Cassidy v. Commissioner, Docket No. 18125-80.
| Decision Date | 03 April 1986 |
| Docket Number | Docket No. 18125-80. |
| Citation | 1986 TC Memo 133,51 TCM (CCH) 784 |
| Parties | Thomas V. Cassidy v. Commissioner. |
| Court | U.S. Tax Court |
Thomas V. Cassidy, pro se. David R. Reid and Jeff P. Ehrlich, for the respondent.
This case is before the Court on petitioner's motion for extension of time to answer request for admissions and reply to interrogatories pursuant to Rule 90(c),1 petitioner's alternative motion to withdraw or modify deemed admissions pursuant to Rule 90(e)2 and respondent's motion for summary judgment under Rule 121. In the deficiency notice dated June 24, 1980, addressed to petitioner, respondent determined the following deficiencies:
Additions to TaxTax Year EndedDeficiencySection 6653(b)
August 31, 1974 $12,865 $11,774
August 31, 1975 22,028 11,014
On September 24, 1980, petitioner, who was then a resident of Illinois, filed a petition in this court seeking a redetermination of the deficiencies and additions to tax as determined by respondent. Petitioner is an experienced attorney licensed to practice in Illinois.
The issues for decision are whether the 30-day period provided by Rule 90(c) for filing an answer to a request for admission should be enlarged so as to permit petitioner's response thereto to be filed; if not, then whether petitioner should be allowed to withdraw or modify the deemed admissions pursuant to Rule 90(e); and whether respondent is entitled to summary judgment.
Resolution of the latter issue is dependent upon the outcome of the first two issues. We will address each issue in order. However, in the interest of clarity it is necessary preliminarily to set forth the prolonged and aggravated history of this case to date.
After the pleadings were closed, the Court set this case for trial on March 22, 1982, at Milwaukee, Wisconsin. The case was set for trial in Milwaukee because Stanley P. Gimbel (Gimbel), petitioner's counsel at that time, maintained his office in that city.
Respondent avers in his motion for summary judgment that In petitioner's untimely reply to respondent's motion for summary judgment, petitioner alleges that Gimbel's failure to cooperate in preparing this case for trial in March, 1982, was not of petitioner's own doing, and that he, himself,
When this case was called from the calendar for trial in Milwaukee on March 22, 1982, before this Court, Gimbel appeared and represented to the Court that he had written petitioner on December 15, 1981, advising petitioner of his, Gimbel's, desire to withdraw from further representation of petitioner. Gimbel filed with the Court an affidavit to this effect dated March 9, 1982, in connection with his motion to withdraw from further representation of petitioner, which was granted.
The transcript of the hearing before this Court on March 22, 1982, makes it clear that Gimbel disputed the reported representations made by petitioner in the telephone conversation with this Court to the effect that Gimbel was being uncooperative. Respondent's attorney, Joseph R. Peters, also represented to the Court that
At the conclusion of the hearing, the Court admonished Gimbel that "I assume you will advise Mr. Cassidy, if you will, please, that the next time he will receive notice of the setting of the trial and that he had better be prepared to go to trial at that time because there will be no additional continuances." Gimbel assured the Court that "I'll personally make sure that he's aware of what was said at Court this morning."
In his motion for summary judgment, respondent further alleges that, by letters dated April 27, 1982, August 19, 1982, October 1, 1982, and April 17, 1984, he informally requested petitioner to answer certain questions and produce certain documents relevant to the issues in dispute. Petitioner did not provide respondent with any of the information requested.
On December 7, 1982, respondent served upon petitioner respondent's request for production of documents, together with respondent's interrogatories to petitioner. Petitioner failed to produce any of the documents requested or provide answers to any of respondent's interrogatories.
On March 8, 1982, respondent served petitioner with a subpoena duces tecum requesting the production of certain documents and testimony. Petitioner did not comply with the subpoena.
On April 13, 1982, the place of trial was changed to Chicago, Illinois, since Gimbel was no longer in the case and petitioner at that time resided in Springfield, Illinois. On November 14, 1983, the Court sent out a notice of trial on a trial calendar to commence January 30, 1984, in Chicago. On January 3, 1984, there was filed with the Court respondent's notice of a proceeding in bankruptcy involving petitioner, which was followed by a Court order on January 4, 1984, that all proceedings would be automatically stayed.
On March 13, 1984, petitioner received a discharge of debtor order along with an explanatory memorandum from the United States Bankruptcy Court for the Central District of Illinois.3
On April 13, 1984, the bankruptcy court judge promulgated an order whereby the automatic stay previously in effect in petitioner's case was lifted "in order to permit the Tax Court proceeding between the parties now pending to proceed forward."
On May 16, 1984, this Court entered an order which directed, in part, that the Clerk of the Tax Court calendar this case for trial at the first Chicago, Illinois, trial session during the 1984 fall term. On June 15, 1984, respondent filed with the Court, as required by Rule 90(b), a copy of his first requests for admission, with exhibits attached. On July 18, 1984, the Court issued its notice of trial of this case on a trial calendar commencing October 1, 1984, in Chicago. On August 22, 1984, respondent moved for leave to file respondent's motions to compel responses to respondent's interrogatories to petitioner and to compel the production of documents or to impose sanctions under Rule 104. The motion for leave to file was granted.
On August 22, 1984, respondent also filed a motion for summary judgment based upon petitioner's deemed admissions and a memorandum in support thereof.
On August 31, 1984, respondent's attorney advised the Court by letter that the purpose of the letter
Petitioner was copied on the above letter, which was sent to him at P.O. Box 13168, Atlanta, Georgia 30324, his last known address. In response to the letter the Court wrote petitioner, with copy to respondent's attorney, advising petitioner of the receipt of respondent's letter and directing petitioner "immediately to communicate with counsel for the respondent ... and to cooperate with him to the end that a proper stipulation of facts can be prepared for filing with the court at 10:00 A.M. on October 1, 1984."
On September 27, 1984 (which was the Thursday before October 1, 1984, the date on which the trial calendar which included this case was scheduled to commence), an entry of appearance was filed by Manning K. Leiter (Leiter) to represent petitioner, and there was also filed by Leiter a motion for a general continuance of the trial. On October 1, 1984, when the case was called from the calendar petitioner's motion for continuance was denied. Also on October 1, 1984, respondent filed an amendment to motion for summary judgment addressing a statute of limitations defense raised in petitioner's petition.4 The case was called for trial on October 2, 1984, at which time the effect of Rule 90(c) — that the facts recited in respondent's requests for admission were deemed admitted — was confirmed by the Court since petitioner had failed to respond to them within 30 days of service.
Since the facts stated in the requests for admission had thus been deemed admitted, the Court denied on the grounds of mootness respondent's motion to compel responses to interrogatories and to compel the production of documents. Petitioner was given until November 1, 1984, to file an opening brief in response to respondent's motion for summary judgment, and respondent was given until December 3, 1984, to file a reply brief.
On November 13, 1984, petitioner filed a motion to dismiss with prejudice and motion for summary judgment on the ground that the deficiencies in issue were discharged in bankruptcy. At the same time petitioner also filed his "reply" to respondent's motion for summary judgment and amended motion for summary judgment...
To continue reading
Request your trial