*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 under Rule 104(c)(3), Tax Court Rules of Practice and Procedure, is granted.
Richard R. Sibla and Dora G. Sibla, pro se.
Patrick Putzi and Dennis Brager, for the respondent.
DAWSON
MEMORANDUM 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 under Rule 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 JUDGE
CANTREL, Special Trial Judge: This case is before the Court on respondent's Motion to Impose Sanctions under Tax Court Rule 104(c)(3), filed on October 22, 1982.
The Petitioner objects on the basis of the Constitution of the United States of America Article IV guaranteeing the right of the people to be secure in their persons, houses, papers, and effects, and Article V which states no person shall be compelled to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.
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 and Fifth Amendment*39 appear at the hearing nor did they file a response to respondent's motion.
As we view this record, respondent's discovery requests sought documents relevant and material to the issues at dispute. Petitioners simply have made no attempt to comply with those requests despite a specific order of this Court directing them to do so.
Rule 104, respecting enforcement actions and sanctions, provides in pertinent part as follows:
(c) Sanctions: If a party * * * fails to obey an order made by this 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*41 case or any part thereof, or rendering a judgment by default against the disobedient party.
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 Eisele v. Commissioner,580 F.2d 805">580 F.2d 805 (5th Cir. 1978); Rechtzigel v. Commissioner,79 T.C. 132">79 T.C. 132 (1982); McCoy v. Commissioner,76 T.C. 1027">76 T.C. 1027 (1981) (on appeal 9th Cir., Sept. 15, 1981); Riehle v. Commissioner,T.C. Memo. 1982-141 (on appeal 7th Cir., July 9, 1982); Swift v. Commissioner,T.C. Memo. 1981-713; Farley v. Commissioner,T.C. Memo. 1981-606; Gaar v. Commissioner,T.C. Memo. 1981-595 (on appeal 5th Cir., March 29, 1982); Antelman v. Commissioner,T.C. Memo. 1981-511; Lockwood v. Commissioner,T.C. Memo. 1981-243 (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.
Footnotes
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 International Air Conditioning Corp. v. Commissioner,67 T.C. 89">67 T.C. 89, 93 (1976); Branerton Corp. v. Commissioner,61 T.C. 691">61 T.C. 691, 692↩ (1974); Rule 70(a)(1).
6. 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 Welch v. Helvering,290 U.S. 111">290 U.S. 111↩ (1933).
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". Edwards v. Commissioner,680 F.2d 1268">680 F.2d 1268, 1270↩ (9th Cir. 1982).
9. See Gunnarson v. Commissioner,T.C. Memo. 1982-669, where we only recently rejected similar Fourth and Fifth Amendment↩ claims.
10. See and compare, Miller v. Commissioner,654 F.2d 519">654 F.2d 519 (8th Cir. 1981); Emigh v. Commissioner,T.C. Memo. 1981-514↩.
11. Petitioner is no stranger to this Court.He has been here before. There, interalia, he raised a patently frivolous constitutional argument which we rejected. See Sibla v. Commissioner,68 T.C. 422">68 T.C. 422 (1977), affd. on another issue 611 F.2d 1260">611 F.2d 1260↩ (9th Cir. 1980).