T.C. Memo. 2004-239

UNITED STATES TAX COURT

FRED ALLNUTT, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6133-00. Filed October 18, 2004.

Fred Allnutt, pro se.

Bradley C. Plovan, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

COLVIN, Judge: Respondent determined deficiencies in

petitioner’s Federal income tax and additions to tax and

penalties as follows:
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Additions to tax and penalties

Year Deficiency Sec. 6653(a) Sec. 6651(a)(1) Sec. 6662

1987 $1,197,033 $63,143.55 $269,331.98 --

1988 274,146 16,379.00 61,682.50 --

1989 10,253 -- 2,307.20 $2,050.60

1990 112,208 -- 25,247.25 22,441.60

1992 82,632 -- 18,592.68 16,526.40

1993 1,774 -- -- 354.80

1994 17,581 -- -- 3,516.20

1995 19,992 -- -- 3,998.40

1996 16,702 -- -- 3,340.40

1997 20,177 -- -- 4,035.40

After concessions, the issues remaining for decision are:

1. Whether petitioner’s bases in equipment he sold in 1987-

90 exceeded the amounts conceded by respondent (the basis issue). 

We hold that they did not.

2. Whether petitioner is liable for: (a) Additions to tax

for negligence under section 6653(a) for 1987-88; (b) the

accuracy-related penalty under section 6662(a) for 1989-90 and

1992-97; and (c) additions to tax for failure to timely file

returns under section 6651(a) for 1987-90 and 1992. We hold that

he is.

3. Whether petitioner complied with requirements for

issuing subpoenas to several prospective witnesses. We hold that

he did not, and thus the subpoenas were not enforceable.

4. Whether the Court properly denied petitioner’s motions

to recuse the trial Judge and for a hearing on whether certain

conduct of respondent’s trial counsel was fraudulent. We hold

that those motions were properly denied.
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Unless otherwise specified, section references are to the

Internal Revenue Code in effect for the years in issue, and Rule

references are to the Tax Court Rules of Practice and Procedure.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. 

Petitioner resided in Maryland when he filed the petition.

A. Petitioner’s Business

Petitioner was the sole proprietor of JFC Excavating in

1987-90. Petitioner bought the following excavating equipment: 

 Purchase Purchase

 Date Description Price

Oct. 14, 1983 Terex TS14B, Ser. $84,500.00

No. 69699 

Nov. 26, 1984 Caterpillar 953LGP, 88,500.00

Ser. No. 20Z355

Oct. 16, 1986 Case 1835, Ser. No. 14,561.65

17168653

Petitioner sold these three pieces of equipment (the three pieces

of equipment) and 58 other pieces of excavating equipment in

1987-90.

B. Petitioner’s Tax Years 1981-86

Petitioner’s tax years 1981-86 were at issue in Allnutt v.

Commissioner, T.C. Memo. 1991-6 (Allnutt I), affd. without

published opinion 956 F.2d 1162 (4th Cir. 1992). We dismissed

Allnutt I to the extent it related to issues on which petitioner

had the burden of proof because petitioner failed to state a
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1 The caption of that case spells petitioner’s name with

only one “t”.

2 11 U.S.C. sec. 505(a)(2)(A) (2000) provides:

505. Determination of tax liability

(a)(1) Except as provided in paragraph (2) of this

subsection, the court may determine the amount or

legality of any tax, any fine or penalty relating to a

tax, or any addition to tax, whether or not previously

assessed, whether or not paid, and whether or not

(continued...)

claim upon which relief could be granted. Id. We also (1)

deemed admitted undenied allegations of fact and granted the

Commissioner’s motion for summary judgment relating to

petitioner’s liability for the fraud penalty; (2) held that

petitioner had taxable income of $433,059 for 1981, $409,575 for

1982, $386,090 for 1983, $342,223 for 1984, $298,355 for 1985,

and $1,913,176 for 1986; (3) sustained additions to tax under

section 6654 for failure to pay estimated tax; and (4) imposed a

penalty under section 6673 for instituting the proceeding

primarily for delay and for maintaining frivolous positions. Id.

Petitioner attempted to relitigate his 1981-86 tax liability

in a bankruptcy case. Allnut v. Friedman,

1 Bankruptcy No. 92-5-

7401-JS (D. Md., Jan. 20, 1995). In Allnut v. Friedman, supra,

the District Court said that petitioner’s liability for tax years

1981-86 had been fully adjudicated before he filed the bankruptcy

petition and held that he was barred by res judicata under 11

U.S.C. section 505(a)(2)(A)2 from relitigating his 1981-86 tax
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2(...continued)

contested before and adjudicated by a judicial or

administrative tribunal of competent jurisdiction.

(2) The court may not so determine--

(A) the amount or legality of a tax, fine,

penalty, or addition to tax if such amount or legality

was contested before and adjudicated by a judicial or

administrative tribunal of competent jurisdiction

before the commencement of the case under this title; 

or

liability. The opinion of the District Court in Allnut v.

Friedman, supra, was filed more than 2 years before petitioner

filed his returns for the years in issue.

C. Filing in 1997 of Petitioner’s Tax Returns for 1987-90 and

1992-97

Safoet A. Ashai, a certified public accountant (C.P.A.),

prepared petitioner’s Federal income tax returns for the years in

issue. Petitioner filed his returns for 1987-90 and 1992-95 on

March 10, 1997. His filing status was married filing separately

for the years in issue. Petitioner reported substantial gross

receipts from his excavating business for each year in issue. In

his returns for the years in issue, petitioner reported gains

from 49 items of property as follows:

 Number Total Total Total

 of Purchase Adjusted Sale Total

Year Items Price Basis Price Gain

1987 13 $529,000 $145,950 $293,400 $147,450

1988 7 474,000 84,420 272,000 187,580

1989 5 288,000 39,060 109,500 70,440

1990 24 1,896,000 511,519 1,014,000 502,481
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In the notice of deficiency, respondent determined that

petitioner’s adjusted basis in each asset was zero. Petitioner

also reported losses totaling $297,264.40 from 12 items of

property sold in 1987-90. Respondent made no determination

relating to the property petitioner reported selling at a loss.

D. Procedural History

1. Trial on October 24, 2001

In Allnutt v. Commissioner, T.C. Memo. 2002-311 (Allnutt

II), a prior opinion filed in the instant case, we held that (1)

the notice of deficiency for tax years 1987-90 and 1992-95 was

timely issued; and (2) because of our decision in Allnutt I,

petitioner was barred by res judicata from arguing that he had

losses in 1981-86 which he could carry forward to the years in

issue (1987-90 and 1992-97).

The issues decided in Allnutt II were tried on October 24,

2001. Petitioner prepared 10 subpoenas for Internal Revenue

Service (IRS) employees to appear as witnesses at the Court’s

trial session beginning on October 22, 2001. Petitioner did not

tender witness fees or mileage to the summoned witnesses. Also,

the return of service for those subpoenas did not contain the

date and time of service and did not contain a sworn statement

signed and dated by the person making service that he or she had

delivered the subpoena to the summoned witness and tendered fees
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3 The Commissioner’s disclosure office is generally

responsible for processing taxpayers’ document requests, such as

Freedom of Information Act (FOIA) requests. Sec. 601.702(c),

(g)(7), Statement of Procedural Rules; see, e.g., Judicial Watch,

Inc. v. Rossotti, 91 AFTR 2d 2003-463, 2003-1 USTC par. 50,201

(D. Md. 2002).

and mileage pursuant to Rule 148. The Court granted respondent’s

motions to quash those subpoenas.

2. Trial on July 15, 2003

On May 13, 2003, we set the remaining issues (basis and

additions to tax) for trial for July 15, 2003. A standing

pretrial order was served on petitioner on May 13, 2003, which

required the parties to identify in writing and exchange

documents to be used at trial at least 15 days before trial.

Petitioner did not exchange any documents 15 days or more

before July 15, 2003. On July 10, 2003, petitioner faxed to

respondent (1) a list of equipment entitled “Recapitulation of

Equipment Purchased and Sold by Fred Allnutt”, and (2) 20

invoices and purchase orders for equipment petitioner bought in

1981-92.

Petitioner prepared subpoenas for respondent’s revenue agent

who audited petitioner’s returns for the years in issue and his

supervisor. Each of these subpoenas was stamped received on June

27, 2003, by respondent’s disclosure office3 in Baltimore. The

returns of service for these subpoenas did not contain the date

or time of service and did not contain a sworn statement signed
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and dated by the person making service verifying that he or she

had delivered the subpoena to the summoned witness and had

tendered fees and mileage pursuant to Rule 148. The Court

granted respondent’s motions to quash the subpoenas.

At trial on July 15, 2003, petitioner stated that he had 100

boxes of records to support the bases he claimed for equipment

that he sold in the years in issue, but that he did not have them

with him. Trial was continued to give petitioner more time to

present his records to respondent.

3. Trial on January 5, 2004

On July 28, 2003, petitioner faxed to respondent a list

entitled “Fred W. Allnutt, Equipment” that petitioner had not

previously given to respondent.

On November 5, 2003, further trial was set for January 5,

2004, to give petitioner another opportunity to offer evidence

relating to the basis issue. Also on November 5, 2003, the Court

ordered petitioner to provide to respondent, not later than

December 22, 2003, all documents that he wanted to use at trial

to substantiate his claimed bases, organized by asset. 

Petitioner failed to provide any additional documents to

respondent by December 22, 2003.

On December 17, 2003, petitioner again prepared subpoenas

for respondent’s revenue agent who audited petitioner’s returns

for the years in issue and his supervisor. Respondent’s
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disclosure office in Baltimore received each of those subpoenas

on December 30, 2003. Petitioner did not personally serve the

subpoenas or tender witness fees or mileage. Respondent filed

motions to quash the subpoenas on the same grounds as

respondent’s earlier motions to quash; e.g., that petitioner did

not comply with the procedural requirements for issuing

subpoenas. At trial on January 5, 2004, we granted respondent’s

motion to quash the subpoena issued to respondent’s revenue

agent. Respondent’s motion to quash as to the agent’s supervisor

was moot because petitioner did not call her to testify.

At trial, petitioner offered into evidence the two lists and

the 20 invoices and purchase orders (and accompanying cover

letters for those documents) that he had faxed to respondent on

July 10 and 28, 2003. Respondent objected to the admission of

the lists into evidence as hearsay. Respondent did not object to

their being admitted as a summary of petitioner’s testimony. The

two lists were admitted into evidence as a summary of

petitioner’s testimony.

Petitioner also offered into evidence two typewritten

summaries showing descriptions, serial numbers, purchase dates

and prices, and sale dates and prices for items of equipment

purchased by petitioner on or after February 11, 1981, neither of

which petitioner had provided to respondent’s counsel before
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December 22, 2003. Those two documents were not admitted into

evidence.

D. Petitioner’s Motions To Disqualify the Trial Judge and for a

Hearing on Whether Conduct of Respondent’s Counsel Was

Fraudulent

Petitioner filed three motions to disqualify the trial

Judge, all of which we denied. 

About 3 weeks after petitioner filed his posttrial answering

brief, petitioner filed two motions for a hearing in which

petitioner alleged that respondent’s counsel had committed fraud

on the Court by, according to petitioner, failing to timely

provide to petitioner Forms 895, Notice of Statute Expiration. 

We denied petitioner’s motions.

OPINION

A. Whether Petitioner Had Higher Bases in Equipment Sold in

1987-90 Than Conceded by Respondent

1. Burden of Proof

Petitioner contends that respondent bears the burden of

proving that the bases in equipment sold in 1987-90 that

petitioner reported on his returns for those years are incorrect. 

We disagree.

Under section 7491(a), the burden of proof with respect to a

factual issue relevant to a taxpayer’s liability for tax shifts

from the taxpayer to the Commissioner for cases in which the

examination began after July 22, 1998, if, inter alia, the

taxpayer has: (a) Complied with substantiation requirements
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4 Respondent conceded that petitioner established his

original costs for three pieces of equipment: The Terex TS14B,

the Caterpillar 953LGP, and the Case 1835.

under the Internal Revenue Code, sec. 7491(a)(2)(A); (b)

maintained all records required by the Internal Revenue Code,

sec. 7491(a)(2)(B); and (c) cooperated with reasonable requests

by the Secretary for information, documents, and meetings, id. A

taxpayer bears the burden of proving that he or she has met the

requirements of section 7491(a). See H. Conf. Rept. 105-599, at

239 (1998), 1998-3 C.B. 747, 993; S. Rept. 105-174, at 45 (1998),

1998-3 C.B. 537, 581.

The record does not show when the examination began. Even

if the examination had begun after July 22, 1998, the burden of

proof regarding petitioner’s basis in the equipment would not

shift to respondent. Petitioner did not show that he kept

records of his bases in equipment or that he cooperated with

respondent’s reasonable requests for information and documents. 

See sec. 7491(a)(2)(B). Thus, respondent’s determination is

presumed to be correct, and petitioner bears the burden of proof. 

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

2. Petitioner’s Bases in Equipment Sold in 1987-90

Petitioner contends that the record shows that he had higher

bases in equipment sold in 1987-90 than conceded by respondent.4
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5 At trial on January 5, 2004, petitioner testified:

* * * [His] tax returns as filed and sworn to

under oath * * * [are correct]. There’s been no

testimony in this courtroom to show that those tax

returns are incorrect. There’s only been unsupported

allegations and insinuations by respondent’s attorney,

but no sworn testimony that they’re incorrect. They

are correct, and they are sworn to. They have not been

rebutted.

a. Petitioner’s Tax Returns

Petitioner contends that his tax returns establish that his

bases for the equipment he sold in 1987-90 are as reported on

those returns.5 We disagree. Tax returns do not establish the

truth of facts reported in them. Lawinger v. Commissioner, 103

T.C. 428, 438 (1994); Wilkinson v. Commissioner, 71 T.C. 633, 639

(1979); Roberts v. Commissioner, 62 T.C. 834, 837 (1974). 

Petitioner argues that, because respondent accepted the

bases he reported on those returns for some equipment, respondent

must also accept the bases he reported for all of the equipment. 

We disagree. Respondent’s acceptance of some items reported on a

return does not bar respondent from challenging other items

reported on the return. Showell v. Commissioner, 23 T.C. 495,

499 (1954), remanded on other grounds 238 F.2d 148 (9th Cir.

1956); Estate of Marcus v. Commissioner, T.C. Memo. 1955-298.

b. Petitioner’s Lists

Respondent objected on hearsay grounds to the admission of

petitioner’s lists of equipment sold. Petitioner failed to show
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that any exception to the hearsay rule applies, and it does not

appear that any exception applies. Rule 803(6) of the Federal

Rules of Evidence provides an exception to the hearsay rule for

records that are kept in the course of a regularly conducted

activity and made at or near the time of the event by a person

with knowledge. Petitioner testified that he was not familiar

with the records because his son maintained them. Petitioner’s

son did not testify. Petitioner has not met the requirements of

rule 803(6) of the Federal Rules of Evidence because petitioner

is not a qualified custodian of those records.

Respondent did not object to the admission of petitioner’s

lists of equipment sold as a summary of petitioner’s testimony,

and the Court admitted them for that limited purpose. See, e.g.,

Randall v. Commissioner, 56 T.C. 869, 874 n.4 (1971) (list

treated as a summary of testimony that the taxpayer would have

given); Fast v. Commissioner, T.C. Memo. 1998-272 (list of

expenses treated as summary of taxpayer’s testimony); Hall v.

Commissioner, T.C. Memo. 1996-71 (document admitted solely as a

summary of taxpayer’s testimony and given no evidentiary weight).

The information in the lists (except for the invoices and

purchase orders relating to the three pieces of equipment

described above at paragraph 1 of the findings of fact) is wholly

uncorroborated. A taxpayer must keep adequate records from which

to calculate his or her correct tax liability. Sec. 6001; sec.
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1.6001-1(a), Income Tax Regs. Despite our continuance of the

case on July 15, 2003, to permit petitioner to provide documents,

and our orders to petitioner to produce documents, petitioner did

not provide to respondent any documents relating to those lists

(except for those related to the three pieces of equipment

described above at paragraph 1 of the findings of fact).

3. Conclusion

Petitioner has not shown that he had higher bases in

equipment sold in 1987-90 than the amounts conceded by

respondent. Thus, we sustain respondent’s determination

regarding the amounts of gain from petitioner’s sale of equipment

in 1987-90, except as reduced by respondent’s concession

regarding the three pieces of equipment.

B. Whether Petitioner Is Liable for Additions to Tax and the

Accuracy-Related Penalty

1. Negligence

a. Background

For tax years 1987 and 1988, taxpayers are liable for an

addition to tax equal to 5 percent of the underpayment of tax if

any part of the underpayment is due to negligence or intentional

disregard of rules or regulations. Sec. 6653(a). For tax years

1989 and later, taxpayers are liable for a penalty equal to 20

percent of the part of the underpayment attributable to

negligence or disregard of rules or regulations or to any
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substantial understatement of income tax. Sec. 6662(a) and

(b)(1) and (2).

b. Burden of Production

In court proceedings arising in connection with examinations

beginning after July 22, 1998, section 7491(c) places on the

Commissioner the burden of producing evidence showing that it is

appropriate to impose the addition to tax under section 6653(a)

for 1987-88 and the accuracy-related penalty for negligence under

section 6662(a) for 1989-90 and 1992-97. As stated above at

paragraph A-1, the record does not show when the examination

began. If section 7491(c) applies, respondent has met the burden

of production for negligence by showing that petitioner

erroneously carried forward net operating losses (NOLs) from

years for which we decided in Allnutt I that he had substantial

income.

Petitioner contends that he prevails on this issue because

respondent offered no contrary evidence. We disagree. 

Petitioner bears the burden of proof. See Rule 142(a).

c. Whether Petitioner Knew or Should Have Known Res

Judicata Barred Him From Carrying Forward NOLs

From 1981-86 to the Years in Issue

Respondent’s sole ground for contending that petitioner is

negligent under sections 6653(a) and 6662(a) is that he knew or

should have known that he could not carry forward NOLs from 1981-

86 to 1987-90 and 1992-97. Thus, for respondent to prevail on
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negligence, we must conclude that petitioner knew or should have

known that he had no losses in 1981-86 and that res judicata

barred him from carrying forward NOLs from 1981-86 to the years

in issue.

In Allnutt I, the Court held that petitioner had substantial

amounts of taxable income for each of the years 1981-86. 

Petitioner contends that he did not know or have reason to know

that Allnutt I barred him from carrying forward NOLs from 1981-86

to the years in issue. We disagree. 

Because of the District Court opinion in Allnut v. Friedman,

Bankruptcy No. 92-5-7401-JS (D. Md., Jan. 20, 1995), petitioner

knew or should have known before he filed his tax returns for the

years in issue that he was barred by Allnutt I and res judicata

from relitigating his tax liability for tax years 1981-86.

d. Whether Petitioner Had Substantial Authority for

His Position

A taxpayer has substantial authority for his or her position

if the weight of authority in support of the taxpayer’s position

is substantial in relation to the weight of authority supporting

contrary positions. Roco v. Commissioner, 121 T.C. 160, 167

(2003); Antonides v. Commissioner, 91 T.C. 686, 702 (1988), affd.

893 F.2d 656 (4th Cir. 1990).

Petitioner contends that Barenholtz v. United States, 784

F.2d 375, 380-381 (Fed. Cir. 1986); Springfield St. Ry. Co. v.

United States, 160 Ct. Cl. 111, 312 F.2d 754, 757-759 (1963);
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Robarts v. Commissioner, 103 T.C. 72 (1994), affd. without

published opinion 56 F.3d 1390 (11th Cir. 1995); Hamilton Indus.,

Inc. v. Commissioner, 97 T.C. 120, 127-128 (1991); and Budd Co.

v. Commissioner, 33 T.C. 813 (1960), provide substantial

authority for his position that he can claim losses for years for

which we held in Allnutt I that he had substantial income. We

disagree. The courts in the cases petitioner cites held that it

was appropriate to consider facts from years closed by the

statute of limitations in calculating tax liabilities for the

years before the court. However, those cases are inapplicable

here because they did not involve years that were litigated and

barred by res judicata. Petitioner’s contention that he can

claim he had losses in years for which we decided in Allnutt I

that he had substantial income does not logically follow from

those cases.

e. Whether Petitioner Relied on His C.P.A.

A taxpayer may be relieved of liability for negligence if

the taxpayer shows that he or she reasonably relied on the advice

of a qualified tax professional. Sec. 6664(c). Petitioner

contends that he was not negligent because he reasonably relied

on his C.P.A. We disagree. To establish reasonable reliance on

the advice of a competent adviser, a taxpayer must show that he

or she provided the return preparer with complete and accurate

information. DeCleene v. Commissioner, 115 T.C. 457, 477 (2000);
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6 After trial, petitioner filed an affidavit which includes

the following:

6. That I am filing this Affidavit to verify that

the Certified Public Accountant (CPA) firm employed by

me to prepare my tax returns for tax years 1987 through

1995 and my informational tax returns for 1981 through

1986 was aware of my previous tax court case.

7. That I told said CPA firm about my earlier tax

court case (referred to in the instant case as “Allnutt

1 [sic]") and ask them to use the income determined in

Allnutt I by the tax court for the 1981 through 1986

tax years because it had already been determined to be

correct.

8. That the income listed on my 1981 and 1986 tax

years is the same income determined by Allnutt I by the

tax court as taken from the tax court records by said

CPA.

We do not consider petitioner’s affidavit because it is not

admitted into evidence. See sec. 7453; Rule 143(b); Walford v.

Commissioner, T.C. Memo. 2003-296 at n.10.

Neonatology Associates, P.A. v. Commissioner, 115 T.C. 43, 99

(2000), affd. 299 F.3d 221 (3d Cir. 2002). Petitioner testified

at trial on July 15, 2003, that he did not remember whether he

discussed Allnutt I with his C.P.A. or showed him that opinion.6

He did not call his C.P.A. as a witness. Petitioner has not

shown that he gave complete and accurate information to his

C.P.A., that his C.P.A. advised him that he could carry forward

NOLs from 1981-86 to the years in issue, or that he reasonably

relied on the advice of his C.P.A.
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f. Whether Section 6662 Applies Only to Stamp Tax

Petitioner contends that section 6662 applies only to the

failure to pay a stamp tax. We disagree. The accuracy-related

penalty for negligence is not limited to failure to pay stamp

tax. 

g. Conclusion as to Negligence

We conclude that petitioner did not have reasonable cause

for carrying forward NOLs from 1981-86 to the years in issue and

is liable for additions to tax for negligence for 1987-88 under

section 6653(a) and the accuracy-related penalty for negligence

for 1989-90 and 1992-97 under section 6662(a). In light of our

conclusion, we need not decide whether petitioner substantially

understated his tax liability for 1989-90 and 1992-97 for

purposes of section 6662(b)(2).

2. Failure To Timely File

A taxpayer is liable for an addition to tax of up to 25

percent for failure to timely file a Federal income tax return

unless the failure was due to reasonable cause and not willful

neglect. Sec. 6651(a)(1); United States v. Boyle, 469 U.S. 241,

245 (1985).

If section 7491(c) applies, respondent has met the burden of

production because, as stated at paragraph 3 of the findings of

fact, petitioner filed his returns late for 1987-90 and 1992. 

Thus, petitioner is liable for the addition to tax for failure to
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timely file unless he proves that his failure to timely file was

due to reasonable cause and not willful neglect. See United

States v. Boyle, supra.

Petitioner contends that he is not liable for the addition

to tax under section 6651(a)(1) for 1987-90 and 1992 because he

had reasonable cause for believing that NOLs carried forward from

1981-86 to the years in issue eliminated his obligation to file

returns for 1987-90 and 1992. We disagree. After carrying

forward NOLs from 1981-86 to the years in issue, petitioner

reported tax due of $65,838 for 1987, $53,434 for 1988, $25,139

for 1989, $29,602 for 1990, and $37,571 for 1992. Thus,

petitioner’s contention that he was not required to file returns

for 1987-90 and 1992 is inconsistent with those returns.

Petitioner contends that he was not required to file income

tax returns because the addition to tax under section 6651(a)

applies only to taxes related to alcohol, tobacco, and certain

firearms, but not to income tax. We disagree. The addition to

tax under section 6651(a) applies to late filing of income tax

returns. Sec. 6651(a). 

Petitioner contends that he was not required to file income

tax returns because (a) he testified that he was not engaged in a

taxable activity, and (b) respondent did not cross-examine him on

this point or present any evidence to rebut his testimony. We

disagree. Petitioner admitted in his return filed for each year
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in issue that he was engaged in a taxable activity. See Waring

v. Commissioner, 412 F.2d 800, 801 (3d Cir. 1969) (statements in

a tax return signed by the taxpayer are admissions unless

overcome by cogent evidence that they are wrong), affg. per

curiam T.C. Memo. 1968-126; Estate of Hall v. Commissioner, 92

T.C. 312, 337-338 (1989); Lare v. Commissioner, 62 T.C. 739, 750

(1974), affd. without published opinion 521 F.2d 1399 (3d Cir.

1975).

Petitioner contends that he had reasonable cause to file

late because the case involves complex issues of law. We

disagree for reasons stated in paragraph B-1, above. Petitioner

has not shown that he had reasonable cause for filing his 1987-90

and 1992 returns late. We conclude that petitioner is liable for

the addition to tax for failure to timely file his 1987-90 and

1992 returns.

C. Whether Petitioner Complied With Requirements for Issuing

Subpoenas

Petitioner prepared subpoenas dated October 12, 2001, June

19, 2003, and December 17, 2003, for IRS employees to testify

about petitioner’s delivery of his 1987-90 and 1992 returns to

respondent and respondent’s determination in the notice of

deficiency. None of the subpoenas included either a return of

service containing the date and time of service or a sworn

statement signed and dated by the person making service verifying

that he or she had delivered the subpoena to the summoned witness
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7 In light of this conclusion, we need not decide whether

the testimony of the subpoenaed witnesses would have been

relevant.

and tendered fees and mileage as required by Rule 147(c) and Rule

148. Petitioner left some of the subpoenas at respondent’s

disclosure office in Baltimore. To comply with Rule 147(c), a

subpoena must be personally served on the witness by a person

other than a party. Petitioner testified that it would be

difficult to locate respondent’s employees to accomplish personal

service. At trial on October 22, 2001, and January 5, 2004,

petitioner said he did not believe fees needed to be paid to

Government employees. Petitioner admitted that he did not tender

any fees for the January 2004 subpoenas. We conclude that

petitioner did not comply with the personal service and fees and

mileage requirements for issuing subpoenas.7 See Rules 147(c),

148(b).

D. Whether the Court’s Denial of Petitioner’s Motions To Recuse

the Trial Judge and for a Hearing Was Proper

Petitioner has made several motions to recuse the trial

Judge. We reaffirm our denial of those motions.

After the record closed, petitioner filed two motions for a

hearing on petitioner’s motion to sanction respondent under Rule

104(c) in which petitioner alleged that respondent’s counsel

fraudulently failed to provide to petitioner a copy of Forms 895

before December 28, 2001. We denied petitioner’s motions. We
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8 Petitioner erroneously believes that the Forms 895 show

that he filed his returns for the years in issue in February

1997, and, thus, that the notice of deficiency was untimely.

previously rejected petitioner’s contentions in Allnutt II (at

paragraph C of the opinion).

In Allnutt II, petitioner alleged that respondent did not

timely provide to him Forms 895 for tax years 1987-98.8 In

Allnutt II, we said that petitioner had not shown that respondent

withheld the Forms 895 in bad faith, that respondent violated any

order, or that respondent’s counsel’s conduct was fraudulent. In

the current motion, petitioner has offered no new evidence and he

has made no new arguments relevant to this issue. We conclude

that we properly denied petitioner’s motions for a hearing.

To reflect the foregoing,

Decision will be

entered under Rule 155.