T.C. Summary Opinion 2010-140
UNITED STATES TAX COURT
RUSSELL E. AND CATHERINE I. MCLEOD, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21991-06S. Filed September 21, 2010.
Russell E. and Catherine I. McLeod, pro se.
Joline M. Wang, for respondent.
MORRISON, Judge: This case was heard pursuant to the
provisions of section 7463 of the Internal Revenue Code in effect
when the petition was filed. Pursuant to section 7463(b), the
decision to be entered is not reviewable by any other court, and
this opinion shall not be treated as precedent for any other
case.
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All section references are to the Internal Revenue Code in
effect for the years in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
Russell E. and Catherine I. McLeod (the “McLeods”), filed a
petition in the Tax Court challenging the deficiencies in income
taxes and penalties that the IRS determined for their 2004 and
2005 tax years.
This case was scheduled for trial during the trial session
of the Court at Wichita, Kansas, on May 11, 2009. The McLeods
appeared at the trial session, but were unprepared for trial.
They moved for a continuance. The Court ordered a continuance on
May 11, 2009. To encourage the progress of the case, the Court
also ordered the McLeods to submit to respondent any and all
evidence on which they wished to rely by August 10, 2009. The
order of the Court barred the McLeods from introducing any
evidence that had not been provided to respondent by that date.
On September 8, 2009, respondent advised the Court that he
had not received any documents from the McLeods by the Court’s
August 10, 2009, deadline. Then, on November 23, 2009,
respondent moved for summary judgment. The motion hinged on
respondent’s contention that “the effect of the Court’s May 11,
2009 order precludes the petitioners from introducing any
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evidence with respect to the 2004 and 2005 deductions that were
disallowed in the notice of deficiency.”
On December 16, 2009, the Court ordered the McLeods to
respond to the motion for summary judgment. On January 19, 2010,
the McLeods’ response to the motion was filed. No documents or
affidavits were attached to the response. In their response, the
McLeods claimed that they had mailed to respondent three letters,
each with attached documents, that substantiated the deductions
at issue. The Court ordered the McLeods to file with the Court
copies of the August 3 letters. The deadline for this
supplemental filing was February 24, 2010. The Court received no
such submission.
The parties dispute whether the McLeods met the August 10,
2009, deadline for delivering documents to respondent. The
McLeods claim they sent letters and documents on August 3, 2009.
Respondent claims that he received no documents. To resolve the
dispute, the Court ordered the McLeods to file the August 3
letters that they said they sent to respondent. The McLeods
failed to file the August 3 letters with the Court. The Court
finds that the McLeods failed to deliver any documents to
respondent. Therefore, the May 11 order precludes the McLeods
from relying on any documents in contesting the respondent’s
motion for summary judgment.
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Thus prohibited from introducing any documents to contest
respondent’s motion for summary judgment, the McLeods have failed
to defeat the motion. The motion for summary judgment and its
attached documents demonstrate to us that “there is no genuine
issue as to any material fact and that a decision may be rendered
as a matter of law.” See Rule 121(b).1 When such a
demonstration is made, the adverse party (here, the McLeods) must
“set forth specific facts showing that there is a genuine issue
for trial” and “if the adverse party does not so respond, then a
decision, if appropriate, may be entered against such party.”
See Rule 121(d). Despite being given the opportunity, the
McLeods have failed to offer any evidence that the motion for
summary judgment should not be granted. Nor have they offered
any argument contesting the legal theories upon which the motion
for summary judgment is founded. The motion for summary judgment
shall therefore be granted. A decision will be entered that:
(a) There is a $6,847 deficiency in petitioners’ income tax for
the tax year 2004, (b) petitioners are liable for a $1,369.40
penalty under section 6662(a) for the tax year 2004, (c) there is
1
Respondent sucessfully carried his burden of producing
evidence that the McLeods were liable for the penalties. See
sec. 7491(c).
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a $6,938 deficiency in petitioners’ income tax for the tax year
2005, and that (d) petitioners are liable for a $1,387.60 penalty
under section 6662(a) for the tax year 2005.
An appropriate order and
decision will be entered.