James Robertson v. Commissioner of Internal Revenue

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES ROBERTSON,
Petitioner - Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
No. 09-72052
Tax Ct. No. 23218-07
MEMORANDUM*
Appeal from a Decision of the
United States Tax Court
Submitted November 21, 2011**
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
James Robertson appeals pro se from the Tax Court’s decision dismissing
for failure to prosecute his petition challenging the Commissioner of Internal
Revenue’s determination to sustain an action to collect taxes that Robertson failed
to pay in 2002. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review for
FILED
NOV 28 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-72052 2
an abuse of discretion, Noli v. Comm’r, 860 F.2d 1521, 1527 (9th Cir. 1988), and
we affirm.
The Tax Court did not abuse its discretion in dismissing Robertson’s petition
for failure to prosecute based on his willful and unexcused failure to appear for
trial, especially because the court had already reinstated the action after a previous
dismissal and warned Robertson about the possibility of dismissal if he failed to
appear or to comply with other rules. See Al-Torki v. Kaempen, 78 F.3d 1381,
1384-85 (9th Cir. 1996) (dismissal was not an abuse of discretion because willful
failure to appear, prejudice to defendant, and interference with court’s docket
outweighed policy favoring resolving litigation on the merits and imposition of
less drastic sanctions); see also Tax Ct. R. 149(a) (case may be dismissed for
failure to prosecute if party is absent from trial without excuse); Tax Ct. R. 123(a)
(dismissal appropriate if party fails to proceed as required by court).
Robertson’s remaining contentions are unpersuasive.
We do not address Robertson’s arguments regarding the Tax Court’s
interlocutory orders because failure to prosecute forfeits the right to appeal such
issues. See Al-Torki, 78 F.3d at 1386.
AFFIRMED.

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