                        T.C. Memo. 2005-215



                      UNITED STATES TAX COURT



                 JAMES R. DOWNEY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 20678-03.          Filed September 14, 2005.


     James R. Downey, pro se.

     Jason M. Kuratnick, for respondent.



                        MEMORANDUM OPINION


     MARVEL, Judge:   This matter is before the Court on

respondent’s motion to dismiss for lack of prosecution.    In a

notice of deficiency dated September 9, 2003, respondent

determined a deficiency in petitioner’s Federal income tax for

2000 of $43,828, and additions to tax for 2000 under section
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6651(a)(1)1 of $8,034.75, under section 6651(a)(2) of $4,463.75,

and under section 6654(a) of $1,872.10.

                             Background

     Petitioner did not file a timely Federal income tax return

for 2000.    By a notice of deficiency dated September 9, 2003,

respondent determined an income tax deficiency and additions to

tax under sections 6651(a) and 6654 with respect to petitioner’s

2000 taxable year.

     On December 3, 2003, we filed petitioner’s petition

contesting respondent’s notice of deficiency for petitioner’s

2000 taxable year.    Petitioner resided in Howell, New Jersey,

when his petition was filed.    The petition cryptically asserts as

errors “1.    Improper filing status” and “2.   No deductions given

for family or home/mortgage/property tax.”      The petition does not

assert that respondent’s determinations of petitioner’s gross

income or additions to tax for 2000 were in error.

     On January 9, 2004, we filed respondent’s answer.     In his

answer, respondent conceded the section 6651(a)(2) addition to

tax but alleged that the section 6651(a)(1) addition to tax

should be increased by $1,600 to $9,634.75.

     On April 1, 2004, we issued a notice setting case for trial,

which set this case for trial during the Court’s September 7,


     1
      All section references are to the Internal Revenue Code in
effect for the year at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
                              - 3 -

2004, trial session in Philadelphia, Pennsylvania.    Accompanying

the notice was the Court’s standing pretrial order, which

directed the parties to begin preparing the case for trial or

settlement and warned the parties that “Continuances will be

granted only in exceptional circumstances.”    The pretrial order

also ordered the parties to take specific steps to prepare for

trial and contained the following warning:    “The Court may impose

appropriate sanctions, including dismissal, for any unexcused

failure to comply with this Order.    See Rule 131(b).”

During a pretrial conference call held on August 24, 2004,

petitioner acknowledged that he had received the standing

pretrial order.

     On June 15, 2004, respondent’s counsel sent petitioner a

letter in which he informed petitioner that his case was

scheduled for trial during the September 7, 2004, trial session,

explained the consequences of not appearing for trial, and set a

conference date for June 29, 2004.    On June 21, 2004, respondent

received a letter from petitioner in which petitioner made

several arguments regarding the constitutionality of the Internal

Revenue Code and stated that he did not intend to appear at the

June 29 conference.

     On June 24, 2004, respondent’s counsel sent petitioner

another letter and a proposed stipulation of facts.    The letter

offered petitioner another opportunity for a conference to review
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the stipulation of facts.   Petitioner did not request a

conference or execute the stipulation of facts.

      On August 24, 2004, a conference call was held with the

parties regarding the pretrial preparation problems.   During the

conference call, petitioner requested a continuance, ostensibly

to obtain counsel.   Because of petitioner’s repeated failure to

respond to letters from respondent’s counsel, his refusal to

attend a stipulation conference and otherwise to cooperate in

preparing a stipulation of facts, and his failure to comply with

the Court’s standing pretrial order, we denied petitioner’s

request for a continuance but advised him that he could renew his

request for a continuance at the calendar call on September 7,

2004, if he took meaningful steps to obtain counsel and/or

demonstrated his willingness to cooperate in preparing his case

for trial.

      Following the conference call, respondent’s counsel

attempted to contact petitioner by telephone without success.    On

August 25, 2004, respondent’s counsel sent petitioner another

letter and another copy of the stipulation of facts.

Respondent’s counsel requested petitioner to contact him

regarding the stipulation of facts, but petitioner failed to do

so.
                              - 5 -

     On August 31, 2004, respondent’s counsel received a letter

and a “Notice of Appeal” from petitioner in which he again

requested a continuance.

     On September 7, 2004, during calendar call, both

respondent’s counsel and petitioner appeared and were heard.

Respondent’s counsel reported that there had been no progress in

preparing the case for trial and that petitioner continued to

refuse to discuss a stipulation of facts.    Petitioner stated that

he could not make any significant progress without counsel.

Respondent’s counsel requested that the case be set for trial

during the trial session, noting that petitioner had had

sufficient time to secure counsel and to prepare for trial.     A

trial was set for September 10, 2004.

     Subsequently, at petitioner’s request, the case was recalled

on September 7, 2004, for a pretrial conference.   During the

pretrial conference, petitioner claimed that he had paid expenses

for a startup business during 2000 and that he had receipts for

the expenses, but he did not produce them.   He also admitted that

he was employed as a technical manager for two companies, Enable

Vision and Geo Works, that he had received a salary from both

companies during 2000, and that he had received a Form W-2, Wage

and Tax Statement, from each company.   Petitioner continued to

insist that he would not produce documents or appear for trial

without counsel.
                               - 6 -

     On September 10, 2004, the case was called for trial.

Petitioner did not appear.   Respondent’s counsel represented to

the Court that he had spoken with petitioner on September 9,

2004, that petitioner had stated he would fax copies of his

documentation to respondent’s counsel, and that petitioner had

asked him to agree to a continuance.   Respondent’s counsel told

petitioner that he would discuss the continuance with him on

September 10, 2004, but petitioner refused to appear on September

10, 2004.   Respondent’s counsel advised petitioner that, if

petitioner did not appear, he would move to dismiss petitioner’s

case.   Petitioner stated that he would fax his documentation to

respondent’s counsel, but the promised documentation was not

received.

     On September 10, 2004, respondent submitted to the Court a

motion to dismiss for lack of prosecution, which was served by

mail on petitioner on September 10, 2004, and filed on September

13, 2004.   On October 25, 2004, we received and filed

petitioner’s response to the motion to dismiss.

     On March 7, 2005, we held a conference call with the parties

to discuss the case status and, particularly, a copy of what

purported to be petitioner’s Federal income tax return for 2000

that petitioner had mailed to the Court.   Petitioner’s purported

2000 return did not include any of the wages that petitioner had

admitted receiving during 2000 and asserted a claim to an
                                  - 7 -

overpayment.    During the conference call, petitioner confirmed

that he had not retained counsel or produced any documentation to

respondent concerning his 2000 income or expenses.

     On March 14, 2005, we received a document from petitioner

entitled “MOTION FOR REDETERMINATION OF ZERO”, which we filed on

that date as petitioner’s Motion for Entry of Decision.      In the

motion, petitioner alleges that on February 9, 2005, he had

submitted a Federal income tax return for 2000 to respondent that

“documented petitioner’s position in discovery of W-2 errors and

correcting the record regarding said W-2 errors concluding with a

zero tax liability.”    By order dated March 16, 2005, we denied

petitioner’s motion.

                               Discussion

     The Court may dismiss a case at any time and enter a

decision against the taxpayer for failure properly to prosecute

his case, failure to comply with the Rules of the Court or any

order of the Court, or for any cause that the Court deems

sufficient.    Rule 123(b).    Dismissal is appropriate where the

taxpayer’s failure to comply with the Court’s Rules and orders is

due to willfulness, bad faith, or fault.      Dusha v. Commissioner,

82 T.C. 592, 599 (1984).      In addition, the Court may dismiss a

case for lack of prosecution if the taxpayer inexcusably fails to

appear at trial and does not otherwise participate in the

resolution of his claim.      Rule 149(a); Rollercade, Inc. v.
                               - 8 -

Commissioner, 97 T.C. 113, 116-117 (1991); Smith v. Commissioner,

T.C. Memo. 2003-266, affd. sub nom. Hook v. Commissioner, 103

Fed. Appx. 661 (10th Cir. 2004).

     Petitioner has disregarded the Court’s Rules and standing

pretrial order by failing to cooperate meaningfully with

respondent to prepare this case for trial.     Petitioner’s pattern

of failing to appear for scheduled conferences, failing to

respond to respondent’s correspondence, and ignoring respondent’s

requests for production of records made it impossible for the

parties to exchange information, conduct negotiations, or prepare

and finalize a stipulation of facts before trial.     Petitioner’s

multiple requests for continuance made less than 30 days before

the beginning of the September 7, 2004, trial session, which

failed to allege exceptional circumstances as required by Rule

133, further underscore what appears to have been an intentional

attempt on the part of petitioner to unreasonably delay the

proceedings.   See Williams v. Commissioner, 119 T.C. 276, 279-280

(2002).

     Petitioner was repeatedly warned by respondent’s counsel and

by the Court of the consequences of failing to prepare for trial

and of failing to appear at trial.     Despite those warnings,

petitioner repeatedly failed to make any reasonable effort to

demonstrate his good faith and his willingness to prepare his

case for trial.   Although petitioner asserted that he wanted to
                                - 9 -

retain counsel to represent him in this case, petitioner did not

take meaningful steps to obtain counsel or to document any

attempt on his part to obtain counsel, although he had plenty of

opportunities to do so.    We conclude from these circumstances

that petitioner’s claim that he intended to retain counsel was

simply another misguided attempt to avoid the reality of his tax

case.

     Finally, although petitioner did appear at the calendar call

held on September 7, 2004, during which he argued yet again for a

continuance, the arguments that he made at that time ignored the

multiple warnings that he had received from the Court and

respondent’s counsel to demonstrate his willingness to prepare in

good faith for trial and to abide by the Court’s Rules and

standing pretrial order.    Petitioner, who was well aware of the

trial date for his case, also failed to appear for trial.    For

all of these reasons, we find that petitioner has failed to

comply with the Court’s Rules and orders and has failed properly

to prosecute this case.    See Rollercade, Inc. v. Commissioner,

supra at 116-117.

     Rule 34(b)(4) requires that a petition in a deficiency

action shall contain “clear and concise assignments of each and

every error” that the taxpayer alleges the Commissioner committed

in the determination of the deficiency and the additions to tax

in dispute.   Rule 34(b)(5) requires that the petition contain
                                - 10 -

clear and concise lettered statements of the facts upon which the

taxpayer bases the assignments of error.    Funk v. Commissioner,

123 T.C. 213, 215 (2004); Jarvis v. Commissioner, 78 T.C. 646,

658 (1982).    We deem the parties to concede any issue, including

additions to tax, not raised in the pleadings.    Rule 34(b)(4);

Funk v. Commissioner, supra at 215; Jarvis v. Commissioner, supra

at 658 n.19.

     In his petition, petitioner did not contest any of the

income items attributed to him in the notice of deficiency or

contest the additions to tax, and he conceded in open Court that

he received wages during 2000.    Petitioner only contested the

filing status used by respondent in the notice of deficiency to

compute petitioner’s Federal income tax liability for 2000 and

the failure of respondent to allow any deductions for “Family or

home/mortgage/property tax.”2    Petitioner has not raised any

issue on which respondent has the burden of proof.    See Rule

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

(Commissioner’s determinations in the notice of deficiency are

presumed correct; taxpayer bears the burden of proving them




     2
      Respondent conceded during the pretrial conference that
petitioner was entitled to an itemized deduction for mortgage
interest of $11,413 in lieu of the standard deduction used in the
notice of deficiency. We shall require respondent to submit a
revised calculation of the income tax deficiency and additions to
tax and a proposed decision consistent with respondent’s
concession.
                              - 11 -

wrong).3   Although respondent concedes that he has the burden of

proof with respect to the increased addition to tax under section

6651(a)(1), Rule 142, respondent has carried that burden of proof

by introducing into evidence certified copies of Form 4340,

Certificate of Assessments and Payments, with respect to

petitioner’s 2000 taxable year, establishing that petitioner did

not file a timely Federal income tax return for 2000, and by

petitioner’s failure to contest in his petition the items of

gross income that were reported on Forms W-2 and 1099 and

enumerated in the notice of deficiency.   We also conclude that,

because petitioner is deemed to have conceded the issue of his

liability for the additions to tax by his failure to contest that

liability in his petition, respondent has no burden of production

under section 7491(c) with respect to the additions to tax.    See

Funk v. Commissioner, supra; Swain v. Commissioner, 118 T.C. 358,

363-364 (2002).

     To reflect the foregoing,

                                          An appropriate order of

                                    dismissal and decision will be

                                    entered.




     3
      Because petitioner has not introduced any credible evidence
with respect to any factual issue and has failed to cooperate
with respondent’s requests for information, documents, and
meetings, the burden of proof does not shift to respondent. See
sec. 7491(a).
