Ronald L. Berkshire - Page 5

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                        (z)  A part of each deficiency in income tax for                                
                  the taxable years 1985, 1986 and 1987, is due to fraud                                
                  with intent to evade taxes.                                                           
                  By notice dated October 10, 1996, the Court set this case                             
            for trial at the Columbus, Ohio, trial session beginning on                                 
            March 17, 1997.  This notice specifically stated that "YOUR                                 
            FAILURE TO APPEAR MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY                             
            OF DECISION AGAINST YOU."                                                                   
                  On November 7, 1996, petitioner's counsel filed a motion to                           
            withdraw their representation of petitioner.  That motion recites                           
            that "Petitioner has instructed counsel not to sign the Decision                            
            Entry previously agreed to between Petitioner and District                                  
            Counsel."                                                                                   
                  This case was called at the Court's trial session in                                  
            Columbus, Ohio, on March 17, 1997.  Petitioner did not appear,                              
            file a pretrial memorandum, or request a continuance.  At that                              
            time, respondent filed the motion for judgment by default                                   
            pursuant to the provisions of Rule 123(a).                                                  
            Discussion                                                                                  
                  Rule 123(a) provides that if any party fails to plead or                              
            otherwise proceed as provided by the Rules or as required by the                            
            Court, that party may be held in default on the motion of the                               
            other party.  Smith v. Commissioner, 91 T.C. 1049, 1056 (1988),                             
            affd. 926 F.2d 1470 (6th Cir. 1991).  The action or nonaction on                            
            the part of a taxpayer that constitutes sufficient grounds to                               
            apply Rule 123(a) in proceedings before us is a matter within                               




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