MASSENGALE v. C. I. R.

PER CURIAM:

This is an appeal from the decision of the Tax Court of the United States upholding the Commissioner of Internal Revenue in determining deficiencies in Jack C. Massengale's income tax and in determining fraud additions for the years 1961 and 1962. It is now before this court on the motion of the Commissioner for summary affirmance. We grant the motion, dismiss the appeal and affirm the Tax Court.

The findings of fact and the opinion of the court below demonstrate beyond cavil the frivolousness of the appeal. Evidence for the taxpayer was obviously wanting to sustain his burden of proof. Furthermore, the Commissioner presented ample ground for the assessment of the fraud additions.

At the request of Massengale, this court appointed counsel to assist him on this appeal. We are entirely satisfied of the competency and capacity of our appointee, and we concur in his conclusion that his client has no basis upon which to overturn the decision of the Tax Court. Nevertheless, the appellant has requested, and obtained, the withdrawal of this lawyer. He now wants other counsel named, but we see no justification for his request.

Massengale contends that he has testimony which would overthrow the determination of the Tax Court, and in support he proffers affidavits of the prospective witnesses. All of these affiants save one did testify before the Tax Court. Opportunity was given the petitioner to adduce any evidence material to his defense. Thereafter decision went against appellant on what he did offer.

It is ordered that Plato Cacheris, Esquire, be allowed to withdraw as the appellant's counsel, that this appeal of Jack C. Massengale be dismissed, and that the decision of the Tax Court be affirmed.

Affirmed.