                            T.C. Memo. 1999-308



                          UNITED STATES TAX COURT



            AGAPITO FAJARDO AND CLARA S. FAJARDO, Petitioners v.
                COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 11960-97.               Filed September 16, 1999.



        Agapito Fajardo, pro se.

        Michael H. Salama, for respondent.



                             MEMORANDUM OPINION

        MARVEL, Judge:    This case is before the Court on

respondent's motion for summary judgment filed pursuant to Rule

121.1

        1
      All section references are to the Internal Revenue Code in
effect for the years at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure. For convenience, all
                                                   (continued...)
                              - 2 -


                           Background

     In his notice of deficiency dated March 5, 1997, respondent

determined the following deficiencies in income tax and an

addition to tax:

                                              Addition to tax
     Year                Deficiency           sec. 6651(a)(1)
                                                    1
     1991                 $50,118                    $14,107
     1993                  23,700                      ---
     1
      The first page of the notice of deficiency shows an
addition to tax under sec. 6651(a)(1) with respect to 1993, not
1991. However, our review of the notice in its entirety reveals
that the determination regarding the addition to tax was made
with respect to 1991. In his motion for summary judgment,
respondent confirmed that a typographical error was made in the
notice, and that the addition to tax was determined with respect
to 1991.

     Petitioners filed a timely petition and designated Los

Angeles, California, as the place of trial.   Petitioners resided

in Carson, California, on the date their petition was filed.

References to petitioner are to Agapito Fajardo.

     On November 26, 1997, respondent's counsel sent petitioners

a Branerton letter, see Branerton Corp. v. Commissioner, 61 T.C.

691 (1974), advising them of the Court's policies and

requirements regarding informal exchange of documentation and

stipulation of facts and inviting petitioners to attend a

conference for that purpose on December 19, 1997.       Petitioners



     1
      (...continued)
monetary amounts have been rounded to the nearest dollar.
                                 - 3 -


did not attend the conference or otherwise respond to the letter

from respondent's counsel.   Respondent's counsel mailed a second

Branerton letter on January 16, 1998, which repeated the same

information regarding the Court's policies and requirements

regarding discovery.   The second letter invited petitioners to

meet with respondent's counsel on January 30, 1998, at 2 p.m.

The second letter encouraged petitioners to contact respondent's

counsel by telephone to reschedule the January 30 meeting if they

could not attend on that date.    Petitioners failed to attend the

proposed conference or otherwise to respond to the second letter.

     On April 8, 1998, notice was served on the parties that the

case was calendared for trial during the Los Angeles, California,

trial session beginning September 8, 1998.   Attached to the

notice was a copy of the Court's Standing Pre-Trial Order,

advising the parties of the Court's policies and requirements

regarding discovery, stipulations of fact, and other pretrial

matters and ordering the parties to comply with those

requirements.

     On April 27, 1998, respondent's counsel mailed petitioners a

third Branerton letter, requesting that petitioners contact

counsel for respondent by telephone to schedule a meeting.     As

with the previously scheduled conferences, the stated purpose of

the meeting was to discuss documentation and other evidence so

that the parties could begin to develop a stipulation of facts
                               - 4 -


and comply with the Court's policies and requirements regarding

pretrial preparation.   Petitioners did not respond to this

letter.

     On June 5, 1998, respondent served petitioners with requests

for admission pursuant to Rule 90.     The requested admissions were

as follows:

          1.   For the 1991 and 1993 taxable years
     petitioners are not entitled to dependency exemptions
     in the amounts of $10,750.00 and $9,400.00,
     respectively.

          2.   For the 1991 and 1993 taxable years
     petitioners are not entitled [to] * * * deductions for
     Schedule C expenses in the amounts of $86,560.00 and
     $21,140.00, respectively.

          3.   In 1991 petitioners received a taxable
     distribution from an I.R.A. in the amount of $1,121.00.
     Petitioners failed to report this item on their 1991
     return.

          4.   For the 1991 and 1993 taxable years
     petitioners are not entitled to deductions for rental
     expenses in the amounts of $36,944.00 and $30,440.00,
     respectively.

          5.   For the 1991 and 1993 taxable years
     petitioners are not entitled to itemized deductions in
     the amounts of $28,594.00 and $35,925.00, respectively.

          6.   For the 1991 taxable [year], petitioners are
     not entitled to an additional deduction for exemptions
     in the amount of $2,064.00.

           7.  The petitioners are liable for the failure to
     timely file penalty, pursuant to Internal Revenue Code
     ("I.R.C.") section 6651(a)(1) for the 1991 taxable
     year.
                                - 5 -


     Petitioners failed to respond as required by Rule 90 and,

consequently, the requested findings were deemed admitted

pursuant to Rule 90(c).   The deemed admissions essentially

concede petitioners' case.

     On July 27, 1998, respondent filed his motion for summary

judgment, together with a memorandum of law in support thereof.

In his motion, respondent requests that summary judgment be

granted as to the deficiencies and addition to tax set forth in

the notice of deficiency.    Respondent alleges that the

concessions deemed admitted under Rule 90(c) establish that there

is no genuine dispute of material fact, and that a decision in

favor of respondent may be entered as a matter of law.

     On July 28, 1998, the Court ordered petitioners to file a

response to respondent's motion for summary judgment on or before

August 13, 1998.   Petitioners did not file a response.

     At the calendar call on September 8, 1998, this case was

called, and petitioner appeared on his own behalf.    In response

to the Court's questions regarding his failure to respond to the

Branerton letters and to comply with the Court's Standing Pre-

Trial Order, petitioner explained that he had separated from his

wife, had changed job locations, and was dependent upon his wife

to inform him when he received mail at his Carson, California,
                               - 6 -


mailing address.2   Petitioner informed the Court that he intended

to confer with respondent's counsel regarding stipulations and

requested that the case be recalled so that he might do so.    The

Court granted his request, directed the parties to meet and

review whatever documents and information petitioner wanted to

present, and ordered that the case be recalled for a report

and/or trial on September 14, 1998.

     On September 14, 1998, the case was recalled.   Neither of

petitioners appeared.   Respondent's counsel reported that

petitioner had met with respondent's counsel on Friday, September

11 and on Sunday, September 13.   On September 11, petitioner did

not have any documentation with him, despite several earlier

requests that he produce whatever documents he had to support his

return positions and despite the Court's Standing Pre-Trial

Order, which required the parties to exchange documents at least

15 days before the beginning of the trial session.   On September

13, petitioner finally presented some documentation purporting to

demonstrate his entitlement to the deductions and exemptions at

issue in this case.   According to respondent's counsel, some of

the documents were clearly personal in nature, and the remaining

documents were not organized to facilitate review.   After

approximately 4 hours, respondent's counsel offered petitioners


     2
      At the calendar call on Sept. 8, 1998, petitioner notified
the Court of his new address.
                               - 7 -


"a nuisance settlement" and informed petitioner that he could

call him at any time up to 11 p.m. if petitioners decided to

accept the offer.   Petitioners did not respond to the offer.

     Petitioner Clara S. Fajardo did not appear at any time

during the trial session, nor did she respond to respondent's

counsel's repeated attempts by letter and telephone to contact

her concerning this case.

                            Discussion

     Rule 121(a) authorizes either party to move for a summary

judgment in the moving party's favor upon all or any part of the

legal issues in controversy.   Rule 121(b) requires that the

opposing party file a written response within such period as the

Court may direct and provides that a decision in favor of the

moving party shall be rendered "if the pleadings, answers to

interrogatories, depositions, admissions, and any other

acceptable materials, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that a

decision may be rendered as a matter of law."   See also

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994); Naftel v. Commissioner, 85 T.C. 527,

529 (1985).

     The moving party bears the burden of showing that no genuine

issue exists as to any material fact and that he is entitled to

judgment on the substantive issues as a matter of law.     See
                                - 8 -


Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (interpreting

Fed. R. Civ. P. 56 on which Rule 121 was modeled); Espinoza v.

Commissioner, 78 T.C. 412, 416 (1982).    With respect to issues on

which the nonmoving party bears the burden of proof at trial, the

party moving for summary judgment may satisfy his burden "by

'showing'--that is, pointing out to the * * * [trial] court--that

there is an absence of evidence to support the nonmoving party's

case."   Celotex Corp. v. Catrett, supra at 325.   In deciding

whether to grant summary judgment, we view the facts and the

inferences drawn from them in the light most favorable to the

nonmoving party.    See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986); Dahlstrom v. Commissioner, 85 T.C. 812, 821

(1985); Jacklin v. Commissioner, 79 T.C. 340, 344 (1982).

     On this record, we must grant respondent's motion for

summary judgment.    Respondent's motion is grounded upon a

complete lack of evidence in the record regarding the factual

issues raised by the petition and on concessions deemed admitted

under Rule 90.3    As the parties with the burden of proof at

trial, see Rule 142(a), petitioners could not defend against

respondent's motion for summary judgment by silence; they had an



     3
      Six out of the seven requests for admissions were requests
for concessions of legal liability. Whether such requests are
proper under Rule 90 is an issue we need not decide since the
record before us is sufficient to grant respondent's motion for
summary judgment without relying on the concessions.
                               - 9 -


obligation to respond imposed both by Rule 121 and by Court

order.   A motion for summary judgment under Rule 121 requires the

nonmoving party to demonstrate, by affidavit, deposition, answers

to interrogatories, and admissions or other evidentiary materials

satisfying the requirements of Rule 121, that there is a genuine

issue of material fact for trial.   See Celotex Corp. v. Catrett,

supra at 324.   Petitioners have failed to do so.

     In Celotex Corp. the Supreme Court examined the burden

imposed on a party moving for summary judgment under rule 56 of

the Federal Rules of Civil Procedure with respect to issues on

which the nonmoving party had the burden of proof at trial.   The

case involved an asbestos action in which one of the corporate

defendants had filed a motion for summary judgment without

attaching affidavits or other similar material negating the

plaintiff's claims.   The District Court granted the motion for

summary judgment because there was no showing that the

plaintiff's deceased husband was exposed to the defendant's

product within the period of limitations.   The plaintiff

appealed, and the Court of Appeals for the District of Columbia

Circuit reversed, holding that the motion for summary judgment

was defective because the moving party did not present any

evidence to support its motion.
                              - 10 -


     The Supreme Court granted certiorari and reversed, holding

that the plain language of rule 56 of the Federal Rules of Civil

Procedure compelled the result:

     Under Rule 56(c), summary judgment is proper 'if the
     pleadings, depositions, answers to interrogatories,
     and admissions on file, together with the affidavits,
     if any, show that there is no genuine issue as to any
     material fact and that the moving party is entitled to
     a judgment as a matter of law.' In our view, the plain
     language of Rule 56(c) mandates the entry of summary
     judgment, after adequate time for discovery and upon
     motion, against a party who fails to make a showing
     sufficient to establish the existence of an element
     essential to that party's case, and on which that party
     will bear the burden of proof at trial. In such a
     situation, there can be 'no genuine issue as to any
     material fact,' since a complete failure of proof
     concerning an essential element of the nonmoving party's
     case necessarily renders all other facts immaterial. The
     moving party is 'entitled to a judgment as a matter
     of law' because the nonmoving party has failed to make
     a sufficient showing on an essential element of her
     case with respect to which she has the burden of proof.
     * * *

Celotex Corp. v. Catrett, supra at 322-323.

     Rule 121(b) and rule 56(c) of the Federal Rules of Civil

Procedure impose identical standards using virtually identical

language.   The Supreme Court's decision in Celotex Corp. v.

Catrett, supra, confirms that we may enter a summary judgment in

favor of the moving party where the nonmoving party has the

burden of proof at trial and fails to respond to a summary

judgment motion as required by Rule 121.
                        - 11 -


For the reasons stated and to reflect the foregoing,


                              An appropriate order will

                         be issued, and decision will be

                         entered for respondent.
