T.C. Memo. 1995-573
UNITED STATES TAX COURT
STEVEN H. TOUSHIN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21724-92. Filed November 30, 1995.
Angelo Ruggiero and Michael R. Esposito, for petitioner.
Karen P. Wright and Donna C. Hansberry, for respondent.
MEMORANDUM OPINION
DEAN, Special Trial Judge: This case was assigned pursuant
to section 7443A(b)(4) of the Code and Rules 180, 181, and 183.1
1
All Rule references are to the Tax Court Rules of Practice
and Procedure. All section references are to the Internal
Revenue Code as amended and in effect during the years in issue.
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The case is before the Court on petitioner's motion for partial
summary judgment filed March 10, 1995, pursuant to Rule 121.
Respondent determined deficiencies in petitioner's Federal
income tax and additions to tax as follows:
Additions to Tax
Year Deficiency Sec. 6653(b) Sec. 6661
1980 $25,265 $16,983 --
1981 34,220 25,018 --
1982 21,196 10,598 $5,299
The statutory notice in this case was issued on July 1,
1992. Petitioner's motion is directed only to the deficiency and
additions to tax determined under the notice for the year 1982.
The "normal" 3-year statute of limitations under section 6501(a)
has expired for taxable year 1982. Based upon the allegations in
respondent's amended answer, the deficiency and additions to tax
determined by respondent for the year 1982 may only be assessed
if the "fraud" exception of section 6501(c)(1) applies. In his
motion, petitioner alleges that based upon the affidavits
submitted, the facts stipulated by the parties, and the pleadings
and attachments thereto, respondent as a matter of law cannot
meet her burden of proving fraud, and the Court must enter
summary judgment in favor of petitioner for the year 1982.
For the reasons set out below, we find that there is a
genuine issue of material fact as to whether there is an
understatement of tax due to fraud with respect to petitioner's
tax return for the year 1982.
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Background
The facts set forth below are based on the stipulation of
facts with attached exhibits, first supplemental stipulation of
facts with attached exhibits, and the affidavits submitted by the
parties.2
Petitioner resided in Chicago, Illinois, at the time the
petition in this case was filed.
Operation of the Businesses
From May of 1978 through December of 1982 petitioner was
president and owner of 100 percent of the stock of Entertainment
& Amusement, Inc., an Illinois corporation (hereinafter referred
to as E & A of Illinois). E & A of Illinois operated a business
known as the Bijou Theatre, located in Chicago, Illinois. The
Bijou Theatre exhibited movies, sold video cassettes, and
beginning in 1981, sold other items in the lobby of a building
located on North Wells Street in Chicago.
On October 1, 1981, a business by the name of Entertainment
& Amusement, Inc. was incorporated in the State of California (E
& A of California). E & A of California changed its name to
2
On April 11, 1995, 2 days prior to the hearing on this
motion, respondent filed a response to petitioner's reply to
respondent's objection to petitioner's motion for partial summary
judgment, attaching an affidavit from Special Agent James McGuire
and a transcript of the record of the proceedings in United
States v. Toushin, No. 87 CR 206-1 (N.D. Ill. verdict rendered
October 27, 1988), reversed and remanded 899 F.2d 617 (7th Cir.
1990). We have not found it necessary to rely on the transcript
submitted by respondent in reaching our decision on this motion.
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Savage Management, Inc. (Savage) on September 1, 1982. On
corporation papers filed with the State, the president of E & A
of California and later of Savage was listed as Walter Killeen.
Two hundred shares of stock of E & A of California were issued in
the name of Walter Killeen on August 10, 1982.3 E & A of
California, and subsequently Savage, operated under the name of
"The Screening Room".4
From May 1981 through March of 1982, checking account number
332-232 in the name of Walter Killeen Company was maintained at
Oak Trust & Savings Bank (Oak Trust) in Chicago. Petitioner was,
along with Walter Killeen, a signatory on this account.5
From 1978 through the year 1982 petitioner also maintained his
personal checking account, number 501-344, at Oak Trust.6
Petitioner was a signatory on other Oak Trust checking
accounts held in the names of E & A of Illinois, Toushin &
3
On the Savage Form 1120, U.S. Corporation Income Tax
Return, filed May 31, 1983, there are attached schedules
declaring petitioner to be the sole shareholder of the reporting
corporation for fiscal year ending September 30, 1982. See infra
note 11.
4
Fictitious Business Name Statements were filed with the San
Francisco County Superior Court first by E & A and then by
Savage.
5
Based upon a visual examination of copies of canceled
checks that are exhibits stipulated by the parties, all the
checks written on this account appear to be signed by petitioner.
6
The parties have stipulated and attached as exhibits copies
of bank statements, cancelled checks, deposit slips, and
associated miscellaneous items for this account for the years
1978 through 1982.
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Company, Real Estate Management, Gold Distribution Company, and
Walter Killeen Company.7
In addition to the various Oak Trust accounts, petitioner
was signatory on a checking account in the name of Anthony J.
Medina, Jr. Co. at Northern Trust Company in Chicago and for part
of the year 1982 had signature authority on a checking account in
the name of Toushin & Company at Chemical Bank in New York City.8
Petitioner's Cash Transactions
On his individual Federal income tax return, Form 1040,
filed for the year 1982, petitioner reported income from wages,
capital gains from the sale of films, and rental income.9 During
1982, E & A of Illinois loaned $11,110 in cash to petitioner.
The parties have stipulated that "petitioner wrote no checks to
cash" during 1982, cashed no salary checks during that year, and
"received no cash back on deposits" in 1982.
Despite the apparent paucity of sources of cash, during the
year 1982 petitioner came into possession of relatively large
amounts of currency. He deposited $3,260 in cash into his
7
The parties have stipulated copies of various bank records
as exhibits associated with these respective checking accounts.
8
The parties have stipulated copies of various bank records
as exhibits associated with these respective checking accounts.
9
We have determined from the stipulation that petitioner's
wages were paid by check. Since petitioner has raised no
argument to the contrary, for purposes of this motion, we will
assume that the other income items reported on the return were
also paid by check.
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personal checking account, $2,100 in cash into the Walter Killeen
checking account, and currency in the amount of $12,285 into the
Anthony J. Medina, Jr. Co. account. In addition, petitioner made
various expenditures of cash for personal items during 1982, and
purchased with currency 232 personal money orders totaling
$82,477.89 from Oak Trust10.
Of the 232 personal money orders purchased by petitioner
during the year 1982, 65 money orders totaling $29,585.51 were
used to pay expenses of Savage, and another 49 were deposited
into accounts of Savage Management, Inc. With the exception of a
de minimis amount, the funds deposited into the Walter Killeen
Co. account during 1981 and 1982 were used to pay expenses of
Savage. Also, with the exception of a de minimis amount, the
funds deposited in the Northern Trust account in the name of
Anthony J. Medina, Jr. Co. in 1981 and 1982 were used to pay
expenses of Savage.
The Criminal Investigation and Subsequent Proceedings
Sometime in the year 1982, petitioner came under
investigation by the Criminal Investigation Division of the IRS.
10
The parties have stipulated as an exhibit a copy of a
document containing pages pertinent to the year 1982. The pages
are separately titled, "Personal Money Orders Purchased With Cash
By Steven Toushin At The Oak Bank and Trust" and "Personal Money
Orders Purchased With Cash By Steven Toushin At The Oak Bank and
Trust [,] Handwriting Examined". Also stipulated are exhibits
consisting of photocopies of money orders and other associated
materials.
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On January 6, 1983, Special Agents of the IRS served petitioner
with a subpoena related to the investigation.
On May 31, 1983, Savage (formerly E & A of California) filed
a Form 1120, U.S. Corporation Income Tax Return, for the fiscal
year ending (FYE) September 30, 1982. Petitioner signed the
return as "Pres."11 Included in the gross receipts reported on
the return of Savage were all currency and money order deposits
to the Killeen and Medina accounts12 and all expenditures by
money order for corporate expenses13.
On March 23, 1987, petitioner was indicted in the United
States District Court for the Northern District of Illinois on 3
counts of violations of section 7206(1).14 In the indictment,
petitioner was accused of filing false individual income tax
returns which understated his taxable income for each of the
11
Petitioner dated his signature as 6/1/83. On Schedule J
of the return, line H(2) indicates that an individual or entity
owns 100% of the voting stock of Savage, the reporting
corporation. Also attached to the return is a schedule entitled,
"Other Business Deductions" on which it is noted that the
individual with 100% ownership of Savage voting stock is "Steven
Toushin". The record contains no documentation on the change of
corporate presidency or nominal ownership of Savage stock from
Mr. Killeen to petitioner.
12
Reported gross receipts of Savage also included deposits
of money orders into various bank accounts at the "Hibernia Bank"
held in the name of either E & A of California or Savage.
13
The corporate expenses were deducted at the appropriate
place on the Form 1120.
14
United States v. Toushin, No. 87CR206-1 (N.D. Ill. filed
Mar. 26, 1987).
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years 1980, 1981, and 1982. After a jury trial, petitioner was
convicted on all counts. He appealed his convictions, see United
States v. Toushin, 899 F.2d 617 (7th Cir. 1990), and the case was
reversed and remanded by the Court of Appeals.
On August 8, 1991, petitioner signed a "Plea Agreement" with
the Government. In the agreement he acknowledged that during the
year 1980 he received income from skimming cash proceeds from
E & A of Illinois. Petitioner further acknowledged that he knew
he was required to report as income, but knowingly did not
include, the skimmed proceeds on his joint individual tax return
for the year 1980. The District Court accepted petitioner's
plea, entered judgment against him on count one and dismissed
counts two and three concerning the years 1981 and 1982.
In her notice of deficiency, respondent determined that
petitioner had unreported income for the years 1980, 1981, and
1982 attributable to funds diverted from E & A of Illinois.
Further, respondent affirmatively alleges in her amended answer
that petitioner in all 3 years received and fraudulently failed
to report income in the form of "diverted receipts or, in the
alternative, constructive dividends" from E & A of Illinois.
Discussion
Arguments Of The Parties
In support of his motion for partial summary judgment,
petitioner argues that, as a matter of law, respondent cannot
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show fraud for the year 1982 because: (a) Respondent cannot show
an understatement of tax for the year;15 and (b) if there is an
understatement of tax, respondent cannot show that it is due to
petitioner's fraud.
Of the $101,838 total cash expenditures ascribed to him in
1982, petitioner argues that $57,981 was from sources reported on
his return, leaving respondent with $43,857 of "excess"
expenditures to treat as unreported income.16 He relies on the
filing of the Savage return in 1983 to explain the source of
these funds. Petitioner argues that the "correct" analysis
requires that the amounts reported on Savage's return be
"removed" from respondent's cash expenditures analysis for 1982.
Petitioner then would have nontaxable sources in excess of cash
expenditures. Respondent can prove that petitioner understated
his income in 1982, "only if respondent can persuade this Court
that petitioner, and not Savages [sic] or even Entertainment &
Amusement, Inc., should have reported the cash", contends
petitioner.
15
Although this argument is raised in the "Relevant Facts"
portion of petitioner's motion rather than that part denominated
"Law and Argument", we shall, nevertheless, treat it as if it
were legal argument.
16
The cash expenditures respondent computed for petitioner
include the deposits to the Killeen and Medina accounts and cash
expenditures for money orders which were reported on Savage's FYE
9/30/82 return.
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Petitioner further argues that even if the Court is
persuaded that he understated his income, reporting the income on
the Savage return negates, as a matter of law, fraudulent intent
on his part.
Respondent's argument in reply does not address petitioner's
allegation that there is no understatement of tax. She frames
the question to be decided solely as an issue of intent.
According to respondent, there is a genuine issue of material
fact as to petitioner's fraudulent intent in filing his 1982 Form
1040. Since intent is at issue, respondent concludes that the
matter is not appropriate for summary judgment.
Standard for Granting Summary Judgment
The standard for granting a motion for summary judgment
under Rule 121 is stated in the rule itself.
A decision shall * * * be rendered if the pleadings,
answers to interrogatories, depositions, admissions,
and any other acceptable materials, together with the
affidavits, if any, show that there is no genuine issue
as to any material fact and that a decision may be
rendered as a matter of law. * * * [Rule 121(b).]17
The moving party has the burden of "showing" the absence of
a genuine issue as to any material fact. See Espinoza v.
Commissioner, 78 T.C. 412, 416 (1982) and cases cited therein.
17
Rule 121 is derived from Fed. R. Civ. P. 56. Therefore,
authorities interpreting the latter will be considered by the
Court in applying our Rule. Espinoza v. Commissioner, 78 T.C.
412, 415-416 (1982).
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In Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the
Supreme Court described the "showing" that must be made by the
moving party:
a party seeking summary judgment always bears
the initial responsibility of informing the
* * * court of the basis for its motion, and
identifying those portions of "the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the
affidavits, if any," which it believes
demonstrate the absence of a genuine issue of
material fact. * * *
In Celotex, the Supreme Court held that the moving party in
a summary judgment action need not in all cases introduce
evidence negating an essential element of the opponent's claim in
order to prevail on the motion. If the moving party, after
adequate time for discovery, can make a "showing" from the record
of "a complete failure of proof concerning an essential element
of the nonmoving party's case" and on which the nonmoving party
will bear the burden of proof at trial, there can be "'no genuine
issue as to any material fact,'" with respect to that claim. Id.
at 322-323.18
Petitioner at pages 4 and 5 of his reply to respondent's
objection to petitioner's motion, attempts to bring his case
18
See also Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th
Cir. 1986), a case cited by the Court in Celotex Corp. v.
Catrett, 477 U.S. 317 (1986), wherein it is stated: "If the
moving party can show that there is no evidence whatever to
establish one or more essential elements of a claim on which the
opposing party has the burden of proof, trial would be a bootless
exercise, fated for an inevitable result".
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within the rule of Celotex,19 by arguing that "respondent has
offered not a shred of evidence to oppose petitioner's motion".
Petitioner's assertion that at trial respondent must prove
fraud by clear and convincing evidence is correct. Rule 142(b);
sec. 7454(a); Stone v. Commissioner, 56 T.C. 213, 220 (1971).
Furthermore, petitioner is correct in stating that unless
respondent proves petitioner's fraud, the statute of limitations
precludes the assessment of any deficiency for tax year 1982.
Sec. 6501(a), (c)(1). It is also true that as part of her burden
in the trial of a fraud case, respondent must first prove an
underpayment of some amount of tax. Sec. 6653(b). As this Court
has recognized, "Absent an underpayment, there is nothing to
which the fraud addition may attach." Apothaker v. Commissioner,
T.C. Memo. 1985-445; Hebrank v. Commissioner, 81 T.C. 640, 642
(1983) (first element to be established is an underpayment of
tax). In opposing this motion, respondent stressed the intent
element and ignored the underpayment element of fraud.
Nevertheless, respondent and petitioner have filed with the Court
stipulated facts and documents related to both elements.20
19
See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986) for a description of the nonmoving party's burden of proof
once the moving party has made a proper showing under the rule of
Celotex Corp v. Catrett, supra.
20
Petitioner's written submissions and oral argument at the
hearing on this motion suggest that the documents and facts
stipulated by the parties are not to be considered as "evidence"
or "facts" presented by respondent. Petitioner cannot seriously
(continued...)
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Showing of a Genuine Issue of Material Fact
The underpayment element of fraud
In its present state, the record shows that petitioner used
$82,477 in cash to purchase 232 money orders in 1982. In
addition, the parties have stipulated to certain cash
expenditures for personal items by petitioner and his deposits of
currency to accounts he controlled during 1982. Petitioner has
admitted by way of stipulation that he wrote no checks to cash in
1982, got no cash back from deposits in 1982, and was paid only
$11,110 in cash (as a loan) by E & A of Illinois in 1982. An
examination of his individual tax return for the year reveals no
apparent source of cash receipts. Thus, petitioner has
unexplained currency expenditures for the year 1982 and the
record in its present state is devoid of any evidence of
nontaxable sources of cash except for the above noted loan.
The record suggests that the amount by which petitioner's cash
expenditures21 exceed his known sources of income for 1982 is
taxable income. See Meier v. Commissioner, 91 T.C. 273 (1988);
20
(...continued)
argue that stipulations do not fall into the category of
"pleadings, answers to interrogatories, depositions, admissions,
and any other acceptable materials", Rule 121(b). Under our
Rules "A stipulation shall be treated * * * as a conclusive
admission by the parties to the stipulation", Rule 91(e),
emphasis supplied. See, e.g., Noneman v. Commissioner, T.C.
Memo. 1978-283.
21
Cash bank deposits are another form of cash expenditure.
Meier v. Commissioner, 91 T.C. 273, 295 n.28 (1988).
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Salls v. Commissioner, T.C. Memo. 1992-547, affd. without
published opinion 26 F.3d 1120 (11th Cir. 1994).
The intent element of fraud
The parties have stipulated for the years 1980 and 1981
facts similar to those of 1982. These facts show an apparent
pattern of unexplained (at this point in the proceedings) cash
expenditures and deposits by petitioner.
Petitioner makes much of the stipulation that certain cash
amounts possessed by petitioner in 1982 were "reported as income"
on the return of Savage. According to petitioner, these cash
amounts were "earned" by Savage,22 and since the cash was
Savage's income, petitioner had no duty to report it.23
Petitioner concludes that he therefore could not have committed
fraud, and if he did have a duty to report additional income on
22
This argument is without evidence in the record other than
the reporting position of Savage on the FYE 1982 return. This
return position is not binding on the Court. "In answering the
question of who earned income, it is our task to consider what
was actually done, rather than simply the declared purpose of the
participants". Shaw v. Commissioner, 59 T.C. 375, 383 (1972).
23
Petitioner comes to the erroneous legal conclusion that
amounts reported as income by a corporation, Savage, cannot have
been income to another party, i.e., himself. We will not attempt
to catalog all the situations which contradict such a conclusion
but cite for consideration, Truesdell v. Commissioner, 89 T.C.
1280 (1987) (amounts diverted from taxpayer's corporation and
used for expenses for another business owned by taxpayer were
taxable income to taxpayer); Burke v. Commissioner, T.C. Memo.
1987-434, affd. without published opinion sub nom. New Resources
v. Commissioner, 857 F.2d 1471 (5th Cir. 1988). (taxpayer's use
of corporate funds as capital investment in new corporation,
stock of which was held in his own name, was income to him as a
constructive dividend).
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his personal return, his failure to do so was an honest mistake.
Respondent views differently the same evidence.
Respondent argues that the cash amounts represent earnings
of E & A of Illinois skimmed by petitioner as "diverted
receipts", or constructive dividends, that petitioner should have
reported as taxable income on his personal return. Respondent
argues that the Savage return only reported the disputed amounts
after petitioner discovered he was under criminal investigation
by the IRS and is itself an act in continuation of petitioner's
fraud for the year 1982.
Even where the nonmoving party on a motion for summary
judgment would have the burden of proof at trial on an issue, she
is entitled to have the most favorable inferences drawn in her
behalf and to be given the benefit of favorable legal theories
invoked by the evidence. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986); Charbonnages de France v. Smith, 597 F.2d
406, 414 (4th Cir. 1979).
The present record indicates a 3-year pattern of unexplained
excess cash expenditures by petitioner as well as extensive uses
of currency. In addition, we cannot overlook petitioner's
stipulation to pleading guilty to the criminal violation of
filing a false individual income tax return for the year 1980.
In a signed plea agreement with the Government, petitioner
admitted receiving income from "skimming cash proceeds from
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Entertainment & Amusement, Inc." which he knew he was required to
report but nevertheless did not.24
Finally, we have previously described other facts in the
record from which a trier of fact might infer attempts by
petitioner to conceal assets. These are all potential "badges of
fraud".25
Conclusion
Petitioner seems to believe that factual ambiguities in the
record require a decision in his favor on this motion. However,
when considering a motion for summary judgment, "the judge's
function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine
issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986); accord Shiosaki v. Commissioner, 61 T.C. 861, 862
(1974).
Petitioner has neither produced evidence negating an
essential element of respondent's case, nor has he shown a
24
Petitioner's criminal conviction for 1980 is admissible
and may be relevant to prove "motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident". Fed. R. Evid. 404(b).
25
See Bradford v. Commissioner, 796 F.2d 303, 307 (9th Cir.
1986), affg. T.C. Memo. 1984-601 (recites a nonexclusive list of
"badges of fraud"); Padow v. Commissioner, T.C. Memo. 1987-250,
affd. without published opinion 843 F.2d 1388 (4th Cir. 1988).
(prior conviction for criminal tax violation for first of 3 years
was evidence of fraudulent intent for remaining 2 years), citing
Farber v. Commissioner, 43 T.C. 407, 421 n.10, modified 44 T.C.
408 (1965).
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"complete failure of proof" in the record on an essential element
of respondent's case. Petitioner has failed to make the initial
showing required by Rule 121(b) and Celotex Corp. v. Catrett, 477
U.S. 317 (1986). We, as a result, find that petitioner has
failed to show that there is no genuine issue as to any
materialfact and that a decision may be rendered as a matter of
law as to the deficiency and additions to tax for the year 1982.
We therefore deny petitioner's motion for partial summary
judgment.
An appropriate order
will be issued.