Herbst Asset Mgmt. Trust, et al. - Page 16




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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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