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October 9, 2001 report in each of those cases indicated that as
of October 5, 2001, petitioner in each such case had not provided
any documents in response to respondent’s request for production
of documents or any responses to respondent’s interrogatories.
On October 15, 2001, the Court had these cases called from
the Court’s trial calendar (calendar call) at the Court’s trial
session in Cleveland, Ohio (Cleveland trial session). At that
calendar call, there was no appearance by or on behalf of Herbst
Management Trust in the case at docket No. 9999-00, Herbst
Charitable Trust in the case at docket No. 10000-00, Ms. Herbst
in the case at docket No. 10001-00, and Mr. Herbst in the case at
docket No. 10002-00. At that time, respondent orally moved to
dismiss each of these cases for failure to prosecute, and respon-
dent requested, and the Court held, a trial because, according to
respondent, respondent had the burden of production pursuant to
section 7491(c)4 with respect to (1) the accuracy-related penal-
ties under section 6662(a) for 1996 and 1997 that respondent
determined against Herbst Management Trust in the case at docket
No. 9999-00, (2) the additions to tax under section 6651(a)(1)
for 1996 and 1997 that respondent determined against Herbst
Charitable Trust in the case at docket No. 10000-00, (3) the
4All section references are to the Internal Revenue Code in
effect at all relevant times. Unless otherwise indicated, all
Rule references are to the Tax Court Rules of Practice and
Procedure.
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