Oelze v. C.I.R., 83-4084
| Decision Date | 28 December 1983 |
| Docket Number | No. 83-4084,83-4084 |
| Parties | 84-1 USTC P 9274 Richard E. OELZE, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from a Decision of the United States Tax Court.
ON PETITION FOR REHEARING
(Opinion November 29, 1983, 5 Cir., 1984, 723 F.2d 1162)
Before CLARK, Chief Judge, RUBIN and JOLLY, Circuit Judges.
The petition for rehearing is denied.
In this petition for rehearing, the taxpayer, Richard E. Oelze, urges this court to follow the holding of the United States Court of Appeals for the Seventh Circuit in Fox v. Commissioner, 718 F.2d 251 (7th Cir.1983) and hold that the Tax Court may not dismiss a taxpayer's petition for redetermination of tax liability for failure to comply with discovery orders unless the court first finds that the taxpayer's failure to comply is willful and in bad faith, and that the taxpayer totally failed to respond to the discovery orders.
In Eisele v. Commissioner, 580 F.2d 805 (5th Cir.1978), this court, in a half-page per curiam opinion, affirmed dismissal by the Tax Court pursuant to Rule 104, noting simply that the dismissal is "explicitly authorized" by the rules. In the case before us here, it is unnecessary to decide whether this circuit should follow the Seventh Circuit in imposing stricter standards for dismissals for failure to comply with discovery orders, pursuant to Eisele. This is true because even under the analysis of Fox, the Tax Court's dismissal is justified in this case. The taxpayer's continued failure to cooperate with the Commissioner, the necessity for four orders to comply with the Commissioner's discovery requests, the taxpayer's continuous reliance on a baseless fifth amendment claim, and the taxpayer's last-minute attempt to comply with the discovery order all demonstrate that Oelze acted wilfully. Additionally, the Tax Court issued four separate discovery orders, some explicitly warning the taxpayer that failure to comply would result in dismissal of the case. Though the taxpayer finally did partially comply with one of the orders, he did so only after repeated and total...
To continue reading
Request your trial
-
Duhon v. Koch Exploration Co.
...or make a party to one action a party to the action with which it is consolidated. Oelze v. C.I.R., 723 F.2d 1162, reh. denied 726 F.2d 165 (5th Cir.1983). Thus, a party to one action "may cause a third-party complaint to be served upon a person not a party to the action" but who is a party......
-
Aruba Bonaire Curacao Trust Co. Ltd. v. C.I.R., 84-5698
... ... Kelberine v. Societe Internationale, Etc., 363 F.2d 989 (D.C.Cir.), cert. denied, 385 U.S. 989, 87 S.Ct. 595, 17 L.Ed.2d 450 (1966); Chung Wing Ping v. Kennedy, ... Commissioner, 712 F.2d 195, 197 (5th Cir.1983) (per curiam); see also Oelze v. Commissioner, 723 F.2d 1162, 1163-64 (5th Cir.) (per curiam), reh'g denied, 726 F.2d 165 ... ...
-
G.K. v. D.M.
...is improper; the defendant must respond to each question individually). [29] ECF No. 104 at 26-27. [30] See, e.g., Oelze v. C.I.R., 726 F.2d 165, 166 (5th Cir. 2006) (denying rehearing on dismissal of taxpayer's petition for failure to comply with discovery orders and noting that partial co......
-
Klein v. C.I.R.
...712 F.2d 195, 197 (5th Cir.1983) (per curiam); Oelze v. Commissioner, 723 F.2d 1162, 1163-64 (5th Cir.) (per curiam), reh'g denied, 726 F.2d 165 (1983). We are also guided by Rule 37 of the Federal Rules of Civil Procedure which is analogous to Rule 104. See Aruba Bonaire Curacao Trust Co. ......