                         T.C. Memo. 2002-213



                       UNITED STATES TAX COURT



         RICHARDS ASSET MGMT. TRUST, ET AL.,1 Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 10764-00, 10765-00,       Filed August 21, 2002.
                 10766-00, 10767-00.



     David M. Wise, for petitioners.

     John M. Tkacik, Jr., for respondent.



                  SUPPLEMENTAL MEMORANDUM OPINION


     CHIECHI, Judge:    These consolidated cases are before us on

petitioners’ motion for reconsideration (petitioners’ motion for



     1
      Cases of the following petitioners are consolidated here-
with: Everett D. Richards, docket No. 10765-00; Everett D.
Richards, docket No. 10766-00; and Richards Charitable Trust,
docket No. 10767-00.
                              - 2 -

reconsideration) of our Memorandum Opinion in these cases set

forth in T.C. Memo. 2002-74 (Richards I).   We shall deny that

motion.

     We begin by setting forth the background pertinent to this

Supplemental Memorandum Opinion, which includes not only the

background set forth in Richards I that we incorporate herein by

this reference, but also certain other matters that the record in

these cases establishes and/or that the parties do not dispute.

                           Background

     Richards Asset Management Trust (Richards Management Trust)2

filed Form 1041, U.S. Income Tax Return for Estates and Trusts

(trust return), for each of the taxable years 1996 and 1997.     In

separate Schedules K-1, Beneficiary’s Share of Income, Deduc-

tions, Credits, etc., that Richards Management Trust included

with each of its 1996 and 1997 trust returns, Richards Management

Trust showed Everett D. Richards (Mr. Richards) and Richards

Charitable Trust as beneficiaries and Mr. Richards as the fidu-

ciary of Richards Management Trust.

     In each of its 1996 and 1997 trust returns, Richards Manage-

ment Trust deducted depreciation with respect to certain personal



     2
      When referring in this Supplemental Memorandum Opinion to
Richards Asset Management Trust, Richards Management Trust, and
Richards Charitable Trust, our use of the word “Trust” and any
similar words is for convenience only and is not intended to
convey any meaning or have any significance for Federal tax
purposes.
                               - 3 -

assets of Mr. Richards, including Mr. Richards’ personal resi-

dence that he had transferred to Richards Management Trust at a

time that is not disclosed by the record.    Richards Management

Trust also deducted other amounts in its 1996 and 1997 trust

returns with respect to personal expenses of Mr. Richards.

     During respondent’s examination of Richards Management

Trust’s 1996 and 1997 trust returns and thereafter, no books,

records, or other information was provided to respondent estab-

lishing (1) the jurisdiction under the laws of which Richards

Management Trust was purportedly organized, (2) the person who is

authorized to act on behalf of Richards Management Trust, and

(3) that Richards Management Trust was at all relevant times a

trust cognizable for Federal tax purposes.    Nor did Richards

Management Trust at any time provide any books, records, or other

information to respondent establishing the income reported and

the expense deductions claimed in Richards Management Trust’s

1996 and 1997 trust returns.

     Respondent has no record of Richards Charitable Trust’s

having filed with respondent Form 990-PF, Return of Private

Foundation (Form 990-PF), for either of the taxable years 1996

and 1997.   Nor does respondent have a record of any other Federal

tax returns having been filed by Richards Charitable Trust for

those years.

     In response to a request by respondent for information with
                               - 4 -

respect to Richards Charitable Trust, respondent was provided

with a copy of Form 990-PF for the taxable year 1997 that showed

Richards Charitable Trust as the organization to which such form

pertained.   However, as discussed above, respondent has no record

that Richards Charitable Trust filed with respondent Form 990-PF

for the taxable year 1997.

     During respondent’s examination of Richards Charitable

Trust’s taxable years 1996 and 1997 and thereafter, no books,

records, or other information was provided to respondent estab-

lishing (1) the jurisdiction under the laws of which Richards

Charitable Trust was purportedly organized, (2) the person who is

authorized to act on behalf of Richards Charitable Trust, and

(3) that Richards Charitable Trust was at all relevant times a

trust cognizable for Federal tax purposes.   Nor did Richards

Charitable Trust at any time provide any books, records, or other

information to respondent establishing the income shown and the

expense deductions claimed in the copy of Form 990-PF for the

taxable year 1997 that was provided to respondent during respon-

dent’s examination of Richards Charitable Trust and that showed

Richards Charitable Trust as the organization to which such form

pertained.

     Joy A. Richards and Mr. Richards jointly filed Form 1040,

U.S. Individual Income Tax Return (return), for the taxable year

1996, and Mr. Richards filed a return for 1997.   During respon-
                               - 5 -

dent’s examination of those 1996 and 1997 returns and thereafter,

no books, records, or other information was provided to respon-

dent establishing the income reported and the expense deductions

claimed in those returns.

     James Binge (Mr. Binge) was the return preparer for each of

Richards Management Trust’s 1996 and 1997 trust returns, Mr.

Richards and Joy A. Richards’ 1996 return, and Mr. Richards’ 1997

return.   Mr. Binge was also listed as the return preparer for

Richards Charitable Trust’s Form 990-PF for the taxable year 1997

that was provided to respondent during respondent’s examination

of Richards Charitable Trust but that respondent has no record of

having been filed with respondent.     Respondent has identified Mr.

Binge as an individual involved with purported trusts used for

tax avoidance purposes.

     On October 16, 2000, Carol Jackson (Ms. Jackson), an attor-

ney authorized to practice before the Court, filed the respective

petitions in these cases, which she had signed on October 12,

2000.   On December 8, 2000, David M. Wise (Mr. Wise), an attorney

authorized to practice before the Court, entered an appearance in

each of these cases.

     On August 31, 2001, respondent filed a motion to compel

production of documents and a motion to compel responses to

respondent’s interrogatories (respondent’s motions to compel
                               - 6 -

discovery) in each of the cases at docket Nos. 10765-003 and

10766-00.   In respondent’s motions to compel discovery in each of

those cases, respondent represented, inter alia, that counsel of

record in each such case, i.e., Ms. Jackson and Mr. Wise, had

informed respondent’s counsel that they no longer represented Mr.

Richards.   Respondent further represented in respondent’s respec-

tive motions to compel discovery in the cases at docket Nos.

10765-00 and 10766-00, inter alia, that respondent’s counsel

advised both Ms. Jackson and Mr. Wise that respondent would

continue to recognize them as counsel for petitioner in each such

case unless otherwise notified by the Court.

     Respondent attached as exhibits to respondent’s respective

motions to compel discovery in the cases at docket Nos. 10765-00

and 10766-00 respondent’s discovery requests.   Those respective

discovery requests included the following interrogatories:

     Interrogatory No. 5:

          Please identify all trusts by name, address and
     EIN, for which either petitioner, or both, were the
     creator, grantor, settlor, director or beneficiary or
     any trust in which petitioners[1] were involved with
     [sic] in any way. For each trust identified, please
     state whether the trust has been modified or amended;
     and if so, answer the following with regard to each
     modification or amendment for each trust:



     3
      Respondent filed discovery motions in the case at docket
No. 10765-00 before respondent filed on Oct. 1, 2001, respon-
dent’s motion to dismiss that case for lack of jurisdiction as to
Joy A. Richards, deceased, and to change caption, which the Court
granted on Oct. 12, 2001.
                                   - 7 -

                 (a) when the modification or amendment oc-
            curred,

                    (b) who authorized the modification or amend-
            ment,

                    (c) who made the modification or amendment,

                 (d) why the modification or amendment was
            made, and

                    (e) how each modification or amendment was
            made.

        *           *       *       *       *       *       *

     Interrogatory No. 10:

          For the period from the inception of the identi-
     fied trusts through the present, list and identify each
     trust officer, trustee, trust protector, investment
     manager and other person who had any directory or
     management responsibility of any kind for each of the
     trusts. For each person identified, please answer the
     following:

                 a. List and identify the beginning and end
            of each person’s tenure.

                 b. Describe the nature of each person’s
            directory or management responsibility.

        *           *       *       *       *       *       *

                 f. Please list and describe all documents
            which support or substantiate your answer.

          [1]
              The petition in the case at docket No. 10765-00
     was filed in the name of Everett D. Richards and Joy A.
     Richards, Deceased. On Oct. 12, 2001, the Court grant-
     ed respondent’s motion filed on Oct. 1, 2001, to dis-
     miss for lack of jurisdiction the case at docket No.
     10765-00 as to Joy A. Richards, deceased, and to change
     caption.

     Respondent’s respective requests for discovery in the cases

at docket Nos. 10765-00 and 10766-00 also included the following
                               - 8 -

requests for production of documents:

          With respect to Interrogatory No. 5, including all
     of its subparts and subparagraphs, please provide
     complete and correct copies of all original trust
     documents and subsequent modifications or amendments
     which substantiate or support your response.

        *       *       *       *       *       *       *

          With respect to Interrogatory No. 10, including
     all of its subparts and subparagraphs, please provide
     all documents and materials which support or substanti-
     ate your response.

     Respondent also attached to respondent’s respective discov-

ery motions in the cases at docket Nos. 10765-00 and 10766-00 the

so-called Branerton letter dated June 22, 2001, that respondent

had sent to Ms. Jackson, one of petitioners’ then two attorneys-

of-record in these cases.   That Branerton letter requested, inter

alia:

     All receipts for income and expenditures for the tax-
     able years 1996 and 1997, and any other records of
     income received by the above-referenced petitioners
     [petitioners in the cases at docket Nos. 10764-00
     through 10767-00] or member of their immediate family
     (if applicable) or any related party or entity, in
     which they exercised control or received an economic
     benefit * * *

Respondent sought similar information in respondent’s discovery

requests that were attached to respondent’s respective discovery

motions in the cases at docket Nos. 10765-00 and 10766-00.

     On July 30, 2001, respondent sent a letter to Mr. Wise,

which respondent attached to respondent’s discovery motions in

the cases at docket Nos. 10765-00 and 10766-00 and in which
                              - 9 -

respondent stated:

          You stated during our July 17, 2001, telephone
     conversation that you would no longer be representing
     the above-referenced taxpayers [petitioners in the
     cases at docket Nos. 10764-00 through 10767-00], whose
     Tax Court cases are scheduled for trial the week begin-
     ning October 15, 2001. Although you served our office
     with a Notice of Substitution of Counsel, as of this
     date our records indicate that the Court has not agreed
     to the substitution or to your withdrawal as counsel in
     these cases.

          I have enclosed two (2) sets of Respondent’s First
     Set of Interrogatories to Petitioner(s) (“Interrogato-
     ries”) and Respondent’s First Request for Production of
     Documents (“Production of Documents”) which pursuant to
     Tax Court Rules 71 and 72 require responses within 30
     days of service. As appropriate, please forward a copy
     of this letter and the enclosed Interrogatories and
     Production of Documents to Everett D. Richards.

     On September 4, 2001, the Court issued respective Orders

(September 4, 2001 Orders) in the cases at docket Nos. 10765-00

and 10766-00 in which it directed (1) petitioners in those cases

to file on or before September 13, 2001, written responses to

respondent’s motions to compel discovery; (2) Ms. Jackson and Mr.

Wise each to file on or before September 13, 2001, any motions to

withdraw as counsel; and (3) the Clerk of the Court to serve

copies of respondent’s respective motions to compel discovery and

the Court’s respective September 4, 2001 Orders not only on then

petitioners’ counsel of record but also on petitioners at peti-

tioners’ address listed in the petitions.

     On September 14, 2001, Ms. Jackson filed a motion to with-

draw as counsel (motion to withdraw) in each of the cases at
                              - 10 -

docket Nos. 10765-00 and 10766-00.     On September 24, 2001, Ms.

Jackson filed a motion to withdraw in each of the cases at docket

Nos. 10764-00 and 10767-00.   As grounds for each such motion, Ms.

Jackson stated:

          The undersigned [Ms. Jackson] was working out of
     the offices of Wise & Associates until June 18, 2001.
     At that time, my employment contract was terminated,
     and I undertook employment at another firm. I seek a
     release from this court from representing the Peti-
     tioner in this matter because I am no longer associated
     with Wise & Associates.

     On September 18, 2001, and on September 24, 2001, respec-

tively, the Court granted Ms. Jackson’s motion to withdraw in

each of the cases at (1) docket Nos. 10765-00 and 10766-00 and

(2) docket Nos. 10764-00 and 10767-00.

     On September 17, 2001, Mr. Wise filed a motion to withdraw

in each of the cases at docket Nos. 10765-00 and 10766-00.     On

September 24, 2001, Mr. Wise filed a motion to withdraw in each

of the cases at docket Nos. 10764-00 and 10767-00.     In support of

Mr. Wise’s motion to withdraw in each such case,4 Mr. Wise repre-

sented in pertinent part as follows:

          In June 2001 the undersigned [Mr. Wise] contacted
     the Petitioner and related that although he had filed a
     petition with the Tax Court, on his behalf, at the


     4
      Mr. Wise’s respective motions to withdraw in the cases at
docket Nos. 10764-00 and 10767-00 did not detail the reasons for
granting those motions. Instead, each such motion stated that
the reasons for Mr. Wise’s motion to withdraw in each such case
were “the same reasons” set forth in Mr. Wise’s respective
motions to withdraw in the cases at docket Nos. 10765-00 and
10766-00.
                        - 11 -

request of his accountant James Binge, he did not have
a signed representation agreement with him. Following
that conversation an agreement was forwarded to the
Petitioner. After several weeks another call was
placed to the Petitioner who indicated that he was
having second thoughts about continuing the representa-
tion and was exploring “non-traditional” alternatives
with James Binge. At that time the undersigned ex-
plained that the opportunity to meet with an examiner
was rapidly evaporating and that formal discovery was
immanent [sic]. The undersigned further explained the
burden of complying with discovery and the possible
sanctions for failure to comply. The Petitioner was
urged to consult another tax practitioner and it was
suggested that reliance upon the recommendations of
James Binge may not be in his best interest. Following
that conversation the undersigned contacted the Peti-
tioner’s examiner and requested that his file be held
for a couple of weeks in case he changed his mind.

     On July 16th [2001] the undersigned contacted
James Binge and was advised that the Petitioner did not
wish to continue the representation and that the under-
signed was not to attempt to contact him. The under-
signed was informed that replacement counsel in the
person of Marc Lehotsky * * * had been selected. The
undersigned contacted the Petitioner who verified that
he had made arrangements to have Mr. Lehotsky represent
him and that he was aware that a Branerton conference
had been set for the 17th [of July 2001] with District
Counsel’s office but that he did not wish to partici-
pate in such meeting unless he could be represented by
his accountant James Binge. The undersigned related
that he would not participate in the conference under
those conditions.

     The undersigned copied the Petitioner’s file,
mailed same to Mr. Lehotsky, and prepared and mailed a
Notice of Substitution to the Tax Court indicating that
Mr. Lehotsky would be representing the Petitioners.
The undersigned also called Mr. Lehotsky and left a
detailed message regarding the status of the case and
inviting him to call the undersigned on his cell phone
should he desire to discuss the case. Thereafter the
undersigned closed his office and left town for a two
week vacation.

     Upon returning it was discovered that the under-
                        - 12 -

signed’s Notice of Substitution of Counsel had been
returned and stamped “Not admitted U.S. Tax Court”.
The undersigned again left a voice mail message for Mr.
Lehotsky and forwarded discovery requests to his office
address. After having had no reply from Mr. Lehotsky
the undersigned contacted Mr. Binge who advised that
his office had been in contact with Mr. Lehotsky and
that he had assurances that he would be admitted to
practice in the Tax Court or would co-counsel with
another attorney admitted to practice who would shortly
enter an appearance. The undersigned cautioned Mr.
Binge about the importance of timely complying with
discovery and the sanctions that could be imposed for
failure to comply.

     On September 4th [2001] the undersigned received
District Counsel’s Motion to Compel and very shortly
thereafter the Court’s Order directing petitioner to
respond to the Motion to Compel and the undersigned to
file a motion to withdraw as counsel on or before
September 13th [2001]. The undersigned contacted Terry
Bentivegna, an assistant to James Binge, who advised
that he was contacting Mr. Lehotsky who would take care
of the matter.

     After having not had any communication with Mr.
Lehotsky the undersigned contacted Mr. Binge on Friday
the 7th [of September 2001] and related the urgency of
complying with discovery and the possible sanctions for
failure to comply. Mr. Binge indicated that he was
about to go out of town for a conference and that he
would have to attend to the matter when he returned to
the office on Tuesday. As a result of the Court’s
Order requiring a reply by the 13th [of September 2001]
and Mr. Binge’s inability to address the situation
until the 11th [of September 2001] the undersigned
called the Petitioner and advised that an immediate
response to the Court’s order was required and that the
undersigned would be available to assist him without
charge in formulating a reply. Petitioner rejected any
such offers and expressed confidence that his position
would be vindicated in Court.

     On the evening of the 10th [of September 2001] the
undersigned contacted James Binge at home who advised
that the Petitioner had contacted him and that they did
not with [sic] to speak with the undersigned. The
undersigned was advised to send the Court’s Order
                              - 13 -

     together with District Counsel’s Motion to the Peti-
     tioner by overnight mail. Mr. Binge indicated that he
     would be meeting with the Petitioner to assist him in
     making a response. The undersigned indicated that he
     would be available to assist in that effort.

          On the evening of the 10th [of September 2001] the
     undersigned mailed the Court’s Order and District
     Counsel’s Motion to the Petitioner for 10:00 am deliv-
     ery on the 11th [of September 2001] via Federal Ex-
     press.

          It is clear to the undersigned that the Petitioner
     does not wish to have him continue to represent him.
     The undersigned has had numerous conversations with him
     and his accountant. He is aware of the significance of
     his decision to decline assistance.

     On September 19, 2001, and September 24, 2001, respectively,

the Court granted Mr. Wise’s motion to withdraw in each of the

cases at (1) docket Nos. 10765-00 and 10766-00 and (2) docket

Nos. 10764-00 and 10767-00.

     Although the Court’s respective September 4, 2001 Orders

directed petitioners in the cases at docket Nos. 10765-00 and

10766-00 to file on or before September 13, 2001, responses to

respondent’s respective motions to compel discovery in those

cases, the Court received no such responses.   On September 19,

2001, the Court issued respective Orders (September 19, 2001

Orders) in the cases at docket Nos. 10765-00 and 10766-00 in

which it granted respondent’s respective motions to compel

discovery and ordered petitioners to produce on or before Septem-

ber 28, 2001, the documents requested in respondent’s requests

for production of documents and the answers to respondent’s
                              - 14 -

interrogatories.   In the respective September 19, 2001 Orders in

the cases at docket Nos. 10765-00 and 10766-00, the Court further

ordered respondent to file written reports in those respective

cases on or before October 9, 2001, informing the Court whether

petitioners in those cases had complied with the Court’s

respective September 19, 2001 Orders.   The Court’s respective

September 19, 2001 Orders put petitioners on notice in the cases

at docket Nos. 10765-00 and 10766-00 that if they did

     not fully comply with the provisions of this Order,
     this Court will be inclined to impose sanctions pursu-
     ant to Tax Court Rule 104, which may include dismissal
     of this case and entry of a decision against petition-
     ers.

     On September 14, 2001, respondent filed a motion to consoli-

date the instant cases for trial, briefing, and opinion, which

the Court granted on September 24, 2001.

     On October 2, 2001, petitioners in these cases filed a

motion to continue the trial (petitioners’ motion to continue)

“until such time as the Petitioner has time to answer th [sic]

Respondent’s Motion to Compel Responses to Respondent’s Interrog-

atories.”   In support of that motion, petitioners alleged that

“Petitioner is not [in] receipt of any of the interrogatories

that the Respondent wishes answered in a timely manner.    They

were apparently sent to the attorney of record who was fired.”

The reason quoted above for petitioners’ asking the Court to

grant petitioners’ motion to continue was false and groundless.
                               - 15 -

As set forth above, on September 4, 2001, the Court served

petitioners in the cases at docket Nos. 10765-00 and 10766-00, at

the address of record listed in the petitions, with copies of

(1) respondent’s respective motions to compel discovery in those

cases, including the exhibits that respondent had attached

thereto (inter alia, respondent’s discovery requests), and

(2) the Court’s respective September 4, 2001 Orders directing

petitioners to file a response to each such motion on or before

September 13, 2001.    Moreover, as discussed above, Mr. Wise

represented in Mr. Wise’s motion to withdraw that on September

10, 2001, he sent to petitioner via Federal Express for delivery

at 10 a.m. on September 11, 2001, copies of the Court’s September

4, 2001 Orders as well as respondent’s motions to compel discov-

ery.    On October 2, 2001, the Court denied petitioners’ motion to

continue.

       On October 9, 2001, respondent filed a report (respondent’s

October 9, 2001 report) in each of the cases at docket Nos.

10765-00 and 10766-00, as directed by the Court in the Court’s

September 19, 2001 Order in each of those cases.    Respondent’s

October 9, 2001 report in each of those cases indicated that as

of October 5, 2001, petitioner in each such case had not provided

any documents in response to respondent’s request for production

of documents or any responses to respondent’s interrogatories.

       On October 15, 2001, the Court had these cases called from
                               - 16 -

the Court’s trial calendar (calendar call) at the Court’s trial

session in Cleveland, Ohio (Cleveland trial session).   At that

calendar call, there was no appearance by or on behalf of Rich-

ards Management Trust in the case at docket No. 10764-00, Mr.

Richards in the cases at docket Nos. 10765-00 and 10766-00, and

Richards Charitable Trust in the case at docket No. 10767-00.     At

that time, respondent orally moved to dismiss each of these cases

for failure to prosecute, and respondent requested, and the Court

held, a trial because, according to respondent, respondent had

the burden of production pursuant to section 7491(c)5 with re-

spect to (1) the accuracy-related penalties under section 6662(a)

for 1996 and 1997 that respondent determined against Richards

Management Trust in the case at docket No. 10764-00, (2) the

respective accuracy-related penalties under section 6662(a) for

1996 and 1997 that respondent determined against Mr. Richards in

the cases at docket Nos. 10765-00 and 10766-00, and (3) the

additions to tax under section 6651(a)(1) for 1996 and 1997 that

respondent determined against Richards Charitable Trust in the

case at docket No. 10767-00.

     At the trial in these cases on October 15, 2001, there was

no appearance by or on behalf of Richards Management Trust, Mr.



     5
      All section references are to the Internal Revenue Code in
effect at all relevant times. Unless otherwise indicated, all
Rule references are to the Tax Court Rules of Practice and
Procedure.
                               - 17 -

Richards, and Richards Charitable Trust.

     At the conclusion of the trial in these cases on October 15,

2001, the Court orally ordered respondent to file on or before

November 2, 2001, a written motion to dismiss for lack of prose-

cution in each of these cases.    Thereafter, the Court granted

respondent’s motion to extend the time within which to file each

such motion.    By Order dated October 15, 2001 (October 15, 2001

Order), the Court ordered the parties in these cases to file

simultaneous opening briefs on or before November 29, 2001.

     On November 13, 2001, respondent timely filed a written

motion to hold petitioner in default in each of the cases at

docket Nos. 10764-00 and 10767-00 and a written motion to dismiss

for lack of prosecution and to impose sanctions under section

6673 in each of the cases at docket Nos. 10765-00 and 10766-00.

(For convenience, we shall refer to each of the latter two

motions as respondent’s motion to dismiss for lack of prosecu-

tion.)

     On December 3, 2001, the Court sua sponte issued separate

Orders (December 3, 2001 Show Cause Orders) directing each party

in the case at docket No. 10764-00 in which Richards Asset

Management Trust is named as petitioner and in the case at docket

No. 10767-00 in which Richards Charitable Trust is named as

petitioner to

     show cause in writing why the Court has jurisdiction
     over this case, including the identity of any purported
                             - 18 -

     fiduciary of petitioner and a detailed analysis of why
     such purported fiduciary has the capacity to litigate
     in the Court on behalf of petitioner.

     On December 19, 2001, respondent filed separate written

responses to the December 3, 2001 Show Cause Orders in the cases

at docket Nos. 10764-00 and 10767-00 in which respondent con-

tended, inter alia, that Richards Management Trust and Richards

Charitable Trust, respectively,

          11. * * * failed to establish that a trustee, if
     authorized, acted on its behalf when the purported
     petition was filed with the Court on October 16, 2000.

          12. * * * failed to file a proper petition with
     this Court in that the petition was not brought by and
     with the full descriptive name of the fiduciary enti-
     tled to institute a case on its behalf.

Respondent further argued in those separate responses to the

December 3, 2001 Show Cause Orders in the cases at docket Nos.

10764-00 and 10767-00 that

     Since the petition in this case was not brought by a
     party with proper capacity as required by the Tax Court
     Rules of Practice and Procedure, the Court lacks juris-
     diction * * *.

     On December 20, 2001, Richards Management Trust and Richards

Charitable Trust, respectively, filed responses to the December

3, 2001 Show Cause Orders in the cases at docket Nos. 10764-00

and 10767-00 (Richards Management Trust’s response to the Decem-

ber 3, 2001 Show Cause Order and Richards Charitable Trust’s

response to the December 3, 2001 Show Cause Order, respectively),

each of which was signed by Terrence A. Bentivegna (Mr.
                                 - 19 -

Bentivegna) who identified himself in each such response as

“Trustee”.      Each such response asserted that “Petitioner does not

believe that this Court has jurisdiction.”      In support of that

position, Richards Management Trust’s response to the December 3,

2001 Show Cause Order and Richards Charitable Trust’s response to

the December 3, 2001 Show Cause Order set forth statements and

contentions that the Court found to be frivolous and/or ground-

less.6


     6
      Each such response to the December 3, 2001 Show Cause Order
stated in pertinent part:

     1.       Petitioner petitioned this Court after having
              received false and misleading information from the
              respondent and attorneys David Wise and his asso-
              ciate Carol Jackson. The respondent has failed to
              properly assess any taxes in accordance with their
              required administrative procedures, and yet ad-
              vised the petitioner that the only method of dis-
              agreeing with the purported tax liability was to
              petition this Court.

     2.       This Courts’ [sic] order states “. . . petitioner
              purports to be a trust . . .” Petitioner is a
              trust, and the respondent has never been able to
              prove otherwise. Nor does the respondent have the
              right or ability to set aside a contract.

          *        *       *        *       *       *       *

     4.       Petitioner does not want this false tax claim to
              be litigated in court, and has petitioned this
              Court to have this case removed from the docket as
              having been petitioned in error due to the errone-
              ous instructions given by the respondent.

     WHEREFORE it is prayed that:

     1.       This Court dismiss this case at petitioner’s re-
                                                       (continued...)
                             - 20 -

     Although not ordered by the Court, on January 16, 2002,

Richards Management Trust submitted, and the Court had filed, a

response to respondent’s motion to hold petitioner in default in

the case at docket No. 10764-00, and Mr. Richards submitted, and

the Court had filed, a response to respondent’s motion to dismiss

for lack of prosecution in the case at docket No. 10766-00.    Each

of those respective responses contained arguments and contentions

that the Court found in an Order dated January 18, 2002 (January

18, 2002 Order) in each of the cases at docket Nos. 10764-00 and

10766-00 to be frivolous and/or groundless.   In the respective

January 18, 2002 Orders in those cases, the Court reminded

petitioners about section 6673(a)(1).


     6
      (...continued)
          quest as the original petition was issued in error
          due to false directions given to petitioner by
          respondent. Petitioner believes that he has the
          right to correct his mistake and withdraw the
          original petition.

     2.   This Court and the respondent recognize the peti-
          tioner as a Trust and cease attempting to set
          aside a contract in direct opposition to the Con-
          stitution of the United States of America.

     3.   This court sanction the respondent for using this
          Court for illegal purposes. Respondent has no
          legal tax claim as petitioner has noted to respon-
          dent and this Court on numerous occasions. With-
          out a legal claim, respondent fraudulently in-
          structed petitioner to use this Court to legiti-
          mize his illegal attempt to deprive petitioner of
          his assets.

     4.   This Court instruct the respondent to cease, now
          and forever, harassment of petitioner.
                             - 21 -

     On February 15, 2002, approximately 2½ months after the due

date of the simultaneous opening briefs (i.e., November 29, 2001)

ordered by the Court in its October 15, 2001 Order, Mr. Richards

filed in these cases a motion for leave to file a brief out of

time and lodged a brief in these cases.       The Court granted that

motion on February 15, 2002, and had that brief filed.      The brief

set forth statements, contentions, and arguments that the Court

found to be frivolous and/or groundless.7


     7
      Petitioners’ brief in these cases stated in pertinent part:

     This is a proceeding to determine if the Internal
     Revenue Service can ignore the strict limitations
     imposed on it by Congress, via the Code of Federal
     Regulations, and its’ [sic] own required administrative
     procedures to extort assets from unsuspecting inhabit-
     ants of one of the fifty (50) states of the United
     States of America, to wit: Everett D. Richards, et al.

         *     *       *       *          *         *       *

     U.S.C. Title 26 Section 7602 is the I.R.S.’s authority
     to examine books and records regarding “internal reve-
     nue tax”--not income tax. This is corroborated by the
     fact that the implementing regulation for Section 7602
     is located in C.F.R. Title 27, parts 70, 170 and 296.

         *      *       *       *         *         *       *

     In accordance with C.F.R. 1.861-8(f) petitioners, et
     al, do not receive any “income” or receipts from a
     “taxable source”.

         *      *       *       *         *         *       *

     Petitioners, et al, have never been legally assessed
     any tax as required by U.S.C. Title 26 Section 6203 and
     C.F.R. regulation 301.6203-1 and corroborated in Bull
     v. U.S., 295 US 247 * * *.
                                                   (continued...)
                             - 22 -

     In Richards I filed on March 27, 2002, the Court found,

inter alia, (1) that Richards Management Trust in the case at



     7
      (...continued)
     Petitioners, et al, determinations are based on Supreme
     Court decisions, Treasury Orders, U.S.C. Title 26
     codes, and implementing (or lack of implementing)
     C.F.R. Title 26 regulations and various other refer-
     ences, and as such cannot be considered frivolous or
     “. . . a hodgepodge of unsupported assertions, irrele-
     vant platitudes and legalistic gibberish.”

         *      *       *       *       *       *       *

     Everett D. Richards, et al, petitioners in the cases at
     Docket Nos. 10764-00, 10765-00, 10766-00 and 10767-00
     are not liable for any income tax, penalties and/or
     interest pursuant to any U.S.C. Title 26 code sections.

     Petitioners, et al, have at all times rebutted and
     refuted respondents prima facie allegations; thus, the
     burden of proof is on the respondent.

     Treasury Order 120-01 dated June 6, 1972 establishes
     the Bureau of Alcohol, Tobacco and Firearms and trans-
     fers U.S.C. Title 26 Section 61 through 80, inclusive,
     to U.S.C. Title 27 and the Bureau of Alcohol, Tobacco
     and Firearms. Petitioners, et al, are not now and
     never have been involved in the manufacture, distribu-
     tion or sale of alcohol, tobacco or firearms, or been
     involved in any other excise taxable activity. This is
     corroborated by the Code of Federal Regulations Table
     of Authority and Rules.

     A review of the Department of the Treasury organization
     chart reveals that the Internal Revenue Service is not
     administered by any of the organizations with enforce-
     ment authority. This is corroborated by the fact that
     there are no Title 26 implementing regulation under
     Title 26 C.F.R.

     The established trusts bear no burden of proof as their
     records are not subject to review. Boyd vs. U.S. 116
     U.S. 618; Silver Thorne Lumber Co. vs U.S. 1251 US.
     385.
                              - 23 -

docket No. 10764-00 and Richards Charitable Trust in the case at

docket No. 10767-00 had failed to establish who has the authority

to act on their behalf in those respective proceedings and

(2) that neither of those cases was brought by and with the full

descriptive name of the fiduciary entitled to institute each such

case on behalf of Richards Management Trust or Richards Charita-

ble Trust, as the case may be, as required by Rule 60(a)(1).    The

Court held in Richards I that it did not have jurisdiction over

the cases at docket Nos. 10764-00 and 10767-00.

     Pursuant to Richards I, on March 28, 2002, the Court entered

an Order of Dismissal in each of those cases in which the Court

dismissed each such case for lack of jurisdiction.8

     In Richards I, the Court further found that neither Mr.

Richards nor any authorized representative of Mr. Richards

appeared on October 15, 2001, at the calendar call at the Court’s

Cleveland trial session or at the trial that the Court held in

these cases.   The Court also found in Richards I that the written

response by Mr. Richards to respondent’s motion to dismiss for

lack of prosecution in the case at docket No. 10766-00 did not

contain any valid reason why the Court should not dismiss the




     8
      Because we dismissed the cases at docket Nos. 10764-00 and
10767-00 for lack of jurisdiction, we denied respondent’s motion
to hold petitioners in default in each of those cases.
                             - 24 -

case at docket No. 10766-00 for lack of prosecution.9   The Court

observed in Richards I that that response contained contentions

and arguments that the Court had found in the Court’s January 18,

2002 Order in that case to be frivolous and/or groundless.    The

Court also found in Richards I that, despite the Court’s admoni-

tions in its January 18, 2002 Order in the case at docket No.

10766-00 about (1) the frivolous and/or groundless contentions

and arguments in Mr. Richards’ response to respondent’s motion to

dismiss for lack of prosecution in that case and (2) section

6673(a)(1), the brief that Mr. Richards filed in these cases on

February 15, 2002, contained statements, contentions, and argu-

ments that the Court found to be frivolous and/or groundless and

did not set forth any valid reason why the Court should not

dismiss for lack of prosecution the cases at docket Nos. 10765-00

and 10766-00.

     With respect to the accuracy-related penalties under section

6662(a) at issue in the cases at docket Nos. 10765-00 and 10766-

00, the Court found in Richards I that respondent satisfied the

burden of production that respondent maintained respondent had

with respect to those penalties.

     With respect to that part of respondent’s motion to dismiss

for lack of prosecution in each of the cases at docket Nos.


     9
      Mr. Richards did not file a response to respondent’s motion
to dismiss for lack of prosecution in the case at docket No.
10765-00.
                              - 25 -

10765-00 and 10766-00 asking the Court to impose a penalty under

section 6673(a)(1) on petitioner in each of those cases, the

Court found in Richards I that petitioner instituted the proceed-

ings in each of those cases primarily for delay and that his

position in each such case was frivolous and/or groundless.    We

held in Richards I that petitioner was liable for a penalty under

section 6673(a)(1) in the case at docket No. 10765-00 in the

amount of $8,000 and in the case at docket No. 10766-00 in the

amount of $18,000.

     Pursuant to Richards I, on March 28, 2002, the Court entered

an Order of Dismissal and Decision in each of the cases at docket

Nos. 10765-00 and 10766-00.   In each such Order, the Court

granted respondent’s motion to dismiss for lack of prosecution in

each such case in that we dismissed each of those cases for

failure by petitioner to prosecute.    The Court also entered in

each such Order a decision in each of the cases at docket Nos.

10765-00 and 10766-00 (1) sustaining the determinations that

respondent made in the notice of deficiency to which each such

case pertained, but in reduced amounts which respondent conceded

were appropriate in order to reflect the duplication of certain

income determinations in the respective notices of deficiency

issued to Mr. Richards, and (2) imposing a penalty pursuant to

section 6673(a)(1) on Mr. Richards in the case at docket No.

10765-00 in the amount of $8,000 and in the case at docket No.
                               - 26 -

10766-00 in the amount of $18,000.

     On June 24, 2002, Mr. Wise again entered an appearance in

each of the cases at docket Nos. 10764-00 through 10767-00.     On

the same date, Mr. Wise, on behalf of Richards Management Trust

in the case at docket No. 10764-00 and Richards Charitable Trust

in the case at docket No. 10767-00, filed a motion for leave

(motion for leave) to file motion to vacate order of dismissal in

each of those cases and lodged a motion to vacate (motion to

vacate) order of dismissal in each such case and a memorandum in

support of each such motion.   On June 25, 2002, the Court granted

the Trust’s motion for leave in each of the cases at docket Nos.

10764-00 and 10767-00 and had filed in each such case the Trust’s

motion to vacate and the memorandum in support thereof (collec-

tively, the Trust’s motion to vacate).

     On June 24, 2002, Mr. Wise, on behalf of Mr. Richards in

each of the cases at docket Nos. 10765-00 and 10766-00, filed a

motion for leave to file motion to vacate order of dismissal and

decision and lodged a motion to vacate order of dismissal and

decision and a memorandum in support thereof in each such case.

On June 25, 2002, the Court granted Mr. Richards’ motion for

leave in each of the cases at docket Nos. 10765-00 and 10766-00

and had filed in each such case Mr. Richards’ motion to vacate

and the memorandum in support thereof (collectively, Mr. Rich-
                              - 27 -

ards’ motion to vacate).10

     On July 2, 2002, petitioners filed in these cases a motion

for leave to file motion for reconsideration and lodged a motion

for reconsideration in these cases.    On the same date, the Court

granted the motion for leave and had filed in these cases peti-

tioners’ motion for reconsideration.   On July 2, 2002, petition-

ers filed in these cases petitioners’ motion to reopen the record

(petitioners’ motion to reopen the record).11

     On July 24, 2002, respondent filed a response to the Trust’s

motion to vacate in each of the cases at docket Nos. 10764-00 and

10767-00 and to Mr. Richards’ motion to vacate in each of the

cases at docket Nos. 10765-00 and 10766-00.12


     10
      The Court is issuing an Order in each of these cases
addressing petitioner’s motion to vacate in each such case.
     11
      The Court is issuing an Order in these cases addressing
petitioners’ motion to reopen the record.
     12
      Respondent did not file a response to petitioners’ motion
for reconsideration or a response to petitioners’ motion to
reopen the record. That was because, in an Order dated July 2,
2002 (July 2, 2002 Order), the Court indicated that the conten-
tions and arguments advanced in each of the Trust’s motions to
vacate and Mr. Richards’ motions to vacate appeared to be essen-
tially the same as the contentions and arguments advanced in
petitioners’ motion for reconsideration and petitioners’ motion
to reopen the record. The Court further indicated in the July 2,
2002 Order that it appeared that any response by respondent to
petitioners’ motion for reconsideration and respondent’s response
to petitioners’ motion to reopen the record would be essentially
the same as respondent’s response to each of the Trust’s motions
to vacate in the cases at docket Nos. 10764-00 and 10767-00 and
Mr. Richards’ motions to vacate in the cases at docket Nos.
10765-00 and 10766-00. Consequently, in the Court’s July 2, 2002
                                                   (continued...)
                               - 28 -

                           Discussion

     The granting of a motion for reconsideration rests within

the discretion of the Court.     Estate of Quirk v. Commissioner,

928 F.2d 751, 759 (6th Cir. 1991), affg. in part and remanding in

part T.C. Memo. 1988-286; Klarkowski v. Commissioner, 385 F.2d

398, 401 (7th Cir. 1967), affg. T.C. Memo. 1965-328.    A motion

for reconsideration will be denied unless unusual circumstances

or substantial error is shown.    Estate of Quirk v. Commissioner,

supra at 759; Alexander v. Commissioner, 95 T.C. 467, 469 (1990),

affd. without published opinion sub nom. Stell v. Commissioner,

999 F.2d 544 (9th Cir. 1993); Vaughn v. Commissioner, 87 T.C.

164, 167 (1986).

     Petitioners’ motion for reconsideration fails to address the

Court’s holdings in Richards I that the Court does not have

jurisdiction over the cases at docket Nos. 10764-00 and 10767-




     12
      (...continued)
Order, the Court directed respondent to file a response to
petitioners’ motion for reconsideration and a response to peti-
tioners’ motion to reopen the record only if respondent believed
that it was necessary to file each such response. Obviously,
respondent did not believe that it was necessary to file any
responses to those motions.
                             - 29 -

0013 and addresses only in a general way the Court’s holdings in


     13
      We note that the respective responses to the Court’s
December 3, 2001 Show Cause Orders in the cases at docket Nos.
10764-00 and 10767-00 asserted that “Petitioner does not believe
that this Court has jurisdiction.”

     We further note that attached as an exhibit to the Trust’s
motion to vacate in the case at docket No. 10764-00 is, inter
alia, an affidavit of Mr. Richards (Mr. Richards’ affidavit),
allegedly notarized by Mr. Binge. Mr. Richards’ affidavit
states: “At the time of the filing of the Petition, and since
the inception of the Trust in the above-captioned matter, I was
the Trustee for the Petitioner.” Attached to Mr. Richards’
affidavit are, according to that affidavit, “true and accurate
copies of the originals” of the trust documents pertaining to
Richards Management Trust, which Mr. Richards alleges in Mr.
Richards’ affidavit “were maintained in my possession until
April, 2002." The copies of the trust documents attached to Mr.
Richards’ affidavit in the case at docket No. 10764-00 bear the
date June 8, 2001. The years at issue in that case are 1996 and
1997. We conclude that Mr. Richards’ affidavit and the trust
papers attached to that affidavit in the case at docket No.
10764-00 do not establish who has the authority to act on behalf
of Richards Management Trust in that case. Even assuming
arguendo that the trust papers attached to Mr. Richards’ affida-
vit in the case at docket No. 10764-00 were in effect during the
years at issue, those trust papers do not establish who has the
authority to act on behalf of Richards Management Trust in that
case. Mr. Richards seems to suggest in Mr. Richards’ affidavit,
without expressly stating, that he has that authority. However,
in the case at docket No. 10764-00, Mr. Bentivegna signed as
“Trustee” (1) the response to the Court’s December 3, 2001 Show
Cause Order and (2) the response to respondent’s motion to hold
petitioner in default.

     We also note that attached as an exhibit to the Trust’s
motion to vacate in the case at docket No. 10767-00 is, inter
alia, an affidavit of Mr. Richards, also allegedly notarized by
Mr. Binge. The affidavit of Mr. Richards that was attached to
the Trust’s motion to vacate in the case at docket No. 10767-00
is identical to Mr. Richards’ affidavit that was attached to the
Trust’s motion to vacate in the case at docket No. 10764-00.
Attached to Mr. Richards’ affidavit in the case at docket No.
10767-00 are, according to Mr. Richards, “true and accurate
copies of the originals” of the trust documents pertaining to
                                                   (continued...)
                              - 30 -

Richards I granting respondent’s respective motions to dismiss

for lack of prosecution in the cases at docket Nos. 10765-00 and

10766-00 and imposing a penalty under section 6673(a)(1) on Mr.

Richards in those cases in the respective amounts of $8,000 and

$18,000.   The crux of petitioners’ motion for reconsideration

regarding all of those holdings is petitioners’ claim that Mr.

Richards’ conduct in these cases was the result of his reliance

on Mr. Binge, his tax return preparer, and Mr. Bentivegna, an

associate of Mr. Binge.   That claim rings hollow.

     Not only did respondent and the Court inform petitioners in

these cases that there could be sanctions as a result of their

conduct in these cases, petitioners’ counsel Mr. Wise also

advised Mr. Richards that “reliance upon the recommendations of

James Binge may not be in his best interest.”   In response to

such advice and other advice from Mr. Wise, petitioners fired



     13
      (...continued)
Richards Charitable Trust, which Mr. Richards alleges in Mr.
Richards’ affidavit in that case “were maintained in my posses-
sion until April, 2002.” Although the trust papers attached to
Mr. Richards’ affidavit in the case at docket No. 10767-00 bear
the date Apr. 26, 1995, those papers list Mr. Richards and Joy
Ann Richards as the directors and the trustees of Richards
Charitable Trust. However, Joy Ann Richards died at an undis-
closed time prior to Aug. 15, 1997. Moreover, in that case, Mr.
Bentivegna signed as “Trustee” the response to the Court’s
December 3, 2001 Show Cause Order and the response to respon-
dent’s motion to hold petitioner in default. We conclude that
Mr. Richards’ affidavit and the trust papers attached to Mr.
Richards’ affidavit in the case at docket No. 10767-00 do not
establish who has the authority to act on behalf of Richards
Charitable Trust in that case.
                               - 31 -

him.    As made clear in Mr. Wise’s motion to withdraw, Mr. Wise

made repeated efforts throughout the period starting in at least

June 2001 to September 11, 2001, to make Mr. Richards understand

that there could be sanctions if Mr. Richards followed the advice

of Mr. Binge and Mr. Bentivegna.14   On September 11, 2001, the

date on which Mr. Wise signed his motion to withdraw in each of

the cases at docket Nos. 10765-00 and 10766-00, Mr. Wise stated

at the end of each such motion:

            It is clear to the undersigned [Mr. Wise] that the
       Petitioner does not wish to have him continue to repre-
       sent him. The undersigned has had numerous conversa-
       tions with him and his accountant. He is aware of the
       significance of his decision to decline assistance.

       We reject the attempt in petitioners’ motion for reconsider-

ation to blame Mr. Binge and Mr. Bentivegna for petitioners’

conduct in these cases.    Petitioners chose to ignore the warnings

of respondent, their own counsel Mr. Wise whom they fired, and

the Court.    It was only after the Court issued Richards I on

March 27, 2002, that petitioners rehired Mr. Wise and suggested

that they wanted to do now what they should have done before the




       14
      Contrary to the allegation in petitioners’ motion for
reconsideration that Mr. Binge and Mr. Bentivegna never shared
“non-traditional” beliefs with Mr. Richards because he was
regarded as a “traditional” client, Mr. Wise’s respective motions
to withdraw in the cases at docket Nos. 10765-00 and 10766-00
stated that Mr. Richards “indicated that he was having second
thoughts about continuing the representation [Mr. Wise’s repre-
sentation] and was exploring ‘non-traditional’ alternatives with
James Binge.”
                               - 32 -

Court issued that Opinion.15

     We find that petitioners have only themselves to blame for

the consequences resulting from their actions and inactions in

these cases and that they should bear responsibility for their

conduct.   It was petitioners who decided not to have these cases

heard on the merits.   They decided not to cooperate with, and to

ignore the warnings of, respondent, their own counsel Mr. Wise

whom they fired, and the Court.

     The Court provided petitioners in these cases ample opportu-

nity to present relevant information to the Court even (1) after

respondent orally moved to dismiss these cases at the calendar

call on October 15, 2001, (2) after the trial took place on the

same date, and (3) after respondent filed on November 13, 2001, a

written motion to hold petitioners in default in each of the

cases at docket Nos. 10764-00 and 10767-00 and a written motion

to dismiss for lack of prosecution in each of the cases at docket

Nos. 10765-00 and 10766-00.    Petitioners declined to provide any


     15
      Petitioners’ motion for reconsideration indicates that on
Apr. 22, 2002, Mr. Wise called Mr. Richards to advise him of
Richards I and the respective Orders of Dismissal in the cases at
docket Nos. 10764-00 and 10767-00 and the respective Orders of
Dismissal and Decision in the cases at docket Nos. 10765-00 and
10766-00. According to petitioners’ motion for reconsideration,
Mr. Wise advised Mr. Richards that the deadline within which to
file motions to vacate those Orders was soon approaching and that
something needed to be done immediately. We do not understand
why Mr. Wise contacted Mr. Richards on Apr. 22, 2002, since
petitioners in the instant cases had fired Mr. Wise around July
2001. See Rule 201; ABA, Ann. Model Rules of Profl. Conduct R.
7.3 (1999).
                              - 33 -

such relevant information.   Instead, they failed to prosecute

their respective cases, ignored all Orders of the Court, and

submitted to the Court documents containing statements, conten-

tions, and arguments that were frivolous and/or groundless.    In

addition, the named petitioner in each of the cases at docket

Nos. 10764-00 and 10767-00 failed to establish who has the

authority to act on its behalf in each such case.

     We remind petitioners that

     If the Court granted a second chance to every party who
     lost because of his failure to act in some manner, the
     Court clearly could not keep abreast of its work. In
     effect, we would be telling the parties that if they
     were not satisfied with the first decision, try again.
     * * *

Koufman v. Commissioner, 69 T.C. 473, 476 (1977).16

     We find that petitioners have not shown any unusual circum-

stances or substantial error that warrants the Court’s relieving

them of the consequences of their conduct in these cases by

granting petitioners’ motion for reconsideration.

     We have considered all of the arguments and contentions set



     16
      See also Long v. Commissioner, 71 T.C. 724, 727 (1979),
remanded on another issue 660 F.2d 416 (10th Cir. 1981), in which
we quoted the following passage from Selwyn Operating Corp. v.
Commissioner, 11 B.T.A. 593, 595 (1928):

          A party is entitled to have his day in court; both
     parties are entitled to this, but neither party is
     entitled to have more than one fair, reasonable oppor-
     tunity to establish his claim or defense. To allow
     more would be to protract litigation to the extent
     which would preclude the administration of justice.
                             - 34 -

forth in petitioners’ motion for reconsideration that are not

discussed herein, and we find them to be without merit and/or

irrelevant.17

     To reflect the foregoing,


                                      An Order denying petitioners’

                                 motion for reconsideration will be

                                 issued.




     17
      With respect to petitioners’ reliance in petitioners’
motion for reconsideration on Alvarez v. Simmons Mkt. Research
Bureau, Inc., 839 F.2d 930 (2d Cir. 1988); Harper v. Commis-
sioner, 99 T.C. 533 (1992); Marcus v. Commissioner, 70 T.C. 562
(1978), affd. without published opinion 621 F.2d 439 (5th Cir.
1980); and Leavell v. Commissioner, T.C. Memo. 1996-117, we find
those cases to be materially distinguishable from the instant
cases and petitioners’ reliance on those cases to be misplaced.
