                  T.C. Summary Opinion 2008-147



                       UNITED STATES TAX COURT



 SAMATER ABDIKARIM AND ASHAKA H. FARAH ABDIKARIM, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23112-06S.              Filed November 24, 2008.



     Steve M. Williard, for petitioners.

     Ashley P. Vaughan, for respondent.



     VASQUEZ, Judge:    This case was heard pursuant to the

provisions of section 74631 of the Internal Revenue Code in

effect when the petition was filed.   Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,



     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
year in issue, and all Rule references are to the Tax Court Rules
of Practice and Procedure.
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and this opinion shall not be treated as precedent for any other

case.

                            Background

     This case is before the Court on respondent’s motion to

dismiss for lack of prosecution (respondent’s motion).    By notice

of deficiency, respondent determined a deficiency of $5,404 with

respect to petitioners’ 2005 Federal income tax.

     On November 13, 2006, petitioners invoked the jurisdiction

of this Court by timely filing a petition.

     By notice dated July 3, 2007, the Court set this case for

trial at the Court’s Houston, Texas, session beginning December

3, 2007.   The notice specifically stated:   “YOUR FAILURE TO

APPEAR MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION

AGAINST YOU.”

     On December 3, 2007, the Court held a hearing on

petitioners’ motion for continuance of trial.    Petitioners, via

counsel, proffered that:   (1) They would be out of the country

during December 2007 on account of their employment; (2) this was

the first motion for continuance of trial petitioners had sought;

and (3) the motion for continuance of trial was not made for the

purposes of delay.   Respondent did not object to petitioners’

motion for continuance of trial.   That same day, the Court

granted the motion for continuance of trial.
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     By notice dated January 9, 2008, the Court set this case for

trial at the Court’s Houston, Texas, session beginning June 9,

2008.   The notice specifically stated:   “YOUR FAILURE TO APPEAR

MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST

YOU.”

     On June 9, 2008, respondent filed respondent’s motion and

the Court held a hearing on respondent’s motion.

     In respondent’s motion, respondent averred (among other

things) that:

     (1) Since the continuance petitioners have not
     contacted respondent, provided any additional
     information to respondent, or taken any action to move
     their case forward;

     (2) during the week of May 19, 2008, petitioners’
     counsel stated that he had not heard from his clients
     and did not know whether they would appear for trial;
     and

     (3) all the material allegations of fact set forth in
     the petition in support of the assignments of error
     have been denied by respondent; no issues have been
     raised upon which the burden of proof is upon
     respondent; respondent has not conceded any error
     assigned in the petition; and no evidence has been
     adduced in support of the assignments of error raised
     in the petition.

At the hearing, petitioners’ counsel stated that his clients had

been unavailable to him (i.e., they have not had contact) for

about a year.   Petitioners’ counsel was informed that petitioners

left the country to take a job in India or Pakistan.   Petitioners

had left their counsel no forwarding address.   Petitioners’
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counsel has sent certified letters to petitioners that have come

back to him as returned or undeliverable.

     Petitioners’ counsel did not object to the granting of

respondent’s motion.   Petitioners’ counsel stated he had done

everything he could to locate his clients but has been unable to

locate or contact them.    Petitioners’ counsel attempted to

contact petitioners by mail to advise them he was going to

withdraw and that this case would be dismissed.     This letter was

returned to petitioners’ counsel.

                             Discussion

     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.   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 Internal Revenue Code.

     Petitioners failed to appear in person, and no evidence was

introduced on their behalf by counsel.     Therefore, we conclude
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that the burden of proof regarding the deficiency is not placed

on respondent pursuant to section 7491(a).       Accordingly, we

sustain respondent’s deficiency determination.

     To reflect the foregoing,


                                              An appropriate order of

                                         dismissal and decision will

                                         be entered.
