                      T.C. Memo. 1998-370



                  UNITED STATES TAX COURT



             SUZANNE F. MOTTOLA, Petitioner v.
       COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24636-95.            Filed October 9, 1998.



     Suzanne F. Mottola, pro se.

     Keith L. Gorman, for respondent.



                      MEMORANDUM OPINION

     WHALEN, Judge:    This case is before the Court to

decide respondent's oral motion for summary judgment.

At issue is whether respondent correctly determined the

following deficiencies in, and additions to, petitioner's

income tax:
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                                   Additions to Tax
Year        Deficiency     Sec. 6651(a)(1)     Sec. 6654(a)
1992         $36,284            $9,071              --
1993          38,134             9,534            $1,584

All section references are to the Internal Revenue Code in

effect during the years in issue.

       During the years in issue, petitioner was a self-

employed attorney.    At the time she filed her petition in

this case, petitioner resided in Devon, Pennsylvania.

       Petitioner failed to file Federal income tax returns

for the years 1992 and 1993.    She did not maintain adequate

books and records from which her tax liability for those

years could be computed.    Accordingly, respondent used

the bank deposits method to reconstruct petitioner's income

and determined the above tax deficiencies and additions to

tax in a notice of deficiency issued to petitioner.

       Respondent served a request for admissions on

petitioner.    Rule 90(c) of the Tax Court Rules of Practice

and Procedure states that "Each matter is deemed admitted

unless, within 30 days after service of the request * * *

the party to whom the request is directed serves upon the

requesting party:    (1) a written answer * * * or (2) an

objection, stating in detail the reasons therefor."    All

Rule references are to the Tax Court Rules of Practice

and Procedure.    Petitioner did not respond or object to

respondent's request for admissions within 30 days after
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service, or at any other time.    Accordingly, pursuant to

Rule 90(c), each matter set forth therein was deemed

admitted.   See Freedson v. Commissioner, 65 T.C. 333,

334-336 (1975), affd. 565 F.2d 954 (5th Cir. 1978).

Petitioner is deemed to have made the following admissions:


     1.     Petitioner has not filed federal income tax
            returns for the taxable years 1992 and 1993.

     2.     Petitioner was engaged in a trade or business
            during 1992 and 1993.

     3.     Petitioner failed to maintain any records
            reflecting the income and expenses of her trade
            or business.

     4.     During 1992 petitioner made total deposits of
            $104,090.44 into her bank accounts.

     5.     Of the net deposits into their [sic] accounts
            in 1992, $0.00 represented non-taxable items.

     6.     During 1993 petitioner made total deposits of
            $101,558.00 into her bank accounts.

     7.     Of the net deposits into her accounts in 1993,
            $0.00 represented non-taxable items such as
            returned checks.

     8.     Petitioner did not deposit all of her business
            income into her bank accounts.

     9.     The entire amount of the deposits into
            petitioner's bank accounts in 1992 and 1993
            represented taxable income.

     10.    Petitioner had no other non-taxable sources for
            the deposits made into her bank accounts.

     11.    During the years 1992 and 1993 petitioners [sic]
            failed to maintain complete and accurate records
            of their [sic] income.
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     12.   In the notice of deficiency respondent determined
           that petitioner was liable for an [sic] additions
           to tax pursuant to I.R.C. § 6651(a), in the
           amount of $9,071.00 in 1992 and $9,534.00 in
           1993.

     13.   Petitioner concedes her liability for the
           additions to tax under I.R.C. §§ [sic] 6651(a)
           as determined in the notice of deficiency.

     14.   In the notice of deficiency respondent
           determined that petitioner was liable for
           an [sic] additions to tax pursuant to I.R.C.
           § 6654, in the amount of $1,584.00 for the
           year 1993.

     15.   Petitioner concedes her liability for the
           additions to tax under I.R.C. § 6654 as
           determined in the notice of deficiency.

     16.   Petitioner concedes that the adjustments made
           in the statutory notice of deficiency are in
           all respects complete and correct.

     17.   Petitioner is not entitled to any of the
           deductions listed in her petition.


     This case was calendared for trial at a prior trial

session of the Court.   Petitioner appeared at the call

of the prior calendar and moved for a continuance, citing

her own illness, her son's illness, and the fact that her

accountant was "about 95 percent finished" preparing her

1992 and 1993 Federal income tax returns.   The Court

granted petitioner's motion for continuance but pointed

out to petitioner that respondent's requests for admissions

"are deemed to be facts under our rules and you didn't

respond to them."   In response, petitioner did not advance
                            - 5 -


any reason why the matters set forth in respondent's

request for admissions should not be deemed admitted

pursuant to Rule 90(c).

     Petitioner did not appear when her case was called at

the instant trial session in Philadelphia, Pennsylvania,

on May 18, 1998.   Respondent appeared through counsel

and filed a motion to dismiss for lack of prosecution.

Respondent's motion appeared meritorious; nevertheless,

the Court ordered the case to be recalled on the following

day to "give petitioner another opportunity to appear".

On the following day, petitioner did not appear initially

when her case was called, and the Court orally granted

respondent's motion to dismiss for lack of prosecution.

     Shortly thereafter, petitioner appeared and asked the

Court to vacate the dismissal of her case.   She stated

that she had prepared a delinquent return for 1992, one

of the 2 years in issue, that showed an overpayment of

$1,545.63.   Petitioner did not proffer a return for 1993,

but she represented that "the same is true [i.e., that

there is an overpayment] * * * with respect to 1993."

She asked the Court to allow her "to file the returns

and have the Internal Revenue examine them and make sure

that they are accurate."   Petitioner also claimed to have
                            - 6 -


documentation to substantiate her position that respondent

had overstated her income in the notice of deficiency.

     Respondent's counsel objected to petitioner's motion

to vacate the dismissal of her case and argued that

petitioner had failed to properly prosecute her case.

Furthermore, respondent argued that the Court should not

vacate its dismissal because, based upon the deemed

admissions, the Court would be required to reach the same

result.   Respondent argued that petitioner is deemed to

have admitted all of the facts necessary for decision in

respondent's favor.

     The Court accepted petitioner's explanation and

vacated the granting of respondent's motion to dismiss for

lack of prosecution, whereupon, respondent made an oral

motion for summary judgment based upon petitioner's

admissions, quoted above.   The Court took respondent's

motion under advisement but stated that it would recall the

case in approximately 3 days in order to give petitioner

another opportunity to meet with respondent's agents and to

present her returns and documentation to them, so that her

correct tax liability could be computed.   In effect, the

Court gave petitioner the relief she had requested.

Nevertheless, petitioner failed to meet with respondent's

agents.   She has also failed to file an objection to
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respondent's motion for summary judgment or any other

pleading with the Court.

     The Court may grant summary judgment "if the

pleadings, answers to interrogatories, depositions,

admissions, and any other acceptable materials, together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and that a decision may be

rendered as a matter of law."   Rule 121(b).   The party

opposing the motion may not rest upon mere denials, but

"must set forth specific facts showing that there is a

genuine issue for trial."   Rule 121(d).   However, the

moving party, respondent in this case, bears the burden of

proving there is no genuine issue of material fact and that

a decision may be rendered as a matter of law.    Jacklin v.

Commissioner, 79 T.C. 340, 344 (1982); Espinoza v. Commis-

sioner, 78 T.C. 412, 416 (1982).

     The first issue for decision is whether petitioner

is liable for the deficiencies determined by respondent

for 1992 and 1993.   Petitioner is deemed to have admitted

that the deposits to her bank accounts in the amount of

$104,090.44 in 1992 and $101,558 in 1993 are includable

in gross income, and she "is not entitled to any of the

deductions listed in her petition."   Based thereon, we
                             - 8 -


sustain respondent's determination of a tax deficiency

for 1992 of $36,284.

     With respect to 1993, we note that the tax deficiency

determined by respondent, $38,134, is based upon gross

receipts from petitioner's business or profession in the

amount of $103,328.    However, petitioner is deemed to have

admitted receiving gross receipts of $101,558, $1,770 less

than the amount determined in the notice of deficiency.

Respondent concedes that the tax deficiency and additions

to tax for 1993 should be based upon the gross receipts

admitted by petitioner, $101,558.    At the hearing of

respondent's motion, respondent submitted a recomputation

of the tax and additions to tax for 1993 based upon the

gross receipts admitted by petitioner.    Respondent's

recomputation was filed as computation in support of the

motion for summary judgment.    Petitioner did not object

to respondent's recomputation.    Accordingly, in conformity

with respondent's recomputation, we find that the

deficiency in petitioner's tax for 1993 is $37,439.

     The next issue for decision is whether petitioner is

liable for the addition to tax under section 6651(a)(1) for

failure to file timely Federal income tax returns for 1992

and 1993.   Section 6651(a)(1) imposes an addition to tax

for failure to file a timely return, unless such failure
                             - 9 -


is due to reasonable cause and not due to willful neglect.

United States v. Boyle, 469 U.S. 241, 243 (1985).     Section

6651(a) imposes an addition to tax equal to 5 percent of

the tax required to be shown as tax on the return for every

month, or fraction thereof, that the return is late (not

to exceed 25 percent in the aggregate).     Sec. 6651(a)(1).

     Petitioner is deemed to have admitted that she did

"not file federal income tax returns for taxable years 1992

and 1993."   She is also deemed to have admitted "liability

for the additions to tax under I.R.C. §§ [sic] 6651(a) as

determined in the notice of deficiency."     Accordingly, we

sustain respondent's determination as to the additions to

tax under section 6651(a)(1).    For 1992, the amount of the

addition is $9,071, the amount determined in the notice

of deficiency.    For 1993, the amount of the addition is

$9,360, the amount set forth in respondent's recomputation.

     The final issue for decision is whether petitioner

is liable for the additions to tax for failure to pay

estimated income tax under section 6654(a) for 1993.

Section 6654(a) imposes an addition to tax equal to the

amount of the underpayment multiplied by the underpayment

rate established under section 6621 for the period of the

underpayment.    Respondent recomputed an addition to tax

under section 6654(a) of $1,553.     The addition to tax under
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section 6654(a) is mandatory unless petitioner can prove

that she complies with one of the exceptions contained in

section 6654(e).   Baldwin v. Commissioner, 84 T.C. 859,

871 (1985); Grosshandler v. Commissioner, 75 T.C. 1, 20-21

(1980).

     Petitioner is deemed to have admitted "liability for

the additions [sic] to tax under I.R.C. sec. 6654 as

determined in the notice of deficiency."   Accordingly, we

sustain respondent's determination as to the addition to

tax under section 6654.   The amount of the addition is

$1,553, the amount set forth in respondent's recomputation.

     To reflect the foregoing,


                                 An order granting

                            respondent's oral motion for

                            summary judgment and decision

                            will be entered for respondent.
