OPINION
Williams, Judge:
These cases are before the Court on respondent’s motion for default judgment pursuant to Rule 123(a), Tax Court Rules of Practice and Procedure.
The Commissioner determined a deficiency in the Federal estate tax of the Estate of Adriana Bosurgi, deceased, in the amount of $403,988.78, and an addition to tax pursuant to section 6651(a)(1)1 of $100,997.20. Respondent asserts that petitioners, sons of Adriana Bosurgi, are liable for the determined amounts of estate tax and addition to tax as transferees of the assets of the estate.2 The issue this Court must decide is whether to grant respondent’s motion for entry of a default against petitioners.
The decedent, Adriana Bosurgi, was an Italian citizen and nonresident alien of the United States. Her sons, Leone and Emilio Bosurgi, were also Italian citizens and nonresident aliens of the United States at the time their petitions in these cases were filed. These cases are the vestige of a long and complex history of litigation.3 We state only the salient parts of such history below.
On March 2, 1971, the United States made four jeopardy assessments, arising out of the estate tax liability of the Estate of Adriana Bosurgi, against the following: Leone Bosurgi and Emilio Bosurgi, as executors of the Estate of Adriana Bosurgi; Chemical Bank, as statutory executor; and, Leone Bosurgi and Emilio Bosurgi, each as transferees of the assets of the estate. On March 3, 1971, the United States filed a complaint in the U.S. District Court for the Southern District of New York against petitioners and Chemical Bank to foreclose certain tax liens of the United States arising out of the estate tax liability of the Estate of Adriana Bosurgi. On June 2, 1972, the District Court entered default judgments against Leone Bosurgi and Emilio Bosurgi, respectively, as transferees of assets of the estate, for their failure to appear, answer, or make any motions with respect to the (amended) complaint of the United States.4
The District Court litigation involving claims by Chemical Bank, Fritsche Dodge & Olcott, Inc., and other parties to the litigation continued with respect to assets of the estate held in escrow by Benedict Ginsberg, one of petitioners’ former counsel. See United States v. Bosurgi, 389 F. Supp. 1088 (S.D. N.Y. 1975), affd. in part, revd. in part, and remanded 530 F.2d 1105 (2d Cir. 1976), on remand 84 F.R.D. 668 (S.D. N.Y. 1979); United States v. Bosurgi, 750 F.2d 216 (2d Cir. 1984).
On March 25, 1976, counsel for petitioners in these cases filed a motion to withdraw as counsel of record pursuant to Rule 24(c). Counsel cited as reasons for withdrawal the fact that all attempts at communication with petitioners since July 1971, had gone unanswered. A copy of the motions and an accompanying order directing petitioners to file a notice of objection on or before June 1, 1976, was served on petitioners at “c/o Prof. Aw. Domenico Barillaro, Via Cosseria 1, Rome, Italy,” petitioners’ last known address. Petitioners did not respond. The Court granted counsel’s motion on June 9, 1976.
On December 14, 1985, the Court served petitioners, by registered mail at their last know address, with notices of trial of these cases. The notices of trial were returned to the Court and petitioners did not appear at the call of the calendar of these cases on April 29, 1986. Petitioners did not appear at the trial of these cases on May 8, 1986. The Court has had no communication on behalf of petitioners since the request of their counsel to withdraw.
In his answer to each petition in these cases, respondent pleads the following facts:
(a) Adriana Bosurgi, an Italian citizen and nonresident alien of the United States, died on March 27, 1963. No estate tax return was filed with respondent.
(b) Petitioner is a son of the decedent, Adriana Bosurgi, and the brother of Emilio [or Leone] Bosurgi.
(c) On the date of her death, Adriana Bosurgi maintained a custodian account at the Chemical Bank in New York, New York, in which she held securities of an aggregate value of $1,097,189.39.
(d) After Adriana Bosurgi died, the securities held in the custodian account at the Chemical Bank were sold and the proceeds deposited into two separate accounts at the Chemical Bank: a joint checking account in the names of Adriana Bosurgi and/or Leone Bosurgi and/or Emilio Bosurgi; and, in a joint checking account in the names of Leone Bosurgi and/or Emilio Bosurgi. All funds in the former account were subsequently transferred into the latter--that of Leone Bosurgi and/or Emilio Bosurgi.
(e) The aggregate proceeds from the sale of securities in Adriana Bosurgi’s custodian account at the Chemical Bank deposited into these joint accounts exceeds the amount of the deficiency in estate tax and addition to tax pursuant to section 6651 determined by respondent.
(f) The transfers described in paragraph (d) above were made to petitioners without consideration.
(g) Respondent assessed the deficiency in estate tax and addition to tax on March 2, 1971 and filed a Federal tax lien on March 2, 1971. No part of the deficiency in estate tax was paid.
(h) By reason of the transfer of assets to petitioners, and their receipt by petitioners, petitioners thereby became transferees of the assets of the estate of Adriana Bosurgi, the decedent, within the meaning of section 6901, and of Section 12.1-1, New York Estates, Powers and Trusts Laws. Further, the transferor, the estate of Adriana Bosurgi, was rendered insolvent by reason of the transfer of assets to petitioners. The insolvency of the transferor precludes reasonable efforts to collect the deficiency in estate tax and addition to tax from the transferor.
Whereupon respondent prayed that the deficiency and addition to tax be in all respects approved, and Leone and Emilio Bosurgi be held liable as transferees of the assets of the Estate of Adriana Bosurgi.
Respondent urges us to enter a default against petitioners pursuant to Rule 123(a). Petitioners failed to appear at the call of the calendar and at the trial of the case, and neither petitioner nor any representative on behalf of either petitioner has responded to this Court’s notices or orders for more than 10 years. Respondent cites by analogy rule 55 of the Federal Rules of Civil Procedure (FRCP), from which Rule 123(a) was derived. For the reasons discussed below, we agree that respondent is entitled to entry of a default against petitioner.
Rule 123, effective as of January 1, 1974, provides in relevant part:
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OPINION
Williams, Judge:
These cases are before the Court on respondent’s motion for default judgment pursuant to Rule 123(a), Tax Court Rules of Practice and Procedure.
The Commissioner determined a deficiency in the Federal estate tax of the Estate of Adriana Bosurgi, deceased, in the amount of $403,988.78, and an addition to tax pursuant to section 6651(a)(1)1 of $100,997.20. Respondent asserts that petitioners, sons of Adriana Bosurgi, are liable for the determined amounts of estate tax and addition to tax as transferees of the assets of the estate.2 The issue this Court must decide is whether to grant respondent’s motion for entry of a default against petitioners.
The decedent, Adriana Bosurgi, was an Italian citizen and nonresident alien of the United States. Her sons, Leone and Emilio Bosurgi, were also Italian citizens and nonresident aliens of the United States at the time their petitions in these cases were filed. These cases are the vestige of a long and complex history of litigation.3 We state only the salient parts of such history below.
On March 2, 1971, the United States made four jeopardy assessments, arising out of the estate tax liability of the Estate of Adriana Bosurgi, against the following: Leone Bosurgi and Emilio Bosurgi, as executors of the Estate of Adriana Bosurgi; Chemical Bank, as statutory executor; and, Leone Bosurgi and Emilio Bosurgi, each as transferees of the assets of the estate. On March 3, 1971, the United States filed a complaint in the U.S. District Court for the Southern District of New York against petitioners and Chemical Bank to foreclose certain tax liens of the United States arising out of the estate tax liability of the Estate of Adriana Bosurgi. On June 2, 1972, the District Court entered default judgments against Leone Bosurgi and Emilio Bosurgi, respectively, as transferees of assets of the estate, for their failure to appear, answer, or make any motions with respect to the (amended) complaint of the United States.4
The District Court litigation involving claims by Chemical Bank, Fritsche Dodge & Olcott, Inc., and other parties to the litigation continued with respect to assets of the estate held in escrow by Benedict Ginsberg, one of petitioners’ former counsel. See United States v. Bosurgi, 389 F. Supp. 1088 (S.D. N.Y. 1975), affd. in part, revd. in part, and remanded 530 F.2d 1105 (2d Cir. 1976), on remand 84 F.R.D. 668 (S.D. N.Y. 1979); United States v. Bosurgi, 750 F.2d 216 (2d Cir. 1984).
On March 25, 1976, counsel for petitioners in these cases filed a motion to withdraw as counsel of record pursuant to Rule 24(c). Counsel cited as reasons for withdrawal the fact that all attempts at communication with petitioners since July 1971, had gone unanswered. A copy of the motions and an accompanying order directing petitioners to file a notice of objection on or before June 1, 1976, was served on petitioners at “c/o Prof. Aw. Domenico Barillaro, Via Cosseria 1, Rome, Italy,” petitioners’ last known address. Petitioners did not respond. The Court granted counsel’s motion on June 9, 1976.
On December 14, 1985, the Court served petitioners, by registered mail at their last know address, with notices of trial of these cases. The notices of trial were returned to the Court and petitioners did not appear at the call of the calendar of these cases on April 29, 1986. Petitioners did not appear at the trial of these cases on May 8, 1986. The Court has had no communication on behalf of petitioners since the request of their counsel to withdraw.
In his answer to each petition in these cases, respondent pleads the following facts:
(a) Adriana Bosurgi, an Italian citizen and nonresident alien of the United States, died on March 27, 1963. No estate tax return was filed with respondent.
(b) Petitioner is a son of the decedent, Adriana Bosurgi, and the brother of Emilio [or Leone] Bosurgi.
(c) On the date of her death, Adriana Bosurgi maintained a custodian account at the Chemical Bank in New York, New York, in which she held securities of an aggregate value of $1,097,189.39.
(d) After Adriana Bosurgi died, the securities held in the custodian account at the Chemical Bank were sold and the proceeds deposited into two separate accounts at the Chemical Bank: a joint checking account in the names of Adriana Bosurgi and/or Leone Bosurgi and/or Emilio Bosurgi; and, in a joint checking account in the names of Leone Bosurgi and/or Emilio Bosurgi. All funds in the former account were subsequently transferred into the latter--that of Leone Bosurgi and/or Emilio Bosurgi.
(e) The aggregate proceeds from the sale of securities in Adriana Bosurgi’s custodian account at the Chemical Bank deposited into these joint accounts exceeds the amount of the deficiency in estate tax and addition to tax pursuant to section 6651 determined by respondent.
(f) The transfers described in paragraph (d) above were made to petitioners without consideration.
(g) Respondent assessed the deficiency in estate tax and addition to tax on March 2, 1971 and filed a Federal tax lien on March 2, 1971. No part of the deficiency in estate tax was paid.
(h) By reason of the transfer of assets to petitioners, and their receipt by petitioners, petitioners thereby became transferees of the assets of the estate of Adriana Bosurgi, the decedent, within the meaning of section 6901, and of Section 12.1-1, New York Estates, Powers and Trusts Laws. Further, the transferor, the estate of Adriana Bosurgi, was rendered insolvent by reason of the transfer of assets to petitioners. The insolvency of the transferor precludes reasonable efforts to collect the deficiency in estate tax and addition to tax from the transferor.
Whereupon respondent prayed that the deficiency and addition to tax be in all respects approved, and Leone and Emilio Bosurgi be held liable as transferees of the assets of the Estate of Adriana Bosurgi.
Respondent urges us to enter a default against petitioners pursuant to Rule 123(a). Petitioners failed to appear at the call of the calendar and at the trial of the case, and neither petitioner nor any representative on behalf of either petitioner has responded to this Court’s notices or orders for more than 10 years. Respondent cites by analogy rule 55 of the Federal Rules of Civil Procedure (FRCP), from which Rule 123(a) was derived. For the reasons discussed below, we agree that respondent is entitled to entry of a default against petitioner.
Rule 123, effective as of January 1, 1974, provides in relevant part:
(a) Default: When any party has failed to plead or otherwise proceed as provided by these Rules or as required by the Court, he may be held in default by the Court either on motion of another party or on the initiative of the Court. Thereafter, the Court may enter a decision against the defaulting party, upon such terms and conditions as the Court may deem proper, or may impose such sanctions (see, e.g., Rule 104) as the Court may deem appropriate. The Court may, in its discretion, conduct hearings to ascertain whether a default has been committed, to determine the decision to be entered or the sanctions to be imposed, or to ascertain the truth of any matter.
Rule 123(a) is derived from FRCP 55(a) and (b), and there was no counterpart in this Court’s Rules prior to the promulgation of Rule 123(a). Rules of Practice and Procedure, 60 T.C. 1057, 1129 (1973).
Under the Federal Rules of Civil Procedure, a default pursuant to FRCP 55 is entered when a defendant fails to plead or otherwise defend as provided by the rules.5 This rule also applies to any claim, cross-claim, or third-party claim. See FRCP 55(d). Thus, a defendant may be entitled to entry of a default pursuant to FRCP 55(a) on the basis of plaintiff’s failure to reply to a counterclaim. See 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, sec. 2682, at 409 (1983). Under the Federal Rules of Civil Procedure, it appears that a “plaintiff” for purposes of FRCP 55(a) may be taken as the party that bears the burden of proof, while a “defendant” within the meaning of FRCP 55(a) is analogous to the opposing party who does not bear the burden of proof.
Rule 123(a) provides, as does FRCP 55(a), that any party may move for entry of a default. By analogy to FRCP 55(a), the party that bears the burden of proof is entitled to move for entry of a default pursuant to Rule 123(a).6
This Court has been reluctant to enter defaults, notably in cases seeking additions to tax for fraud pursuant to section 6653(b). See Gilday v. Commissioner, 62 T.C. 260 (1974); Doncaster v. Commissioner, 77 T.C. 334 (1981). However, where the taxpayer stated to the Court that he would not contest the deficiencies or addition to tax for fraud determined by the Commissioner, a default judgment pursuant to Rule 123(a) was entered. Gordon v. Commissioner, 73 T.C. 736 (1980). Further, we stated in Gordon v. Commissioner that:
It may be arguable that our recently adopted default provisions in Rule 123(a), as well as the development of the Federal case law under rule 55, Federal Rules of Civil Procedure (enacted subsequent to Miller-Pocahontas [Coal Co. v. Commissioner, 21 B.T.A. 1360 (1931)]),would justify the exercise of our discretion in permitting a default to include a fraud addition to tax without affirmative proof in the case of mere nonappearance at the trial. [73 T.C. at 742; fn. ref. omitted.]
We should, however, reiterate that this case does not present a fraud issue. Consequently, the question of the vitality of Miller-Pocahontas Coal Co. v. Commissioner, 21 B.T.A. 1360 (1931), is not before us, and no inference should be drawn as to the effect of this opinion on similar cases that do present a fraud issue. This is not the occasion for overruling or for reaffirming Miller-Pocahontas.
Faced with a mountainous work load, this Court should not suffer the continued waste of its time and of the Government’s resources in the litigation of cases brought by taxpayers who have no demonstrable desire to continue the litigation. If a taxpayer does not think well enough of his case to defend it where the Government has the burden of proof, this Court should default him. To hold a trial in a case abandoned by the taxpayer is at best an indulgence of archaic manners and at worst an insult to the taxpayers who have a rightful claim on this Court’s time. The time has come, at least in transferee liability cases, to declare that we will no longer engage in “one-act pantomimes.” See concurring opinion of Judge Wilbur in Doncaster v. Commissioner, 77 T.C. at 345 (1981). Entry of a default judgment is appropriate upon a determination in the sound judicial discretion of the Court that the pleadings of the moving party set forth facts sufficient to support the judgment.7
Entry of a default has the effect of admitting all well-pleaded facts in respondent’s answer, and a default judgment must be supported by respondent’s well-pleaded facts. Trans World Airlines v. Hughes, 449 F.2d 51, 70 (2d Cir. 1971), revd. on other grounds 409 U.S. 363 (1973); Rechtzigel v. Commissioner, 79 T.C. 132, 142 (1982), affd. 703 F.2d 1063 (8th Cir. 1983). A default judgment is a judgment on the merits. Nishimatsu Construction Co., Ltd. v. Houston National Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
Section 6901(a) provides a procedure under which unpaid estate tax of the transferor may be assessed against and collected from the transferee. However, the existence and extent of a transferee’s liability is governed by State law.8 Commissioner v. Stern, 357 U.S. 39 (1958); Scott v. Commissioner, 70 T.C. 71 (1978). Because the property transferred to petitioners was located in New York at the date of the death of the decedent, respondent’s well-pleaded facts must establish petitioners’ liability as transferees pursuant to the laws of the State.
The facts pleaded by respondent establish that Adriana Bosurgi, the decedent, owned certain assets which were part of her estate and which were received by petitioners, the decedent’s sons, and distributees, subsequent to her death. The value of the assets received by petitioners is greater than the amount of the deficiency in Federal estate tax and addition to tax determined by respondent. The Estate of Adriana Bosurgi was rendered insolvent as a result of the transfer of its assets to the account of petitioners. The existence and extent of petitioners’ liability for Federal estate tax as a distributee of the assets of the Estate of Adriana Bosurgi under the laws of the State of New York are established. See 13 N.Y. Dec. Est. Law Ann. sec. 170 (McKinney Supp. 1967); see also N.Y. Est. Powers & Trusts Law sec. 12-1.1 (McKinney 1967), effective Sept. 1, 1967. Therefore, pursuant to section 6901, petitioners are liable as transferees of the assets of the Estate of Adriana Bosurgi for the full amount of the deficiency in Federal estate tax and addition to tax determined by respondent.
To reflect the foregoing,
An appropriate order and decision will be entered.
Reviewed by the Court.
Sterrett, Simpson, Nims, Parker, Korner, Hamblen, Cohen, Clapp, Swift, Jacobs, Gerber, WRIGHT and WELLS, JJ., agree with the majority opinion. WHITAKER and Shields, JJ., did not participate in the consideration of this case. By order of the Chief Judge, these cases were assigned to Judge Williams for decisions and opinion.