                          T.C. Memo. 2005-273



                        UNITED STATES TAX COURT



                 ROBERT C. CURCI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1495-04.                   Filed November 28, 2005.


     Robert C. Curci, pro se.

     Shawna A. Early, for respondent.



                          MEMORANDUM OPINION


     MARVEL, Judge:     This matter is before the Court on

respondent’s motion to dismiss for lack of prosecution.

                              Background

     Petitioner did not file Federal income tax returns for 1997,

1998, 2000, and 2001.    By a notice of deficiency dated October

28, 2003, respondent determined deficiencies in income tax and
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additions to tax under sections 6651(a)(1)1 and 6654(a) for 1997,

1998, 2000, and 2001 (the years in issue) as follows:

    Tax year          Deficiency      Sec. 6651(a)(1)   Sec. 6654(a)
      1997             $87,669           $19,884.75      $4,207.05
      1998             118,109            27,576.00       5,007.64
      2000              63,621            14,259.00       3,007.48
      2001              37,781             7,726.75       1,204.64

     On January 26, 2004, we received and filed petitioner’s

petition for redetermination of the deficiencies for the years in

issue.   Petitioner resided in Bronx, New York, when his petition

was filed.     In his petition, petitioner argued that respondent’s

calculation of petitioner’s capital gains and losses was

incorrect.2

     We set petitioner’s case for trial during our October 25,

2004, New York, New York, trial session, and mailed him a notice

setting case for trial and a standing pretrial order, dated May

19, 2004.     The standing pretrial order required the parties to


     1
      All section references are to the Internal Revenue Code in
effect for the years at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
     2
      In the notice of deficiency, respondent also determined
that petitioner received unreported income from wages, interest,
dividends, partnerships, real estate, and nonemployee
compensation. Respondent granted petitioner the standard
deduction for all 4 years in issue and determined that petitioner
was liable for a self-employment tax on his nonemployee
compensation for 1998. Respondent also adjusted petitioner’s
personal exemption for each year to reflect the increase in
petitioner’s adjusted gross income. Petitioner did not contest
these adjustments in his petition, and, consequently, except for
computational adjustments, we deem these adjustments conceded.
See Rule 34(b)(4).
                                - 3 -

prepare a stipulation of facts and stated that the failure of

either party to cooperate in the preparation of such stipulation

could result in sanctions.   The order also required each party to

exchange documents that the party intended to use at trial and to

prepare a pretrial memorandum and submit copies to the Court and

opposing party at least 2 weeks before the first day of the trial

session.

     By letter dated April 9, 2004, respondent’s Appeals officer

scheduled a settlement conference with petitioner for May 25,

2004.   When a settlement was not reached, petitioner’s case was

returned to the Division Counsel’s office, and an attorney from

that office scheduled an October 20, 2004, meeting with

petitioner for the purpose of preparing a stipulation of facts

for trial.   Petitioner attended the meeting, but his

documentation was incomplete.   The parties did not prepare a

stipulation of facts.

     On October 25, 2004, both respondent’s counsel and

petitioner appeared at calendar call and were heard.

Respondent’s counsel reported that respondent was ready to

proceed with trial.   Petitioner requested additional time to

prepare and submit his Federal income tax returns for the years

in issue.    We ordered the parties to submit decision documents or

a status report on or before November 24, 2004.
                                - 4 -

     On November 17, 2004, petitioner informed respondent that

petitioner had prepared a schedule of stock transactions for the

years in issue and was waiting for an appointment to have his tax

returns prepared.   On November 22, 2004, petitioner told

respondent that he had scheduled such an appointment for November

23, 2004, and that he anticipated his returns being prepared and

completed shortly thereafter.   On November 24, 2004, we filed

respondent’s status report in which respondent requested an

additional 45 days, until January 9, 2005, for the parties to

file decision documents or a status report.      We granted the

parties’ request for an extension by order dated November 29,

2004.

     On December 28, 2004, respondent requested that petitioner

submit his delinquent returns on or before January 5, 2005.

Respondent also warned petitioner that if petitioner did not make

progress in preparing and filing his delinquent returns,

respondent would request that petitioner’s case be called for

trial during the next New York, New York, trial session.      On

January 3, 2005, petitioner informed respondent that petitioner

did not have his returns prepared.      Respondent again warned

petitioner that if he did not receive petitioner’s returns by

January 5, 2005, he would request that the case be restored to

the general docket and calendared for trial at the next New York,

New York, trial session.   On January 5, 2005, petitioner informed
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respondent that he did not have his returns and did not know when

they would be completed.

     On January 6, 2005, we filed respondent’s status report.     On

January 7, 2005, we ordered that the case be restored to the

general docket, and the case was set for trial during the Court’s

June 13, 2005, New York, New York, trial session.    We sent

petitioner a notice setting case for trial and a standing

pretrial order, dated January 10, 2005.

     By letter dated January 26, 2005, respondent requested that

petitioner send copies of all relevant documents to respondent

pursuant to Branerton Corp. v. Commissioner, 61 T.C. 691 (1974).

Respondent also warned petitioner that, in light of petitioner’s

history of inaction, should he fail to provide the requested

information, respondent would object to any further continuances

requested by petitioner, file a motion to dismiss the case at the

calendar call, and request that the deficiencies and additions to

tax asserted in the notice of deficiency be sustained.    On March

18, 2005, respondent sent petitioner another letter requesting

petitioner’s tax returns for the years in issue and any other

documentation supporting his tax return positions.

     On March 30, 2005, we filed respondent’s requests for

admission.   Petitioner did not file a response within 30 days,

and, consequently, the requested admissions were deemed admitted

under Rule 90(c).   On May 23, 2005, respondent once again
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requested copies of petitioner’s delinquent tax returns.     By

letter dated May 27, 2005, respondent warned petitioner that if

he did not submit his returns to respondent, respondent would

move to dismiss the case for failure by petitioner to properly

prosecute.

     On June 13, 2005, both respondent’s counsel and petitioner

appeared and were heard.    Respondent’s counsel presented a motion

to dismiss for lack of prosecution as a result of petitioner’s

inaction.    When questioned about his continued inaction,

petitioner stated that he was “probably the world’s biggest

procrastinator” and argued that his tax returns had become too

complicated for him to prepare.3   We took respondent’s motion to

dismiss under advisement for 30 days.    We advised petitioner that

if he provided respondent with his supporting documentation and

filed his delinquent returns, we would favorably consider his

actions when determining whether he acted willfully or in bad

faith.   Petitioner did not provide respondent with any of his

delinquent returns or supporting schedules by the July 13, 2005,

deadline, nor has he submitted any documents since that date.




     3
      Petitioner also blamed his inaction on his responsibilities
as the executor of a friend’s estate, on his providing aid to an
evicted friend, and on two sick cats.
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                             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.      See 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. 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 procrastination and inaction made it impossible for the

parties to exchange information, conduct negotiations, or prepare

a stipulation of facts before trial.      Petitioner’s several

requests for more time to file his delinquent returns, which were
                               - 8 -

made fewer than 30 days before scheduled trial session dates,4

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 willingness to prepare his case

for trial.   Although petitioner asserted that he was in the

process of having his returns prepared, he did not take

meaningful steps to meet with his preparer or with respondent,

although he had plenty of time and opportunity to do so.     We

conclude from these circumstances that petitioner’s claim that he

intended to prepare and file his returns was simply another

misguided attempt to procrastinate and delay.

     We conclude, therefore, 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


     4
      Under Rule 133, a motion for continuance filed 30 days or
less before the trial date will be denied unless the ground for
continuance arose within that period or there was good reason for
not making the motion sooner. Petitioner requested additional
time to file long overdue tax returns, the absence of which
petitioner admits is a result of his own procrastination.
                                 - 9 -

at 116-117; Smith v. Commissioner, supra.        Petitioner’s course of

conduct throughout the proceedings demonstrates that these

failures are due to petitioner’s willfulness, bad faith, or

fault, and we conclude that dismissal of this case is

appropriate.   Petitioner has not raised any issue upon 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 wrong).5

     To reflect the foregoing,

                                              An appropriate order of

                                         dismissal and decision will be

                                         entered.




     5
      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, meetings,
and interviews, the burden of proof does not shift to respondent.
See sec. 7491(a). In addition, respondent has no obligation
under sec. 7491(c) to produce evidence that the secs. 6651(a)(1)
and 6654(a) additions to tax are applicable because petitioner is
deemed to have conceded the additions to tax by failing to assign
error to the additions to tax in the petition. See Funk v.
Commissioner, 123 T.C. 213, 217-218 (2004); Swain v.
Commissioner, 118 T.C. 358, 363-364 (2002). Even if respondent
had an obligation to produce evidence of petitioner’s liability
for the additions to tax, respondent’s obligation would be
satisfied by the deemed admissions.
