DocketNumber: Docket No. 23618-83.
Citation Numbers: 51 T.C.M. 262, 1986 Tax Ct. Memo LEXIS 592, 1986 T.C. Memo. 13
Filed Date: 1/13/1986
Status: Non-Precedential
Modified Date: 11/21/2020
*592 P has totally and willfully failed to produce documents despite a specific order of this Court directing him to do so.
MEMORANDUM OPINION
CANTREL,
Respondent, in his notice of deficiency issued to petitioner on May 19, 1983, determined deficiencies in petitioner's Federal income tax and additions to the tax for the taxable calendar years 1979 through 1981 in the following respective amounts:
Additions to Tax, I.R.C. 1954 3 | |||
Years | Income Tax | Section 6653(b) | Section 6654 |
1979 | $1,583.98 | $791.99 | $65.84 |
1980 | 2,261.28 | 1,130.64 | 144.07 |
1981 | 1,465.65 | 732.83 | 112.32 |
The adjustments to income as determined by respondent in his deficiency*594 notice are:
1979 | 1980 | 1981 | |
Salaries & Wages Unreported | $1,970.00 | $2,514.28 | $ 550.00 |
Rents Unreported | 2,043.00 | 2,160.00 | 2,160.00 |
Distributive share of | |||
partnership ordinary | |||
income unreported | 1,230.31 | 5,862.18 | 4,517.02 |
Capital Gains Unreported | 3,797.70 | 853.12 | |
Exemption | (1,000.00) | ||
$9,041.01 | $10,536.46 | $7,080.14 |
Petitioner resided at 202 Sylvan Heights Drive, Sylvania, Georgia on the date his timely petition was filed. He filed no Federal income tax returns with the Internal Revenue Service for the years at bar. 4
At paragraph 4 of his petition filed on August 12, 1983 petitioner recites--"I do not believe I owe any of the above." 5
*595 Respondent filed his answer on February 27, 1984 and, as stated earlier, petitioner filed his reply on June 14, 1984, on which date the pleadings were closed. More than 30 days thereafter respondent commenced discovery. See Rules 34, 36, 38 and 70(a)(2).
This case has had quite a history preceding the invocation of discovery. Since that matter is not pertinent to our present inquiry it will not be discussed. Suffice it to say petitioner is no stranger to this Court. He has been here before with his spouse (who currently is before the Court on an identical motion to that we consider here at docket No. 23619-83) in the case designated docket No. 9211-81. There, when they failed to appear for trial, their case was dismissed for failure to properly prosecute and decision ws entered embracing a 1978 income tax deficiency on November 3, 1982.
Respondent, by and through his motion, seeks dismissal of this case and entry of decision for the income tax deficiencies and all of the additions to the tax determined in his deficiency notice.
On December 18, 1984 respondent, pursuant to
The purpose of the pleadings and discovery is to give the parties and the Court fair notice of the matters in controversy and the basis for their respective positions. See
The basic purpose of discovery is to reduce surprise by providing a means for the parties to obtain knowledge of all relevant facts in sufficient time to perfect a proper record for the Court if a case must be tried. "For purposes of discovery, the standard of relevancy is liberal.
When petitioner*597 totally failed to respond to respondent's discovery request, respondent submitted a Motion to Compel Compliance Therewith, which the Court filed on January 22, 1985. 6
By Order dated February 12, 1985, a copy of which was served on the parties by the Court on February 14, 1985, respondent's Motion to Compel was granted and petitioner was advised therein, in pertinent part, as follows:
ORDERED that respondent's above-referenced motion to compel is granted in that petitioner shall, on or before May 1, 1985, produce to counsel for respondent those documents requested in respondent's request for production of documents served on petitioner on December 18, 1984. 7 It is further
ORDERED that in the event petitioner does not fully comply with the provisions of this order, this Court will be inclined to impose sanctions pursuant to
*598 Petitioner did not produce the documents as directed by this Court and it appears he had no intention of doing so for in a letter dated May 22, 1985 to respondent's District Counsel at Pittsburgh, Pennsylvania he states--
Having spoken to you on the phone and understanding that I have one of two choices (i.e. take evidence in to be used against myself OR refuse to go in at all) I have chosen not to go in since this would violate my rights under the
I assume this means that the court will immediately deny me any farther (sic) hearing in this matter, but this cannot be helped in the light of those rights which are mine under the Constitution.
On August 15, 1985 respondent filed the motion we now consider. A copy of that motion together with a copy of a Notice of Hearing calendaring respondent's motion for hearing at Washington, D.C. on September 18, 1985 were served on petitioner on August 19, 1985. When the case was called on September 18, 1985 petitioner did not appear, no response to respondent's motion was filed nor did he comply with our discovery order.
Our Rules of Practice and our orders mean*599 exactly what they say and we intend that they be complied with.
Although given more than an ample opportunity to comply with our Rules and a specific order of this Court petitioner has not done so and there is not one valid reason extant in this record to explain his total failure to comply. He has, in essence, ignored and defied our order of February 12, 1985, and, by his inexcusable conduct, shown complete and utter disrespect for our Rules and an order of this Court. Indeed, petitioner's total failure to act has worked to his detriment. On this record, we find petitioner's absolute failure to comply with our order to be willful.
Petitioner's due process rights have not been abrogated or abridged here.
Appellant's
As we view this record, respondent's discovery request sought documents highly relevant and material to the issues at dispute. Nowhere in this record does petitioner argue to the contrary. *601 Nonetheless, he made no attempt to comply with those requests despite a specific order of this Court directing him to do so.
(c) Sanctions: If a party * * * fails to obey an order made by the Court with respect to the provisions of Rule * * * 72 * * * the Court may make such orders as to the failure as are just, and among others the following:
* * *
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the case or any part thereof, or rendering a judgment by default against the disobedient party.
Among the sanctions available, dismissal is one of the most severe and should not be ordered indiscriminately.
Dismissal is proper for failure to comply with this*603 Court's discovery orders where such failure is due to willfulness, bad faith or other fault of the party.
In the circumstances of this case we conclude that petitioner's persistent, stubborn and, thus, unwarranted and unjustified conduct constitutes a default and that dismissal of this case respecting the income tax deficiencies and the additions to the tax under
*605 Next, we turn our consideration to the additions to the tax under
Respondent has the burden of proving fraud by clear and convincing evidence, and he may carry his burdne by relying on facts deemed established by reason of a Court order.
1. All Rule references are to the Tax Court Rules of Practice and Procedure. ↩
2. This case was assigned pursuant to
3. All section references are to the Internal Revenue Code of 1954, as amended.↩
4. The 1979 Form 1040, which petitioner submitted to the Internal Revenue Service on May 21, 1980 and which was completely devoid of information concerning income, did not constitute a valid Federal income tax return.
5. This is the sum and substance of petitioner's case. We observe, however, that he has not placed the income tax deficiencies at dispute. He disputes only the additions to the tax under
6. Respondent served a copy of his motion on petitioner on January 16, 1985.↩
7. Petitioner was given more than the usual time to produce the requested documents since he advised the Court that he had recently moved, his spouse was to undergo surgery and his two grade school children needed supervision. Petitioner's time to produce was further extended, at his request, to June 3, 1985.↩
8. See
9. See also,
10. We wish to emphasize at this point that petitioner, in his reply filed on June 14, 1984, admits that he received the adjustments to income set forth in the proceeding schedule and that he did not report any of those amounts on any Federal income tax return for the years at bar.↩
11. See and compare
Martin T. Ricket v. United States , 773 F.2d 1214 ( 1985 )
Steve A. Hallowell and Lorraine v. Hallowell v. ... , 744 F.2d 406 ( 1984 )
Donald John Rechtzigel v. Commissioner of Internal Revenue , 703 F.2d 1063 ( 1983 )
Clarence W. Steinbrecher and Jeannette D. Steinbrecher v. ... , 712 F.2d 195 ( 1983 )
Douglas M. Hart v. Commissioner of Internal Revenue , 730 F.2d 1206 ( 1984 )
Robert C. Eisele and Rita J. Eisele v. Commissioner of ... , 580 F.2d 805 ( 1978 )
William H. And Avilda L. Edwards v. Commissioner of ... , 680 F.2d 1268 ( 1982 )
Norman E. McCoy and Mary Louise McCoy v. Commissioner of ... , 696 F.2d 1234 ( 1983 )
Eldor Miller v. Commissioner of Internal Revenue , 741 F.2d 198 ( 1984 )
Hammond Packing Co. v. Arkansas , 29 S. Ct. 370 ( 1909 )
leonard-ginter-v-roy-b-southern-and-i-r-ralston-leonard-g-ginter , 611 F.2d 1226 ( 1979 )
Societe Internationale Pour Participations Industrielles Et ... , 78 S. Ct. 1087 ( 1958 )
National Hockey League v. Metropolitan Hockey Club, Inc. , 96 S. Ct. 2778 ( 1976 )