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On June 14, 2005, the case was called for trial. Petitioner
did not appear, although he had been in contact with respondent’s
counsel and with the Court in the days leading up to the trial.
Instead, petitioner submitted a written motion for continuance in
which he claimed that he had had a “heart attack seizure” on June
9, 2005. However, despite repeated warnings from this Court to
petitioner during various pretrial conference calls, he failed to
attach any documentation of the episode or of a current medical
condition sufficient to prevent him from appearing in Court on
June 14. We denied petitioner’s motion.
When the case was called for trial on June 14, 2005,
respondent orally moved under Rule 123(a) for a default judgment
on the underlying deficiency. We granted the motion with respect
to the original deficiency as corrected by respondent but denied
the motion with respect to the additional deficiency and the
civil fraud penalty, matters on which respondent had the burden
of proof. Thereafter, a trial was held on June 14, 2005, to
permit respondent to introduce evidence regarding the additional
deficiency and the civil fraud penalty.
The issues for decision are:
(1) Whether respondent has satisfied his burden of proving
by a preponderance of the evidence that petitioner is liable for
an increased deficiency as alleged by respondent; and
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