                            T.C. Memo. 2007-172



                          UNITED STATES TAX COURT



                   RICHARD L. CLARK, Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



       Docket No. 11384-06.               Filed July 2, 2007.



       Richard L. Clark, pro se.

       Brenda M. Fitzgerald, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION


       COHEN, Judge:     Respondent determined deficiencies and

additions to tax as follows:

                                     Additions to Tax, I.R.C.
                              Sec.            Sec.            Sec.
Year        Deficiency        6651(a)(1)      6651(a)(2)      6654(a)

2001          $8,584          $1,931.40       $1,673.88         $339.67
2002           5,613           1,262.92          757.75          187.54
                                - 2 -

In the answer, respondent conceded that the addition to tax under

section 6651(a)(2) is not applicable to petitioner’s 2001 and

2002 tax years.    As a result, respondent alleged that “Petitioner

is liable for the additions to tax attributable to I.R.C. section

6651(a)(1) for the years 2001 and 2002 in the amounts of

$1,403.25 and $2,146.00, respectively” (thus misstating the

amounts for each year).    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.

       The issues for decision are whether respondent’s

determinations should be sustained on the existing record and

whether petitioner is entitled to any deductions or exemptions

not allowed in the statutory notices.

                          FINDINGS OF FACT

       Petitioner resided in Georgia at the time that he filed his

petition.    During 2000 and 2001, he performed services as a truck

driver for Jimmy Harris Trucking, Inc.    In 2002, he also

performed services for Vandy Trucking, Inc., and Peters Hauling,

Inc.    He received compensation for his services.   Petitioner

maintained a savings account at Farmers and Merchants Bank during

2002 and received interest on that account.    During 2002,

petitioner received income from Prime America Shareholder

Services.    During 2002, petitioner and his wife were divorced.
                               - 3 -

     Petitioner failed to file Federal income tax returns for

2001 and 2002.   Petitioner did not submit to respondent’s agents

or counsel, to the Court during trial, or during an opportunity

provided after trial, the amounts of or evidence of deductions

and exemptions to which he claimed entitlement.    Records may have

been lost during a fire at petitioner’s father’s residence in

2005, but petitioner made no attempt to reconstruct records or

obtain corroboration of his claims.

                              OPINION

     The above findings of fact are very sketchy because the

parties in this case failed to stipulate or otherwise to provide

a satisfactory record.   Petitioner was poorly advised, apparently

by a person not admitted to practice before the Tax Court.

Petitioner did not cooperate with respondent in preparing the

case for trial, which led to excessive reactions by respondent,

including excessive interrogatories and motions.    Respondent’s

interrogatories contained eight pages of “definitions” and

“instructions” and were, in effect, directions to require

petitioner to lay out his case in writing rather than simple

questions such as those anticipated by Rule 71.    See Pleier v.

Commissioner, 92 T.C. 499 (1989).     Such interrogatories are

particularly inappropriate against a pro se petitioner and were

unnecessary in this case because petitioner’s compliance with

other Rules and the standing pretrial order would have supplied
                               - 4 -

the information that respondent needed.   Moreover, the

interrogatories apparently motivated petitioner to give evasive

answers to respondent’s poorly phrased requests for admissions

and to refuse to admit to the items of income identified in the

statutory notice and in the requests for admissions.   Thus,

respondent’s motions to compel answers to interrogatories and to

review the sufficiency of the responses to the requests for

admissions were denied.

     In an order served on the parties approximately 5 weeks

before trial, they were warned:

           Nonetheless, the parties are required to stipulate
     pursuant to Rule 91 and to do so with respect to the
     items of income and deductions involved in this case.
     Petitioner is advised that respondent’s determination
     of income, once supported by third-party information,
     will be sustained unless he raises a reasonable dispute
     with respect to those items of income. He has not done
     so on the record in this case to date. Petitioner
     bears the burden of proof with respect to his
     exemptions and deductions, and he should produce
     documents relating to those claims in accordance with
     the Court’s Order dated March 1, 2007. With respect to
     petitioner’s claims that he need not answer questions
     about failing to file returns, relying on his privilege
     against self-incrimination, petitioner is advised that
     the privilege is a shield, not a sword, and his refusal
     to answer questions and provide information will be
     detrimental to him in this case. Respondent, through
     official transcripts and through means of securing
     third-party evidence, presumably will establish the
     facts necessary to respondent’s case, and petitioner
     must establish the facts necessary to his positions.
     * * *

Petitioner failed to comply with the Court’s order to produce

documents.   That failure became moot, however, because petitioner
                                - 5 -

failed to present any evidence of his deductions at the time of

trial or during the month after trial that he was permitted to

provide further information, after having received suggestions as

to how his required records could be reconstructed.   Although he

relies on Cohan v. Commissioner, 39 F.2d 540, 543-544 (2d Cir.

1930), he provided no basis for making an estimate of deductions

to which he might be entitled, which precludes our estimating

such deductions.   See, e.g., Mendes v. Commissioner, 121 T.C.

308, 316 (2003); Vanicek v. Commissioner, 85 T.C. 731, 742-743

(1985).   We have no reason to believe that petitioner’s allowable

deductions exceeded the standard deductions allowed in the

statutory notices of deficiency.

     Petitioner testified that he was divorced in 2002.   There is

no information in the record as to whether his former spouse

filed tax returns for the years in issue.   There is no evidence

concerning any eligible dependents that he or his former spouse

might have had.    There is nothing in the record to contradict the

“single” filing status used in the statutory notice for 2002.    If

petitioner was married in 2001, which is unclear from the record,

he was not disadvantaged by the use of “single” status rather

than “married filing separately”.

     On the other hand, respondent neglected to secure third-

party records that corroborate the income set forth in the

statutory notices.   So far as the record reflects, despite
                                - 6 -

petitioner’s repeated claims of uncertainty as to the amounts

received from the payors listed in the statutory notices,

respondent neither secured nor offered copies of the third-party

records to petitioner during the stipulation process.    Although

certain witnesses were identified in respondent’s pretrial

memorandum, none were called.   Respondent did not even bother to

secure business records under rules 902(11) and 803(6), Federal

Rules of Evidence.   See, e.g., Richardson v. Commissioner, T.C.

Memo. 2005-143.

     Because petitioner failed to cooperate, to maintain required

records, or to present credible evidence, he is not entitled to

have the burden of proof shifted under section 7491(a).    Section

6201(d), however, also imposes on respondent the burden of

producing reasonable and probative information concerning a

deficiency based on third-party information returns where:

     the taxpayer asserts a reasonable dispute with respect
     to any item of income reported on an information return
     * * * and the taxpayer has fully cooperated with the
     Secretary (including providing, within a reasonable
     period of time, access to and inspection of all
     witnesses, information, and documents within the
     control of the taxpayer as reasonably requested by the
     Secretary).

See Del Monico v. Commissioner, T.C. Memo. 2004-92.     In this

case, petitioner failed to provide information in response to

unreasonable requests and belatedly claimed that documents were

not within his control because they were destroyed in a fire.
                                 - 7 -

     During his testimony, petitioner admitted that he received

income from three trucking companies, from Farmers and Merchants

Bank, and from Prime America Shareholder Services.         He was not

asked about other income listed in the statutory notices as paid

to petitioner and to Felicia Clark in each year from Rural

Housing Service for mortgage interest or paid to Richard L.

Clark/Lizzie M. Clark during 2001 by the Social Security

Administration.   We conclude that petitioner’s testimony is

sufficiently probative to sustain the portions of the

deficiencies based on the income from the sources that he

admitted, but not sufficient with respect to items for which

there is no explanation in the record.

     Respondent also has the burden of production under section

7491(c) with respect to the additions to tax.       Respondent

introduced a certified transcript establishing petitioner’s

failure to file returns for 2001 or 2002.       Thus, respondent’s

burden has been met with respect to the additions to tax under

section 6651(a)(1), subject to correct mathematical

determination, but respondent failed to meet that burden with

respect to section 6654.   See Wheeler v. Commissioner, 127 T.C.

200, 207-212 (2006).

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.
