

“saves the government the additional cost of calculating its expenses, and also saves the court the

time and expense of reviewing the submission of costs”).

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