                        T.C. Memo. 2008-149



                      UNITED STATES TAX COURT



 ESTATE OF MARY V. ALLISON, DONOR, DECEASED, DANIEL B. ALLISON,
           II, PERSONAL REPRESENTATIVE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent

   ESTATE OF MARY V. ALLISON, DECEASED, DANIEL B. ALLISON, II,
              PERSONAL REPRESENTATIVE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent.



     Docket Nos. 247-00, 714-00.        Filed June 10, 2008.


     Daniel B. Allison, II, for petitioners

     Michael T. Sargent, for respondent.



                        MEMORANDUM OPINION


       HOLMES, Judge:   Mary Allison died in 1995.   Her son,

Daniel Allison, is an attorney and the personal representative of

her estate.   He opened a probate case shortly after her death in

Seattle’s King County Superior Court.    It is still not closed.
                                - 2 -

Mr. Allison also filed two Tax Court cases for the estate in

early 2000.    Neither of them has been closed.   It appears that

Mr. Allison has been telling our Court that resolution of the

probate case is all that’s needed to wrap up the Tax Court cases,

and telling the King County Superior Court that resolution of the

Tax Court cases is all that’s needed to wrap up the probate case.

We issued an order to Mr. Allison to show cause why we shouldn’t

sanction him for his misrepresentations.    This opinion explains

the reasons for our decision to make that order absolute.

                             Background

       The combined records of the probate and tax cases support

the following timeline:


 Year            Tax Court                  Superior Court
1995                                September 7
                                    Mr. Allison opened the
                                    probate case in the King
                                    County Superior Court.

                                    May
1997                                Mr. Allison and his sister
                                    began litigating a dispute
                                    over the administrative
                                    expenses paid from their
                                    mother’s and father’s
                                    estates.

1999                                December 3
                                    Nothing in the docket having
                                    happened in two years, the
                                    Superior Court ordered Mr.
                                    Allison to close his mother’s
                                    estate or file a status
                                    report.
                             - 3 -

2000   January 4
       Mr. Allison filed a
       petition in Tax Court,
       docket number 247-00,
       contesting the IRS’s
       determination of a
       deficiency in gift tax
       owed by his late mother.

                                   January 11
                                   Mr. Allison requested a one-
                                   year continuance in the
                                   probate case while he
                                   resolved the dispute with the
                                   Commissioner.

                                   January 13
                                   The Superior Court granted a
                                   continuance until January 4,
                                   2001. The order listed the
                                   reason for continuance as
                                   “Dispute with IRS.”

       January 18
       Mr. Allison filed a
       second petition in Tax
       Court, docket number
       714-00, challenging the
       IRS’s determination of a
       deficiency in estate tax.
       This case is closely
       related to the gift tax
       case.

       April 26
       Both Tax Court cases were
       put on the October 2000
       Baltimore trial calendar.
                             - 4 -

       September 18
       Mr. Allison and the
       Commissioner jointly
       moved to continue the Tax
       Court cases. Filed with
       the motion was a
       stipulation of agreed
       issues settling “all the
       outstanding issues in the
       two cases with the
       exception of the issues
       of fees and commissions
       on the Federal Estate Tax
       Return.” These issues,
       they explained, “are
       currently the subject of
       litigation between [Mr.
       Allison] and a
       beneficiary.” This
       litigation appears to be
       the probate case still
       pending in the Superior
       Court.

       December 29
       Mr. Allison, a graduate
       of Stanford Law School,
       was admitted to the Tax
       Court bar.



2001                               January 4
                                   The Superior Court again
                                   ordered Mr. Allison to close
                                   the estate or report on its
                                   status.

       May 17
       The Tax Court cases were
       put on the October 2001
       Baltimore trial calendar.
                             - 5 -

                                   July 5
                                   Mr. Allison requested another
                                   continuance of the probate
                                   case, until July 5, 2002,
                                   because the “[e]state [could
                                   not] be closed at [that] time
                                   because of a dispute with the
                                   [IRS].” Mr. Allison then
                                   promised to close the estate
                                   after he resolved the IRS
                                   dispute, not telling Superior
                                   Court of the stipulation of
                                   agreed issues filed in Tax
                                   Court.
                                      The Superior Court
                                   continued the case until
                                   December 20, 2001.

       August 21
       Mr. Allison and the
       Commissioner jointly move
       a second time for a
       continuance, citing the
       unresolved probate case.

                                   December 27
                                   The Superior Court continued
                                   the probate case until July
                                   11, 2002, for good cause
                                   shown.

2002   April 3
       The Tax Court cases were
       put on the September 2002
       Baltimore trial calendar.

       July 19
       Mr. Allison and the
       Commissioner jointly move
       a third time to continue
       the Tax Court cases, Mr.
       Allison having advised
       the Commissioner “that
       the litigation between
       the personal
       representative and a
       beneficiary concerning
       the fees and commissions
       issues [was] still
       pending.”
- 6 -

    September 11
    The Superior Court issued a
    form order to show cause and
    citation for contempt of
    court, but noted that “[Mr.
    Allison] appeared and gave
    good reason why there has not
    been compliance with prior
    court orders,” and continued
    the contempt proceeding until
    November 13, 2002. The court
    also noted that this “[c]ase
    has been on [the] delinquency
    calendar since 12/03/1999 and
    each year [Mr. Allison]
    requests case be continued
    another year due to dispute
    with the IRS. Local agent
    never notified of
    delinquencies, and neither
    was creditor who has
    requested special notice.”

    November 15
    Mr. Allison wrote the
    Superior Court explaining
    that the dispute with the IRS
    was still not resolved. He
    also requested the order to
    show cause be discharged
    because, he claimed, all
    creditors had been paid and
    the dispute with the IRS was
    set on the Tax Court’s trial
    calendar and he expected the
    tax case to be called in
    September or October of 2003.
    (Note that the motion to
    remove the Tax Court cases
    from the trial calendar had
    already been granted and no
    new trial date had yet been
    set.) Mr. Allison also asked
    for a continuance of the
    probate case until December
    1, 2003, saying that he
    couldn’t close the estate
    until he obtained a release
    from the IRS.
                             - 7 -

       December 18
       The Tax Court cases were
       put on the May 2003
       Baltimore trial calendar.

2003   March 20
       Mr. Allison and the
       Commissioner jointly
       moved a fourth time to
       continue the Tax Court
       cases, Mr. Allison having
       advised the Commissioner
       “that the litigation
       between the personal
       representative and a
       beneficiary concerning
       the fees and commissions
       issues is still pending.”
                                   June 7
                                   Mr. Allison wrote a letter to
                                   the Superior Court (labeled
                                   an “Interim Status Report”)
                                   explaining that he couldn’t
                                   close the estate because of
                                   the ongoing IRS dispute. He
                                   also said that the IRS cases
                                   were expected to be called on
                                   the 2004 trial calendar. He
                                   asked the Superior Court to
                                   continue the probate case for
                                   another year without issuing
                                   another order to show cause.

                                   June 16
                                   The Superior Court, stating
                                   that “[Mr. Allison] appeared
                                   and gave good reason why
                                   there has not been compliance
                                   with prior court orders,”
                                   continued the probate case
                                   until July 23, 2003. It also
                                   noted that “[Mr. Allison] is
                                   directed to appoint a non-
                                   corporate entity as resident
                                   agent and to file
                                   documentation from IRS case
                                   in support of request for
                                   continuance.”
                             - 8 -

                                   July 21
                                   Mr. Allison sent another
                                   “Interim Status Report” to
                                   the Superior Court similar to
                                   his June 7, 2003 letter.

       November 24
       The Tax Court cases were
       put on the April 2004
       Baltimore trial calendar.

2004   January 20
       Mr. Allison and the
       Commissioner jointly move
       a fifth time to continue
       the Tax Court cases, Mr.
       Allison having advised
       the Commissioner “that
       the litigation between
       the personal
       representative and a
       beneficiary concerning
       the fees and commissions
       issues [was] still
       pending.”

                                   July 29
                                   Mr. Allison sent another
                                   “Interim Status Report” to
                                   the Superior Court, similar
                                   to the previous reports, and
                                   stated that the Tax Court
                                   cases were “set on the trial
                                   calendar and * * * expected
                                   to be called on the 2005
                                   trial calendar.” He also
                                   wrote that “[a]ll of the
                                   assets of the Estate have
                                   been distributed. All of the
                                   creditors have been paid.”

       August 10
       The Tax Court cases were
       put on the January 2005
       Baltimore trial calendar.
                             - 9 -

       December 2
       Mr. Allison and the
       Commissioner jointly
       moved a sixth time to
       continue the Tax Court
       cases, Mr. Allison having
       advised the Commissioner
       “that the litigation
       between the personal
       representative and a
       beneficiary concerning
       the fees and commissions
       issues [was] still
       pending.” We granted the
       motion, but put the cases
       on a status-report track
       and ordered them not
       returned to the general
       docket. Mr. Allison did
       not inform the
       Commissioner or the Court
       that he had distributed
       all the estate’s assets
       and paid all its
       creditors.

2005   February 17
       Mr. Allison filed a
       status report with the
       Tax Court and gave the
       same reasons for
       continuing the cases as
       contained in the
       previously filed joint
       motions, adding that the
       probate case was “not set
       for trial this year and
       that the probability of
       settlement before trial
       is very low.”

       February 22
       The Tax Court ordered the
       parties to submit a
       status report with
       information allowing Tax
       Court to track the
       progress of the probate
       case over the internet.
                      - 10 -

May 17
Mr. Allison wrote to the
Tax Court that the
Superior Court had not
yet scheduled a trial
date for the probate
case. He failed to
mention that this was a
result of his own
repeated motions and
reports to the Superior
Court.

                           August 12
                           The Superior Court ordered
                           Mr. Allison to appear on
                           November 9, 2005, and to show
                           cause why he shouldn’t be
                           held in contempt. The order
                           also stated that Mr. Allison
                           “shall produce documenting
                           evidence of IRS dispute prior
                           to hearing, in order to
                           receive continuance. Failure
                           to do so shall result in
                           closure of estate.”

                           November 14
                           The Superior Court issued a
                           form order to show cause and
                           a citation for contempt of
                           court, stating that “[Mr.
                           Allison] appeared and gave
                           good reason why there has not
                           been compliance with prior
                           court orders.” The court
                           then continued the contempt
                           proceeding until November 8,
                           2006. The court also noted
                           that the “Estate has two
                           actions against IRS
                           proceeding in US Tax Court.”
                           It is unclear what
                           documentation, if any, Mr.
                           Allison provided to the
                           Superior Court or how he
                           explained the lack of
                           progress in the Tax Court
                           cases.
                             - 11 -

       December 7
       The Tax Court issued to
       Mr. Allison an order to
       show cause, requiring him
       to set a trial date in
       the probate case or face
       dismissal of the Tax
       Court cases.

                                   June 14
2006                               Mr. Allison told the Superior
                                   Court that the issue
                                   regarding administrative
                                   expenses had to be resolved
                                   and asked for a trial date.

       July 17
       Mr. Allison filed a
       supplemental response to
       the Tax Court stating
       that the Superior Court
       had set a trial date for
       October 8, 2007.

       December 19
       Mr. Allison failed to
       file a status report with
       the Tax Court, and we
       ordered him to submit
       certified copies of all
       papers filed after July
       1, 2006, in the Superior
       Court.

       January 9
2007   Mr. Allison failed to
       provide the copies,
       promising to do so when
       the Superior Court
       responded to his request.

       March 1
       We ordered Mr. Allison to
       submit the certified
       copies previously
       requested and not yet
       produced.
                             - 12 -

       March 9
       Instead of submitting the
       copies, Mr. Allison filed
       a status report stating
       that his adversary in the
       probate case changed
       lawyers, and the new
       lawyer needed time to
       review the case
       documents. Also, Mr.
       Allison said that the
       burden of producing all
       the requested
       documentation was too
       heavy because the file
       was large. Mr. Allison
       attached a few certified
       copies from the probate
       case.

       April 6
       We ordered the
       Commissioner to produce
       the requested documents.

       April 23
       The Commissioner did so.

                                   July 2
                                   Mr. Allison successfully
                                   moved for continuance of the
                                   Superior Court trial date
                                   from October 2007 to February
                                   4, 2008.

                                   January 10
2008                               Mr. Allison successfully
                                   moved for continuance of the
                                   Superior Court trial date
                                   from February 4, 2008, to
                                   May 12, 2008.
       March 7
       We issued an order to
       show cause why we should
       not sanction Mr. Allison
       for his conduct and
       ordering Mr. Allison to
       appear before this Court
       on April 2.
                                - 13 -

         April 2
         We held a hearing
         regarding the order but
         Mr. Allison didn’t show
         up.

                                     May 1
                                     Mr. Allison successfully
                                     moved for continuance of the
                                     Superior Court trial date
                                     from May 12, 2008 to
                                     September 15, 2008.


     We must now decide whether to sanction Mr. Allison.

                              Discussion

     From the comparison of the documents filed with this Court

and with the King County Superior Court, we believe that Mr.

Allison is taking advantage of the calendar system of both courts

to indefinitely postpone the resolution of the probate case and

the Tax Court cases.    We find that he deliberately and repeatedly

told each court that the other matter had to be resolved first,

and in doing so, he has misled and misinformed this Court.

     Section 66731 says in part:

           SEC. 6673    (a). Tax Court Proceedings.--

                (1) Procedures instituted primarily for
                delay, etc.--Whenever it appears to the Tax
                Court that--

                       (A) proceedings before it have been
                       instituted or maintained by the taxpayer


     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code.
                                    - 14 -

                         primarily for delay, the Tax Court, in
                         its decision, may require the taxpayer
                         to pay to the United States a penalty
                         not in excess of $25,000.

                    *      *    *     *      *     *      *

               (2) Counsel’s liability for excessive
               costs.--Whenever it appears to the Tax Court
               that any attorney or other person admitted to
               practice before the Tax Court has multiplied
               the proceedings in any case unreasonably and
               vexatiously, the Tax Court may require--

                         (A) that such attorney or other person
                         pay personally the excess costs,
                         expenses, and attorneys’ fees reasonably
                         incurred because of such conduct * * *

This penalty is used to “sanction and deter the use of false

documents and testimony and to protect the integrity of our

proceedings from intentional misconduct.”              Bagby v. Commissioner,

102 T.C. 596, 615 (1994).

     Section 6673(a)(1) permits us to impose sanctions against

the taxpayer--the estate in this case.           In Williams v.

Commissioner, 119 T.C. 276 (2002), an individual income tax case

brought by a pro se petitioner, we imposed a $25,000 sanction

under section 6673 after we found that the taxpayer had

intentionally delayed the case by serially filing bad faith

bankruptcy cases (and even forging what looked like bankruptcy

court documents).       We later discovered that he was allowing the

bankruptcy cases to linger just long enough to invoke the

automatic stay to delay trial in this Court.             This outrageous

behavior also prompted us to punish his dishonesty with an
                                - 15 -

additional $5,000 penalty for criminal contempt under section

7456.     Id. at 282-83.

        In this case, though, we think it more appropriate to

sanction Mr. Allison personally in his role as the estate’s

attorney, so that any other beneficiaries of the estate don’t

suffer for his actions.     Section 6673(a)(2)(A) gives us the power

to make Mr. Allison himself pay any fees or excessive costs that

the Commissioner has incurred as a result of his bad behavior--

actions which have “multiplied the proceedings * * * unreasonably

and vexatiously.”

        Mr. Allison repeatedly requested continuances from this

Court, telling us that he was pursuing the probate case

diligently while repeatedly telling the probate court that he was

moving forward in the Tax Court cases.     He also has failed on

many occasions to timely satisfy this Court’s requests and

orders.     His failure to submit information regarding the status

of the probate case that we requested in 2005 is especially

notable, since it would likely have helped us catch his serial

misrepresentations sooner.

        Mr. Allison’s education and legal experience, not to mention

his admission to the Tax Court bar, underscore the egregiousness

of his conduct.     The issues in both cases before us are fairly

simple and should have been resolved long ago.     Instead, the

cases before us have dragged on for over eight years, and the
                              - 16 -

probate case has lingered for more than a decade.   We therefore

find that he used procedures of our Court primarily for delay,

and in doing so was repeatedly dishonest.   Mr. Allison’s

persistence in the face of warnings from both courts thus

warrants a penalty under section 6673(a)(2).   That section

requires a determination of the costs imposed on the

Commissioner, and we will order the Commissioner to file evidence

of what those costs were.

     Because Mr. Allison is an attorney currently admitted to

practice before the Tax Court, other sanctions may be

appropriate.   We will also send this opinion (and the order to

show cause dated March 7, 2008) to the King County Superior Court

for their consideration in In re Estate of Allison, No. 95-4-

03740-0.

                                    An appropriate order will be

                               issued.
