Samater & Ashaka H. Farah Abdikarim, Petitioner

T .C . Summary Opinion 2008-147 "

UNITED STATES TAX COUR T

SAMATER ABDIKARIM AND ASHAKA H . FARAH ABDIKARIM, Petitioners v . COMMISSIONER OF INTERNAL REVENUE, Responden t Docket No . 23112-06S .

Filed November 24, 2008 .

Steve M . Williard , for petitioners .

Ashley P . Vaughan , for respondent .

VASQUEZ, Judge : This case was heard pursuant to the provisions of section 74631 of the Internal Revenue Code in effect when the petition was'fi;led . Pursuant to section 7463(b), the decision to be entered is not reviewable by any other court ,

SERVED NOV 2 4,2008

and this opinion shall not be treated as precedent for any othe r case .

Background This case is before the Court on respondent's motion t o dismiss .for lack of prosecution (respondent's motion) . By notice of deficiency, respondent determined a deficiency of $5,404 with respect to petitioners' 2005 Federal income tax .

On November 13, 2006, petitioners invoked the jurisdiction of this Court by timely filing a petition .

By notice dated July 3, 2007, the Court set this case for trial at the Court's Houston, Texas, :session beginning December 3, 2007. The notice specifically stated : "YOUR FAILURE TO

APPEAR MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION

AGAINST YOU . "

On December 3, 2007, the Court held a hearing on petitioners' motion for continuance-of trial . Petitioners, via counsel, proffered that : (1) They would be out of the country during December 2007 on account of their employment ; (2) this was the first motion for continuance of trial petitioners had sought ; and (3) the motion for continuance of trial was not made for the purposes of delay . . Respondent did not object to petitioners' motion for continuance of trial . That same day, the Court granted the motion for continuance of trial .

3 - By notice dated Jariuary .9, 2008, the-Court set this case for trial at the Court's Houston," Texas, session beginning June -9, 2008 . The notice specifically stated : . "YOUR'FAILURE TO APPEAR

MAY RESULT IN DISMISSAL OF THE CASE AND'ENTRY OF-DECISION AGAINST

YOU ."

On June 9, 2008, respondent filed respondent's motion and- -the Court held a hearing on respondent's motion .

In respondent's motion, respondent averred`(among'other things) that :

(1) Since the continuance petitioners have not contacted respondent, provided any additional information to respondent, or taken any action to .move their case forward ; (2) during the week of May 19, 2008 ., petitioners' counsel-stated that he had not heard from his clients and did not know whether they would appear for trial ; and , (3) . all the material allegations - of fact set forth in the petition in support of the assignments of error have been denied by respondent ; no issues have been raised upon which the burden of proof is upon , respondent ; respondent has not conceded any error assigned in the petition ; and no evidence has been adduced in support of the assignments oflerror raised in the petition .

At the hearing, petitioners' counsel stated that his clients ha d been unavailable to him .(i .e ., they have not had contact) fo r about a year . Petitioners' counsel was informed that petitioner s left the country to take a job in India or Pakistan . Petitioners had left their counsel no-f-or-wad ng addres,s Petitioners' counsel has sentcertified .letters topetitioners that have come back to him as returned or undeliverable .

Petitioners'-counse l, did not object to the granting of respondent's motion . Petitioners' counsel stated he had done everything he could to locate his clients but has been unable to- .

locate or contact them ., Petitioners .' counsel attempted to contact petitioners .by mail to; advise them he was going,to withdraw and that this case would be dismissed . This letter wa s returned to petitioners' counsel .

, Discussion The Court may dismiss a case and enter a decision against a taxpayer for his failure properly to prosecute or to comply wit h the-Rules-of this Court . Rule 123(b) .

Rule 123(b)-generally .

applies in situations where the taxpayer bears the burden of proof . As .a_general rule,, the taxpayer bears the burden o f proving the Commissioner's deficiency determinations incorrect- .

Rule 142(a) ; Welch =v .. Helverincr , 290 U .S . 111, 115 , ( 1933) credible evidence and meets certain other prerequisites, th e Commissioner shall bear the burden of proof with respect to factual issues relating to the liability of the taxpayer for a tax imposed under subtitle A or B of the Internal Revenue Code .

Petitioners failed to appear in person, and no evidence wa s introduce it . y counsel Theref-orb, weconclu-de" that the burden of proof regarding the deficiency is not placed on respondent pursuant to section 7491(a) . Accordingly, we 5 - sustain respondent's deficiency determination .

To reflect the foregoing, An appropriate order of dismissal and decision will be entered .