                  T.C. Memo. 1997-548



                UNITED STATES TAX COURT



              LARRY BROWN, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 13623-96.                Filed December 11, 1997.



     R moved for partial summary judgment on an issue
informally raised by P during an IRS Appeals Office
conference as to whether the period of limitations for
assessment had expired as a result of R's alleged
failure to honor an election by P's partnership for
treatment under the unified audit provisions of secs.
6221 through 6233, I.R.C. R also moved to impose
sanctions under Rule 104(c), Tax Court Rules of
Practice and Procedure, including dismissal, for P's
ongoing noncompliance with a discovery order of the
Court. P filed oppositions to both of R's motions.

     1. Held: R's motion for partial summary judgment
granted. Rule 121(b), Tax Court Rules of Practice and
Procedure.
                                 - 2 -


          2. Held, further, R's motion to impose sanctions
     granted; this case will be dismissed; and decision will
     be entered against P for deficiencies and accuracy-
     related penalties under sec. 6662(a), I.R.C., in the
     amounts determined by R for the taxable years 1992 and
     1993. Rule 104(c)(3), Tax Court Rules of Practice and
     Procedure.



     Larry Brown, pro se.

     William J. Gregg, for respondent.


                          MEMORANDUM OPINION

     NIMS, Judge:   This matter is before the Court on (1)

respondent's motion for partial summary judgment under Rule 121;

and (2) respondent's motion to impose sanctions under Rule

104(c), including dismissal of this case.

     Unless otherwise indicated, all section references are to

sections of the Internal Revenue Code in effect for the years in

issue, and all Rule references are to the Tax Court Rules of

Practice and Procedure.

     Respondent determined the following deficiencies and

accuracy-related penalties with respect to the Federal income tax

of Larry Brown (petitioner) and Elizabeth R. Brown (Elizabeth)

for the taxable years 1992 and 1993:

                                                Penalties
          Year              Deficiency         Sec. 6662(a)

          1992              $89,372            $17,874
          1993               48,028              9,606
                               - 3 -

     By Order dated October 15, 1996, the Court granted

respondent's Motion to Dismiss for Lack of Jurisdiction as to

Elizabeth R. Brown and to Change Caption on the ground that the

petition as to her was invalid because it was filed during the

automatic bankruptcy stay of 11 U.S.C. section 362(a) (1994).

See McClamma v. Commissioner, 76 T.C. 754 (1981).

     The issues for decision are as follows:   (1) Whether a valid

notice of deficiency was issued prior to the expiration of the

applicable period of limitations for assessment; and (2) whether

sanctions under section 104(c) should be imposed against

petitioner for his failure to comply with a discovery order of

this Court.

     Petitioner resided in Upper Marlboro, Maryland, at the time

he filed his petition.

                            Background

     The background facts related below are taken from the record

and the unobjected to written representations of the respective

parties, except where noted.

     Petitioner and Elizabeth filed joint Forms 1040, U.S.

Individual Income Tax Return, for the taxable years 1992 and 1993

on April 20, 1993, and May 2, 1994, respectively.

     Petitioner was the sole general partner of Brown's Capital

Properties II limited partnership (Partnership) during the years

in dispute.   A review of the Schedules K-1 attached to the Form

1065 filed by the Partnership for taxable year 1992 reveals that
                               - 4 -

the following natural persons were partners of the Partnership

during that year:

          1.   Larry and Elizabeth Brown (husband and wife);
          2.   Barbara S. Jackson;
          3.   Rufus and Annette Johnson (husband and wife);
          4.   Irma Green;
          5.   Martha J. and Eddie E. Huggins (husband and wife);
          6.   Benjamin and Lauretta Grant (husband and wife); and
          7.   Jerome and Vernell Richardson (husband and wife).

     A review of the Schedules K-1 attached to the Form 1065

filed by the Partnership for taxable year 1993 reveals that the

following natural persons were partners of the Partnership during

that year:

          1.   Larry Brown;
          2.   Barbara S. Jackson;
          3.   Rufus Johnson;
          4.   Irma Green;
          5.   Martha J. and Eddie E. Huggins (husband and wife);
          6.   Benjamin Grant;
          7.   Jerome Richardson; and
          8.   Patricia O. Shellmen.

     The Tax Matters Partner answered "Yes" in response to the

question in Schedule B, Other Information, line 6 of the 1992

Form 1065 "Does this partnership have any foreign partners?".

However, all of the partners of the Partnership in 1992 checked

"domestic" in response to the question "Is this partner a

domestic or a foreign partner?" on line D of their respective

Schedules K-1.   On the 1993 Form 1065 filed by the Partnership,

the Tax Matters Partner answered "No" in response to the question
                               - 5 -

in Schedule B, Other Information, line 6, "Does this partnership

have any foreign partners?".   We conclude that the Partnership

had no foreign partners for either year.

     The only partnership items reported on the Forms 1065 filed

in 1992 and 1993 were losses of the Partnership in the amounts of

$359,285.96 and $416,000, respectively.

     Respondent issued a notice of deficiency to petitioner and

Elizabeth on March 20, 1996, for their 1992 and 1993 taxable

years.   The principal adjustments to income as determined by

respondent in the notice of deficiency represent adjustments to

petitioner's allocable share of income from the Partnership in

1992 and 1993 in the amounts of $293,577 and $107,297,

respectively, and the inclusion in income of certain guaranteed

payments in 1992 and 1993 of $55,286 and $56,000, respectively,

all of which stemmed from respondent's disallowance of losses

attributable to the Partnership for those years during a related

partnership examination.   Other adjustments to income were

computational in nature.   In addition, respondent determined that

petitioner and Elizabeth were liable for accuracy-related

penalties for 1992 and 1993 pursuant to section 6662(a).

     Petitioner filed his petition on June 27, 1996.   On December

19, 1996, the Court issued a Notice Setting Case for Trial in

Washington, D.C. on May 19, 1997; attached thereto was a Standing

Pre-trial Order.   The Notice states "YOUR FAILURE TO COOPERATE

MAY * * * RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION
                               - 6 -

AGAINST YOU."   The Pre-trial Order similarly states that "If any

unexcused failure to comply with this Order adversely affects the

timing or conduct of the trial, the Court may impose appropriate

sanctions, including dismissal, to prevent prejudice to the other

party or imposition on the Court."

     On February 6, 1997, respondent sent a letter to petitioner,

inviting him to a conference on February 12, 1997, at

respondent's office.   Respondent also informally requested that

petitioner produce certain documents pursuant to Rule 70(a)(1)

and to stipulate to the fullest extent possible to all matters

relevant to the pending case pursuant to Rule 91(a).    Petitioner,

however, failed to attend the conference scheduled for February

12, 1997, failed to furnish respondent with the requested

documents, and failed to contact respondent for the purpose of

scheduling another meeting.

     On February 18, 1997, after attempts to attain the

objectives of formal discovery through informal requests proved

fruitless, respondent served upon petitioner an 11-paragraph

interrogatory request, a 10-paragraph document request, and a 10-

paragraph request for admissions, pursuant to Rules 71, 72, and

90, respectively.   These discovery requests sought various

documents and information pertaining to the issues at dispute in

this case.

     On March 17, 1997, respondent mailed a letter to petitioner

inquiring about the status of respondent's formal discovery
                                - 7 -

requests.   Respondent stated therein that "If we do not receive

timely replies to * * * [the interrogatories and request for

production of documents] then our office will request the Court

to impose the appropriate sanctions * * * for your failure to

respond."   Despite this admonition, respondent received no reply

from petitioner.

     On March 20, 1997, petitioner filed a timely though

generally uninformative response to respondent's request for

admissions.   Petitioner admitted that he was the general partner

of the Partnership and that the Partnership had filed Forms 1065,

U.S. Partnership Return of Income, for the taxable years 1992 and

1993, but responded "No" to all other paragraphs of respondent's

request for admissions.    In particular, these laconic responses

of "No" included petitioner's responses to paragraphs 9 and 10,

which stated that, for 1992 and 1993, the Partnership "did not

file the statement required by Treas. Reg. 301.6231(a)(1)-1T(b)

to elect treatment under the provisions of Subtitle F, Chapter

63, Subchapter C * * * of the Internal Revenue Code."

     On April 2, 1997, respondent's counsel contacted petitioner

by telephone regarding the status of respondent's outstanding

formal discovery requests.   Petitioner alleged that he was in the

process of responding but did not specify when he would supply

the requested documents.   Shortly thereafter, pursuant to Rules

72(b) and 104(b), respondent moved for an order compelling

petitioner to produce the documents sought and to answer
                                - 8 -

respondent's interrogatories or for an order imposing sanctions.

     On April 9, 1997, the Court granted both of respondent's

motions to compel.   We ordered petitioner to answer each

interrogatory and to produce the requested documents on or before

April 28, 1997, or to file with the Court a reply to the order

stating adequate reasons for failure to comply with respondent's

requests in whole or in part.

     On April 30, 1997, petitioner filed a Response to Order

Compelling Responses to Respondent's Interrogatories and Motion

to Compel Production of Documents in which he sought modification

of the Court's April 9, 1997, order.    Petitioner claimed therein

that he had "no notice of a claim or assessment from the IRS to

date for Brown's Capital Properties II Limited Partnership" and

that all books and records of the Partnership were in the custody

of the Partnership's trustee in bankruptcy.

     On May 19, 1997, at calendar call, an attorney, Thomas J.

Mattingly, was specially recognized to represent petitioner

pending Mattingly's application for admission to the Tax Court

bar and his filing of an entry of appearance in this case.    At

that time petitioner filed a Motion for Continuance on account of

surgery Mattingly was scheduled to undergo later that week.    The

Court orally stated that it would grant petitioner's motion over

respondent's objection.   In so doing, however, the Court warned

petitioner that "I'm going to give petitioner a break, but it

will be the last one. * * *   So get your records together * * *
                                - 9 -

You won't get another chance to come in and ask for a

continuance."    The case was subsequently calendared for trial at

the session scheduled to commence on October 14, 1997, in

Washington, D.C.   To date, Mattingly has neither entered an

appearance in this case, nor applied for admission to the Tax

Court bar.

     On June 10, 1997, respondent's counsel mailed a letter to

petitioner to ascertain the status of petitioner's trial

preparation for this case.   No reply to this letter was received

by respondent.   On July 21, 1997, respondent's counsel attempted

to contact petitioner by telephone to inquire about respondent's

still outstanding formal discovery requests.   Respondent's

counsel left a message on the telephone answering machine at the

telephone number listed on the petition.

     On July 22, 1997, respondent's counsel spoke to petitioner

by telephone, during which conversation petitioner indicated that

he would send a letter to respondent's counsel and the Court

concerning this case.   No such letter was received by either

respondent or the Court.   On August 21, 1997, respondent's

counsel called petitioner yet again to inquire about respondent's

unanswered formal discovery requests.   Respondent's counsel left

a message on the answering machine at the telephone number listed

on the petition.

     On August 25, 1997, respondent filed a Motion to Impose

Sanctions under Rule 104(c) (Motion for Sanctions) for
                              - 10 -

petitioner's failure to comply with this Court's discovery order

of April 9, 1997.   Respondent requested that the following

sanctions be imposed by the Court:     (1) That this action be

dismissed; (2) that the issues to which respondent's discovery

requests pertain be taken as established as set forth in the

notice of deficiency; (3) that all answers covered by

respondent's request which petitioner should have made available

in response to respondent's interrogatories be excluded from

evidence in this case; (4) that all documents covered by

respondent's request which petitioner should have made available

in response to respondent's request be excluded from evidence;

and (5) that the Court grant such other relief as it may deem

proper.

     Respondent also filed a Motion for Partial Summary Judgment

(Summary Judgment Motion) with accompanying memorandum of law and

declaration in support thereof pursuant to Rule 121(b) on August

25, 1997, on the issue (informally raised by petitioner during an

IRS Appeals Office conference but not raised by petitioner in

this proceeding) whether the 3-year period of limitations for

assessment has expired because the Partnership allegedly elected

treatment under the unified audit provisions of Subtitle F,

Chapter 63, Subchapter C, secs. 6221 through 6233, for taxable

years 1992 and 1993, and respondent did not honor such election.

     By Order dated August 26, 1997, the Court ordered that

petitioner respond, on or before September 10, 1997, to
                             - 11 -

respondent's Motion for Sanctions and Summary Judgment Motion.

The Court further ordered that action on the aforementioned

motions would be held in abeyance until after that date.

     On September 11, 1997, petitioner filed his Opposition to

Motion for Sanctions, in which he stated that "Petitioner shall

respond in full to Respondent's Interrogatories and Request for

Production in the next three (3) days" and sought to justify his

dilatoriness by referring to the illness of his wife.   As noted

above, respondent's interrogatories and document request had been

served almost 7 months earlier--on February 18, 1997, and we

granted respondent's Motion to Compel Responses to Respondent's

Interrogatories and Motion to Compel Production of Documents over

5 months earlier--on April 9, 1997.

     Petitioner also filed his Opposition to Motion for Partial

Summary Judgment on September 11, 1997, on the ground that the

Partnership did not fall within the small partnership exception

to the unified audit provisions of sections 6221 through 6233

and, since respondent failed to issue a Notice of Final

Partnership Administrative Adjustment (FPAA) pursuant to section

6223, the 3-year period of limitations for assessment set forth

in section 6229(a) has expired.

     By Order dated September 12, 1997, this case was struck from

the October 14, 1997, calendar and reassigned to Judge Arthur L.

Nims, III.
                             - 12 -

                           Discussion

     As the issue concerns the Court's jurisdiction over this

case, we first consider respondent's Summary Judgment Motion

pursuant to Rule 121(b) with respect to whether the 3-year period

of limitations for assessment has expired because the Partnership

allegedly elected treatment under the unified audit provisions of

sections 6221 through 6233 for the taxable years 1992 and 1993

and respondent did not honor such election.   Respondent states in

the Summary Judgment Motion that this issue was raised informally

by petitioner during the local Appeals Office consideration of

this case.

     Summary judgment or partial summary judgment may be granted

if the pleadings and other materials demonstrate that no genuine

issue exists as to any of the material facts and that a decision

may be rendered as a matter of law.   Rule 121(b); Sundstrand

Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965

(7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).   The moving

party bears the burden of proving that there is no genuine issue

of material fact, and factual inferences will be read in a manner

most favorable to the party opposing summary judgment.   Dahlstrom

v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.

Commissioner, 79 T.C. 340, 344 (1982).
                              - 13 -

     We are satisfied that no genuine issue exists as to any of

the material facts.   Summary adjudication is therefore

appropriate in this case.

     Section 6231(a)(1)(B) provides as follows:

     (B)   Exception For Small Partnerships.--

          (i) In general.--The term "partnership" shall not
     include any partnership if--

          (I) such partnership has 10 or fewer partners each
     of whom is a natural person (other than a nonresident
     alien) or an estate, and

          (II) each partner's share of each partnership item
     is the same as his share of every other item.

     For purposes of the preceding sentence, a husband and
     wife (and their estates) shall be treated as 1 partner.

          (ii) Election to have subchapter apply.--A
     partnership (within the meaning of subparagraph (A))
     may for any taxable year elect to have clause (i) not
     apply. Such election shall apply for such taxable year
     and all subsequent taxable years unless revoked with
     the consent of the Secretary.

     Section 301.6231(a)(1)-1T(b)(2), Temporary Proced. & Admin.

Regs., 52 Fed. Reg. 6790 (Mar. 5, 1987), provides as follows:

          (2) Method of election. A partnership shall make
     the election described in * * * [section
     6231(a)(1)(B)(ii)] by attaching a statement to the
     partnership return for the first taxable year for which
     the election is to be effective. The statement shall
     be identified as an election under section
     6231(a)(1)(B)(ii), shall be signed by all persons who
     were partners of that partnership at any time during
     the partnership taxable year to which the return
     relates, and shall be filed at the time * * * and place
     prescribed for filing the partnership return. * * *
                              - 14 -

     As previously noted, in his response to respondent's request

for admissions, petitioner replied "No" to paragraphs 9 and 10,

which stated that, for 1992 and 1993, the Partnership "did not

file the statement required by Treas. Reg. 301.6231(a)(1)-1T(b)

to elect treatment under the provisions of Subtitle F, Chapter

63, Subchapter C (I.R.C. sec. 6221 et al.) of the Internal

Revenue Code."   However, it is apparent from the record that the

election contemplated by the above regulation was not filed for

1992 or 1993, and petitioner does not contend otherwise in his

"Opposition to Motion for Partial Summary Judgment" (Opposition).

Rather, petitioner argues in his Opposition that "the partnership

had no need to make a special, separately-signed unanimous

election to * * * apply the consolidated audit and notice

provisions" for 1992 and 1993 because, for various reasons, the

Partnership did not fall within the small partnership exception

of section 6231(a)(1)(B) during those years.

     In response to petitioner's argument, upon our examination

of the record, including the Forms 1065 for 1992 and 1993 and

Schedules K-1 attached thereto, we are convinced that the

Partnership was indeed a small partnership within the meaning of

section 6231(a)(1)(B) in those years.   In 1992 and 1993, the

Partnership consisted of 10 or fewer partners based on the

counting rule of section 6231(a)(1)(B)(i), which provides that a

husband and wife (and their estates) shall be treated as 1
                              - 15 -

partner for purposes of that section.   Moreover, we have found

that each of the partners was a natural person and none was a

nonresident alien during the relevant years.   Sec.

6231(a)(1)(B)(i)(I).

     In addition, the "same share" requirement of section

6231(a)(1)(B)(i)(II) was met, inasmuch as the Partnership

reported only one partnership item (partnership loss) on its

returns for 1992 and 1993.   See Harrell v. Commissioner, 91 T.C.

242, 246-247 (1988); Z-Tron Computer Program v. Commissioner, 91

T.C. 258, 262 (1988); Schwartz v. Commissioner, T.C. Memo. 1996-

88; sec. 301.6231(a)(1)-1T(a)(3), Temporary Proced. & Admin.

Regs., 52 Fed. Reg. 6790 (Mar. 5, 1987).

     Since the Partnership was a small partnership within the

meaning of section 6231(a)(1)(B) and an election comporting with

the prescriptions of section 301.6231(a)(1)-1T(b)(2), Temporary

Proced. & Admin. Regs., was not made, respondent was not required

to issue an FPAA.   Accordingly, we conclude that a valid notice

of deficiency was issued within 3 years of the time of filing of

petitioner's Forms 1040 for 1992 and 1993.   Sec. 6501(a).   An

order will therefore be issued granting respondent's Summary

Judgment Motion.

     We next address respondent's motion to impose Rule 104(c)

sanctions, including dismissal, against petitioner for his
                             - 16 -

failure to comply with the Court's April 9, 1997, discovery

order.

     Rule 104(c) provides as follows:

          (c) Sanctions: If a party or an officer,
     director, or managing agent of a party or a person
     designated in accordance with Rule 74(b), 75(c), or
     81(c) fails to obey an order made by the Court with
     respect to the provisions of Rule 71, 72, 73, 74, 75,
     76, 81, 82, 83, 84, or 90, then the Court may make such
     orders as to the failure as are just, and among others
     the following:

               (1) An order that the matter regarding which
          the order was made or any other designated facts
          shall be taken to be established for the purposes
          of the case in accordance with the claim of the
          party obtaining the order.

               (2) An order refusing to allow the
          disobedient party to support or oppose designated
          claims or defenses, or prohibiting such party from
          introducing designated matters in evidence.

               (3) An order striking out pleadings or parts
          thereof, or staying further proceedings until the
          order is obeyed, or dismissing the case or any
          part thereof, or rendering a judgment by default
          against the disobedient party.

               (4) In lieu of the foregoing orders or in
          addition thereto, the Court may treat as a
          contempt of the Court the failure to obey any such
          order, and the Court may also require the party
          failing to obey the order * * * to pay the
          reasonable expenses, including counsel's fees,
          caused by the failure * * *

     Our Rule 104(c) is based upon rule 37(b)(2) of the Federal

Rules of Civil Procedure (FRCP).   Dusha v. Commissioner, 82 T.C.

592, 598 (1984); Note to Rule 104(c), 60 T.C. 1124 (1973).     Rule

104(c) and FRCP 37(b)(2) prescribe various sanctions for a
                              - 17 -

party's failure to comply with a court's discovery orders.    In

interpreting and applying this Court's discovery rules, we

normally look for guidance to court decisions interpreting their

counterparts in the FRCP.   See Rosenfeld v. Commissioner, 82 T.C.

105, 116-117, 120 (1984); Owens-Illinois, Inc. v. Commissioner,

76 T.C. 493, 495-496 (1981); Zaentz v. Commissioner, 73 T.C. 469,

473-474 (1979).

     Under FRCP 37(b)(2), once it has been shown that a party has

not complied with a court's discovery order, sanctions are

appropriate.   Societe Internationale v. Rogers, 357 U.S. 197,

206-208 (1958).   However, inasmuch as dismissal is one of the

most severe sanctions available under FRCP 37(b)(2), it is

reserved for the most egregious cases where a party's conduct

clearly warrants it.   See, e.g., Marshall v. Segona, 621 F.2d

763, 767-768 (5th Cir. 1980); Jones v. Louisiana State Bar

Association, 602 F.2d 94, 97 (5th Cir. 1979); see also Dusha v.

Commissioner, supra at 605.

     In Societe Internationale v. Rogers, supra, the Supreme

Court construed FRCP 37(b)(2).   Because of due process concerns,

the Supreme Court held that dismissal was improper where the

party's failure to comply was "due to inability, and not to

willfulness, bad faith, or any fault of * * * [the party]."      Id.

at 212.   However, if willfulness, bad faith, or other fault is

present, dismissal may be appropriate even though there has been
                               - 18 -

a partial response to a court's discovery order.    See National

Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639

(1976); see also Dusha v. Commissioner, supra at 604 ("If the

standard of Societe Internationale is met * * *, token minimal

compliance will not bar the sanction of dismissal.")

     The United States Court of Appeals for the Fourth Circuit,

to which the dismissal of this case would be appealable, barring

agreement to the contrary, has formulated prerequisites for

dismissal of a case under Rule 104(c)(3).

     According to the Court of Appeals for the Fourth Circuit, a

court must consider a list of four factors: (1) Whether the

noncomplying party acted in bad faith; (2) the amount of

prejudice the noncompliance caused the adversary; (3) the need

for deterring the particular type of noncompliance; and (4) the

efficacy of less drastic sanctions.     Hillig v. Commissioner, 916

F.2d 171, 174 (4th Cir. 1990), vacating T.C. Memo. 1989-476;

Mutual Fed. Sav. & Loan Association v. Richards & Associates, 872

F.2d 88, 92 (4th Cir. 1989).

     First, we are convinced that petitioner has acted willfully

and in bad faith by his noncompliance and misrepresentations to

the Court.   Cf. Hillig v. Commissioner, supra at 174-175.     Our

Rules of Practice and Procedure and our orders mean exactly what

they say, and we intend that they be heeded.    Rosenfeld v.

Commissioner, supra at 111; Odend'hal v. Commissioner, 75 T.C.
                               - 19 -

400, 404 (1980); Branerton Corp. v. Commissioner, 61 T.C. 691,

692 (1974).    Although given ample opportunity to comply with our

rules and an order of this Court, petitioner has not done so, and

we descry no valid reason in the record to explain his

noncompliance.   He has essentially ignored and defied our order

of April 9, 1997, and by such action, has shown unremitting

disrespect for our rules and an order of this Court.

     What we are confronted with here is not an isolated instance

of noncompliance but a pattern of deliberate dilatory behavior.

See Mutual Fed. Sav. & Loan Association v. Richards & Associates,

supra at 93.   In that connection we note that from the start

petitioner failed to cooperate with respondent's informal

discovery, the "bedrock" of practice before this Court.

Branerton v. Commissioner, supra at 692.    Petitioner then failed,

in violation of Rules 71 and 72, to respond to the formal

discovery requests served by respondent.   Finally, petitioner

disregarded the terms of the Court's April 9, 1997, order.

Petitioner's pattern of noncompliance follows on the heels of our

unequivocal warnings that the Court might impose sanctions,

including dismissal, if petitioner failed to cooperate.

     Second, we conclude that respondent has suffered substantial

prejudice as a result of petitioner's misconduct insofar as the

information and documents requested were indispensable to the

substantive issue regarding Partnership losses at dispute in this
                                - 20 -

case.     See Mutual Fed. Sav. & Loan Association v. Richards &

Associates, supra at 93.     Petitioner's failure to comply with

this Court's order doubtless significantly impeded respondent's

preparations for a proper trial.

        Third, we think that the sanction of dismissal is warranted

not merely to prevent prejudice to respondent, but also to deter

those who might be tempted, in the future, to engage in similar

conduct.     See National Hockey League v. Metropolitan Hockey Club,

Inc., 427 U.S. at 643.     Petitioner's actions, if left unchecked,

would undermine the Court's ability to control the litigation

before it.

        Finally, we have considered whether, under these

circumstances, alternative sanctions of a nature less severe than

dismissal are appropriate.     We do not believe that they are.

Petitioner's intractability makes it unlikely that imposing any

lesser sanction would alter his behavior.     See Harper v.

Commissioner, 99 T.C. 533, 542 (1992) (Rule 123(b)).       Moreover,

any lesser sanction would require the Court to set this matter

once again for trial and would, in effect, grant petitioner a

continuance, which, at the calendar call on May 19, 1977, we

expressly stated we would not permit.     Such a result would reward

petitioner for his recalcitrance and obduracy.     Furthermore,

respondent's position on the substantive issue in this case is

that disallowed Partnership losses necessitate corresponding
                              - 21 -

adjustments to petitioner's income.    If we were to deem that

matter established as set forth in the notice of deficiency for

purposes of this case, as contemplated by Rule 104(c)(1), then

respondent would prevail.   Similarly, if we were to issue an

order refusing to allow petitioner to oppose respondent's claims

on that point, or prohibiting petitioner from introducing

evidence requested by respondent, as contemplated by Rule

104(c)(2), then respondent would also prevail.    See Geodesco v.

Commissioner, T.C. Memo. 1990-637.     Finally, we do not believe

that economic sanctions prescribed by Rule 104(c)(4) are

sufficient inasmuch as the stark prospect of dismissal and entry

of decision against petitioner has not heretofore deterred

petitioner's pertinacious conduct.

     We note that, unlike Hillig v. Commissioner, supra at 174,

dismissal of this case would not unjustly penalize a blameless

client for the culpable behavior of his attorney.    Moreover,

while the record therein was redolent of "sloppiness and a lack

of communication" and did not support a conclusion that the delay

was deliberate, the facts of the instant matter are irrefragably

to the contrary.   Id.

     In his response to our order granting respondent's motions

to compel, petitioner asserts that he could not comply with

respondent's discovery requests because all books and records of

the Partnership were held by its trustee in bankruptcy.
                              - 22 -

Petitioner's bankruptcy petition under Chapter 13 of the United

States Bankruptcy Code was dismissed with prejudice by the

Bankruptcy Court on May 16, 1996, approximately 7 months before

Notice of Trial (December 19, 1996), and approximately one year

before the trial date (May 19, 1997).   But petitioner has made no

showing of any attempt on his part to retrieve the Partnership

records, so his lack of records, if such is indeed the case, is

of his own doing and cannot serve as an excuse to justify the

predicament in which he now claims to find himself.

     In light of the foregoing, we shall grant respondent's

motion to impose sanctions under Rule 104(c).   We conclude that

dismissal of this case for failure to heed a specific discovery

order of this Court, although a harsh sanction, is nonetheless

appropriate under Rule 104(c)(3), and we so hold.   See, e.g.,

Miller v. Commissioner, 741 F.2d 198 (8th Cir. 1984), affg. per

curiam an order of dismissal and decision of this Court;

Steinbrecher v. Commissioner, 712 F.2d 195 (5th Cir. 1983), affg.

T.C. Memo. 1983-12.   A decision will be entered which provides

that there are due from petitioner deficiencies in income tax and

accuracy-related penalties under section 6662(a) in the amounts

determined by respondent for the taxable years 1992 and 1993.

     To reflect the foregoing,

                                    An appropriate order
- 23 -

and order of dismissal and

decision will be entered.
