T.C. Memo. 2005-165

UNITED STATES TAX COURT

GREGORY CHARLES CARLO, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 9750-04. Filed July 5, 2005.

Gregory Charles Carlo, pro se.

Cynthia A. Berry, for respondent.

MEMORANDUM OPINION

WELLS, Judge: This matter is before the Court on

respondent’s motion to dismiss for lack of prosecution pursuant

to Rule 123(b). All section references are to the Internal

Revenue Code, as amended, and all Rule references are to the Tax

Court Rules of Practice and Procedure. 
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1The amount of any addition to tax under sec. 6651(a)(2)

shall be determined pursuant to sec. 6651(a)(2), (b), and (c).

Background

Petitioner did not file a 1999 Federal income tax return. 

Consequently, on March 12, 2004, respondent mailed a notice of

deficiency for 1999 to petitioner’s last known address. In the

notice of deficiency, respondent determined a deficiency in

petitioner’s 1999 Federal income tax of $46,434, a section

6651(a)(1) failure-to-file addition to tax of $10,354.50, a

section 6651(a)(2) failure to pay addition to tax,1 and a section

6654 estimated tax addition to tax of $2,229.95. 

Petitioner timely petitioned this Court for a

redetermination of the deficiency. At the time of filing the

petition, petitioner resided in North Chatham, Massachusetts. 

The petition made the following contentions:

I would like to have a redetermination because the

forms I was sent have me as single with no dependents,

I am married with 2 children. In 1999 I sent all my

deductions & tax information to my accountant. I am

willing to pay my share, but the amount listed is more

than I make in a year. Enclosed is a payment towards

my 1999 taxes, so I can begin to pay something.

The Court’s notice setting case for trial and standing

pretrial order were served on October 1, 2004, and this case was

calendared for trial on March 7, 2005. In pertinent part, the

notice states:

The calendar for that Session will be called at

10:00 A.M. on that date and both parties are expected
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to be present at that time and be prepared to try the

case. YOUR FAILURE TO APPEAR MAY RESULT IN DISMISSAL

OF THE CASE AND ENTRY OF DECISION AGAINST YOU. 

Your attention is called to the Court’s

requirement that, if the case cannot be settled on a

mutually satisfactory basis, the parties, before trial,

must agree in writing to all facts and all documents

about which there should be no disagreement. 

Therefore, the parties should contact each other

promptly and cooperate fully so that the necessary

steps can be taken to comply with this requirement. 

YOUR FAILURE TO COOPERATE MAY ALSO RESULT IN DISMISSAL

OF THE CASE AND ENTRY OF DECISION AGAINST YOU. 

The standing pretrial order states further:

The parties shall begin discussions as soon as

practicable for purposes of settlement and/or

preparation of a stipulation of facts. 

* * * * * * *

The Court may impose appropriate sanctions,

including dismissal, for any unexcused failure to

comply with this Order. 

* * * * * * *

ORDERED that all parties shall be prepared for

trial at any time during the term of the trial session

unless a specific date has been previously set by the

court. 

The instant case was referred for possible settlement to

Appeals Officer Timothy M. Harrigan. Petitioner neither attended

a scheduled settlement conference nor contacted the Appeals

Office to reschedule.

In a letter dated December 20, 2004, respondent requested

information from petitioner and advised petitioner that, if he

failed to respond or appear at trial, respondent would file a
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motion to dismiss, which could result in the Court’s holding

petitioner liable for the full amount of the deficiency plus

applicable additions to tax and interest. Receiving no response

to the letter of December 20, 2004, respondent subsequently

called petitioner at the number petitioner provided and left a

voice message requesting that petitioner contact respondent. 

Petitioner did not respond. 

On January 26, 2005, respondent mailed petitioner a

Branerton letter, see Branerton Corp. v. Commissioner, 61 T.C.

691 (1974), requesting specific documents from petitioner and a

conference on February 1, 2005. The letter again advised

petitioner of the possibility of a dismissal, making petitioner

liable for the full deficiency plus additions and interest. 

Petitioner neither attended the scheduled conference nor

contacted respondent to reschedule.

When the instant case was called for trial, there was no

appearance by or on behalf of petitioner. Counsel for respondent

appeared and presented oral arguments in support of the instant

motion to dismiss.

Discussion

The Court may dismiss a case at any time and enter a

decision against the taxpayer for failure properly to prosecute,

failure to comply with the Rules of the Court or any order of the

Court, or any cause the Court deems sufficient. Rule 123(b). 
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The Court may dismiss a case for lack of prosecution if the

taxpayer inexcusably fails to appear at trial and does not

otherwise participate in the resolution of his claim. Id.;

Rollercade, Inc. v. Commissioner, 97 T.C. 113, 116-117 (1991).

We conclude that petitioner has failed to comply with this

Court’s Rules and orders and has failed properly to prosecute the

instant case. Petitioner failed to appear at trial. Petitioner

did not participate in the stipulation process. Petitioner has

not submitted any evidence in support of his petition. Neither

this Court nor respondent has had any contact with petitioner

since the petition was filed. Consequently, we will grant

respondent’s motion to dismiss for failure to prosecute.

Rule 34(b)(4) requires that a petition in a deficiency

action shall contain “clear and concise assignments of each and

every error” that the taxpayer alleges the Commissioner committed

in the determination of the deficiency and the additions to tax

in dispute. Rule 34(b)(5) further requires that the petition

shall contain clear and concise lettered statements of the facts

upon which the taxpayer bases the assignments of error. Funk v.

Commissioner, 123 T.C. 213, 215 (2004); Jarvis v. Commissioner,

78 T.C. 646, 658 (1982). This Court deems the parties to concede

any issue, including additions to tax, not raised in the

pleadings. Rule 34(b)(4); Funk v. Commissioner, supra at 215;

Jarvis v. Commissioner, supra at 658 n.19. 
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The petition in the instant case did not contain any

specific allegations regarding any of the three additions to tax

or facts to support any such allegations. Therefore, these

issues are all deemed conceded by petitioner, and respondent has

no burden of production under section 7491(c). See Funk v.

Commissioner, supra; Swain v. Commissioner, 118 T.C. 358, 363-364

(2002). 

Accordingly, respondent’s motion to dismiss for failure

properly to prosecute will be granted.

To reflect the foregoing,

Decision will be entered

under Rule 155.