T.C. Memo. 2008-218
UNITED STATES TAX COURT
DAIVID NORMAN GROSS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 20082-05. Filed September 25, 2008.
Daivid Norman Gross, pro se.
Beth Nunnink, for respondent.
MEMORANDUM OPINION
GALE, Judge: This case is before the Court on respondent’s
motion to dismiss for lack of prosecution, for default judgment,
and for entry of decision. As discussed below, we shall grant
respondent’s motion. Unless otherwise noted, all section
references are to the Internal Revenue Code of 1986 as in effect
for the years in issue, all Rule references are to the Tax Court
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Rules of Practice and Procedure, and all dollar amounts have been
rounded to the nearest dollar.
Background
Petitioner did not file Federal income tax returns for 2001
and 2002. Respondent prepared substitutes for return for both
years and issued a notice of deficiency, determining the
following deficiencies, additions to tax, and penalties with
respect to petitioner’s income tax:
Additions to Tax
Year Deficiency Sec. 6651(a)(2) Sec. 6651(f)1 Sec. 6654
2001 $20,301 $3,857 $14,718 $811
2002 33,323 1,114 24,159 4,332
1
In the alternative, respondent asserts additions under sec.
6651(a)(1) if the Court determines petitioner is not liable for
the additions to tax under sec. 6651(f).
Petitioner filed a timely petition with respect to the
notice of deficiency. He resided in Tennessee when he did so,
and he listed a Tennessee address (Tennessee address).
Petitioner designated Nashville, Tennessee, as the place of
trial.
On December 27, 2005, respondent filed an answer which made
specific affirmative allegations in support of establishing the
additions to tax under section 6651(f) for fraudulent failure to
file returns for 2001 and 2002. The answer was served on
petitioner at the Tennessee address.
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On March 17, 2006, respondent filed a motion for entry of an
order that undenied allegations in respondent’s answer be deemed
admitted under Rule 37(c). On March 23, 2006, petitioner sent a
letter to the Court requesting that his address be changed to an
address in Florida (Florida address). Petitioner’s address was
changed by order dated April 11, 2006, which was served on
petitioner by certified mail at the Florida address. After the
Court granted a further extension by order dated May 8, 2006,
served on petitioner by certified mail at the Florida address,
petitioner filed a reply on May 22, 2006. The Court thereupon
denied respondent’s Rule 37(c) motion.
Petitioner’s reply addressed the allegations in respondent’s
answer and also specifically referred to extensions of time to
file the reply, notice of which had been served on petitioner by
certified mail at the Florida address.
On November 24, 2006, respondent served requests for
admission on petitioner by first class mail at the Florida
address. Petitioner did not respond to the requests for
admission, nor were they returned to respondent as
undeliverable.1
On December 12, 2007, the Court served upon petitioner by
certified mail at the Florida address a notice setting case for
1
The record establishes that petitioner was receiving mail
from respondent at the Florida address from early August 2006
through late December 2006. See infra n.2.
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trial and a standing pretrial order, which advised that the trial
in petitioner’s case was set for May 5, 2008, in Nashville,
Tennessee. The notice setting case for trial stated in part:
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 * * * the parties 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 * * *. YOUR FAILURE TO
COOPERATE MAY ALSO RESULT IN DISMISSAL OF THE CASE AND ENTRY
OF DECISION AGAINST YOU.
The envelope containing the notice setting case for trial and the
standing pretrial order was returned unclaimed.
Respondent subsequently filed motions to compel discovery
under Rules 71(c) and 72(b), and the Court ordered petitioner to
comply.2 That order was served on petitioner by certified mail
at the Florida address on March 11, 2008. The order was returned
unclaimed, and petitioner did not respond. A subsequent order
imposing sanctions on petitioner for his failure to respond,
served on petitioner by certified mail at the Florida address on
April 8, 2008, was also returned unclaimed. Thereafter, the
Court served another copy of the sanctions order on petitioner by
first class mail at the Florida address. That copy was returned;
2
Respondent’s motions to compel included letters from
petitioner responding to respondent’s informal and formal
discovery requests, with dates from early August 2006 through
late December 2006, demonstrating that petitioner was receiving
respondent’s mailings at the Florida address during this period.
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on the mailing envelope, the address had been blacked out and a
notation by the United States Postal Service added, stating:
“RETURN TO SENDER This mail cannot be corrected because the
original address was covered by customer”.
On May 1, 2008, 4 days before the trial date, the Court
received a letter from petitioner, which was filed as
petitioner’s motion to dismiss. Therein, petitioner stated that
he was responding to the Court’s notice setting case for trial.3
However, the letter also claimed that petitioner had not received
any correspondence from the Court since he filed his reply, which
had occurred some 19 months before the notice setting case for
trial was sent to him by certified mail. Petitioner also denied
having ever initiated this proceeding and urged the Court “to
bring to an end all of these proceedings as they are frivolous
and quite pointless.” Petitioner further asserted that he had
moved to Canada on November 19, 2007, and that an “immigration
issue” prevented him from returning to the United States.
Finally, petitioner did not include a return address on the
letter or the envelope in which it was mailed and requested that
the Court contact him by e-mail.
3
As noted, the notice setting case for trial that was served
on petitioner at the Florida address was returned unclaimed. The
record does not indicate how petitioner received a copy of that
notice.
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When this case was called for trial in Nashville, Tennessee,
on May 5, 2008, there was no appearance by or on behalf of
petitioner. Counsel for respondent appeared and filed a motion
to dismiss for lack of prosecution, for default judgment, and for
entry of decision (respondent’s motion). In a May 29, 2008,
order served on petitioner by certified mail at the Florida
address, the Court directed petitioner to respond to respondent’s
motion.4 The order was returned unclaimed, and petitioner has
not responded.
Discussion
Petitioner’s Motion To Dismiss
Petitioner’s motion to dismiss asserts simply that these
proceedings are frivolous and offers no other reason why this
case should be dismissed. Respondent issued a notice of
deficiency to petitioner with respect to petitioner