                         T.C. Memo. 1997-555



                       UNITED STATES TAX COURT



                   LLOYD D. SHEPHERD, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23963-96.                  Filed December 22, 1997.



     Timothy Patrick Assaf, for petitioner.

     Russell D. Pinkerton and Peter Reilly, for respondent.


                          MEMORANDUM OPINION

     ARMEN, Special Trial Judge:    This matter is before the Court

on respondent's Motion for Summary Judgment filed pursuant to

Rule 121.1    As explained in greater detail below, we will grant

respondent's motion.


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
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Background

     Respondent issued a notice of deficiency to Lloyd D.

Shepherd (petitioner) determining deficiencies in and additions

to his Federal income taxes for the taxable years and in the

amounts as follows:

                                   Additions to Tax
                             Sec.        Sec.           Sec.
     Year    Deficiency     6651(a)   6653(a)(1)        6654

     1988     $4,994      $1,248.50      $249.70      $320.74
     1989      5,553       1,388.25         --         376.04
     1990      5,385       1,346.25         --         393.91
     1991      5,811       1,452.75         --         334.24
     1992      5,722       1,430.50         --         249.56
     1993      3,449         862.25         --         144.50

The notice of deficiency includes an explanation that, in the

absence of adequate records, respondent reconstructed

petitioner's taxable income for the years in issue based upon an

indirect method of proof.

     Petitioner invoked this Court's jurisdiction by filing a

timely petition for redetermination.2     Respondent filed a timely

answer to the petition.

     Respondent subsequently served petitioner with a request for

admissions (with attached exhibits) pursuant to Rule 90(a), and

filed the same with the Court pursuant to Rule 90(b).       Petitioner

failed to respond to respondent's request for admissions.       As a

consequence, each matter set forth therein is deemed admitted

     2
        At the time that the petition was filed, petitioner
resided at Union City, Indiana.
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pursuant to Rule 90(c).3       Alexander v. Commissioner, 926 F.2d

197, 198-199 (2d Cir. 1991), affg. T.C. Memo. 1990-315; Marshall

v. Commissioner, 85 T.C. 267, 272 (1985); Morrison v.

Commissioner, 81 T.C. 644, 647 (1983).

     The following is a summary of the matters that petitioner is

deemed to have admitted pursuant to Rule 90(c).

     Petitioner was pastor of the Cornerstone Baptist Church in

Union City, Indiana, during the taxable years 1988 through 1993.

Petitioner did not file income tax returns for the taxable years

1988 through 1993.   Petitioner had taxable income in the amounts


     3
         Rule 90 states in pertinent part:

          (a) Scope and Time of Request: A party may serve
     upon any other party a written request for the
     admission, for purposes of the pending action only, of
     the truth of any matters which are not privileged and
     are relevant to the subject matter involved in the
     pending action, but only if such matters are set forth
     in the request and relate to statements or opinions of
     fact or of the application of law to fact, including
     the genuineness of any documents described in the
     request. * * *

                     *     *     *    *      *   *   *

          (c) Response to Request: Each matter is deemed
     admitted unless, within 30 days after service of the
     request or within such shorter or longer time as the
     Court may allow, the party to whom the request is
     directed serves upon the requesting party (1) a written
     answer specifically admitting or denying the matter
     involved in whole or in part, or asserting that it
     cannot be truthfully admitted or denied and setting
     forth in detail the reasons why this is so, or (2) an
     objection, stating in detail the reasons therefor.
     * * *
                                - 4 -


of $19,930, $21,599, $21,736, $23,369, $23,221, and $15,201

during the taxable years 1988, 1989, 1990, 1991, 1992, and 1993,

respectively.   Petitioner is liable for deficiencies in income

tax in the amounts of $4,994, $5,553, $5,385, $5,811, $5,722, and

$3,449 for the taxable years 1988, 1989, 1990, 1991, 1992, and

1993, respectively.

     Petitioner is also deemed to have admitted, pursuant to Rule

90(c), the following matters:

     Petitioner has provided no reasonable cause for his failure

to file income tax returns for the taxable years 1988 through

1993.   Petitioner is liable for the additions to tax pursuant to

section 6651(a)(1) for each of the years in issue as determined

in the notice of deficiency.    Petitioner has provided no basis

for his failure to pay estimated taxes for the taxable years 1988

through 1993.   Petitioner is liable for the additions to tax

pursuant to section 6654(a) for each of the years in issue as

determined in the notice of deficiency.    Petitioner's failure to

file his tax return for 1988 is due to negligence or disregard of

rules or regulations.   Petitioner is liable for the addition to

tax pursuant to section 6653(a)(1) for the taxable year 1988 as

determined in the notice of deficiency.

     As indicated, respondent filed a Motion for Summary Judgment

seeking judgment in respondent's favor on all issues.    Respondent

contends that the matters deemed admitted in this case pursuant
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to Rule 90(c) establish that petitioner is liable for the

deficiencies and the additions to tax as determined by the

respondent in the notice of deficiency.

     On November 3, 1997, the Court issued an order calendaring

respondent's motion for hearing and directing petitioner to file

a response to respondent's motion by November 21, 1997.    The

order also included a reminder to the parties of the

applicability of Rule 50(c).    Petitioner failed to file a

response to respondent's motion.

     Respondent's motion was called for hearing at the motions

session of the Court held in Washington, D.C., on December 3,

1997.   Counsel for respondent appeared at the hearing and

presented argument in support of the motion.    No appearance was

entered by or on behalf of petitioner, nor did petitioner file a

statement with the Court pursuant to Rule 50(c).

Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Florida Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Summary judgment is

appropriate "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."    Rule 121(b); Sundstrand Corp. v.
                               - 6 -


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).    Rule 121(d)

states that:

     When a motion for summary judgment is made and
     supported as provided in this Rule, an adverse party
     may not rest upon the mere allegations or denials of
     such party's pleading, but such party's response, by
     affidavits or as otherwise provided in this Rule, must
     set forth specific facts showing that there is a
     genuine issue for trial. If the adverse party does not
     so respond, then a decision, if appropriate, may be
     entered against such party.

See King v. Commissioner, 87 T.C. 1213, 1217 (1986).    The moving

party, however, 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).    Summary

judgment is appropriate where the facts deemed admitted pursuant

to Rule 90(c) support a finding that there is no genuine issue as

to any material fact.   Morrison v. Commissioner, 81 T.C. 644,

651-652 (1983).

     Based upon our review of the record, and as a consequence of

petitioner's failure to respond to respondent's Motion for

Summary Judgment, we are satisfied that there is no genuine issue

of material fact and that respondent is entitled to judgment as a

matter of law.
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     The deficiencies determined by respondent in this case arise

from a reconstruction of petitioner's taxable income because of

petitioner's failure to provide respondent with adequate records

or file income tax returns for the taxable years in issue.   The

factual allegations deemed admitted by petitioner under Rule

90(c) establish:   (1) Petitioner received taxable income during

the years in issue in the amounts determined in the notice of

deficiency; (2) petitioner failed to establish reasonable cause

for his failure to file income tax returns and has provided no

basis for his failure to pay estimated taxes during the years in

issue; (3) petitioner is liable for the addition to tax pursuant

to section 6653(a)(1) for the taxable year 1988; and (4)

petitioner is liable for the deficiencies and additions to tax

for the years in issue as determined by respondent in the notice

of deficiency.

     In sum, the factual allegations deemed admitted by

petitioner under Rule 90(c) establish that respondent's

determinations with respect to petitioner's liabilities for the

deficiencies and additions to tax for the taxable years 1988

through 1993 are correct, and we so hold.

     In the absence of any dispute as to a material fact in this

case, we will grant respondent's Motion for Summary Judgment.

     To reflect the foregoing,
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     An order granting respondent's

Motion for Summary Judgment and decision

will be entered.
