                         T.C. Memo. 2002-62



                       UNITED STATES TAX COURT



            MILDRED I. CRISS, ET AL.,1 Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9700-00, 9701-00,        Filed March 5, 2002.
                9702-00.



     John M. Tkacik, Jr., for respondent.



                         MEMORANDUM OPINION


     CHIECHI, Judge:    These consolidated cases are before us on

respondent’s motion to dismiss for lack of prosecution and to

impose sanctions under section 66732 in the case at docket No.


     1
      Cases of the following petitioners are consolidated here-
with: Daryl E. Criss, docket No. 9701-00, and Criss Asset
Management Trust, docket No. 9702-00.
     2
      All section references are to the Internal Revenue Code
                                                   (continued...)
                               - 2 -

9700-00 (respondent’s motion in the case at docket No. 9700-00),

respondent’s motion to dismiss for lack of prosecution and to

impose sanctions under section 6673 in the case at docket No.

9701-00 (respondent’s motion in the case at docket No. 9701-00),

and respondent’s motion to hold petitioner in default in the case

at docket No. 9702-00 (respondent’s motion in the case at docket

No. 9702-00).   (We shall refer collectively to those three

motions as respondent’s motions.)   At the request of respondent,

on October 15, 2001, the Court held a trial in order to enable

respondent to present evidence to satisfy the burden of produc-

tion under section 7491(c) that respondent maintains respondent

has with respect to:   (1) The accuracy-related penalty under

section 6662(a) that respondent determined for each of the

taxable years 1996 and 1997 in the notice of deficiency (notice)

issued to Mildred I. Criss (Ms. Criss) in the case at docket No.

9700-00; (2) the accuracy-related penalty under section 6662(a)

for each of the taxable years 1996 and 1997 that respondent

determined in the notice issued to Daryl E. Criss (Mr. Criss) in

the case at docket No. 9701-00; and (3) the addition to tax under

section 6651(a)(1) for the taxable year 1997 that respondent

determined in the notice issued to Criss Asset Management Trust




     2
      (...continued)
(Code) in effect at all relevant times. All Rule references are
to the Tax Court Rules of Practice and Procedure.
                              - 3 -

(Criss Trust)3 in the case at docket No. 9702-00.4

                           Background

     The record establishes and/or the parties do not dispute the

following:

     At the time the respective petitions in these cases were

filed, Ms. Criss, Mr. Criss, and Criss Trust listed in those

petitions the same address in Massillon, Ohio.

     Ms. Criss filed Form 1040, U.S. Individual Income Tax Return

(return), for each of the taxable years 1996 and 1997.   During

respondent’s examination of Ms. Criss’ 1996 and 1997 returns and

thereafter, Ms. Criss provided no books, records, or other

information to respondent establishing the income reported and

the expense deductions claimed in those returns.

     In the notice issued to Ms. Criss, respondent determined,

inter alia, that Ms. Criss is liable for each of the taxable



     3
      When referring in this Opinion to Criss Asset Management
Trust and Criss Trust, our use of the word “Trust” and any
similar words is for convenience only and is not intended to
convey any meaning or have any significance for Federal tax
purposes.
     4
      In the notice issued to Criss Trust, respondent also deter-
mined to impose the accuracy-related penalty under sec. 6662(a)
for each of the taxable years 1996 and 1997. At the trial,
respondent indicated that respondent was abandoning pursuing the
determinations in the notice issued to Criss Trust to impose the
penalty under sec. 6662(a) for each of the taxable years 1996 and
1997. In respondent’s brief filed after the trial, respondent
makes no reference to the addition to tax under sec. 6651(a)(1)
for the taxable year 1997 that respondent determined in the
notice issued to Criss Trust.
                               - 4 -

years 1996 and 1997 for the accuracy-related penalty under

section 6662(a) because of:   (1) Negligence or disregard of rules

or regulations under section 6662(b)(1) or (2) substantial

understatement of income tax under section 6662(b)(2).

     Prior to and including the tax years 1996 and 1997, Mr.

Criss, Ms. Criss’ son, operated a trucking business.

     Mr. Criss filed a return for each of the taxable years 1996

and 1997.   According to the respective Schedules C, Profit or

Loss From Business (Schedule C), included with Mr. Criss’ 1996

and 1997 returns, Mr. Criss received income from his trucking

business of $115,483 for 1996 and $75,560 for 1997.    In each of

Mr. Criss’ 1996 and 1997 Schedules C, Mr. Criss indicated that

his Schedule C trucking business income was reported by or

assigned to employer identification No. (EIN) XX-XXXXXXX, which

was the EIN for Criss Family Limited Partnership (Criss Partner-

ship).5

     During respondent’s examination of Mr. Criss’ 1996 and 1997

returns and thereafter, Mr. Criss provided no books, records, or

other information to respondent establishing the income reported

and the expense deductions claimed in those returns.   In the

notice that respondent issued to Mr. Criss, respondent deter-



     5
      When referring in this Opinion to Criss Family Limited
Partnership and Criss Partnership, our use of the word “Partner-
ship” and any similar words is for convenience only and is not
intended to convey any meaning for Federal tax purposes.
                                 - 5 -

mined, inter alia, that Mr. Criss is liable for each of the

taxable years 1996 and 1997 for the accuracy-related penalty

under section 6662(a) because of:    (1) Negligence or disregard of

rules or regulations under section 6662(b)(1) or (2) substantial

understatement of income tax under section 6662(b)(2).

     Criss Trust filed Form 1041, U.S. Income Tax Return for

Estates and Trusts (trust return), for each of the taxable years

1996 and 1997.    In Schedule K-1, Beneficiary’s Share of Income,

Deductions, Credits, etc. (Form 1041 Schedule K-1), that Criss

Trust included with each of its 1996 and 1997 trust returns,

Criss Trust indicated that Mr. Criss was a beneficiary and a

fiduciary of Criss Trust.   In a separate Form 1041 Schedule K-1

that Criss Trust included with each of its 1996 and 1997 trust

returns, Criss Trust indicated that Ms. Criss was a beneficiary

of Criss Trust.

     In each of its 1996 and 1997 trust returns, Criss Trust

deducted depreciation with respect to Ms. Criss’ personal resi-

dence that she had transferred to Criss Trust at a time that is

not disclosed by the record.   Criss Trust also deducted other

amounts in its 1996 and 1997 trust returns for personal expenses

of Ms. Criss and/or Mr. Criss.

     During respondent’s examination of Criss Trust’s 1996 and

1997 trust returns and thereafter, no books, records, or other

information was provided to respondent establishing (1) the
                               - 6 -

jurisdiction under the laws of which Criss Trust was purportedly

organized, (2) the person who is authorized to act on behalf of

Criss Trust, and (3) that Criss Trust was at all relevant times a

trust cognizable for Federal tax purposes.   Nor did Criss Trust

at any time provide any books, records, or other information to

respondent establishing the income reported and the expense

deductions claimed in Criss Trust’s 1996 and 1997 trust returns.

     In the notice issued to Criss Trust, respondent determined,

inter alia, that Criss Trust is liable (1) for each of the

taxable years 1996 and 1997 for the accuracy-related penalty

under section 6662(a) and (2) for the taxable year 1997 for the

addition to tax under section 6651(a)(1).

     Criss Partnership filed Form 1065, U.S. Partnership Return

of Income (partnership return), for each of the taxable years

1996 and 1997.   Each of Criss Partnership’s 1996 and 1997 part-

nership returns reported that Criss Partnership’s principal

business was a trucking activity.   In Schedule K-1, Partner’s

Share of Income, Credits, Deductions, etc., that Criss Partner-

ship included with each of its 1996 and 1997 partnership returns,

Criss Partnership indicated that Mr. Criss was a 12-percent

general partner, and Ms. Criss was an 88-percent limited partner,

of Criss Partnership.   The income that Criss Partnership reported

in its 1996 and 1997 partnership returns was generated from

assets owned solely by Mr. Criss.
                               - 7 -

      During respondent’s examination of Criss Partnership’s 1996

and 1997 partnership returns and thereafter, no books, records,

or other information was provided to respondent establishing,

inter alia, that Criss Partnership was a partnership cognizable

for Federal tax purposes and that Ms. Criss owned a capital

interest in Criss Partnership during 1996 and 1997.    Nor did

Criss Partnership at any time provide any books, records, or

other information to respondent establishing the income reported

and the expense deductions claimed in those returns and the

assets, if any, that had been transferred to Criss Partnership.

      James Binge (Mr. Binge) was the return preparer for each of

Ms. Criss’ 1996 and 1997 returns, each of Mr. Criss’ 1996 and

1997 returns, each of Criss Trust’s 1996 and 1997 trust returns,

and each of Criss Partnership’s 1996 and 1997 partnership re-

turns.   Respondent has identified Mr. Binge as an individual

involved with purported trusts used for tax avoidance purposes.

      On August 31, 2001, respondent filed separate motions to

compel answers to interrogatories and to compel production of

documents in each of the cases at docket Nos. 9700-00 and 9701-

00.   On September 19, 2001, the Court granted each of those

motions.   Neither Ms. Criss nor Mr. Criss answered respondent’s

interrogatories or produced the documents requested by respon-

dent, as ordered by the Court on September 19, 2001.

      On September 18, 2001, Ms. Criss in the case at docket No.
                                - 8 -

9700-00 filed a motion to dismiss that case, which the Court

denied on September 19, 2001.   On October 9, 2001, Ms. Criss in

the case at docket No. 9700-00 filed a motion for entry of

judgment in favor of petitioner in that case, which the Court

denied on October 10, 2001.   On October 9, 2001, Ms. Criss in the

case at docket No. 9700-00 filed a motion to continue the trial

in that case, which the Court denied on October 10, 2001.

     On October 9, 2001, Mr. Criss in the case at docket No.

9701-00 filed a motion for entry of judgment in favor of peti-

tioner in that case, which the Court denied on October 10, 2001.

On October 9, 2001, Mr. Criss in the case at docket No. 9701-00

filed a motion to continue the trial in that case, which the

Court denied on October 10, 2001.

     On October 15, 2001, these cases were called from the

Court’s trial calendar at the Court’s trial session in Cleveland,

Ohio (Cleveland trial session).   At that calendar call, there was

no appearance by or on behalf of Ms. Criss, Mr. Criss, and Criss

Trust.   At that time, respondent orally moved to dismiss each of

these cases for failure to prosecute, and respondent requested,

and the Court held, a trial because, according to respondent,

respondent has the burden of production pursuant to section

7491(c) with respect to the respective penalties under section

6662(a) for 1996 and 1997 that respondent determined against Ms.

Criss and against Mr. Criss and with respect to the addition to
                                - 9 -

tax under section 6651(a)(1) for 1997 that respondent determined

against Criss Trust.6    At the trial in these cases on October 15,

2001, there was no appearance by or on behalf of Ms. Criss, Mr.

Criss, or Criss Trust.

     On November 13, 2001, respondent filed a written motion to

dismiss for lack of prosecution and to impose sanctions under

section 6673 in the case at docket No. 9700-00, a written motion

to dismiss for lack of prosecution and to impose sanctions under

section 6673 in the case at docket No. 9701-00, and a written

motion to hold petitioner in default in the case at docket No.

9702-00.

     On December 3, 2001, the Court sua sponte issued an Order

(December 3, 2001 Show Cause Order) directing each party in the

case at docket No. 9702-00 in which Criss Asset Management Trust

is named as petitioner to

     show cause in writing why the Court has jurisdiction
     over this case, including the identity of any purported
     fiduciary of petitioner and a detailed analysis of why
     such purported fiduciary has the capacity to litigate
     in the Court on behalf of petitioner.

     On December 19, 2001, respondent filed a written response to

the December 3, 2001 Show Cause Order in which respondent con-

tended, inter alia, that



     6
      However, in the brief that respondent filed after the
trial, respondent makes no mention of respondent’s determination
that Criss Trust is liable for the addition to tax under sec.
6651(a)(1). See supra note 4.
                              - 10 -

          11. Criss Asset Management Trust failed to estab-
     lish that a trustee, if authorized, acted on its behalf
     when the purported petition was filed with the Court on
     September 14, 2000.

          12. Criss Asset Management Trust failed to file a
     proper petition with this Court in that the petition
     was not brought by and with the full descriptive name
     of the fiduciary entitled to institute a case on its
     behalf.

          13. Since the petition in this case was not
     brought by a party with proper capacity as required by
     the Tax Court Rules of Practice and Procedure, the
     Court lacks jurisdiction in the above-entitled case [at
     docket No. 9702-00].

     On December 20, 2001, Criss Trust filed a response to the

December 3, 2001 Show Cause Order (Criss Trust’s response to the

December 3, 2001 Show Cause Order), which was signed by Terrence

A. Bentivegna (Mr. Bentivegna) who identified himself in that

response as “Trustee”.   That response asserted that “Petitioner

does not believe that this Court has jurisdiction.”   In support

of that position, Criss Trust’s response to the December 3, 2001

Show Cause Order set forth statements and contentions that the
                                 - 11 -

Court finds to be frivolous and/or groundless.7


     7
      Criss Trust’s response to the December 3, 2001 Show Cause
Order stated in pertinent part:

     1.       Petitioner petitioned this Court after having
              received false and misleading information from the
              respondent and attorneys David Wise and his asso-
              ciate Carol Jackson. The respondent has failed to
              properly assess any taxes in accordance with their
              required administrative procedures, and yet ad-
              vised the petitioner that the only method of dis-
              agreeing with the purported tax liability was to
              petition this Court.

          *         *       *       *       *       *       *

     3.       This Courts’ [sic] order states “. . . petitioner
              purports to be a trust . . .” Petitioner is a
              trust, and the respondent has never been able to
              prove otherwise. Nor does the respondent have the
              right or ability to set aside a contract.

          *        *       *        *       *       *       *

     5.       Petitioner does not want this false tax claim to
              be litigated in court, and has petitioned this
              Court to have this case removed from the docket as
              having been petitioned in error due to the errone-
              ous instructions given by the respondent.

     WHEREFORE it is prayed that:

     1.       This Court dismiss this case at petitioner’s re-
              quest as the original petition was issued in error
              due to false directions given to petitioner by
              respondent. Petitioner believes that he has the
              right to correct his mistake and withdraw the
              original petition.

     2.       This Court and the respondent recognize the peti-
              tioner as a Trust and cease attempting to set
              aside a contract in direct opposition to the Con-
              stitution of the United States of America.

     3.       This court sanction the respondent for using this
                                                       (continued...)
                                 - 12 -

     On January 16, 2002, petitioner in each of the cases at

docket Nos. 9700-00 and 9701-00 filed a response to respondent’s

motion in each such case to dismiss for lack of prosecution and

to impose sanctions under section 6673.       On January 16, 2002,

Criss Trust filed a response to respondent’s motion to hold

petitioner in default in the case of docket No. 9702-00.         Each of

those respective responses contained arguments and contentions

that the Court found in an Order dated January 17, 2002 (January

17, 2002 Order) to be frivolous and/or groundless.       In the

January 17, 2002 Order that the Court issued in each of these

cases, the Court reminded each petitioner about section

6673(a)(1).8     The Court’s respective January 17, 2002 Orders in


     7
      (...continued)
          Court for illegal purposes. Respondent has no
          legal tax claim as petitioner has noted to respon-
          dent and this Court on numerous occasions. With-
          out a legal claim, respondent fraudulently in-
          structed petitioner to use this Court to legiti-
          mize his illegal attempt to deprive petitioner of
          his assets.

          *        *       *        *        *       *       *

     4.       This Court instruct the respondent to cease, now
              and forever, harassment of petitioner.

     8
      Sec. 6673(a)(1) states:

     SEC. 6673.     SANCTIONS AND COSTS AWARDED BY COURTS.

              (a) Tax Court Proceedings.--

                   (1) Procedures instituted primarily for de-
                                                       (continued...)
                               - 13 -

the cases at docket Nos. 9700-00 and 9702-00 were not the first

occasions on which the Court reminded Ms. Criss and Criss Trust

about section 6673(a)(1).9

                             Discussion

Criss Trust

     On December 3, 2001, the Court sua sponte issued the Decem-

ber 3, 2001 Show Cause Order regarding the Court’s jurisdiction

over the case at docket No. 9702-00.

     Rule 60 provides in pertinent part:

          (a) Petitioner:    (1) Deficiency or Liability


     8
      (...continued)
          lay, etc.--Whenever it appears to the Tax Court
          that--

                    (A) proceedings before it have been
               instituted or maintained by the taxpayer
               primarily for delay,

                    (B) the taxpayer’s position in such
               proceeding is frivolous or groundless, or

                    (C) the taxpayer unreasonably failed to
               pursue available administrative remedies,

          the Tax Court, in its decision, may require the
          taxpayer to pay to the United States a penalty not
          in excess of $25,000.
     9
      On Sept. 19, 2001, the Court issued a separate Order in
each of the cases at docket Nos. 9700-00 and 9702-00 with respect
to the motion filed by each petitioner to compel answers to
interrogatories. In each of those two Orders dated Sept. 19,
2001, the Court found that each such motion, including attach-
ments thereto, contained contentions, statements, and/or argu-
ments that the Court found to be groundless and/or frivolous, and
the Court reminded petitioner in each of those cases about sec.
6673(a)(1).
                               - 14 -

     Actions: A case shall be brought by and in the name of
     the person against whom the Commissioner determined the
     deficiency (in the case of a notice of deficiency)
     * * * or by and with the full descriptive name of the
     fiduciary entitled to institute a case on behalf of
     such person. See Rule 23(a)(1). A case timely brought
     shall not be dismissed on the ground that it is not
     properly brought on behalf of a party until a reason-
     able time has been allowed after objection for ratifi-
     cation by such party of the bringing of the case; and
     such ratification shall have the same effect as if the
     case had been properly brought by such party. * * *

          *      *       *       *       *        *       *

          (c) Capacity: * * * The capacity of a fiduciary
     or other representative to litigate in the Court shall
     be determined in accordance with the law of the juris-
     diction from which such person’s authority is derived.

     The record does not establish where Criss Trust was orga-

nized.    The petition in the case at docket No. 9702-00 listed an

address for Criss Trust in Massillon, Ohio,10 which is also the

service address used by the Court in that case.    Assuming

arguendo that Criss Trust were a trust organized under the laws

of the State of Ohio, the administration of which is subject to

the laws of that State, under Ohio law, see Rule 60(c), a trustee

generally is the proper party authorized to act on behalf of a

trust.    Firestone v. Galbreath, 976 F.2d 279, 284 (6th Cir.

1992); Saxton v. Seiberling, 48 Ohio St. 554, 29 N.E. 179 (1891);




     10
      The Ohio address listed in the petition in the case at
docket No. 9702-00 is the same address listed by petitioners in
the respective cases at docket Nos. 9700-00 and 9701-00.
                                 - 15 -

see Ohio R. Civ. P. 17(A).11

     In the case at docket No. 9702-00, Criss Trust has the

burden of proving that this Court has jurisdiction, see Fehrs v.

Commissioner, 65 T.C. 346, 348 (1975); Natl. Comm. to Secure

Justice in the Rosenberg Case v. Commissioner, 27 T.C. 837, 839

(1957), by establishing affirmatively all facts giving rise to

our jurisdiction, see Wheeler’s Peachtree Pharmacy, Inc. v.

Commissioner, 35 T.C. 177, 180 (1960); Consol. Cos. v. Commis-

sioner, 15 B.T.A. 645, 651 (1929).        In order to meet that burden,

Criss Trust must provide evidence establishing who has the

authority to act on its behalf in the proceeding at docket No.

9702-00.     See Natl. Comm. to Secure Justice in the Rosenberg Case

v. Commissioner, supra at 839-840; Coca-Cola Bottling Co. v.

Commissioner, 22 B.T.A. 686, 700 (1931).

     On the instant record, we find that Criss Trust has failed

to establish who has the authority to act on its behalf in the



     11
          Ohio R. Civ. P. 17(A) provides in pertinent part:

     RULE 17.     Parties plaintiff and defendant; capacity

          (A) Real party in interest. Every action shall be
     prosecuted in the name of the real party in interest.
     An executor, administrator, guardian, bailee, trustee
     of an express trust, a party with whom or in whose name
     a contract has been made for the benefit of another, or
     a party authorized by statute may sue in his name as
     such representative without joining with him the party
     for whose benefit the action is brought. * * * [Empha-
     sis added.]
                              - 16 -

proceeding at docket No. 9702-00.   We further find on that record

that the case at docket No. 9702-00 was not brought by and with

the full descriptive name of the fiduciary entitled to institute

a case on behalf of Criss Trust, as required by Rule 60(a)(1).

On the record before us, we conclude that we do not have juris-

diction over the case at docket No. 9702-00.   Accordingly, we

shall dismiss that case for lack of jurisdiction.12

Ms. Criss and Mr. Criss

     Neither Ms. Criss nor any authorized representative of Ms.

Criss appeared at the Court’s Cleveland trial session on October

15, 2001, at the call of these consolidated cases from the

Court’s trial calendar.   Neither Mr. Criss nor any authorized

representative of Mr. Criss appeared at that calendar call.

     At the trial held by the Court in the case at docket No.

9700-00, neither Ms. Criss nor any authorized representative of

Ms. Criss appeared.   At the trial held by the Court in the case

at docket No. 9701-00, neither Mr. Criss nor any authorized

representative of Mr. Criss appeared.

     The respective written responses by Ms. Criss and Mr. Criss

to respondent’s respective motions to dismiss for lack of prose-

cution and to impose sanctions under section 6673 in the cases at



     12
      Because we shall dismiss the case at docket No. 9702-00
for lack of jurisdiction, we shall deny respondent’s written
motion filed on Nov. 13, 2001, to hold Criss Trust in default in
that case.
                               - 17 -

docket Nos. 9700-00 and 9701-00 do not contain any valid reason

why those cases should not be dismissed for lack of prosecution.

Those respective responses contained contentions and arguments

that the Court found in the Court’s January 17, 2002 Order to be

frivolous and/or groundless.

     Section 7491(c) provides in pertinent part:

     SEC. 7491.   BURDEN OF PROOF.

          (c) Penalties.–-Notwithstanding any other provi-
     sion of this title, the Secretary shall have the burden
     of production in any court proceeding with respect to
     the liability of any individual for any penalty * * *.

     Section 6662(a) imposes an accuracy-related penalty equal to

20 percent of the underpayment of tax resulting from, inter alia,

negligence or disregard of rules or regulations, sec. 6662(b)(1),

or a substantial understatement of income tax, sec. 6662(b)(2).

For purposes of section 6662(a), an understatement is equal to

the excess of the amount of tax required to be shown in the tax

return over the amount of tax shown in the tax return, sec.

6662(d)(2)(A), and is substantial in the case of an individual if

it exceeds the greater of 10 percent of the tax required to be

shown in the return or $5,000, sec. 6662(d)(1)(A).   For purposes

of section 6662(a), the term “negligence” includes any failure to

make a reasonable attempt to comply with the Code, and the term

“disregard” includes any careless, reckless, or intentional

disregard.   Sec. 6662(c).   Negligence has also been defined as a

lack of due care or failure to do what a reasonable person would
                                - 18 -

do under the circumstances.     Leuhsler v. Commissioner, 963 F.2d

907, 910 (6th Cir. 1992), affg. T.C. Memo. 1991-179; Antonides v.

Commissioner, 91 T.C. 686, 699 (1988), affd. 893 F.2d 656 (4th

Cir. 1990).

     The accuracy-related penalty under section 6662(a) does not

apply to any portion of an underpayment if it is shown that there

was reasonable cause for, and that the taxpayer acted in good

faith with respect to, such portion.      Sec. 6664(c)(1).   The

determination of whether the taxpayer acted with reasonable cause

and in good faith depends on the pertinent facts and circum-

stances, including the taxpayer’s efforts to assess his or her

proper tax liability, the knowledge and experience of the tax-

payer, and the reliance on the advice of a professional, such as

an accountant.   Sec. 1.6664-4(b)(1), Income Tax Regs.       Reliance

on the advice of a professional, such as an accountant, does not

necessarily demonstrate reasonable cause and good faith unless,

under all the circumstances, such reliance was reasonable and the

taxpayer acted in good faith.     Id.    In the case of claimed

reliance on the accountant who prepared the taxpayer’s tax

return, the taxpayer must establish that correct information was

provided to the accountant and that the item incorrectly omitted,

claimed, or reported in the return was the result of the accoun-

tant’s error.    Ma-Tran Corp. v. Commissioner, 70 T.C. 158, 173

(1978).
                             - 19 -

     On the record before us, we find that respondent has satis-

fied the burden of production that respondent maintains respon-

dent has with respect to the respective accuracy-related penal-

ties under section 6662(a) that respondent determined to impose

on Ms. Criss and on Mr. Criss for the taxable years 1996 and

1997.13

     Based on our examination of the entire record before us, we

shall grant respondent’s motion in each of the cases at docket

Nos. 9700-00 and 9701-00 in that we shall dismiss each of those

cases for failure by petitioner in each such case to prosecute

such case, and we shall enter a decision in each of those cases

sustaining the determinations that respondent made in the notice

to which each such case pertains.

     In respondent’s motions in the cases at docket Nos. 9700-00

and 9701-00, respondent also asks the Court to impose a penalty

under section 6673(a)(1) on petitioner in each of those cases.

As grounds therefor, respondent contends that each of those

petitioners (1) instituted proceedings in the Court primarily for

delay, (2) advanced frivolous and groundless positions in such

proceedings, and (3) unreasonably failed to pursue administrative

remedies.



     13
      We are not deciding in the cases at docket Nos. 9700-00
and 9701-00 whether the Commissioner of Internal Revenue has the
burden of production in cases subject to sec. 7491(c) when a
taxpayer fails to appear for trial.
                              - 20 -

     On the record before us, we find that Ms. Criss instituted

the proceedings in the case at docket No. 9700-00 primarily for

delay.   We also find on that record that Ms. Criss’ position in

the case at docket No. 9700-00 was frivolous and/or groundless.

On the record before us, we shall impose a penalty on Ms. Criss

pursuant to section 6673(a)(1) in the amount of $3,000.

     On the record before us, we find that Mr. Criss instituted

the proceedings in the case at docket No. 9701-00 primarily for

delay.   We also find on that record that Mr. Criss’ position in

the case at docket No. 9701-00 was frivolous and/or groundless.

On the record before us, we shall impose a penalty on Mr. Criss

pursuant to section 6673(a)(1) in the amount of $20,000.

     To reflect the foregoing,


                                      An appropriate order of dis-

                                 missal for lack of jurisdiction and

                                 denying respondent’s motion will be

                                 entered in the case at docket No.

                                 9702-00, and an appropriate order

                                 granting respondent’s motion and

                                 decision will be entered in each of

                                 the cases at docket Nos. 9700-00

                                 and 9701-00 sustaining respondent’s

                                 determinations and imposing a pen-

                                 alty under section 6673(a)(1) in

                                 each of those two cases.
