                        T.C. Memo. 2009-299



                      UNITED STATES TAX COURT



                 FREDERICK PATMON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14986-08.              Filed December 22, 2009.



     Frederick Patmon, pro se.

     Debra A. Bowe, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     COHEN, Judge:   Respondent determined a deficiency of $6,104

in petitioner’s Federal income tax for 2003 and additions to tax

under sections 6651(a)(1) and (2) and 6654(a).   The notice of

deficiency was based on third-party reporting of income paid to

petitioner.   After the notice of deficiency was sent, petitioner

submitted a Form 1040, U.S. Individual Income Tax Return, for
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2003.   Thereafter respondent moved to amend the answer, alleging

a corrected tax liability of $24,114 and commensurate increased

additions to tax based on admissions of income on the Form 1040

that petitioner submitted.   Respondent’s motion was granted on

June 2, 2009, before the first trial date discussed below.

     Because of petitioner’s repeated failures to appear for

trial, to produce substantiation of deductions claimed on his

belated Form 1040, or to produce evidence related to other

issues, this case is presently before the Court on respondent’s

motion to dismiss for failure properly to prosecute.   All section

references are to the Internal Revenue Code in effect for 2003.

Unless otherwise indicated, all Rule references are to the Tax

Court Rules of Practice and Procedure.

                         FINDINGS OF FACT

     Petitioner resided in Michigan at all material times.   For

many years before 2003, he practiced law in Detroit.   He appeared

in this Court on behalf of himself and other taxpayers and is

familiar with the procedural requirements of this Court.

     The notice of deficiency was sent on March 17, 2008, based

on third-party reporting of petitioner’s income and a substitute

for return prepared under section 6020(b).   The petition was

filed on June 18, 2008, alleging that petitioner had filed his

2003 Form 1040 on June 16, 2008.   The petition further alleged

that the notice of deficiency was arbitrary and erroneous for not
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allowing the “Schedule C Business Net Loss” reflected on

petitioner’s belated Form 1040.

     The belated Form 1040 petitioner submitted for 2003 reported

on the attached Schedule C, Profit or Loss From Business, gross

receipts of $71,008.   He claimed total expenses of $99,100,

including $87,100 of “other expenses” that he did not identify.

Petitioner appended to the $87,100 item a statement in which he

“objects to the question or furnishing the information on the

grounds of the Fifth Amendment privilege against self-

incrimination”.   Petitioner also reported $12,392 in Social

Security benefits but did not include any portion of those

benefits in taxable income.

     At the time that he filed the petition, petitioner requested

Los Angeles, California, as the place of trial.    By notice served

January 22, 2009, the case was set for trial in Los Angeles on

June 22, 2009.    Attached to the notice setting case for trial was

the Court’s standing pretrial order.    Both the notice setting

case for trial and the standing pretrial order warned petitioner

of the consequences of failing to appear for trial.

     Commencing on April 1, 2009, petitioner sent to respondent

and to the Court approximately 20 motions and other filings that

contained spurious attacks on respondent’s counsel and frivolous

and unintelligible arguments that essentially demanded that

respondent concede this case.   Petitioner has contended, among
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other things, that his privacy has been violated as a result of

disclosures of his tax information by steps taken in response to

his petition.   Beginning with the first denial of one of his

motions, petitioner has extended his spurious attacks to the

Court and its rulings as further described below.

     On April 29, 2009, petitioner’s first motion to continue

trial was filed, requesting a continuance “until in or after the

October 2009 Trial Session/Calendar” in Los Angeles.    Petitioner

contended that illness justified the continuance but that “he

will be able and ready to proceed to trial in or after the

October 2009 calendared session.”    Petitioner attempted to submit

certain information under seal, refusing to provide relevant

information to respondent.    Respondent objected to the

continuance, describing petitioner’s refusal to substantiate

Schedule C expenses claimed on his belated Form 1040, to show

reasonable cause for his failure to file his 2003 return timely,

or to justify his contention that certain pension income he

received was not taxable.    Petitioner’s contentions were

addressed in a detailed order dated June 2, 2009, that concluded:

          ORDERED that petitioner’s “MOTION TO CONTINUE
     TRIAL”, filed on April 29, 2009, is denied without
     prejudice to the filing of a future motion if
     petitioner provides a letter from a licensed medical
     doctor or other comparable evidence of physical
     incapacity that the Court finds acceptable and
     convincing.
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     On June 15, 2009, petitioner’s second motion to continue

trial was filed.   Again petitioner requested that the trial be

continued until in or after the October 2009 Los Angeles session.

Petitioner purported to submit medical information “in camera”,

again attempting unilaterally to have documents submitted to the

Court sealed and unavailable to respondent.

     The case was called for trial in Los Angeles on June 22,

2009, and recalled on June 29, 2009.    There was no appearance by

or on behalf of petitioner.   Between June 22 and June 29, several

attempts to reach petitioner for a conference call with the Court

were made, but neither the Court nor respondent’s counsel was

able to contact petitioner.   Respondent’s counsel filed a motion

to dismiss for lack of prosecution, recounting petitioner’s

failure to cooperate in preparing the case for trial and his

failure to explain his physical condition.    The Judge presiding

at the June 22 Los Angeles trial session retained jurisdiction of

the case and continued it until further order of the Court, and

petitioner’s second motion for continuance was denied as moot.

After consultation with Judges assigned to the October 26, 2009,

Los Angeles session and the October 19, 2009, Detroit session

about their willingness to have the case added to their pending

calendars, the Court issued an order dated July 22, 2009,

providing in part as follows:
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          ORDERED that since petitioner is currently
     residing in Detroit, Michigan, is undergoing many
     medical tests and treatments, and his health may not
     permit the trial of his case in Los Angeles,
     California, petitioner shall determine if his health
     will likely permit the trial of his case on October 26,
     2009, in Los Angeles, California. If not, on or before
     August 11, 2009, he shall file (1) a motion to change
     the place of trial from Los Angeles, California to
     Detroit, Michigan; and (2) a motion to calendar this
     case for the October 19, 2009, Detroit, Michigan trial
     session that also addresses any known health problems
     that might disrupt a trial scheduled at that time. It
     is further

          ORDERED that if changing petitioner’s place of
     trial from Los Angeles, California to Detroit, Michigan
     is not agreeable with petitioner, then petitioner shall
     file a status report with the Court. The status report
     shall indicate his availability for trial at the
     October 26, 2009, Los Angeles, California [session].
     To the extent reasonably possible, the Court expects
     petitioner to schedule his medical treatments, tests or
     procedures around the Court’s trial schedule for this
     case. If petitioner fails to file a motion to change
     the place of trial as referenced above by August 11,
     2009, the Court will calendar this case for the October
     26, 2009, Los Angeles, California trial session and
     will issue a notice of trial in due course. Petitioner
     is warned that absent good cause, it is very unlikely
     the Court will grant further continuances of his case
     or excuse his refusal to accept conference calls, fully
     participate in the informal discovery and stipulation
     process, or appear for trial in person or through a
     designated representative, licensed to practice before
     this Court. It is further

          ORDERED that petitioner shall, on or before August
     11, 2009, file any response to the above-referenced
     motion to dismiss for lack of prosecution.

     Petitioner filed a status report and a response to the

motion to dismiss for lack of prosecution.   Again he asserted

that his physical illness prevented him from appearing at trial;

but he did not request that the place of trial be changed to
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Detroit.   His response to the motion to dismiss again asserted

that the determined deficiency was arbitrary and erroneous, made

meritless evidentiary objections and irrelevant arguments,

attacked respondent’s counsel, demanded inappropriate discovery,

and failed to present any substantiation of his claimed

deductions or to address the income issues in this case.

     On August 17, 2009, the pending motion to dismiss was set

for hearing in Los Angeles on October 26, 2009.   The same order

contained the following:

          ORDERED that if the Court does not grant the
     above-referenced motion to dismiss for lack of
     prosecution, this case is set for trial at the trial
     session beginning October 26, 2009, at the room and
     address set forth in the previous paragraph. YOUR
     FAILURE TO APPEAR MAY RESULT IN DISMISSAL OF THE CASE
     AND ENTRY OF DECISION AGAINST YOU. YOUR FAILURE TO
     COOPERATE MAY ALSO RESULT IN DISMISSAL OF THE CASE AND
     ENTRY OF DECISION AGAINST YOU.

     On August 26, 2009, petitioner filed a document objecting to

the proceedings of June 22 and 29 and the order of July 22, 2009,

which was filed as petitioner’s motion to reconsider.   That

document began a series of attacks on the Court and was denied.

On August 27, 2009, petitioner filed a document seeking to

disqualify respondent’s counsel and various other sanctions

against respondent.   That document, notwithstanding petitioner’s

repeated failure to comply with Rule 54(b), was filed as

petitioner’s motion for sanctions and was denied in an order

dated September 1, 2009, containing the following:
                               - 8 -

          It appears from the record in this case that the
     issues are substantiation of petitioner’s claimed
     Schedule C expenses, reasonable cause for the late
     filing of his 2003 Federal income tax return, and the
     taxable portion of petitioner’s Social Security
     benefits. Petitioner’s discovery and the pending
     motion are not reasonably related to securing evidence
     on those issues, inasmuch as any relevant evidence is
     in the possession of petitioner and he has the burden
     of proof on those issues. None of those issues
     appropriately involves testimony from respondent’s
     counsel. Petitioner’s discovery requests and proposed
     stipulation are essentially demands that respondent
     concede the case and are frivolous. His complaints
     about respondent’s counsel are therefore irrelevant if
     not totally groundless.

          The record also reflects petitioner’s claims of
     medical issues preventing his appearance at the time
     the case was initially set for trial. Petitioner’s
     efforts reflected in the pending motions and in prior
     filings in this case are wasteful diversions. If he
     has the health, time and energy to produce the volume
     of filings reflected in the record, he is able to
     produce documents that substantiate his claimed
     business deductions. Unless he produces substantiation
     in accordance with the Court’s rules and the Standing
     Pretrial Order, he risks dismissal of the petition as a
     result of respondent’s motion now set for hearing on
     October 26, 2009, or decision against him on those
     issues in accordance with Rules 123 and 149, Tax Court
     Rules of Practice and Procedure. Petitioner is also
     reminded of the provisions of Section 6673 with respect
     to frivolous and groundless claims, maintaining an
     action primarily for delay, and failure to exhaust
     administrative remedies. * * *

     On August 31 and September 11, petitioner filed two motions

under Rule 91(f) seeking to compel stipulations by which

respondent would concede the case.     On September 2, he filed a

motion in limine seeking summary resolution of the case in his

favor.   On October 7, he filed a motion seeking to disqualify the

Judges to whom the June 22 and October 26 Los Angeles trial
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sessions had been assigned, making false and scurrilous

accusations against those Judges, the Chief Judge who reassigned

the case, and staff of the Court.

     Petitioner failed to appear for trial in Los Angeles on

October 26, 2009, or when the case was recalled on October 29.

He has submitted multiple responses to the motion to dismiss, a

second motion in limine, and a purported Rule 50 statement “in

lieu of attending hearing”.   His filings attach numerous copies

of correspondence in which he threatens respondent’s counsel and

demands that respondent agree with his contentions and concede

the case.   Although he has attached copies of some receipts, such

as for telephones, postage, and supplies, they are not self-

explanatory, could represent personal expenditures as well as

business expenditures, and do not in total substantiate the

amounts claimed on his belated Form 1040.   Although he claims

that long-term illness was reasonable cause for late filing of

his 2003 return and is an excuse for his failures to appear for

trial, he has been able to prepare and submit to respondent and

to the Court volumes of material making legalistic arguments and

citing legal authorities.   His submissions show familiarity with

the Court’s Rules and procedures, but he has abused those

procedures to obstruct orderly and accurate determination of his

tax liability for 2003.
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                               OPINION

     Notwithstanding the voluminous record, there is no ready

explanation of petitioner’s choice of Los Angeles for trial of

this case.   When given the opportunity to have the trial moved to

Detroit to avoid the burdens of travel to Los Angeles, petitioner

declined.    Based on his allegations, petitioner’s Detroit area

physicians might be witnesses with respect to his claimed

reasonable cause for the late filing of his return or with

respect to his excuses for failing to appear.    By his choice of

place of trial, petitioner has created the difficulties of which

he now complains.    A reasonable inference from the record is that

his strategy is to maintain this action for delay rather than to

have his 2003 tax liability determined.

     Petitioner received multiple express warnings of the

consequences of his failure to appear for trial.    He has refused

to address the income and expense issues and has made

uncorroborated assertions about reasons for his failure to timely

file his 2003 Federal tax return.    Neither respondent nor the

Court is required to accept his unilateral assertions, even if he

had made them under oath at trial and was thus available for

cross-examination.    There is no likelihood on this record that

petitioner would ever appear for trial or would present relevant

evidence necessary to a proper determination of his tax liability

if he did appear for trial.    We consider respondent’s motion
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without evidence or a finding as to petitioner’s actual ability

to appear in Los Angeles on October 26 or 29, 2009.    He was not

ready for trial regardless of his ability to attend.    We conclude

that the result would be the same if he had appeared on any of

the dates set for trial or on any other date.    See Brooks v.

Commissioner, 82 T.C. 413, 422-425 (1984), affd. without

published opinion 772 F.2d 910 (9th Cir. 1985); see also Rule

149(b).

     The notice of determination was based on third-party

reporting of income items and was not arbitrary.    Because of the

admissions in petitioner’s belated Form 1040, there is no

reasonable dispute as to the income alleged in the amended

answer.   See sec. 6201(d).   Respondent does not have the burden

of disproving petitioner’s entitlement to deductions.    See Rule

142(a); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992);

Rockwell v. Commissioner, 512 F.2d 882, 886 (9th Cir. 1975),

affg. T.C. Memo. 1972-133.    Because of petitioner’s failure to

substantiate items or to maintain and produce required records,

he has not satisfied the requirements for shifting the burden of

proof under section 7491(a).

     Recognizing the burden of production under section 7491(c)

with respect to penalties, respondent attached to the motion a

certified transcript of petitioner’s account; a certification of

the substitute for return prepared under section 6020(b) for
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2003; and a certification of lack of a return filed for 2002.

These materials support the additions to tax.      See Higbee v.

Commissioner, 116 T.C. 438, 447 (2001); Leggett v. Commissioner,

T.C. Memo. 2006-253.

     Many of petitioner’s filings relate to his demand that

respondent stipulate away the case and for “discovery”.       Because

this case has not proceeded to trial, disputes over the

stipulation process are moot.    Petitioner, not respondent, has

within his control relevant evidence, and his proposed discovery

was unnecessary and inappropriate.       The case may be submitted on

the record of petitioner’s admissions, his failure to

substantiate deductions, and his failure to establish reasonable

cause for the failure to file his 2003 return for almost 4 years

after it was due, or the case may in whole or part be dismissed.

See Rule 123(b).

     Petitioner alleges, without any factual foundation, that

improper communications occurred between respondent’s counsel and

the Court and among Court officers and staff.      He includes in his

complaints matters occurring on the record during scheduled and

noticed hearings that he failed to attend.      Contrary to

petitioner’s claims, there have been no inappropriate ex parte

communications between respondent and the Court; all

communications between respondent’s counsel and the Court are

reflected in filed documents or transcripts of the proceedings.
                               - 13 -

Communications among the Judges and staff of the Court about

processing petitioner’s submitted documents that do not comply

with the Court Rules and about scheduling of trials are not

improper in any respect.    The Judge to whom the October 26, 2009,

Los Angeles calendar was assigned was known well before

petitioner’s first motion requesting that the case be continued

to that calendar and was not “hand picked” for his case, as

petitioner alleged.   He had the option of trial in Detroit or Los

Angeles in October, and he did not request a change of the date

or place of trial.

     Petitioner’s claims of bias and his demands for recusal are

not well founded.    As the Supreme Court has explained, “opinions

formed by the judge on the basis of facts introduced or events

occurring in the course of the current proceedings, or of prior

proceedings, do not constitute a basis for a bias or partiality

motion unless they display a deep-seated favoritism or antagonism

that would make fair judgment impossible.”    Liteky v. United

States, 510 U.S. 540, 555 (1994); United States v. Allen, 587

F.3d 246, 252 (5th Cir. 2009).   Adverse rulings of the Court in

this case were all responsive to petitioner’s filings and not

based on any extrajudicial information.   In any event, adverse

rulings are not indications of bias or grounds for
                               - 14 -

disqualification of a judge.   See, e.g., United States v.

Conforte, 624 F.2d 869, 882 (9th Cir. 1980); United States v.

Haldeman, 559 F.2d 31, 136 (D.C. Cir. 1976); United States v.

Ming, 466 F.2d 1000, 1002-1004 (7th Cir. 1972).

     We have considered petitioner’s remaining arguments.    They

are irrelevant or lacking in merit and are not worthy of

response.   On due consideration of the entire record,

respondent’s motion to dismiss will be granted, and


                                        An appropriate order of

                                  dismissal and decision will be

                                  entered.
