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RICHARD R. SIBLA and DORA G. SIBLA, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, RespondentSibla v. CommissionerDocket No. 15327-80.
United States Tax Court T.C. Memo 1982-710; 1982 Tax Ct. Memo LEXIS 34; 45 T.C.M. (CCH) 294; T.C.M. (RIA) 82710;December 7, 1982. *34 Petitioners have failed to produce documents despite a specific order of this Court directing them to do so.
Held, petitioners' failure constitutes a default under the circumstances of this case. Respondent's Motion to Impose Sanctions seeking a judgment for default underRule 104(c)(3), Tax Court Rules of Practice and Procedure , is granted.Richard R. Sibla and Dora G. Sibla, pro se.Patrick Putzi andDennis Brager, for the respondent.DAWSONMEMORANDUM OPINION
DAWSON,
Judge: This case was assigned to Special Trial Judge Francis J. Cantrel for the purpose of conducting the hearing and ruling on respondent's Motion to Impose Sanctions underRule 104(c)(3) . After a review of the record, we agree with and adopt his opinion which is set forth below. *35 OPINION OF THE SPECIAL TRIAL JUDGECANTREL,
Special Trial Judge: This case is before the Court on respondent's Motion to Impose Sanctions underTax Court Rule 104(c)(3) , filed on October 22, 1982. 1977$18,218.00$1,097.00Addition to Tax, I.R.C. 1954YearIncome TaxSection 6653(a) Interest income $ 3,207.00 Gross rental income 29,670.00 Adjustments to income 31,501.00 Distributions from trust (23,022.00) *36 the petition was filed. They filed a joint 1977 Federal income tax return with the Internal Revenue Service. On October 6, 1980, respondent filed his answer. Thus, the pleadings are closed. See Rules 34, 36, 38 and 70(a)(2). By letter dated May 21, 1982, respondent attempted to make arrangements for informal consultations with petitioners, as required by this Court's rules and the mandate of its opinions. *37 of those requests reveals that they seek documents relevant and material to the issues at dispute herein, i.e., with respect to the petitioners and the Richard R. Sibla Equity Pure Trust. When petitioners failed to timely respond thereto, respondent, pursuant to
Rule 104(b) , filed a Motion to Compel Compliance on July 27, 1982. A copy of that motion together with a copy of the Court's Notice of Filing, giving petitioners until August 13, 1982 in which to file a response, were served on petitioners by the Court on July 30, 1982. Petitioners filed a Notice of Objection on August 9, 1982 in which we are advised--The Attorney for the Internal Revenue Service, Mr. Dennis Brager, asks for the privilege to inspect and photo copy 19 separate categories of records, papers and effects which would violate my constitutional rights*38 and I answer each of the 19 requests with the statement that I refuse to comply on the grounds that it violates my
Fourth andFifth Amendment *39 appear at the hearing nor did they file a response to respondent's motion.Petitioner's due process rights have not been abrogated or abridged here.
611 F.2d 1226">611 F.2d 1226 (8th Cir. 1979);Ginter v. Southern, (1975), affd. in an unpublished opinionCupp v. Commissioner, 65 T.C. 68">65 T.C. 68559 F.2d 1207">559 F.2d 1207 (3rd Cir. 1977). Moreover, their general assertion that theirFourth andFifth Amendment rights have been violated is without merit. See (9th Cir. 1982),Edwards v. Commissioner, 680 F.2d 1268">680 F.2d 1268 (5th Cir., Sept. 27, 1982,Watson v. Commissioner, F.2d50 AFTR 2d 82-6042, 82-2 USTC par. 9652), where on a factual situation remarkably similar to that which we have here, the Court of Appeals for the Fifth Circuit, in affiring a decision of dismissal of this Court, rejected aFifth Amendment claim. *40 Although given ample opportunity to comply with respondent's highly relevant document requests, petitioners have not done so and there is not one legally sufficient reason extent in this record to explain their failure to comply. They have, in essence, defied and ignored the notices and Orders issued to them by the Court and, by their inexcusable conduct, shown complete and utter disrespect for the rules of this Court. Indeed, their failure to act has cost them their "day in Court".Rule 104 , respecting enforcement actions and sanctions, provides in pertinent part as follows:In the circumstances of this case, we conclude that petitioners' persistent, stubborn and, thus, unwarranted and unjustified conduct constitutes a default and that dismissal of this case for failure to comply with our rules and a specific order of this Court is, albeit a severe sanction, appropriate under
Rule 104(c)(3) . See 580 F.2d 805">580 F.2d 805 (5th Cir. 1978);Eisele v. Commissioner, (1982);Rechtzigel v. Commissioner, 79 T.C. 132">79 T.C. 132 (1981) (on appeal 9th Cir., Sept. 15, 1981);McCoy v. Commissioner, 76 T.C. 1027">76 T.C. 1027 (on appeal 7th Cir., July 9, 1982);Riehle v. Commissioner, T.C. Memo. 1982-141 ;Swift v. Commissioner, T.C. Memo. 1981-713 ;Farley v. Commissioner, T.C. Memo. 1981-606 (on appeal 5th Cir., March 29, 1982);Gaar v. Commissioner, T.C. Memo. 1981-595 ;Antelman v. Commissioner, T.C. Memo. 1981-511 (on appeal 9th Cir., Aug. 20, 1981). *42 On this record, respondent's motion will be granted. An appropriate order and decision will be entered.Lockwood v. Commissioner, T.C. Memo. 1981-243Footnotes
1. Since respondent's motion is a pre-trial motion and there is no genuine issue of material fact, the Court has concluded that the post-trial procedures of
Rule 182, Tax Court Rules of Practice and Procedure ↩, are not applicable in these particular circumstances. This conclusion is based on the authority of the "otherwise provided" language of that rule. The parties were afforded a full opportunity to present their views on the law at the hearing at Washington, D.C. on November 24, 1982. Petitioners did not appear nor did they file a response to respondent's motion.2. All rule references herein are to the Tax Court Rules of Practice and Procedure.↩
3. All section references are to the Internal Revenue Code of 1954, as amended.↩
4. All adjustments relate to petitioners and the Richard R. Sibla Equity Pure Trust.↩
5. See
, 93 (1976);International Air Conditioning Corp. v. Commissioner, 67 T.C. 89">67 T.C. 89 , 692↩ (1974); Rule 70(a)(1).Branerton Corp. v. Commissioner, 61 T.C. 691">61 T.C. 6916. We note that respondent's determination for the addition to the tax is under sec. 6653(a) [negligence addition] not sec. 6653(b) [fraud addition]. We observe further that the burden of proof with respect to each item at dispute is on petitioners [not respondent]. See Rule 142(a) and
(1933).Welch v. Helvering, 290 U.S. 111">290 U.S. 111↩7. We observe that venue on appeal in this case would lie in the United States Court of Appeals for the Ninth Circuit. ↩
8. There is Court stated--"Appellant's
fourth amendment claim is without foundation and utterly devoid of merit. Requiring taxpayers, who institute civil proceedings protesting deficiency notices, to produce records or face dismissal constitutes no invasion of privacy or unlawful search and seizure". , 1270↩ (9th Cir. 1982).Edwards v. Commissioner, 680 F.2d 1268">680 F.2d 12689. See
, where we only recently rejected similarGunnarson v. Commissioner, T.C. Memo. 1982-669Fourth andFifth Amendment↩ claims.10. See and compare,
(8th Cir. 1981);Miller v. Commissioner, 654 F.2d 519">654 F.2d 519 .Emigh v. Commissioner, T.C. Memo. 1981-514↩11. Petitioner is no stranger to this Court.He has been here before. There,
inter alia, he raised a patently frivolous constitutional argument which we rejected. See (1977), affd. on another issueSibla v. Commissioner, 68 T.C. 422">68 T.C. 422611 F.2d 1260">611 F.2d 1260↩ (9th Cir. 1980).
Document Info
Docket Number: Docket No. 15327-80.
Citation Numbers: 45 T.C.M. 294, 1982 Tax Ct. Memo LEXIS 34, 1982 T.C. Memo. 710
Filed Date: 12/7/1982
Precedential Status: Non-Precedential
Modified Date: 11/20/2020
Authorities (6)