                         T.C. Memo. 2001-257



                       UNITED STATES TAX COURT



                 KEVIN H. MOTLEY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11824-99.                Filed September 28, 2001.


     Kevin H. Motley, pro se.

     Katherine L. Kosar, 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.
                                - 2 -

determined the following deficiencies in and additions to

petitioner’s Federal income taxes:

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

     1994          $27,797         $2,113.25       $327.11
     1995           89,992         17,451.00      3,663.33
     1996           28,908          2,666.25        459.75

                             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, capital gains, interest income, and

dividend income.    Respondent also determined additions to tax for

failure to timely file returns and failure to make estimated tax

payments.

     On June 28, 1999, petitioner invoked the jurisdiction of

this Court by timely filing an imperfect petition.   On July 1,

1999, the Court ordered petitioner to file an amended petition in

order to comply with the Rules of the Court as to the form and

content of a proper petition and enclosed the form with the

order.   On September 3, 1999, petitioner filed the amended

petition on the form enclosed with the Court’s July 1, 1999,

order.   At the time he filed the amended petition, petitioner

resided in Pepper Pike, Ohio.

     In the petitions, petitioner averred, among other things,

that respondent’s determinations were erroneous “based upon the

actual capital gain calculation versus the use of gross proceeds
                              - 3 -

from the sale as the gain; application of itemized deductions and

four additional standard deductions for dependent children.”

Petitioner further alleged that the capital gain for 1995 was

derived from “the sale of primary residence and the purchase of

the replacement house prior to the sale is [sic] does not create

a taxable event,” and the “examiner used the standard deduction

against * * * [his] withholdings.”    Respondent, in the answer,

denied the assignment of errors alleged by petitioner and

attached complete copies of the notices of deficiency to the

answer.

     On December 8, 2000, respondent invited petitioner to a

meeting to discuss the case pursuant to Branerton Corp. v.

Commissioner, 61 T.C. 691 (1974); however, petitioner neither

appeared at the meeting nor contacted respondent to reschedule.

     On February 2, 2001, respondent again sent petitioner a

letter inviting him to a conference to discuss the case.

Respondent advised petitioner that if he failed to appear,

respondent would move to dismiss the case.    Again, petitioner

neither appeared nor contacted respondent.

     On February 26, 2001, respondent sent petitioner a third

letter inviting him to a conference to discuss the case.    Again,

respondent advised petitioner that if he failed to appear,

respondent would move to dismiss the case, and petitioner neither

appeared nor contacted respondent.
                                  - 4 -

      By notice dated October 25, 2000, the Court set this case

for trial at the Court’s Cleveland, Ohio, session beginning March

26, 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 March 26, 2001, this case was called at the Court’s trial

calendar in Cleveland, Ohio.      Petitioner did not appear.   At that

time, respondent orally moved to dismiss for failure to prosecute

pursuant to Rule 123(b).

      On March 27, 2001, the case was recalled, and respondent

filed a written motion to dismiss for lack of prosecution

pursuant to Rule 123(b).     At that time, the Court held a hearing

regarding the motion to dismiss.      Petitioner did not appear at

the hearing.

                              Discussion

I.    Rule 123(b).    Dismissal

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

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
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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

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
                                - 6 -

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).

     In addition to filing the answer, respondent submitted, and

the Court received as evidence, petitioner’s transcripts of

account for 1994, 1995, and 1996.    Respondent also called Appeals

Officer Steve Henstridge to testify about the additions to tax

determined by respondent.

     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.   The transcripts of account indicate that

the Internal Revenue Service (IRS) did not receive returns from

petitioner for 1994, 1995, and 1996.    Additionally, Appeals

Officer Henstridge testified that he reviewed petitioner’s


     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.
                                 - 7 -

administrative file for the years in issue, and he concluded that

petitioner did not file returns and that there were no prepayment

credits to offset the tax petitioner owed.     He also testified

that the administrative file did not contain any tax returns.

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

petitioner did not timely file his 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.     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.

     2.     Section 6654.   Failure To Pay Estimated Tax

     Section 6654 imposes an addition to tax for failure to pay

estimated income tax.    The amount of the credit for withholding

is deemed to be a payment of estimated tax.     See sec. 6654(g).

     In calculating the additions to tax, the statutory notices

of deficiency, which respondent attached to the answer, give

petitioner credit for withholding for 1994, 1995, and 1996.

Additionally, Appeals Officer Henstridge testified that the IRS

had no record of petitioner’s making any estimated tax payments.

     On the basis of the evidence, we conclude that respondent

has met his burden of production pursuant to section 7491(c)

regarding this issue.    Thus, petitioner must come forward with
                                   - 8 -

evidence sufficient to persuade the Court that respondent’s

determination is incorrect or that an exception applies.         Rule

142(a); Welch v. Helvering, supra 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.
