1 All Rule references are to the Tax Court Rules of Practice and

Procedure. All section references are to the Internal Revenue

Code in effect for the year at issue.

T.C. Memo. 1996-312

UNITED STATES TAX COURT

ARTHUR B. CROZIER, Petitioner, v. COMMISSIONER

OF INTERNAL REVENUE, Respondent

Docket No. 7846-95. Filed July 10, 1996.

Louis A. Ramunno and Roland Barral, for respondent.

MEMORANDUM OPINION

CHIECHI, Judge: This case is before the Court on respondent's motion for summary judgment pursuant to Rule 121

(motion).1 Respondent determined a deficiency in petitioner's

Federal income tax for 1991 in the amount of $13,784 and an
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2 Respondent also determined interest on those amounts as

provided by law.

3 Although the Court ordered petitioner to file a response to

respondent's motion, he failed to do so.

addition to tax for that year under section 6651(a) in the amount

of $304.2 

Background

At the time petitioner filed the petition, he indicated

therein that his address was New York, New York. 

In her motion, respondent represents various facts, none of

which petitioner has disputed, including the following.3

On June 23, 1995, respondent filed an answer denying the

allegations in the petition, including petitioner's allegation

that assessment of the tax determined in the notice of deficiency

(notice) is barred by the applicable statute of limitations. The

answer also affirmatively alleged that the applicable statute of

limitations did not preclude assessment of the tax determined in

the notice because petitioner failed to file an income tax return

for the year at issue. 

On January 30, 1996, respondent sent a letter to petitioner

that invited him to a conference on February 5, 1996, and informally requested that petitioner bring various documents to that

conference and engage in informal discussions necessary to the

preparation of this case. That letter also advised petitioner

that if the date set for the conference was inconvenient, he
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should contact respondent's counsel to reschedule the conference. 

Petitioner failed to attend the conference scheduled for February

5, 1996, or to contact respondent to reschedule the conference. 

In an effort to determine why petitioner failed to attend

the conference scheduled for February 5, 1996, respondent attempted to contact petitioner by telephone at the address listed

in the petition. Respondent was advised by New York telephone

directory assistance that there is no listing for petitioner at

that address. 

On February 26, 1996, respondent determined that petitioner

is currently employed as an attorney by Georgeson & Co., Inc.

(Georgeson) in New York City. Respondent obtained the telephone

number of Georgeson from telephone directory assistance and left

a message with petitioner's secretary after that secretary

informed respondent that petitioner was unavailable. Petitioner

never returned respondent's call. 

Because petitioner had not responded to any of respondent's

attempts to engage in informal discovery, on February 28, 1996,

respondent served on petitioner respondent's interrogatories

pursuant to Rule 71. 

On February 29, 1996, respondent again attempted to contact

petitioner by telephone at Georgeson and left a message with his

secretary. Petitioner never returned that call. By letter dated

February 29, 1996 (February 29, 1996 letter), respondent advised

petitioner that answers to respondent's interrogatories were
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required within 45 days after service of those interrogatories

and that his continuing failure to cooperate would result in the

filing by respondent of a motion to compel answers to those

interrogatories. Respondent further advised petitioner in that

letter about the Court's Standing Pretrial Order (Order) that

mandated, among other things, that the parties stipulate all

relevant matters not privileged and that cautioned the parties

that any unexcused failure to comply with the Order might result

in appropriate sanctions, including dismissal. The February 29,

1996 letter invited petitioner, once again, to meet with respondent as soon as possible to begin preparation of a stipulation of

facts. That letter cautioned petitioner that, because of his

continued failure to contact respondent and to cooperate in

preparing the case, respondent was prepared to file a motion to

dismiss the petition for lack of prosecution. Petitioner failed

to respond to respondent's February 29, 1996 letter. 

On March 14, 1996, respondent filed a request for admissions

with the Court. On March 13, 1996, respondent served petitioner

by mail with a copy of that request. Petitioner did not file any

response to that request for admissions. Consequently, each

matter set forth therein, including the following, is deemed

admitted. Rule 90(c); Marshall v. Commissioner, 85 T.C. 267, 272

(1985); Morrison v. Commissioner, 81 T.C. 644, 647 (1983). 
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Petitioner did not file a Form 1040, U.S. Individual Income

Tax Return, for 1991. Petitioner's failure to file that return

was due to willful neglect. 

During 1991, petitioner received W-2 wage income from

Georgeson in the amount of $54,669 and Form 1099 miscellaneous

income from self-employment for services rendered to Newport

Electronics, Inc. in the amount of $5,000. During that year,

petitioner also received Form 1099 interest income from (1) U.S.

Trust Company in the amount of $13, (2) Baybank Boston N.A. in

the amount of $148, (3) The Greater New York Savings Bank in the

amount of $348, and (4) The Chase Manhattan Bank N.A. in the

amount of $23. 

For 1991, petitioner is entitled to (1) one personal exemption allowance in the amount of $2,150, (2) the standard deduction in the amount of $2,850, and (3) a deduction for one-half of

his 1991 self-employment tax liability, and his filing status is

that of a married individual filing a separate return. 

On April 24, 1996, respondent attempted to reach petitioner

at Georgeson one last time to ascertain the reason for his

unresponsiveness and to inform him of respondent's intention to

file the instant motion. Respondent left a message for petitioner with his secretary that informed petitioner that respondent had attempted to reach him by telephone and by correspondence on several occasions and that he should contact respondent
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as soon as possible. Petitioner failed to respond to that

telephone call of respondent. 

On April 29, 1996, respondent filed a motion to compel

answers to respondent's interrogatories (motion to compel). On

that date, the Court ordered petitioner to file a written response to the motion to compel. Petitioner failed to comply with

the Court's Order and never filed a response to that motion. On

May 13, 1996, the Court granted respondent's motion to compel and

ordered that petitioner serve on counsel for respondent answers

to each of the interrogatories in question on or before May 17,

1996. The Court further ordered respondent to inform the Court

in writing by May 24, 1996, whether petitioner had responded to

her interrogatories. On May 22, 1996, respondent advised the

Court that, as of that date, petitioner had not responded in any

manner to respondent's interrogatories. 

Petitioner is an attorney admitted to practice before this

Court. 

Discussion

Rule 121 allows a party to move for summary judgment on all

or any part of the legal issues in controversy. Pursuant to Rule

121(b), a decision shall be rendered on the motion if the 

pleadings, answers to interrogatories, depositions, admissions,

and any other acceptable materials, together with affidavits,

show that there is no genuine issue as to any material fact and

that a decision may be rendered as a matter of law. Naftel v.
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Commissioner, 85 T.C. 527, 529 (1985); Jacklin v. Commissioner,

79 T.C. 340, 344 (1982). 

The burden of proof is on petitioner to establish that the

determinations in the notice are erroneous. Rule 142(a); Welch

v. Helvering, 290 U.S. 111, 115 (1933). 

Petitioner is deemed to have admitted that he received the

wage, self-employment, and interest income determined in the

notice. Petitioner is also deemed to have admitted that he

failed to file a return for 1991 and that that failure was

because of willful neglect. Based on the deemed admissions in

this case, and taking account of petitioner's failure to set

forth facts showing that he is entitled to any deductions or

exemptions other than those allowed in the notice, we conclude

that respondent has satisfied her burden of proving that no

genuine issue of material fact exists as to respondent's determinations for 1991 and that respondent is entitled as a matter of

law to a decision thereon. Accordingly, we shall grant respondent's motion. Rule 121; Marshall v. Commissioner, supra at 272. 

To reflect the foregoing, 

An appropriate order granting

respondent's motion for summary 

judgment and decision will be 

entered for respondent.