Ninth Circuit Affirms Dismissal of Case for Failure to Prosecute

TERRI ANN BREST-TAYLOR,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Tax Ct. No. 27476-13

MEMORANDUM^*

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 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.