Hanel v. Commissioner

MEMORANDUM OPINION

RUWE, Judge: This matter is before the Court on respondent's motion for summary judgment, filed September 27, 1993, pursuant to Rule 121. ¹ Respondent determined a deficiency in petitioner's Federal income tax and additions to tax as follows:

In his petition, petitioner alleges that the income forming the basis of respondent's determination was foreign earned income excludable pursuant to section 911.

Respondent's motion asks that we uphold the deficiency and additions to tax determined in the notice of deficiency. By order dated September 28, 1993, this *522 Court directed petitioner to file a response to respondent's motion on or before October 28, 1993. Petitioner has not filed a response in accordance with the Court's order of September 28, 1993.

Rule 121(a) provides that a party may move for summary judgment upon all or any part of the legal issues in controversy. Rule 121(b) provides for summary adjudication if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law. Naftel v. Commissioner, 85 T.C. 527, 528-529 (1985).

In support of her motion for summary judgment, respondent relies on petitioner's deemed admission of material facts. The facts upon which respondent relies are contained in a request for admissions that respondent served on petitioner on August 13, 1993, pursuant to Rule 90. Petitioner failed to respond to respondent's request for admissions.

Tax Court Rule 90 allows any party to serve a written request for admission of the truth of any matters which are not privileged and are relevant to the subject matter involved in*523 the pending action. Each matter is deemed admitted unless, within 30 days after service of the request, the party to whom the request is directed serves upon the requesting party (1) a written answer specifically admitting or denying the matter involved in whole or in part, or asserting that the matter cannot be truthfully admitted or denied and setting forth in detail the reasons why this is so, or (2) an objection, stating in detail the reasons therefor. Rule 90(c). It is clear that deemed admissions that dispose of all factual matters that are in dispute are grounds for a motion for summary judgment. Marshall v. Commissioner, 85 T.C. 267 (1985); Doncaster v. Commissioner, 77 T.C. 334 (1981).

All the facts deemed admitted are incorporated herein by this reference. Included among the admitted facts are that petitioner failed to file a return for the year in issue, that the income, deductions, exemptions, and credits determined by respondent in the notice of deficiency are correct, and that petitioner is liable for the specific amount of tax and additions to tax that respondent determined for the year in issue.

The*524 deemed admissions dispose of all the issues. Respondent's motion for summary judgment will be granted.

An appropriate order and decision will be entered.