Pham v. Commissioner

T.C. Memo. 1995-459

UNITED STATES TAX COURT

THAI V. PHAM AND KHUY T. BUI, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 28774-92. Filed September 26, 1995.

Johnny W. Richards II, for petitioners.

Alvin A. Ohm, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

WRIGHT, Judge: Respondent determined deficiencies in and

additions to tax and a penalty with respect to petitioners'

Federal income taxes as follows:
 - 2 -

Additions to Tax and Penalty
Year Deficiency Sec. 6653(a) Sec. 6661 Sec. 6662

1988 $36,888 $1,844 $9,222 -
1989 10,613 - - $2,123

After concessions, the issues for our consideration are:

(1) Whether petitioners are entitled to Schedule C

deductions for the cost of labor in excess of the amounts allowed

by respondent for taxable years 1988 and 1989. We hold that they

are not.

(2) Whether petitioners are entitled to a Schedule C

equipment rental deduction in the amount of $7,200 for taxable

year 1988. We hold that they are not.

(3) Whether petitioners received unreported income of

$14,000 during taxable year 1988. We hold that they did.

(4) Whether petitioners are liable for the addition to tax

pursuant to section 6653(a)1 for the underpayment of tax due to

negligence or intentional disregard of the rules or regulations

for taxable year 1988. We hold that they are.

(5) Whether petitioners are liable for the addition to tax

pursuant to section 6661(a) for a substantial understatement of

income tax for taxable year 1988. We hold that they are.

(6) Whether petitioners are liable for the accuracy-related

penalty pursuant to section 6662 for taxable year 1989. We hold

that they are.

1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect during the years in issue,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
 - 3 -

FINDINGS OF FACT

Some of the facts have been stipulated and are found

accordingly. The stipulation of facts and the attached exhibits

are incorporated herein. At the time the petition was filed,

petitioners resided in Arlington, Texas. Petitioners timely

filed joint Federal income tax returns for taxable years 1988 and

1989.

During the years at issue, petitioners operated a sewing

business out of their residence. Petitioner Khuy T. Bui

(hereinafter petitioner Bui) solicited contracts from various

clothing manufacturers to assemble clothing. Upon entering into

a contract with a clothing manufacturer, the manufacturer

provided petitioner Bui with the precut material and buttons to

be assembled. The manufacturer also provided petitioner Bui with

a fully assembled model of the finished product. This sample was

used to guide the assembly process.

After receiving the precut material, petitioner Bui

proceeded to subcontract the assembly process to various home

sewers. The assembly process consisted of sewing together

multiple pieces of precut material in accordance with

specifications provided by the manufacturer. Upon completing

their subcontracts, the home sewers returned the assembled

garments to petitioner Bui. Petitioners and their four sons then

performed the finishing work. Finishing work consisted of

attaching buttons, cutting button holes, hemming, trimming
 - 4 -

threads, ironing, folding, pinning, and packaging. Upon

completing the finishing work, petitioner Bui returned the

completed product to the manufacturer.

The manufacturer generally paid petitioner Bui the contract

price within 2 weeks of her delivery of the completed product.

After receiving payment from the manufacturer, petitioner Bui

paid the subcontractors who assembled the garments.

During taxable years 1988 and 1989, three of petitioners'

four sons assisted in performing the finishing work. On their

Federal income tax returns for taxable years 1988 and 1989,

petitioners deducted the following sums with respect to amounts

allegedly paid to their four sons in exchange for their

performance of the finishing work:

1988

Thinh Dat Pham $7,215.80
Dung Tien Pham 8,320.80
Duy Duc Pham 7,420.20
Total 22,956.80

1989

Thinh Dat Pham $6,732.15
Duy Duc Pham 6,917.34
Tri Minh Pham 6,035.30
Total 19,684.79

There was no formal policy governing these payments to

petitioners' sons. All payments to petitioners' four sons were

made in cash and were based on records allegedly maintained by

the recipient son. Petitioners did not maintain records or other

written documentation of the amounts paid to their sons. For
 - 5 -

each son, petitioners prepared a Form 1099-MISC, Statement for

Recipients of Miscellaneous Income, with respect to each of the

above amounts for both taxable years. In preparing the Forms

1099-MISC for each son, petitioners derived the amount presented

on the Forms 1099-MISC from data maintained by the recipient son.

All records maintained by the four sons were discarded, either

after receiving cash payment or after the son provided petitioner

Bui with the figures used in preparing the Forms 1099-MISC.

Each of petitioners' four sons filed Federal income tax

returns for taxable years 1988 and 1989, reporting the amounts

identified above. For both the 1988 and 1989 taxable years, each

son had a net tax due and owing upon completion of his return.

Petitioner Bui paid the entire tax due for both taxable years

1988 and 1989 for each of her sons, excluding Tri Minh Pham.

Citing the lack of substantiation, respondent disallowed

petitioners' claimed Schedule C deductions for the cost of labor

attributable to payments petitioners made to their sons in

taxable years 1988 and 1989.

On their Schedule C for taxable year 1988, petitioners also

claimed an equipment rental expense deduction in the amount of

$7,200. This expense is attributable to rental payments for six

sewing machines that petitioners used in the operation of their

enterprise. Petitioners produced a photocopy of a lease

representing their agreement with the lessor of the machines.

This photocopy states the following:
 - 6 -

State of Texas

Tarrant County

EQUIPMENTS [sic] RENTAL AGREEMENT

LESSOR: CHUNG V TRAN
LESSEE: KHUY T BUI

1. EQUIPMENTS [sic]: Sewing machines and equipments
[sic] as needed
2. TERM: Cash, $600 per month for 12 months
in 1988
total of $7200

Lessor agreed to repair and maintain
all the equipments [sic] as needed per Lessee in good use
condition.
Lessee can not assign or sub-let all
the equipments [sic] to other persons without the agreement
of Lessor
In the event of any breach of the
agreement Lessor can have full rights to terminate this
lease in accordance with state law and re-claim possession
of the leased equipments [sic].

Signed and agreed on this 4th day of Jan 1988.

LESSOR: CHUNG V TRAN

LESSEE: KHUY T BUI

Aside from this rental agreement, petitioners are unable to

produce any written record or other documentation reflecting

actual payment of the rent. Respondent, therefore, disallowed

the claimed deduction due to lack of substantiation.

In taxable years 1988 and 1989, petitioners reported gross

receipts from their sewing business in the amounts of $237,737

and $123,407, respectively. Because petitioners failed to

maintain records or other written documentation reflecting the
 - 7 -

financial activities of their enterprise, respondent conducted a

bank deposit analysis of the bank account petitioners used in the

operation of their sewing business. This analysis determined the

following deposits and source of funds:

1988

Source Amount

Pam's Closet $202,457.40
Donovan-Galvania 9,212.66
Byn-Mar, Inc. 30,205.48
Brenco Apparel, Inc. 19,676.35
Bently Arbuckle, Inc. 7,283.40
Jones of Dallas 4,288.75
H&A Fashions 4,675.34
Tu Van Le 9,000.00
Ruoc H. or Thim T. Doan 2,000.00
Cash 5,000.00
Various 9,784.58
303,583.96

1989

Pam's Closet $111,670.90
Marlin Manuf. Co. , Inc. 8,103.00
Tam Van Nguyen 2,000.00
Dau Thi Bui or Tuan Ngoc 2,000.00
Various 4,500.00
128,273.90

After concessions by both parties regarding the above

figures, only two deposits remain in dispute; both deposits

occurred in taxable year 1988 and totaled $14,000. Remaining in

dispute are: (1) The $9,000 deposit, identified above as

received from Tu Van Le; and (2) the $5,000 deposit identified

above as cash. Petitioners, maintaining that both deposits

represent nontaxable loans, did not report the $14,000 on their
 - 8 -

1988 Federal income tax return. Respondent contends that both

amounts represent unreported taxable income. Accordingly,

respondent has adjusted petitioners' taxable income for 1988 to

reflect the unreported amount of $14,000.

OPINION

Issue 1. Schedule C Cost of Labor Deduction

Petitioners contend that, pursuant to section 162(a)(1), they

are entitled to Schedule C deductions in the amounts of $22,957

and $19,685 for taxable years 1988 and 1989, respectively, for

compensation paid to their sons with respect to their involvement

in petitioners' sewing enterprise. Respondent argues that

petitioners' failure to substantiate these deductions precludes

their entitlement to them.

Respondent's determinations are presumed to be correct, and

petitioners bear the burden of proving otherwise. Rule 142(a);

Welch v. Helvering, 290 U.S. 111 (1933). Moreover, the taxpayers

do not have an inherent right to take tax deductions. Deductions

are a matter of legislative grace, requiring the taxpayers to

establish their right to take them. Deputy v. Du Pont, 308 U.S.

488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U.S. 435,

440 (1934). Additionally, taxpayers are required to keep books

and records so that they can file true and correct returns and to

enable respondent to determine their correct tax liability. Sec.

6001; Menequzzo v. Commissioner, 43 T.C. 824, 831-832 (1965);

secs. 1.446-1(a)(4), 1.6001-1(a), Income Tax Regs.
 - 9 -

The record is clear, and there is no doubt, that petitioners

failed to maintain records or other written documentation of the

work performed by, or compensation paid to, their sons.

Petitioners are unable to identify, with any degree of certainty,

factors customarily associated with a compensatory relationship.

The number of hours worked by petitioners' sons is unknown. The

number of buttons attached, button holes cut, and garments

pinned, ironed, or packaged by any particular son is also

unknown. Furthermore, the actual work performed by any

particular son for any particular period is unknown. Similarly,

with the exception of the Forms 1099-MISC provided to each son

for tax return purposes, petitioners are unable to provide

records reflecting the compensation paid to any of their sons for

any particular period. Petitioners are also unable to produce

any documentation regarding the calculation of compensation paid

to any particular son on any particular occasion.

Petitioner Bui testified that she paid her sons on a piece

or per-unit basis. However, she presented inconsistent testimony

with regard to the per-unit amount paid to any particular son.

She first testified that her sons were paid between 30 cents and

50 cents per garment to attach buttons, depending on the

complexity of the design of the garment. Petitioner Bui

subsequently testified that this range was between 20 cents and

80 cents.

The testimony of petitioner Bui's sons with regard to this
 - 10 -

matter was equally conflicting. Suffice it to say that the

record does not support a finding of a per-unit compensation

schedule used by petitioners when compensating their sons.

Petitioner Bui testified that her sons maintained records of

their own work activity and that all compensation paid to her

sons was based solely on those records. When it came time to be

paid, each son simply informed petitioner Bui of the work he had

performed, and petitioner Bui in turn paid cash to that son.

Petitioner Bui further testified that she prepared Forms 1099-

MISC for each son for both taxable years at issue based on the

records maintained by her sons.

Petitioner Bui's oldest son, Tri, did not testify at trial;

however, her other three sons, Dung, Duy, and Thinh, did testify.

The sons' testimony regarding the recordation of their work

activity is ambiguous and conflicting. Dung testified that he

kept track of the work he performed in a multitude of ways. He

frequently relied upon invoices for his record, but occasionally

he recorded his activity on pieces of paper. Still other times,

he simply made mental notes of the work he performed. Dung

further testified that he did not submit his records to

petitioner Bui for payment, rather he simply told her what he had

done and was paid accordingly. Dung also testified that he

discarded the records reflecting his work activity.

Dung's testimony with regard to what happened to his work

activity records is inconsistent. Dung first testified that he
 - 11 -

discarded his records after petitioner Bui paid him. Dung later

testified that he retained his records until he filed his Federal

income tax return. Dung also testified that his work activity

records were destroyed after petitioner Bui paid him but that he

then created a new record reflecting the amount he was paid.

Dung further testified that this new record was discarded only

after he completed his tax return.

The testimony of both Duy and Thinh, though not as explicit

as is Dung's testimony, is equally obscure. In any event, no

records were produced. Further, all testimonial evidence is

tenuous in respect to the relevant points.

Petitioners correctly explain that in Eller v. Commissioner,

77 T.C. 934 (1981), this Court held that compensation is

deductible under section 162(a)(1) only if it is: (1) Reasonable

in amount; (2) provided for services actually rendered; and (3)

paid or incurred. But the burden is on petitioners to prove that

they are entitled to the deduction claimed. Rule 142(a); Welch

v. Helvering, supra. Even if we were convinced that petitioners

paid reasonable amounts to their sons for their involvement in

the enterprise, we remain unpersuaded as to the amount of

compensation paid.

Petitioners contend that the Cohan rule, Cohan v.

Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930), should be used

to bridge this gap. We disagree. According to the Cohan rule,

if the record provides sufficient evidence that the taxpayer has
 - 12 -

incurred a deductible expense, but the taxpayer is unable to

adequately substantiate the amount of the deduction to which he

or she is otherwise entitled, the Court may estimate the amount

of such expense and allow the deduction to that extent. Cohan v.

Commissioner, supra. In order for us to estimate the amount of

an expense, however, we must have some basis upon which an

estimate may be made. Vanicek v. Commissioner, 85 T.C. 731, 743

(1985). Without such basis, any allowance would amount to

unguided largesse. Williams v. United States, 245 F.2d 559, 560

(5th Cir. 1957).

Due to the total absence of documentation and inconsistent

testimony, we are without a reasonable basis to estimate the

amount of compensation payments petitioners made to their sons.

Thus, we decline to apply the Cohan rule. Consequently,

petitioners have failed to satisfy their burden of establishing

their right to this deduction. Accordingly, respondent's

determination regarding this issue is sustained.

Issue 2. Schedule C Equipment Rental Expense Deduction

Petitioners contend that, pursuant to section 162(a)(3),

they are entitled to deduct $7,200 as a business expense on their

income tax return for taxable year 1988. Petitioners attribute

this expense to lease payments paid for the use of six sewing

machines, all of which were used in the ordinary course of their

sewing business. Respondent argues that petitioners' inability

to substantiate the rental expense precludes allowance of the
 - 13 -

deduction.

The burden is on petitioners to prove entitlement to a

deduction. Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1933).

Petitioner Bui presented the only testimony with respect to this

issue. Petitioner Bui testified that she rented six sewing

machines from Mr. Tran Trung for $600 per month, totaling $7,200

for the taxable year. Petitioner Bui further testified that all

rental payments were made in cash and that she did not maintain

any record or other written documentation of the payments.

Petitioner Bui argues that the rental expense is satisfactorily

evidenced by a photographic copy of a document entitled

"Equipments [sic] Rental Agreement".2

Respondent objects to the authenticity of this document,

contending that it appears to have been prepared after the fact

and in preparation for trial. Respondent argues that in the

absence of the original document, the date on which the document

was prepared cannot be accurately ascertained. The requirement

of authentication is a condition precedent to the admissibility

of the lease agreement. Fed. R. Evid. 901. Evidence that will

support a finding that the matter in question is what its

proponent claims is sufficient. McMahon v. Commissioner, T.C.

Memo. 1991-355.

2
Although petitioner Bui testified that she rented the
sewing machines from Mr. Tran Trung, the lease agreement
identifies the lessor as Mr. Chung V. Tran. This inconsistency
remains unexplained.
 - 14 -

Petitioner Bui testified that the original of the rental

agreement is in the possession of the lessor, Mr. Tran Trung.

Petitioner Bui also testified that she was unaware of Mr. Trung's

location and that she has had no contact with Mr. Trung since

returning the six sewing machines to him at the end of 1988.

Petitioner Bui further testified that the document was a true and

exact copy signed and received by her on the date she picked up

the sewing machines. The Federal Rules of Evidence generally

permit the use of copies rather than originals, but an exception

is made if a genuine question is raised as to the authenticity of

the original. Fed. R. Evid. 1003; see Tyson v. Jones & Laughlin

Steel Corp., 958 F.2d 756 (7th Cir. 1992); United States v.

Smith, 893 F.2d 1573 (9th Cir. 1990); Christopher v.

Commissioner, T.C. Memo. 1984-394. Respondent, however, does not

establish in any way how the document is fatally flawed.

Respondent contends that the authenticity of the lease agreement

is suspect because, without the original, the date on which the

document was created is unknown. We are unpersuaded by this

argument. Furthermore, merely objecting to the admission of

evidence does not make that evidence suspect, nor does it rise to

a showing that a genuine issue of authenticity exists. Tyson v.

Jones & Laughlin Steel Corp., supra at 761. Accordingly, we find

that a genuine issue has not been raised as to the authenticity

of the lease agreement, and it is admissible under rule 1003 of

the Federal Rules of Evidence.
 - 15 -

Although we conclude that the photocopy of the lease

agreement is admissible, we remain unconvinced that petitioners

have satisfactorily proven their entitlement to a deduction of

$7,200 for lease of the sewing machines. We are not convinced

that the lease agreement establishes conclusively that

petitioners disbursed the monthly payments called for therein.

Petitioner Bui produced the only testimony with regard to this

issue, and we are not required to accept her self-serving

testimony. Niedringhaus v. Commissioner, 99 T.C. 202 (1992).

Additionally, petitioner Bui's testimony is less than credible

with regard to this matter. Petitioner Bui first testified that

she paid 3 months' rent in advance when she picked up the sewing

machines in January 1988. Petitioner Bui subsequently testified

that she paid the first 3 months' rent in late February 1988. It

is the occurrence of inconsistencies such as this that cast doubt

on the credibility of petitioners' argument.

Petitioners have failed to establish their entitlement to a

business expense deduction with respect to the $7,200.

Accordingly, respondent's determination is sustained as to this

issue.

Issue 3. Unreported Income

In the notice of deficiency issued to petitioners for

taxable year 1988, respondent adjusted petitioners' gross

receipts by $63,847. After concessions by the parties, the

amount in dispute has been reduced to $14,000. Petitioners
 - 16 -

contend that the $14,000 is composed of two loans and as such is

not taxable under section 61. Respondent contends the $14,000

constitutes unreported taxable income and that petitioners have

failed to carry their burden of proving the determination

inaccurate.

Respondent determined the unreported income using the bank

deposits method. The use of the bank deposits method for

computing income has been authorized by the courts for many

years. DiLeo v. Commissioner, 96 T.C. 858 (1991), affd. 959 F.2d

16 (2d Cir. 1992); Estate of Mason v. Commissioner, 64 T.C. 651,

656 (1975), affd. 566 F.2d 2 (6th Cir. 1977). Bank deposits are

prima facie evidence of income. Tokarski v. Commissioner, 87

T.C. 74, 77 (1986); Estate of Mason v. Commissioner, supra at

656. In analyzing a bank deposits case, deposits will be

considered income when there is no evidence that they represent

anything other than income. Price v. United States, 335 F.2d

671, 677 (5th Cir. 1964); United States v. Doyle, 234 F.2d 788,

793 (7th Cir. 1956); Harlan v. Commissioner, T.C. Memo. 1995-309.

The burden, generally, is on the taxpayers to show that the bank

deposits were derived from nontaxable sources. Rule 142(a);

Reaves v. Commissioner, 31 T.C. 690, 718 (1958), affd. 295 F.2d

336 (5th Cir. 1961); Romer v. Commissioner, 28 T.C. 1228, 1244

(1957).

Here, the use of the bank deposits method by respondent was

necessitated because petitioners lacked financial records for the
 - 17 -

years at issue. Petitioners contend that $9,000 of the $14,000

at issue was received in the form of a loan from petitioner Bui's

friend, Mr. Tu Van Le, and was intended for working capital

purposes. Petitioners further contend that the remaining $5,000

at issue was received from petitioner Bui's sister and was also

intended for working capital purposes. These alleged loans were

not formalized or documented in any fashion; no instrument

evidences their existence. Petitioners did not call Mr. Tu Van

Le or petitioner Bui's sister to testify as to these loans.

Furthermore, their absence was not explained. We cannot assume

that the testimony of absent witnesses would have been favorable

to petitioners. Indeed, the normal inference is that it would

have been unfavorable. Pollack v. Commissioner, 47 T.C. 92, 108

(1966), affd. 392 F.2d 409 (5th Cir. 1968).

Except for petitioner Bui's self-serving testimony,

petitioners have produced no evidence that the two deposits

totaling $14,000 in 1988 constituted nontaxable income. Hence,

petitioners have not overcome the presumption that the two

deposits originate from a taxable source as respondent

determined. Accordingly, respondent's determination is

sustained.

Issue 4. Addition to Tax, Sec. 6653(a)

Respondent determined that petitioners are liable for an

addition to tax under section 6653(a) because the underpayment of

income tax for taxable year 1988 was attributable to negligence
 - 18 -

or intentional disregard of rules or regulations. Petitioners

claim that they are not liable for this addition to tax because

they relied upon their accountant to prepare their 1988 return.

Section 6653(a) imposes an addition to tax equal to 5

percent of the underpayment of tax if any part of the

underpayment is due to negligence or intentional disregard of

rules or regulations. Negligence is a lack of due care or

failure to do what a reasonable and ordinarily prudent person

would do under the circumstances. Marcello v. Commissioner, 380

F.2d 499, 506 (5th Cir. 1967), affg. in part and remanding in

part 43 T.C. 168 (1964); Neely v. Commissioner, 85 T.C. 934, 947

(1985). Petitioners must rebut the presumption of correctness by

showing that the addition to tax is unjustified. Rule 142(a);

Bixby v. Commissioner, 58 T.C. 757 (1972).

Good faith reliance on the advice of a competent,

independent tax professional may offer relief from the imposition

of the negligence addition. United States v. Boyle, 469 U.S.

241, 251 (1985); Otis v. Commissioner, 73 T.C. 671, 675 (1980).

Petitioners bear the burden of proving that their reliance on

professional advice was reasonable. Freytag v. Commissioner, 89

T.C. 849, 888 (1987), affd. 904 F.2d 1011 (5th Cir. 1990), affd.

501 U.S. 868 (1991). Moreover, reliance on professional advice,

standing alone, is not an absolute defense to negligence but

rather a factor to be considered. Id.

In order for the reliance on professional advice to excuse a
 - 19 -

taxpayer from the negligence addition, the reliance must be

reasonable, in good faith, and based upon full disclosure. Id.;

Weis v. Commissioner, 94 T.C. 473, 487 (1990); Pritchett v.

Commissioner, 63 T.C. 149, 174-175 (1974).

Not only have petitioners failed to establish that their

reliance was based on full disclosure, reasonable, and in good

faith, they have fallen short in their attempt to establish that

they relied upon the advice of a tax professional. No testimony

or other evidence as to advice relied upon by petitioners was

advanced. No accountant responsible for preparing petitioners'

return was called. Petitioners merely contend that they relied

upon an accountant to complete their tax returns.

On this record, we conclude that any reliance maintained by

petitioners is not sufficient to shield them from liability for

the negligence addition. Accordingly, respondent's determination

as to this issue is sustained.

Issue 5. Addition to Tax, Sec. 6661

Respondent determined that petitioners are liable for the

addition to tax pursuant to section 6661 for taxable year 1988

due to a substantial understatement of income tax. Respondent's

determination carries with it the presumption of correctness.

Rule 142(a).

The addition to tax is 25 percent of any underpayment

attributable to a substantial understatement. Sec. 6661(a);

Pallottini v. Commissioner, 90 T.C. 498 (1988). A substantial
 - 20 -

understatement is one which exceeds the greater of 10 percent of

the tax required to be shown on the return, or $5,000. Sec.

6661(b)(1). Accordingly, because the understatement for taxable

year 1988 is not subject to reduction pursuant to section

6661(b)(2)(B)(i) or (ii), respondent's determination as to this

issue is sustained.

Issue 6. Accuracy-Related Penalty, Sec. 6662

Respondent determined that petitioners are liable for the

penalty pursuant to section 6662 for taxable year 1989 because

the underpayment of income tax was attributable to negligence or

disregard of rules or regulations as well as to a substantial

understatement of income tax. Petitioners disagree and claim

that all disallowed deductions are based on substantial

authority.

Section 6662(a) provides that the taxpayers are liable for a

penalty equal to 20 percent of the portion of the underpayment to

which section 6662 applies. Section 6662(b)(2) provides that

section 6662 applies to an underpayment attributable to any

substantial understatement of income tax. A substantial

understatement of income tax occurs when the amount of the

understatement for the taxable year exceeds the greater of 10

percent of the tax required to be shown on the return, or $5,000.

Sec. 6662(d)(1)(A).

Petitioners bear the burden of rebutting respondent's

determination. Rule 142(a). Petitioners have offered nothing in
 - 21 -

support of their position. Having failed to present sufficient

evidence as to the substantial authority upon which they relied,

we find that petitioners have not carried their burden.

Accordingly, respondent is sustained as to this issue.

To reflect the foregoing,

Decision will be entered

under Rule 155.