Leslie A. BYRNE, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee, 509 F. App'x 33

SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the Tax Court be and it hereby is VACATED and REMANDED. Petitioner-Appellant Leslie A.

Byrne (“Petitioner”) appeals from a February 28, 2011 order of the Tax Court granting Respondent-Appellee Commissioner of Internal Revenue’s motion to dismiss for failure to prosecute, and from the Tax Court’s March 22, 2011 denial of Petitioner’s motion to vacate the dismissal. “For failure of a petitioner properly to prosecute or to comply with [Tax Court rules] or any order of the Court or for other cause which the Court deems sufficient, the Court may dismiss a case at any time and enter a decision against the petitioner.” T.C. R. 123(b).

We review the Tax Court’s dismissal due to failure to prosecute for abuse of discretion. Colon v. Comm’r, 252 F.3d 662, 662 (2d Cir.2001). We also review the Tax Court’s denial of a motion to vacate for abuse of discretion. See LaBow v. Comm’r, 763 F.2d 125, 129 (2d Cir.1985). “To determine whether the Tax Court has abused its discretion in dismissing an action for failure to prosecute, we consider the same factors that we look to in determining whether a district court has abused its discretion in dismissing an action for failure to prosecute.” Colon, 252 F.3d at 663 (listing factors for consideration).

However, “[djismissal is a drastic remedy that should be imposed only in extreme circumstances, usually after consideration of alternative, less drastic sanctions.” World Wide Polymers, Inc. v.

Shinkong Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir.2012) (internal quotation marks and ellipsis omitted). “In deciding on the suitability of lesser sanctions, and whether the sanctions should be aimed primarily against the party or the attorney, it can be important for the [Tax Court] to assess the relative roles of attorney and client in causing the delay, as well as whether a tactical benefit was sought by the delay.” Dodson v. Runyon, 86 F.3d 37, 40 (2d Cir.1996).

Here, “[t]he record strongly suggests that it was [Petitioner’s] lawyer, not [Petitioner], who was responsible for failing to advance the case.” Id. at 41. “Furthermore, it appears that the attorney caused the delay in derogation of, rather than to benefit, his client’s interests.” Id. The Tax Court, while understandably frustrated with Petitioner’s failure to prosecute, failed to consider lesser sanctions. Accordingly, we conclude that the Tax Court should not have dismissed the action. As we vacate the dismissal, we need not consider the Tax Court’s denial of Petitioner’s motion to vacate.

On remand, the Tax Court is free to reconsider the issue of sanctions consistent with this order. The judgment is VACATED and REMANDED to the Tax Court for further proceedings.