MEMORANDUM OPINION
CHIECHI, Judge: These consolidated cases are before us on respondent's motion to hold petitioner in default in the case at docket No. 10764-00 (respondent's motion in the case at docket No. 10764-00), respondent's motion to dismiss for lack of prosecution and to impose sanctions under section 6673 2in the case at docket No. 10765-00 (respondent's motion in the case at docket No. 10765-00), respondent's motion to dismiss for lack of prosecution and to impose sanctions under section 6673 in the case at docket No. 10766-00 (respondent's motion in the case at docket No. 10766-00), and respondent's motion to hold petitioner in default in the case at docket No. 10767-00 (respondent's motion in the case at docket No. 10767-00). (We shall refer collectively to those four motions as respondent's motions.) At the request of respondent, on October 15, 2001, the Court held a trial in order to enable respondent to present evidence to satisfy the burden of production under section 7491(c) that respondent maintains respondent has with respect to: (1) The accuracy-related penalty under section 6662(a) that respondent determined for each of the taxable years 1996 and 1997 in the notice of deficiency (notice) issued to Richards Asset Management Trust (Richards Management Trust) 3 in the case at docket No. 10764-00; (2) the accuracy-related penalty under section 6662(a) that respondent determined for the taxable year 1996 in the notice issued to Everett D. Richards (Mr. Richards) 4 in the case at docket No. 10765-00; (3) the accuracy-related penalty under section 6662(a) for the taxable year 1997 that respondent determined in the notice issued to Mr. Richards in the case at docket No. 10766-00; and (4) the addition to tax under section 6651(a)(1) for each of the taxable years 1996 and 1997 that respondent determined in the notice issued to Richards Charitable Trust 5 in the case at docket No. 10767-00.
Background
The record establishes and/or the parties do not dispute the following:
At the time the respective petitions in these cases were filed, Richards Management Trust, Mr. Richards, and Richards Charitable Trust listed in those petitions the same address in Canton, Ohio.
Richards Management Trust filed Form 1041, U.S. Income Tax Return for Estates and Trusts (trust return), for each of the taxable years 1996 and 1997. In separate Schedules K-1, Beneficiary's Share of Income, Deductions, Credits, etc., that Richards Management Trust included with each of its 1996 and 1997 trust returns, Richards Management Trust showed Mr. Richards and Richards Charitable Trust as beneficiaries and Mr. Richards as the fiduciary of Richards Management Trust.
In each of its 1996 and 1997 trust returns, Richards Management Trust deducted depreciation with respect to certain personal assets of Mr. Richards, including Mr. Richards' personal residence that he had transferred to Richards Management Trust at a time that is not disclosed by the record. Richards Management Trust also deducted other amounts in its 1996 and 1997 trust returns with respect to personal expenses of Mr. Richards.
During respondent's examination of Richards Management Trust's 1996 and 1997 trust returns and thereafter, no books, records, or other information was provided to respondent establishing (1) the jurisdiction under the laws of which Richards Management Trust was purportedly organized, (2) the person who is authorized to act on behalf of Richards Management Trust, and (3) that Richards Management Trust was at all relevant times a trust cognizable for Federal tax purposes. Nor did Richards Management Trust at any time provide any books, records, or other information to respondent establishing the income reported and the expense deductions claimed in Richards Management Trust's 1996 and 1997 trust returns.
In the notice issued to Richards Management Trust, respondent determined, inter alia, that Richards Management Trust is liable for each of the taxable years 1996 and 1997 for the accuracy- related penalty under section 6662(a).
Respondent has no record of Richards Charitable Trust's having filed with respondent Form 990-PF, Return of Private Foundation (Form 990-PF), for either of the taxable years 1996 and 1997. Nor does respondent have a record of any other Federal tax returns having been filed by Richards Charitable Trust for those years.
In response to a request by respondent for information with respect to Richards Charitable Trust, respondent was provided with a copy of Form 990-PF for the taxable year 1997 that showed Richards Charitable Trust as the organization to which such form pertained. However, as discussed above, respondent has no record that Richards Charitable Trust filed with respondent Form 990-PF for the taxable year 1997.
During respondent's examination of Richards Charitable Trust's taxable years 1996 and 1997 and thereafter, no books, records, or other information was provided to respondent establishing (1) the jurisdiction under the laws of which Richards Charitable Trust was purportedly organized, (2) the person who is authorized to act on behalf of Richards Charitable Trust, and (3) that Richards Charitable Trust was at all relevant times a trust cognizable for Federal tax purposes. Nor did Richards Charitable Trust at any time provide any books, records, or other information to respondent establishing the income shown and the expense deductions claimed in the copy of Form 990-PF for the taxable year 1997 that was provided to respondent during respondent's examination of Richards Charitable Trust in response to respondent's request for information with respect to Richards Charitable Trust and that showed Richards Charitable Trust as the organization to which such form pertained.
In the notice issued to Richards Charitable Trust, respondent determined, inter alia, that Richards Charitable Trust is liable for each of the taxable years 1996 and 1997 for the addition to tax under section 6651(a)(1).
Joy A. Richards and Mr. Richards jointly filed Form 1040, U.S. Individual Income Tax Return (return), for the taxable year 1996, and Mr. Richards filed a return for 1997. During respondent's examination of those 1996 and 1997 returns and thereafter, no books, records, or other information was provided to respondent establishing the income reported and the expense deductions claimed in those returns.
In the notice issued to Mr. Richards with respect to the taxable year 1996, respondent determined, inter alia, that he is liable for that taxable year for the accuracy-related penalty under section 6662(a). In the notice issued to Mr. Richards with respect to the taxable year 1997, respondent determined, inter alia, that he is liable for that taxable year for the accuracy-related penalty under section 6662(a).
James Binge (Mr. Binge) was the return preparer for each of Richards Management Trust's 1996 and 1997 trust returns, Mr. Richards and Joy A. Richards' 1996 return, and Mr. Richards' 1997 return. Mr. Binge was also listed as the return preparer for Richards Charitable Trust's Form 990-PF for the taxable year 1997 that was provided to respondent during respondent's examination of Richards Charitable Trust but that respondent has no record of having been filed with respondent. Respondent has identified Mr. Binge as an individual involved with purported trusts used for tax avoidance purposes.
On August 31, 2001, respondent filed separate motions to compel answers to interrogatories and to compel production of documents in each of the cases at docket Nos. 10765-00 and 10766-00. On September 19, 2001, the Court granted each of those motions. Mr. Richards did not answer respondent's interrogatories or produce the documents requested by respondent, as ordered by the Court on September 19, 2001.
On October 2, 2001, Richards Management Trust, Mr. Richards, and Richards Charitable Trust filed a joint motion to continue the trial in these cases, which the Court denied on October 2, 2001.
On October 15, 2001, these cases were called from the Court's trial calendar 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 Richards Management Trust, Mr. Richards, and Richards Charitable Trust. At that time, respondent orally moved to dismiss each of these cases for failure to prosecute, and respondent requested, and the Court held, a trial because, according to respondent, respondent has the burden of production pursuant to section 7491(c) with respect to (1) the accuracy-related penalties under section 6662(a) for 1996 and 1997 that respondent determined against Richards Management Trust, (2) the respective accuracy-related penalties under section 6662(a) for 1996 and 1997 that respondent determined against Mr. Richards, and (3) the additions to tax under section 6651(a)(1) for 1996 and 1997 that respondent determined against Richards Charitable Trust. At the trial in these cases on October 15, 2001, there was no appearance by or on behalf of Richards Management Trust, Mr. Richards, and Richards Charitable Trust.
On November 13, 2001, respondent filed a written motion to hold petitioner in default in each of the cases at docket Nos. 10764- 00 and 10767-00 and a written motion to dismiss for lack of prosecution and to impose sanctions under section 6673 in each of the cases at docket Nos. 10765-00 and 10766-00.
On December 3, 2001, the Court sua sponte issued separate Orders (December 3, 2001 Show Cause Orders) directing each party in the case at docket No. 10764-00 in which Richards Asset Management Trust is named as petitioner and in the case at docket No. 10767-00 in which Richards Charitable Trust is named as petitioner to
show cause in writing why the Court has jurisdiction over this case, including the identity of any purported fiduciary of petitioner and a detailed analysis of why such purported fiduciary has the capacity to litigate in the Court on behalf of petitioner.
On December 19, 2001, respondent filed separate written responses to the December 3, 2001 Show Cause Orders in the cases at docket Nos. 10764-00 and 10767-00 in which respondent contended, inter alia, that Richards Management Trust and Richards Charitable Trust, respectively,
11. * * * failed to establish that a trustee, if authorized, acted on its behalf when the purported petition was filed with the Court on October 16, 2000.
12. * * * failed to file a proper petition with this Court in that the petition was not brought by and with the full descriptive name of the fiduciary entitled to institute a case on its behalf.
Respondent further argued in those separate responses to the December 3, 2001 Show Cause Orders in the cases at docket Nos. 10764-00 and 10767-00 that
Since the petition in this case was not brought by a party with proper capacity as required by the Tax Court Rules of Practice and Procedure, the Court lacks jurisdiction * * *.
On December 20, 2001, Richards Management Trust and Richards Charitable Trust filed separate written responses to the December 3, 2001 Show Cause Orders in the cases at docket Nos. 10764- 00 and 10767-00 (Richards Management Trust's response to the December 3, 2001 Show Cause Order and Richards Charitable Trust's response to the December 3, 2001 Show Cause Order, respectively), each of which was signed by Terrence A. Bentivegna (Mr. Bentivegna) who identified himself in each such response as "Trustee". Each such response asserted that "Petitioner does not believe that this Court has jurisdiction." In support of that position, Richards Management Trust's response to the December 3, 2001 Show Cause Order and Richards Charitable Trust's response to the December 3, 2001 Show Cause Order set forth statements and contentions that the Court finds to be frivolous and/or groundless. 6
On January 16, 2002, Richards Management Trust filed a response to respondent's motion to hold petitioner in default in the case at docket No. 10764-00, and Mr. Richards filed a response to respondent's motion to dismiss for lack of prosecution and to impose sanctions under section 6673 in the case at docket No. 10766- 00. 7 Each of those respective responses contained arguments and contentions that the Court found in an Order dated January 18, 2002 (January 18, 2002 Order) in the cases at docket Nos. 10764-00 and 10766-00 to be frivolous and/or groundless. In the January 18, 2002 Order, the Court reminded each petitioner about section 6673(a)(1). 8
On February 15, 2002, Richards Management Trust, Mr. Richards, and Richards Charitable Trust filed a joint brief in these cases. That brief sets forth statements, contentions, and arguments that the Court finds to be frivolous and/or groundless. 9
Discussion
Richards Management Trust and Richards Charitable Trust
On December 3, 2001, the Court sua sponte issued the respective December 3, 2001 Show Cause Orders regarding the Court's jurisdiction over the cases at docket Nos. 10764-00 and 10767-00.
Rule 60 provides in pertinent part:
(a) Petitioner: (1) Deficiency or Liability Actions: A case shall be brought by and in the name of the person against whom the Commissioner determined the deficiency (in the case of a notice of deficiency) * * * or by and with the full descriptive name of the fiduciary entitled to institute a case on behalf of such person. See Rule 23(a)(1). A case timely brought shall not be dismissed on the ground that it is not properly brought on behalf of a party until a reasonable time has been allowed after objection for ratification by such party of the bringing of the case; and such ratification shall have the same effect as if the case had been properly brought by such party. * * *
* * * * * * *
(c) Capacity: * * * The capacity of a fiduciary or other representative to litigate in the Court shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived.
The record does not establish where Richards Management Trust and Richards Charitable Trust were organized. The respective petitions in the cases at docket Nos. 10764-00 and 10767-00 listed an address for Richards Management Trust and Richards Charitable Trust in Canton, Ohio, 10 which is also the service address used by the Court in those cases. Assuming arguendo that Richards Management Trust and Richards Charitable Trust were trusts organized under the laws of the State of Ohio, the administration of each of which is subject to the laws of that State, under Ohio law, see Rule 60(c), a trustee generally is the proper party authorized to act on behalf of a trust. Firestone v. Galbreath, 976 F.2d 279, 284 (6th Cir. 1992); Saxton v. Seiberling, 48 Ohio St. 554, 29 N.E. 179 (1891); see Ohio R. Civ. P. 17(A). 11
In the cases at docket Nos. 10764-00 and 10767-00, Richards Management Trust and Richards Charitable Trust, respectively, have the burden of proving that this Court has jurisdiction, see Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Natl. Comm. to Secure Justice in the Rosenberg Case v. Commissioner, 27 T.C. 837, 839 (1957), by establishing affirmatively all facts giving rise to our jurisdiction, see Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960); Consol. Cos. v. Commissioner, 15 B.T.A. 645, 651 (1929). In order to meet that burden, Richards Management Trust in the case at docket No. 10764-00 and Richards Charitable Trust in the case at docket No. 10767-00 must provide evidence establishing who has the authority to act on its behalf in each such proceeding. See Natl. Comm. to Secure Justice in the Rosenberg Case v. Commissioner, 27 T.C. at 839-840; Coca-Cola Bottling Co. v. Commissioner, 22 B.T.A. 686, 700 (1931).
On the instant record, we find that Richards Management Trust in the case at docket No. 10764-00 and Richards Charitable Trust in the case at docket No. 10767-00 have failed to establish who has the authority to act on their behalf in those respective proceedings. We further find on that record that neither of the cases at docket Nos. 10764-00 and 10767-00 was brought by and with the full descriptive name of the fiduciary entitled to institute each such case on behalf of Richards Management Trust or Richards Charitable Trust, as the case may be, as required by Rule 60(a)(1). On the record before us, we conclude that we do not have jurisdiction over the cases at docket Nos. 10764-00 and 10767-00. Accordingly, we shall dismiss those cases for lack of jurisdiction. 12
Mr. Richards
Neither Mr. Richards nor any authorized representative of Mr. Richards appeared at the Court's Cleveland trial session on October 15, 2001, at the call of these consolidated cases from the Court's trial calendar.
At the trial held by the Court in the cases at docket Nos. 10765-00 and 10766-00, neither Mr. Richards nor any authorized representative of Mr. Richards appeared.
The written response by Mr. Richards to respondent's motion to dismiss for lack of prosecution and to impose sanctions under section 6673 in the case at docket No. 10766-00 does not contain any valid reason why that case should not be dismissed for lack of prosecution. 13 That response contained contentions and arguments that the Court found in the Court's January 18, 2002 Order to be frivolous and/or groundless. The joint brief filed by Mr. Richards (and Richards Management Trust and Richards Charitable Trust) also contains statements, contentions, and arguments that the Court finds to be frivolous and/or groundless and do not set forth any valid reason why the cases at docket Nos. 10765-00 and 10766-00 should not be dismissed for lack of prosecution.
Section 7491(c) provides in pertinent part:
SEC. 7491. BURDEN OF PROOF.
(c) Penalties. -- Notwithstanding any other provision of this title, the Secretary shall have the burden of production in any court proceeding with respect to the liability of any individual for any penalty * * *.
Section 6662(a) imposes an accuracy-related penalty equal to 20 percent of the underpayment of tax resulting from, inter alia, negligence or disregard of rules or regulations, sec. 6662(b)(1), or a substantial understatement of income tax, sec. 6662(b)(2). For purposes of section 6662(a), an understatement is equal to the excess of the amount of tax required to be shown in the tax return over the amount of tax shown in the tax return, sec. 6662(d)(2)(A), and is substantial in the case of an individual if it exceeds the greater of 10 percent of the tax required to be shown in the return or $ 5,000, sec. 6662(d)(1)(A). For purposes of section 6662(a), the term "negligence" includes any failure to make a reasonable attempt to comply with the Code, and the term "disregard" includes any careless, reckless, or intentional disregard. Sec. 6662(c). Negligence has also been defined as a lack of due care or failure to do what a reasonable person would do under the circumstances. Leuhsler v. Commissioner, 963 F.2d 907, 910 (6th Cir. 1992), affg.T.C. Memo. 1991-179; Antonides v. Commissioner, 91 T.C. 686, 699 (1988), affd. 893 F.2d 656 (4th Cir. 1990).
The accuracy-related penalty under section 6662(a) does not apply to any portion of an underpayment if it is shown that there was reasonable cause for, and that the taxpayer acted in good faith with respect to, such portion. Sec. 6664(c)(1). The determination of whether the taxpayer acted with reasonable cause and in good faith depends on the pertinent facts and circumstances, including the taxpayer's efforts to assess his or her proper tax liability, the knowledge and experience of the taxpayer, and the reliance on the advice of a professional, such as an accountant. Sec. 1.6664-4(b)(1), Income Tax Regs. Reliance on the advice of a professional, such as an accountant, does not necessarily demonstrate reasonable cause and good faith unless, under all the circumstances, such reliance was reasonable and the taxpayer acted in good faith. Id. In the case of claimed reliance on the accountant who prepared the taxpayer's tax return, the taxpayer must establish that correct information was provided to the accountant and that the item incorrectly omitted, claimed, or reported in the return was the result of the accountant's error. Ma-Tran Corp. v. Commissioner, 70 T.C. 158, 173 (1978).
On the record before us, we find that respondent has satisfied the burden of production that respondent maintains respondent has with respect to the respective accuracy-related penalties under section 6662(a) that respondent determined to impose on Mr. Richards for the taxable years 1996 and 1997. 14
Based on our examination of the entire record before us, we shall grant respondent's motion in the case at docket No. 10765-00 and respondent's motion in the case at docket No. 10766-00 in that we shall dismiss each of those cases for failure by petitioner in each such case to prosecute such case, and we shall enter a decision in each of those cases sustaining the determinations that respondent made in the notice to which each such case pertains but in the reduced amounts which respondent concedes are appropriate in order to reflect the duplication of certain income determinations in the respective notices issued to Mr. Richards. 15
In respondent's motions in the cases at docket Nos. 10765- 00 and 10766-00, respondent also asks the Court to impose a penalty under section 6673(a)(1) on Mr. Richards in each of those cases.
As grounds therefor, respondent contends that Mr. Richards (1) instituted proceedings in the Court primarily for delay, (2) advanced frivolous and groundless positions in such proceedings, and (3) unreasonably failed to pursue administrative remedies.
On the record before us, we find that Mr. Richards instituted the proceedings in the cases at docket Nos. 10765-00 and 10766-00 primarily for delay. We also find on that record that Mr. Richards' position in the cases at docket Nos. 10765-00 and 10766-00 is frivolous and/or groundless. On the record before us, we shall impose a penalty in those cases on Mr. Richards pursuant to section 6673(a)(1) in the amounts of $ 8,000 and $ 18,000, respectively.
To reflect the foregoing,
An appropriate order of dismissal for lack of jurisdiction and denying respondent's motion will be entered in each of the cases at docket Nos. 10764-00 and 10767-00, and an appropriate order granting respondent's motion and decision will be entered in each of the cases at docket Nos. 10765-00 and 10766-00 sustaining respondent's determinations in reduced amounts and imposing a penalty under section 6673(a)(1) in each of those two cases.