Terri Brest-Taylor v. Cir

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 17, 2019
• Docket: 18-70195
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TERRI ANN BREST-TAYLOR, No. 18-70195

Petitioner-Appellant, Tax Ct. No. 27476-13

v. MEMORANDUM* COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

Appeal from a Decision of the United States Tax Court

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

Terri Ann Brest-Taylor appeals pro se from the Tax Court’s order dismissing

for failure to prosecute her petition challenging the Commissioner of Internal

Revenue’s determination of tax deficiency for tax years 2009 and 2010. We have

jurisdiction under 26 U.S.C. § 7482(a)(1). We review for an abuse of discretion

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). the Tax Court’s dismissal for failure to prosecute. Noli v. Comm’r, 860 F.2d 1521,

1527 (9th Cir. 1988). We affirm.

The Tax Court did not abuse its discretion by dismissing Brest-Taylor’s

petition for failure to prosecute because Brest-Taylor failed to appear for trial or

provide any valid excuse for her absence. See id. (noting that “dismissal for failure

properly to prosecute will normally arise where a party fails to appear at trial”); see

also T.C. R. 123(a), (b) (Tax Court may dismiss a case and enter a decision against

a petitioner where the petitioner fails properly to prosecute or fails to proceed as

required by the Tax Court); T.C. R. 149(a) (Tax Court may dismiss a case for

failure properly to prosecute where the petitioner’s absence from trial is

unexcused); Larsen v. Comm’r, 765 F.2d 939, 941 (9th Cir. 1985) (Tax Court has

discretion to dismiss a petition for failure to comply with Tax Court Rules).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Brest-Taylor’s motion for appointment of counsel (Docket Entry No. 24) is

denied.

AFFIRMED.

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