Coomes v. Commissioner

MEMORANDUM OPINION

BRUCE, Judge: Respondent determined deficiencies in petitioner's Federal income tax for the calendar years 1973 and 1974 in the respective amounts of $ 1,621.73 and $ 33.00.

This case is currently before the Court on respondent's oral motion to dismiss for failure to properly prosecute. The notice of deficiency indicates that the deficiencies result from the disallowance of certain charitable contribution deductions which petitioner failed to substantiate. In his amended petition to this Court, filed December 9, 1976, petitioner alleged that the disallowed deductions*214 "consist of donations to the Universal Christian Church, Inc., an establishment of a religious nature exempt from filing with the Commissioner of the Internal Revenue Service."

On September 19, 1977, petitioner was served, in his capacity as director of the Universal Christian Church, Inc., with a subpoena duces tecum calling for him to produce certain church by-laws and financial records at trial scheduled for October 3, 1977. Petitioner appeared at trial on October 3, 1977, but he refused to comply with the subpoena as ordered by the Court on grounds, generally, that he was not required to do so "under the constitutional guarantees and the First Amendment to the Constitution."

At that point the Court entertained respondent's oral motion to dismiss the case for failure to properly prosecute. That motion was orally granted, and the case was orally ordered dismissed for want of prosecution and for failure to obey the orders of the Court. Thereupon petitioner orally moved the Court to reconsider its order of dismissal because he was currently prosecuting an appeal, in the United States Court of Appeals for the Sixth Circuit, from an order of dismissal on similar grounds in another*215 case in relation to income tax deficiencies for prior years. After due consideration, petitioner's motion for reconsideration was orally granted, the Court's oral order of dismissal was vacated and set aside, and respondent's oral motion to dismiss was taken under advisement to await action by the United States Court of Appeals for the Sixth Circuit in Coomes v. Commissioner, No. 2733-75, United States Tax Court, appeal docketed, No. 77-1024 (6 Cir., September 17, 1976).

On March 14, 1978, the Court of Appeals entered an order in the above-cited case affirming the judgment of the Tax Court denying petitioner's motion for reconsideration of an earlier order denying his motion to vacate or revise the Court's decision dismissing his action for lack of prosecution. Coomes v. Commissioner,572 F. 2d 554 (6 Cir. 1978). ¹ The order states in part, at 554-555, as follows:

Cases abound in which the First Amendment right to free exercise of religion has been held to not be absolute, and indirect and incidental burdens thereon were found to be constitutionally proper. See, e.g., Johnson v. Robinson,415 U.S. 361, 94 S.Ct. 1160, 39 L. Ed. 2d 389 (1974);*216 Gillette v. United States,401 U.S. 437, 91 S. Ct. 828, 28 L. Ed 2d 168 (1971); King's Garden, Inc. v. FCC,162 U.S. App. D.C. 100, 498 F. 2d 51, cert. den., 419 U.S. 996, 95 S. Ct. 309, 42 L. Ed 2d 269 (1974).

It is established that the Commissioner's determination of deficiencies is presumed to be correct and the taxpayer has the burden of showing it to be otherwise. Helvering v. Taylor,293 U.S. 507, 515, 55 S. Ct. 287, 79 L. Ed. 623 (1935); n Hickley v. Commissioner,410 F. 2d 937, 939 (8th Cir. 1969). Petitioner's refusal to comply with the subpoena duces tecum left the Tax Court with nothing before it in furtherance of his burden of proof for his contention; in that event the court properly premised its decision on the taxpayer's total failure to show error, Welch v. Helvering,290 U.S. 111, 54 S. Ct. 8, 78 L. Ed. 212 (1933).

*217 Similarly, in this case, petitioner's refusal to comply with the subpoena duces tecum, be that noncompliance in his capacity as petitioner or as a director of the Universal Christian Church, Inc., leaves the record barren of any evidence on which we can find that he made "charitable constributions" for which he is entitled to deductions in 1973 and 1974. ² Accordingly, respondent's oral motion to dismiss this case will be granted.

An appropriate order will be entered.