                         T.C. Memo. 2001-256



                       UNITED STATES TAX COURT



               TIMOTHY JOHN PATTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5892-00.                 Filed September 28, 2001.


     Timothy John Patton, pro se.

     James R. Turton, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This case is before the Court on

respondent’s motion to dismiss for lack of prosecution pursuant

to Rule 123(b).1   By separate notices of deficiency, respondent



     1
        Unless otherwise indicated, all section references are to
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.
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determined the following deficiencies in and additions to

petitioner’s Federal income taxes:

                                     Additions to Tax
 Year   Deficiency     Sec. 6651(a)(1) Sec. 6651(a)(2)     Sec. 6654

 1996    $68,588          $15,087             $16,763        $3,559
 1997     21,422            4,708               5,231         1,124

                              Background

     In the notices of deficiency, respondent determined, on the

basis of income reported by third-party payers, that petitioner

failed to report wage income, interest income, capital gains, and

dividend income.     Respondent also determined additions to tax for

failure to timely file, failure to pay, and failure to make

estimated tax payments.

     On May 25, 2000, petitioner invoked the jurisdiction of this

Court by timely filing a petition.       At the time he filed the

petition, petitioner resided in Big Sandy, Texas.

     In the petition, petitioner averred that respondent had

failed to offer a complete, proper, and timely response to his

correspondence, failed to provide documents showing petitioner

“is made liable for any ‘Tax return’”, and failed to correctly

compute the deficiency.    Respondent, in the answer, denied the

assignment of errors alleged by petitioner.

     On December 18, 2000, in response to respondent’s request,

petitioner attended a conference with respondent.       During this

conference, petitioner made it clear that he was aware that the
                                - 3 -

Internal Revenue Code (the Code) required him to file income tax

returns for 1996 and 1997.    Petitioner, however, claimed not to

be bound by the Code.   Petitioner also asserted that he was not

subject to the jurisdiction of this Court.    Petitioner claimed

that during the years in issue he was not a resident of the

District of Columbia, and the Code applies only to residents of

the District of Columbia.    Petitioner refused to discuss his

income and expenses for the years in issue.

     By notice dated August 30, 2000, the Court set this case for

trial at the Court’s Dallas, Texas, session beginning February 5,

2001.   This notice specifically stated:   “YOUR FAILURE TO APPEAR

MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST

YOU.”   Although our standing pretrial order required petitioner

to submit a trial memorandum, he never did so.

     On January 31, 2001, petitioner filed a motion to dismiss

the case on account of newly discovered evidence.    We denied

petitioner’s motion.

     On February 12, 2001, this case was called at the Court’s

trial calendar in Dallas, Texas.    Petitioner did not appear.   At

that time, respondent filed the motion to dismiss for lack of

prosecution pursuant to Rule 123(b).

                             Discussion

I.   Rule 123(b).   Dismissal

     The Court may dismiss a case and enter a decision against a
                                - 4 -

taxpayer for his failure properly to prosecute or to comply with

the Rules of this Court.    Rule 123(b).   Rule 123(b) generally

applies in situations where the taxpayer bears the burden of

proof.

II.   Section 7491.   Burden of Proof and Burden of Production

      When this case was called for trial, respondent represented

that he has the burden of production regarding the additions to

tax because the examination in this case began after July 22,

1998, but claimed that he does not bear the burden of proof on

any issue in this case.    See Internal Revenue Service

Restructuring & Reform Act of 1998, Pub. L. 105-206, sec.

3001(c), 112 Stat. 685, 727 (providing that sec. 7491 is

applicable to court proceedings arising in connection with

examinations commenced after July 22, 1998); sec. 7491(a), (c).

      A.   The Deficiencies

      As a general rule, the taxpayer bears the burden of proving

the Commissioner's deficiency determinations incorrect.     Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).     Section

7491(a), however, provides that if a taxpayer introduces credible

evidence and meets certain other prerequisites, the Commissioner

shall bear the burden of proof with respect to factual issues

relating to the liability of the taxpayer for a tax imposed under

subtitle A or B of the Code.

      Petitioner failed to appear and did not introduce any
                                - 5 -

evidence.    Therefore, we conclude that the burden of proof is not

placed on respondent pursuant to section 7491(a).    Accordingly,

we sustain respondent’s deficiency determinations.

     B.     Additions to Tax

     Section 7491(c) provides that the Commissioner shall bear

the burden of production with respect to the liability of any

individual for additions to tax.   To meet his burden of

production, the Commissioner must come forward with sufficient

evidence indicating that it is appropriate to impose this

addition to tax.2   See Higbee v. Commissioner, 116 T.C. 438, 446

(2001).

     Respondent submitted, and the Court received as evidence,

the declaration of Revenue Agent Dick Laakso, a letter dated

December 26, 2000, from petitioner to the Internal Revenue

Service (IRS), copies of several checks for the years in issue

from Texas College at Tyler payable to petitioner, two personnel

action forms listing petitioner as an assistant professor of

business and the annual salary he received ($35,000 in 1996 and

$36,050 in 1997), petitioner’s Forms W-2, petitioner’s transcript


     2
        We do not decide herein whether the Commissioner could
meet the burden of production if he did not produce any evidence
when the taxpayer failed to appear for trial. For example, it
might be possible for the Commissioner to satisfy the burden of
production under sec. 7491(c) without presenting any evidence if
the answer contained “well-pleaded facts”. Smith v.
Commissioner, 91 T.C. 1049, 1056-1057, 1058-1059 (1988), affd.
926 F.2d 1470 (6th Cir. 1991). We, however, leave that decision
for another day.
                                  - 6 -

of account listing Forms 1099B, 1099S, 1099DIV, and 1099INT

received by the IRS for 1996 and 1997, and several other

documents listing dividends and capital gains received by

petitioner in 1996 and 1997.

     1.     Section 6651(a)(1).   Failure To File

     Section 6651(a)(1) imposes an addition to tax for failure to

file a return on the date prescribed (determined with regard to

any extension of time for filing), unless the taxpayer can

establish that such failure is due to reasonable cause and not

due to willful neglect.    Much of the letter from petitioner to

the IRS, submitted into evidence by respondent, rambled on about

shopworn arguments characteristic of the tax-protester rhetoric

that has been universally rejected by this and other courts.     In

this letter, petitioner stated:     “For the record, I am a nonfiler

for the tax years 1996, 1997 and 1998--the tax years in question.

* * *     I did not file the 1040 Label Form”.   Additionally, under

penalty of perjury, Revenue Agent Laakso swore that respondent’s

records reflect that petitioner failed to file tax returns for

the years in issue.

     On the basis of the evidence, we find as a fact that

petitioner did not file returns for the years in issue.

Petitioner did not present evidence indicating that his failure

to file was due to reasonable cause and not due to willful

neglect.    See Higbee v. Commissioner, supra at 446-447 (stating
                                   - 7 -

that the taxpayer bears the burden of proof regarding reasonable

cause).     Accordingly, on this issue, we sustain respondent’s

determination.

     2.      Section 6651(a)(2).   Failure To Pay

     Section 6651(a)(2) provides for an addition to tax where

payment of tax is not timely “unless it is shown that such

failure is due to reasonable cause and not due to willful

neglect”.     Under penalty of perjury, Revenue Agent Laakso swore

that respondent’s records reflect that petitioner failed to pay

income taxes for the years in issue.

     Based upon the evidence, we find as a fact that petitioner

did not pay his taxes for the years in issue.       Petitioner did not

present evidence indicating that his failure to pay was due to

reasonable cause and not due to willful neglect.      See Higbee v.

Commissioner, supra at 446-447 (stating that the taxpayer bears

the burden of proof regarding reasonable cause).      Accordingly, on

this issue, we sustain respondent’s determination.

     3.      Section 6654.   Failure To Pay Estimated Tax

     Section 6654 imposes an addition to tax for failure to pay

estimated income tax.     Respondent submitted petitioner’s Forms

W-2 and petitioner’s transcript of account listing Forms 1099B,

1099S, 1099DIV, and 1099INT received by the IRS for 1996 and

1997.     The forms indicate that no Federal income tax was

withheld.     On the basis of this evidence and the declaration of
                                   - 8 -

Revenue Agent Laakso, we conclude that respondent has met his

burden of production pursuant to section 7491(c) regarding this

issue.      Thus, petitioner must come forward with evidence

sufficient to persuade the Court that respondent’s determination

is incorrect or that an exception applies.         Rule 142(a); Welch v.

Helvering, 290 U.S. at 115; see Higbee v. Commissioner, supra at

447.

       Petitioner failed to appear and did not introduce any

evidence.      Accordingly, on this issue, we sustain respondent’s

determination.

       C.     Conclusion

       We have sustained all of respondent's determinations.

Therefore, we will dismiss the case and enter a decision against

petitioner.      Rules 123(b), 142(a); Welch v. Helvering, supra at

115.

       To reflect the foregoing,

                                           An appropriate order and

                                   decision will be entered for

                                   respondent.
