Apodaca v. Dept. of Rev.

IN THE OREGON TAX COURT MAGISTRATE DIVISION Income Tax DENNIS W. APODACA, ) ) Plaintiff, ) TC-MD 150517N ) v. ) ) DEPARTMENT OF REVENUE, ) State of Oregon, ) ) Defendant. ) FINAL DECISION OF DISMISSAL This Final Decision of Dismissal incorporates without change the court’s Decision of Dismissal, entered May 12, 2016. The court did not receive a statement of costs and disbursements within 14 days after its Decision of Dismissal was entered. See TCR-MD 16 C(1).

This matter came before the court on its own motion to dismiss this case for lack of prosecution.

A trial was scheduled for 9:00 a.m. on May 12, 2016, to consider Plaintiff’s appeal. That trial date was agreed upon by the parties during a case management conference held in this matter on February 1, 2016. On February 3, 2016, the court sent notice of the scheduled trial to Plaintiff at the email address he provided to the court. The court’s notice was not returned as undeliverable. That notice advised that if Plaintiff did not appear, the court might dismiss the appeal.

Plaintiff twice requested that the trial in this matter be rescheduled. On April 21, 2016, Plaintiff filed a Motion to Continue Trial Date (first motion), requesting that the trial be rescheduled because his witnesses could not “appear live” at trial and Plaintiff preferred “live testimony versus telephonic testimony.” Defendant did not object to Plaintiff’s first motion. In

FINAL DECISION OF DISMISSAL TC-MD 150517N 1 an Order, issued April 25, 2016, the court found that Plaintiff had failed to identify “exceptional circumstances” under Tax Court Rule-Magistrate Division (TCR-MD) 8 B(3) and denied Plaintiff’s first motion. On May 4, 2016, Plaintiff filed a Motion to Stay Proceedings (second motion), requesting that the trial be rescheduled because “Plaintiff is unfamiliar with the rules of the court, is currently seeking legal advice, and is not prepared to proceed pro se.” On May 10, 2016, Defendant filed an “Answer” to Plaintiff’s second motion stating that Defendant “does not have a position on the Plaintiff’s motion to stay the proceedings.” On May 11, 2016, the court issued an Order finding that Plaintiff had failed to identify an exceptional circumstance supporting his rescheduling request because “Plaintiff has had several months to retain counsel.”

The court denied Plaintiff’s second motion and noted that trial remained on the court’s calendar.

Plaintiff failed to appear for the scheduled trial on May 12, 2016. Under such circumstances, the court finds the appeal must be dismissed for lack of prosecution. Now, therefore, IT IS THE DECISION OF THIS COURT that Plaintiff’s appeal is dismissed.

Dated this day of June 2016.

ALLISON R. BOOMER MAGISTRATE If you want to appeal this Final Decision of Dismissal, file a complaint in the Regular Division of the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR 97301-2563; or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR. Your complaint must be submitted within 60 days after the date of the Final Decision of Dismissal or this Final Decision of Dismissal cannot be changed.

TCR-MD 19 B.

This document was filed and entered on June 1, 2016.

FINAL DECISION OF DISMISSAL TC-MD 150517N 2