                          T.C. Memo. 1996-147



                     UNITED STATES TAX COURT



          WAYNE E. AND DOROTHY E. WELLS, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1580-93.                        Filed March 25, 1996.



     James Dudley Williams, for petitioners.

     Donald E. Edwards, for respondent.




                          MEMORANDUM OPINION

     PAJAK, Special Trial Judge:     This case was assigned pursuant

to section 7443A(b)(4) and Rules 180 and 181.     All section

references are to the Internal Revenue Code for the taxable years

in issue, and all Rule references are to the Tax Court Rules of

Practice and Procedure.
                                          - 2 -

        This case is before the Court on petitioners' Motion To

  Withdraw Deemed Admissions, filed pursuant to Rule 90(f).                    A

  hearing on this motion was held at Oklahoma City, Oklahoma.

        By separate notices, respondent determined deficiencies in,

  and additions to, petitioners' Federal income taxes as follows:
                                        Wayne E. Wells

                                                Additions to Tax--Sections
Year    Deficiency         6651(a)(1)      6653(a)(1)(A)     6653(a)(1)(B) 6653(a)   6654

1986     $7,245             $1,211                 $369             *       ---       ---
1987      8,466              2,117                  423             *       ---      $456
1988     22,038              5,510                  ---            ---     $1,102     600
1989      9,221              2,305                  ---            ---      ---       623

* Amount equal to 50% of the interest due on the underpayment due to negligence.

                                     Dorothy E. Wells

                                                 Additions to Tax--Sections
Year    Deficiency         6651(f)      6653(b)(1)   6653(b)(1)(A) 6653(b)(1)(B)     6654

1986     $6,053              ---           ---            $4,540          *          $292
1987      5,851              ---           ---             4,388          *           317
1988      5,032              ---          $3,774            ---          ---          322
1989      8,135             $6,101         ---              ---          ---          551

* Amount equal to 50% of the interest due on the underpayment due to fraud.

        The deficiencies and additions to tax for Wayne E. Wells

  (Mr. Wells) were based upon respondent's determination that Mr.

  Wells negligently failed to report wage income and Schedule C

  income for the years in issue, as well as interest income and a

  profit sharing distribution in 1988.                Similar determinations for

  taxable years 1983, 1984, and 1985 were sustained in respondent's

  favor in Wells v. Commissioner, T.C. Memo. 1990-58.

        The deficiencies and additions to tax for Dorothy E. Wells

  (Mrs. Wells) were based upon respondent's determination that Mrs.

  Wells failed to report Schedule C income for the years in issue.
                               - 3 -

Similar determinations for taxable years 1984 and 1985 were

sustained in respondent's favor in Wells v. Commissioner, T.C.

Memo. 1989-150.   However, in the instant case, respondent

determined additions to tax against Mrs. Wells for fraud, rather

than negligence, as had been the case for the previous years.

Background

     In their petition, petitioners dispute the "entire amount

for each and every year."   Petitioners challenge the correctness

of the adjustments to income and additions to tax by alleging the

following "facts" in support of their assignments of error:

          5.   The facts upon which the petitioner [sic]
     relies as a basis of these proceedings are as follows:

          (a) That the petitioners are not liable for
          penalties/interest as claimed because no
          deficiency exists once the true income is
          calculated and the business and personal
          deductions are subtracted from the true gross
          income.

          (b) That the petitioners deny that the
          amount stated as gross income in notices of
          deficiency is accruate [sic].

          (c) That the petitioners are entitled to the
          normal business deductions associated with
          the tax years at issue all of which were not
          calculated to determine taxable income.

          (d) That the petitioners are entitled to the
          personal deductions associated with the tax
          years at issue all of which were not
          calculated to determine taxable income.

     Respondent filed her answer and denied petitioners'

assignments of error.   Respondent also alleged further facts in

support of her fraud determination concerning Mrs. Wells.
                               - 4 -

     The case was set for trial on May 23, 1994.    Petitioners

were served with the Court's Standing Pre-Trial Order on December

22, 1993.   This order advised petitioners to begin discussions

with respondent as soon as practicable for purposes of settlement

and/or preparation of a stipulation of facts.

     In January 1994, respondent attempted to confer informally

with petitioners in order to clarify the issues involved, and to

develop and stipulate where possible the pertinent facts.    By

letter dated January 20, 1994, respondent suggested that

petitioners meet with respondent's counsel on February 1, 1994,

or at a more convenient time, to discuss the case.    Attached to

this letter was a proposed stipulation of facts and copies of

pertinent Tax Court Rules.

     Petitioners failed to respond in any way to the January 20,

1994, letter.   By letter dated February 16, 1994, respondent

informed petitioners that due to their failure to appear for the

scheduled meeting or to arrange another meeting date, respondent

would proceed with discovery under the assumption petitioners

would not abide by the Tax Court Rules.   This letter also

informed petitioners they would be receiving a request for

admissions shortly, and warned petitioners of sanctions the Tax

Court could impose for failure to respond to the request.

Petitioners did not respond to this letter.

     Respondent then served petitioners with a Request for

Admissions on March 8, 1994, pursuant to Rule 90.    The request
                                - 5 -

clearly advised petitioners they had 30 days to respond by filing

a written answer with the Court and serving respondent with a

copy of the written answer.   Attached to the request were:

Copies of the notices of deficiency for both petitioners; copies

of letters dated July 6, 1990, with incomplete Forms 1040

attached, that petitioners had sent to the Internal Revenue

Service, purporting to be petitioners' tax returns for the years

in issue; and Bureau of Labor Statistics data used for computing

gross income after the base year of 1981.

     After respondent's Request for Admissions had been sent to

petitioners, petitioners sent respondent a letter on March 11,

1994, requesting informal discovery "as provided by the Rules of

the United States Tax Court."   This letter requested all

documents that "prove the gross income for Wayne Wells for the

tax years 1986, 1987, 1988 and 1989", "prove the gross income for

Dorothy Wells for the tax years 1986, 1987, 1988 and 1989", and

"prove the purported civil fraud penalties asserted against

Dorothy Wells."   Respondent's reply to this letter reminded

petitioners they had received documents, attached to the proposed

stipulation of facts, which supported the deficiencies and the

additions to tax.   Respondent also enclosed four other relevant

documents with this letter.

     The 30-day period following service of respondent's Request

for Admissions expired on April 7, 1994.    Petitioners neither

answered nor objected to the request during the 30-day period.
                              - 6 -

Consequently, the requests were deemed admitted on April 7, 1994.

The deemed admissions include the following:

          4.   For each of the taxable years 1986, 1987,
     1988 and 1989, the petitioner Dorothy E. Wells failed
     to file a federal income tax return.
          5.   During the four tax years 1986, 1987, 1988
     and 1989, petitioner Dorothy E. Wells received income
     as a licensed physical therapist from several different
     entities.

          6.   During the taxable year 1986, petitioner
     Dorothy E. Wells received gross income from the
     following sources:

          American Health Services, Inc.    $ 4,675.00
          Cushing Medical Clinic, Inc.       15,852.49
          Total                             $20,527.49

          7.   During the taxable year 1987, petitioner
     Dorothy E. Wells received gross income from the
     following sources:

          Creek County Health Department    $   825.00
          Cushing Medical Clinic, Inc.       18,535.25
          Cushing Regional Hospital           2,461.50
          Total                             $21,821.75

          8.   During the taxable year 1988, petitioner
     Dorothy E. Wells received gross income from the
     following sources:

          Cushing Medical Clinic, Inc.      $12,161.75
          Cushing Regional Hospital           7,847.49
          Total                             $20,009.24

          9.   During the taxable year 1989, petitioner
     Dorothy E. Wells received gross income from the
     following sources:

          Cushing Medical Clinic, Inc.      $15,237.48
          Cushing Regional Hospital          12,640.50
          Total                             $27,877.98

          10. During the taxable years 1986 and 1987, the
     payors made the amounts payable to Dorothy E. Wells.
                         - 7 -

     11. Beginning on or about March 15, 1988, Cushing
Regional Hospital, upon the instructions of Dorothy E.
Wells, began to make the income earned by her payable
to an entity named Summit Resources. All of the
$7,847.49 paid by Cushing Regional Hospital to
petitioner Dorothy E. Wells in the taxable year 1988
was made payable to Summit Resources.

          12. At some point in 1988, Cushing
     Medical Clinic, Inc., upon the instructions
     of Dorothy E. Wells, began to make the income
     earned by her payable to an entity named
     Summit Resources.   All of the $8,940.00 of
     the $12,161.75 paid by Cushing Medical
     Clinic, Inc. to petitioner Dorothy E. Wells
     in the taxable year 1988 was made payable to
     Summit Resources.

     13. For the taxable year 1989, all of the income
earned by Dorothy E. Wells from Cushing Medical Clinic,
Inc. and Cushing Regional Hospital was, upon her
instructions, made payable to Summit Resources.

     14. The address for Summit Resources given by
petitioner Dorothy E. Wells to those payors was 5147
South Harvard, Suite 248, Tulsa, Oklahoma 74135, which
is the address of a mailing service called "The Mail
Suite".

     15. Petitioner Dorothy E. Wells was an
independent contractor during each of these four years,
and none of the payors withheld any federal income tax
from the income they paid to her, based on her
instructions to them.

     16. Petitioner Dorothy E. Wells has not paid any
federal income tax for the taxable year 1986, 1987,
1988 or 1989.

     17. On July 6, 1990, petitioner Dorothy E. Wells
signed and mailed a letter to the Internal Revenue
Service, Austin, Texas, attached to which were five
Forms 1040 for 1985, 1986, 1987, 1988 and 1989. A copy
of the same letter was attached to each Form 1040, and
the only difference among the letters was that the
petitioner underlined the appropriate year in the
second line of the letter. A copy of the letter (the
letter in which 1986 was underlined) is attached hereto
as Exhibit 3-C, and a copy of each of the Forms 1040
                         - 8 -

for the four years before the Court--1986, 1987, 1988
and 1989--is attached hereto as Exhibits 4-D, 5-E, 6-F
and 7-G.

     18. Each of the Forms 1040 contains the
petitioner Dorothy E. Wells' name and address. In the
box for social security number was written "Religious
Objection." On line 7 for wages, salaries, tips, etc.,
was written the word "Estimated."

     19. The respondent determined that the Forms 1040
for 1986, 1987, 1988 and 1989 were not valid returns
and did not process them as valid returns.



          20. The 1986 Form 1040 had no other
     information on it or attached to it. In
     regard to the 1987 Form 1040, line 7 also had
     the figure $21,821.75, and attached to it
     were two Forms 1099-MISC, one from the Creek
     County Health Department showing non-employee
     compensation of $825.00, and one from the
     Cushing Medical Clinic, Inc., showing non-
     employee compensation of $18,535.25. The
     Form 1099-MISC from the Creek County Health
     Department also had the words "Religious
     Objection" in the box for the recipient's
     identification number.

     21. The Form 1040 for 1988 had the figure
$13,621.75 on line 7, but had no other attachments to
it or writing on it.

     22. The Form 1040 for 1989 had no other writing
on it, but a Form W-2 was attached to it. That form
listed the employer as Summit Resources, 5147 S.
Harvard, #247, Tulsa, OK 74135. It listed the
employee as Dorothy E. Wells, P.O. Box 1258, Bristow,
OK 74010. It listed her wages as $15,000.00. The
boxes for federal income tax and social security tax
withheld were left blank.

     23. The four identical letters included the
statement that "These returns should not be construed
to be a voluntary self assessment," and contained
additional language in which petitioner Dorothy E.
Wells denied that she had any federal income tax
liability for any of the four years.
                         - 9 -

     24. When the respondent attempted to summons
records from the Cushing Medical Clinic, Inc., and the
Creek County Health Department, petitioner Dorothy E.
Wells filed a petition to quash summons on July 13,
1990, in case number 90-C-599-B, United Stated District
Court, Northern District of Oklahoma. That petition
was dismissed upon the government's Motion For Summary
Judgment.

     25. Prior thereto, on February 13, 1989, a trial
was held in the U.S. Tax Court on the petition of
Dorothy E. Wells in Docket No. 28337-87, for the
taxable years 1983, 1984 and 1985. Judgment was
entered for respondent and damages under I.R.C. § 6673
in the amount of $5,000.00 were entered against
petitioner Dorothy E. Wells. Wells v. Commissioner,
T.C. Memo. 1989-150.

     26. For each of the taxable years 1986, 1987,
1988 and 1989, the petitioner Wayne E. Wells failed to
file a federal income tax return.

     27. Petitioner Wayne E. Wells has not paid any
federal income tax for any of the four taxable years
1986, 1987, 1988 and 1989, except for withholding in
1986 in the amount of $2,141.00.

     28. On or about July 6, 1990, petitioner Wayne E.
Wells mailed a letter to the Internal Revenue Service,
Austin, Texas, attached to which were five Forms 1040,
purported federal income tax returns for the taxable
years 1985, 1986, 1987, 1988 and 1989. A copy of the
same letter was attached to each Form 1040, and the
only difference among the letters was that the
petitioner underlined the appropriate year in the
second line of the letter. A copy of the letter (the
letter in which 1986 was underlined) is attached hereto
as Exhibit 8-H, and a copy of each of the Forms 1040
for the four years before the Court--1986, 1987, 1988
and 1989--is attached hereto as Exhibits 9-I, 10-J, 11-
K and 12-L.

     29. The four identical letters included the
statement that "These returns should not be construed
to be a voluntary self assessment," and contained
additional language in which petitioner Wayne E. Wells
denied that he had any federal income tax liability for
any of the four years.
                        - 10 -

     30. Each of the Forms 1040 contain the petitioner
Wayne E. Wells' name and address. On line 7 for wages,
salaries, tips, etc., was written the word "Estimated."

     31. The respondent processed the 1040 for 1986 as
a valid, albeit delinquent, federal income tax return,
but the respondent determined that the Forms 1040 for
1987, 1988 and 1989 were not valid returns and did not
process them as valid returns.

     32. The respondent used Bureau of Labor
Statistics to partly or wholly determine the income for
petitioner Wayne E. Wells during the four tax years
1986, 1987, 1988 and 1989. The respondent used the
income figures of all urban consumers for a family of
four living in Dallas, Texas, at the intermediate
family level, relying on 1981 as the base year, when
petitioner's Wayne E. Wells income was $22,678.00.
Those computations are reflected in the three-page
Exhibit 13-M.

     33. Based solely on those Bureau of Labor
Statistics figures, petitioner Wayne E. Wells had
partial earned gross income for the taxable years 1986,
1987, 1988 and 1989 in the amounts of $27,341.00,
$28,325.00, $61,672.00 and $30,902.00, respectively.

     34. From January 1, 1986, to April 8, 1986,
petitioner Wayne E. Wells earned income from Casualty
Reciprocal Exchange reported on a Form W-2 in the
amount of $13,419.36; that amount was included by the
respondent as part of the earned gross income for 1986
of $27,341.00.

     35. The respondent also determined that
petitioner Wayne E. Wells' received additional income
during the taxable year 1988 when his profit-sharing
plan with the Dodson Group, of which Casualty
Reciprocal Exchange was a member and the petitioner's
actual employer, was liquidated. It was liquidated
when the IRS seized the money to pay off past
assessments. This amount was $32,185.00 and was
received from the trustee, United Missouri Bank of
Kansas City, Trust Division. The respondent also
determined that petitioner Wayne E. Wells received
additional income in 1988 in the form of interest from
the U.S. Treasury Department, in the amount of $30.00.
                               - 11 -

     On May 5, 1994, petitioners filed a frivolous Motion To

Dismiss.    This motion is 23 pages in length and, as are most of

petitioners' filings, replete with tax protester arguments.

     Also on May 5, 1994, petitioners retained an attorney to

represent them in this case.    Petitioners' counsel subsequently

informed respondent's counsel that he would be requesting a

continuance because he did not have enough time to fully prepare

the case before the May 23, 1994, trial date.

     Petitioners filed their Motion For Continuance on May 11,

1994.   Petitioners represented that "Counsel for Petitioners

believes that a realistic prospect of settlement exists if the

continuance is granted, thereby potentially obviating the need

for any trial".   Based on the representations of petitioners'

counsel, respondent's counsel did not object to the continuance.

Respondent's counsel, however, did inform petitioners' counsel

that if there were no progress on the case by mid-July,

respondent's counsel would file a motion for summary judgment

relying on the requested admissions that had been deemed

admitted.

     On May 18, 1994, petitioners sent respondent their responses

to respondent's Request for Admissions.    Petitioners also

attempted to file those responses with the Court.    The document

was not filed by the Court and was returned to petitioners as

untimely.   Petitioners did not at this time seek to be relieved

of the deemed admissions.    The Court's transmittal letter
                              - 12 -

returning the documents advised them that such a motion was

necessary.

     On May 23, 1994, the Court denied petitioners' Motion To

Dismiss and granted petitioners' Motion For Continuance.




Motion for Withdrawal of Deemed Admissions

     On July 12, 1994, petitioners served respondent with their

Motion To Withdraw Deemed Admissions.   Between the hearing on May

23, 1994, and the date petitioners' motion was filed, petitioners

had not presented any evidence or any documentation to respondent

concerning the issues involved in the case.

     Under Rule 90(c), each matter in a request for admissions is

deemed admitted unless, within 30 days after service (or within

such shorter or longer time as the Court may allow), the party to

whom the request is directed admits, denies, or objects, stating

the reasons for the objection.   The written response must be

served on the other party and filed with the Court.    For purposes

of this case, each matter contained in the request was deemed to

be admitted as of April 7, 1994, because no objection or other

response was made by petitioners within the time period specified

by Rule 90(c).   Freedson v. Commissioner, 65 T.C. 333 (1975),

affd. on another issue 565 F.2d 954 (5th Cir. 1978).

     Under Rule 90(f), "Any matter admitted under this Rule is

conclusively established unless the Court on motion permits
                              - 13 -

withdrawal or modification of the admission."    The Rule permits

the Court to allow withdrawal or modification of admissions upon

the satisfaction of two elements:   (1) Presentation of the merits

of the case will be subserved; and (2) the party obtaining the

admission fails to satisfy the Court that the withdrawal or

modification will prejudice such party's litigation of the case.

     Concerning the first element, this Court has stated that the

first precondition to withdrawal or modification requires that

the moving party indicate facts tending to refute the deemed

admissions.   Although the moving party is not required to "try"

the case in the moving papers, that party must demonstrate a

purpose other than delay; namely, the presentation of competing

evidence, which can be accomplished by indicating facts or

proposed evidence contrary to or inconsistent with the deemed

admissions.   New v. Commissioner, 92 T.C. 1146, 1149 (1989);

Chapoteau v. Commissioner, T.C. Memo. 1989-37.

     Though petitioners did not file a Memorandum of Authorities

in support of their motion or testify at the hearing, it appears

that as grounds for withdrawal or modification of the admissions,

petitioners allege their pro se status, that they engaged an

attorney after the admissions were deemed admitted, and that it

would be inequitable to hold them to the admissions.

     Petitioners also attached their untimely responses to their

Motion To Withdraw Deemed Admissions.   Of the 43 requested

admissions, petitioners admitted 24, denied 10, and responded
                               - 14 -

that they had "insufficient information to either admit or deny"

the remaining 9.   Among the requests answered "insufficient

information to either admit or deny" were several that concerned

the letters petitioners sent to the Internal Revenue Service on

July 6, 1990, purporting to be their tax returns for the years in

issue.   A party must make reasonable inquiry to obtain

information known or readily obtainable that allows the party to

fairly admit or deny.   Rule 90(c); Boso v. Commissioner, T.C.

Memo. 1995-228.    Petitioners wrote and mailed these letters to

the Internal Revenue Service themselves.    We do not believe

petitioners have met the standards set forth in Rule 90 when they

claim "insufficient information to either admit or deny" facts of

which they have personal knowledge.

     Respondent's requested admissions relating to documents,

specific facts, and the authenticity of certain documents were a

reasonable attempt to narrow the issues and place facts before

the Court.   Petitioners have been given several opportunities to

address the merits of their case and to present evidence in

support of the issues as to which they have the burden of proof.

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

from admitting 24 of the requested admissions, petitioners did

not present in their motion or in their proposed responses any

facts that would tend to refute the deemed admissions.    Thus,

petitioners have shown no bona fide dispute as to the specific

factual statements contained in the Request for Admissions, or
                             - 15 -

concerning the documents attached to the Request.   Consequently,

allowing withdrawal of the deemed admissions would not subserve

the "presentation of the merits" of this case.   Because

petitioners have not met the first element of Rule 90(f), we need

not determine whether withdrawal or modification of the

admissions would prejudice respondent's litigation of this case.

     For all the aforesaid reasons, petitioners' Motion To

Withdraw Deemed Admissions is denied.



                                   An appropriate order will be

                              issued, and this case will be

                              restored to the general docket.
