T.C. Memo. 1996-452
UNITED STATES TAX COURT
ROBERT D. GROSSMAN, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 20526-90, 14364-91. Filed October 7, 1996.
P, a tax attorney, effectively controlled the daily
operations of a group of closely held corporations (C). The
corporations were owned by P’s wife (W), W’s mother, and W’s
brother. In 1983 through 1986, P and W took personal
vacation trips, which P caused C to pay for. C’s payments
of the personal expenses of P and W were constructive
dividends to W. P and W omitted to report these
constructive dividends on their 1983 through 1986 joint tax
returns. The notices of deficiency for 1983 through 1988
were sent to P and W more than 3 years after P and W filed
their joint tax returns for 1983, 1984, and 1985. R
contends that many of these omissions for 1983 through 1986
were due to P’s fraud. P denies the omissions, denies
fraud, and contends that, if there are deficiencies, then he
is entitled to innocent spouse treatment for 1986.
1. Held: The statute of limitations does not bar the
assessment and collection of tax for 1985, but is a bar as
to 1983 and 1984. Sec. 6501(c)(1), I.R.C. 1954.
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2. Held, further, P is liable for fraud additions to
tax for 1985 and 1986. Sec. 6653(b)(1), I.R.C. 1954; sec.
6653(b)(1)(A), I.R.C. 1986.
3. Held, further, P is liable for additional
additions to tax for 1985 and 1986 based on the portions of
the deficiencies attributable to P’s fraud; amounts
determined. Sec. 6653(b)(2), I.R.C. 1954; sec.
6653(b)(1)(B), I.R.C. 1986.
4. Held, further, P is liable for negligence
additions to tax based on the portion of the 1986 deficiency
that is not attributable to fraud; amounts determined. Sec.
6653(a)(1), I.R.C. 1986.
5. Held, further, amounts of deficiencies
redetermined.
6. Held, further, P is not entitled to innocent
spouse treatment. Sec. 6013(e), I.R.C. 1986.
Robert D. Grossman, Jr., pro se.
Stephen L. Braga and Eric F. Horvitz, for petitioner.
John C. McDougal, for respondent.
TABLE OF CONTENTS
MEMORANDUM FINDINGS OF FACT AND OPINION................ 4
FINDINGS OF FACT....................................... 7
A. Background..................................... 7
B. Sley Corporations.............................. 10
1. Background.................................. 11
2. Investments................................. 12
3. Daily Operations: 1980 through March 1986.. 19
4. Daily Operations: After March 1986......... 28
C. Salaries and Dividends......................... 30
D. Travel and Entertainment Expenses.............. 32
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1. 1983........................................ 34
2. 1984........................................ 43
3. 1985........................................ 47
4. 1986........................................ 55
E. Financial Statements, Tax Returns, Audits,
Notice of Deficiency......................... 67
F. Interest Expense for 1987...................... 78
OPINION................................................ 80
I. Statute of Limitations.............................. 80
A. Underpayments of Tax........................... 86
(1) 1983....................................... 91
(2) 1984....................................... 100
(3) 1985....................................... 106
(4) 1986....................................... 117
(5) Conclusions................................ 119
B. Fraudulent Intent.............................. 120
(1) Petitioner’s Knowledge of
Credit Card Charges..................... 122
(2) Petitioner’s Knowledge of Payments......... 123
(3) Petitioner’s Knowledge of Berger’s
Limited Role............................ 124
(4) Petitioner’s Knowledge of the Tax Laws..... 125
(5) Petitioner’s Misleading Explanations....... 128
(6) Other Considerations....................... 133
C. Conclusions.................................... 141
II. Additions to Tax.................................. 141
A. Fifty-Percent Fraud Addition--1985............. 141
B. Additional Amount for Portion
Attributable to Fraud--1985.................. 142
C. Fraud Additions--1986.......................... 143
D. Negligence Additions--1986..................... 146
III. Amounts of Deficiencies........................... 147
A. Amount of Constructive Dividends............... 147
B. Interest Deduction............................. 148
IV. Innocent Spouse Relief............................ 152
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MEMORANDUM FINDINGS OF FACT AND OPINION
CHABOT, Judge: Respondent determined deficiencies in
Federal individual income tax, deficiencies in Federal excise tax
under section 49731 (excess I.R.A. contributions), and additions
to tax under sections 6653(b) (fraud) and 6661 (substantial
understatement of income tax) against petitioner as follows:
Deficiency Additions to Tax
Sec.6653 Sec.6653 Sec.6653 Sec.6653
Year Income Tax Excise Tax (b)(1) (b)(2) (b)(1)(A) (b)(1)(B) Sec. 6661
1
1983 $12,740 $105 $6,370 -- -- --
2
1984 15,917 210 7,959 -- -- --
3
1985 14,924 315 7,462 -- -- $3,652
4
1986 6,400 -- -- -- $4,800 --
5
1987 4,778 315 -- -- 221 --
1988 2,886 -- -- -- -- -- --
1
50 percent of the interest due on $12,635.
2
50 percent of the interest due on $3,856.
3
50 percent of the interest due on $14,609.
4
50 percent of the interest due on $6,400.
5
50 percent of the interest due on $294.
Respondent determined in the alternative that, if petitioner
is not liable for part or all of the additions to tax for fraud
for 1986, then petitioner is liable for negligence additions to
tax under subparagraphs (A) and (B) of section 6653(a)(1).
Docket No. 20526-90 deals with 1986, a joint tax return
year. Docket No. 14364-91 deals with 1983, 1984, 1985, and 1987,
1
Unless indicated otherwise, all section references are
to sections of the Internal Revenue Code of 1954, or the Internal
Revenue Code of 1986, as in effect for the respective years in
issue.
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all joint tax return years, and 1988, a separate tax return year.
The dockets are consolidated for trial, briefing, and opinion.
The joint returns were filed by petitioner and his then-wife,
Betsy Grossman, hereinafter sometimes referred to as Betsy.
After concessions2 and deemed concessions3 by both sides,
2
Petitioner concedes the 1988 deficiency; he also
concedes the 1987 innocent spouse contention.
Respondent concedes that petitioner’s taxable income should
not be increased by $1,400 for each of the years 1983 through
1986 on account of the value of tax return preparation services
paid on behalf of petitioner and Betsy by corporations in which
Betsy owned stock. Respondent also concedes that petitioner is
not liable for additions to tax for fraud for 1987, nor is
petitioner liable for excise taxes under sec. 4973 for 1983,
1984, 1985, and 1987. On the latter issue, see, e.g., Johnson v.
Commissioner, 74 T.C. 1057, 1062 (1980), affd. 661 F.2d 53 (5th
Cir. 1981).
On opening brief, respondent “concedes the medical
reimbursement adjustment to constructive dividends in 1983, 1984
and 1985 as de minimis.” In the notice of deficiency, respondent
determined the following adjustments for medical reimbursements:
An upward adjustment of $508 for 1983, a downward adjustment of
$411 for 1984, and an upward adjustment of $55 for 1985.
Respondent’s unilateral (i.e., not by stipulation) “concession”
for 1984 would increase petitioner’s deficiency for this year.
Respondent has not asked for an increased deficiency for 1984;
see sec. 6214(a).
3
In the notice of deficiency, respondent disallowed
Schedule W deductions under sec. 221 (the two-earner deduction)
for 1983, 1984, and 1985. Respondent also determined that
petitioner’s taxable income should be increased by $1,400 for
1987 for the value of tax return preparation services paid on
behalf of petitioner and Betsy. See supra note 2 as to the same
issue for 1983 through 1986. On opening brief, petitioner
listed, but failed to argue these issues. Respondent dealt with
both of these issues on opening brief. Petitioner did not deal
with either of these issues on answering brief.
(continued...)
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the issues for decision are as follows:
(1) Whether the assessment and collection of
deficiencies and additions to tax for 1983, 1984, and 1985
are barred by the statute of limitations, section 6501(a),
or are allowed under the fraud exception, section
6501(c)(1), to the general period of limitations.
(2) If assessment and collection are not barred for
1983, 1984, and 1985, then, for each of those years--
(a) whether petitioner is liable for civil fraud
additions to tax under paragraphs (1) and (2) of
section 6653(b) and, as to paragraph (2) of section
6653(b), in what amounts.
3
(...continued)
We treat petitioner’s failure to argue as, in effect, a
concession by petitioner of these issues. See subpars. (4) and
(5) of Rule 151(e); Sundstrand Corp. v. Commissioner, 96 T.C.
226, 344 (1991); Money v. Commissioner, 89 T.C. 46, 48 (1987).
In the notice of deficiency, respondent disallowed
deductions for contributions to an I.R.A. under sec. 219 for
1983, 1984, and 1985, and determined that petitioner is liable
for an addition to tax for substantial understatement of
liability under sec. 6661 for 1985. Respondent dealt with both
of these issues on opening brief. Petitioner neither listed nor
dealt with either of these issues on opening brief or answering
brief. We conclude that petitioner has conceded these issues.
See subpars. (4) and (5) of Rule 151(e); Sundstrand Corp. v.
Commissioner, supra; Money v. Commissioner, supra.
Unless indicated otherwise, all Rule references are to the
Tax Court Rules of Practice and Procedure.
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(b) what is the amount of petitioner’s unreported
gross income.
(3) For 1986--
(a) whether petitioner is liable for civil fraud
additions to tax under subparagraphs (A) and (B) of
section 6653(b)(1) and, as to subparagraph (B) of
section 6653(b)(1), in what amount.
(b) what is the amount of petitioner’s unreported
gross income.
(c) whether petitioner qualifies for innocent
spouse treatment under section 6013(e).
(4) For 1987, whether petitioner overstated an
itemized interest deduction by $8,559.
FINDINGS OF FACT
Some of the facts have been stipulated; the stipulations and
the stipulated exhibits are incorporated herein by this
reference.
When the petitions were filed in the instant cases,
petitioner resided in Chevy Chase, Maryland.
Background
Petitioner is a sophisticated taxpayer. Petitioner is a
practicing attorney; he holds a J.D. degree from the University
of Florida and an LL.M. in Taxation degree from New York
University. Petitioner was a senior trial attorney in the Trial
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Branch of the Tax Court Litigation Division, Office of Chief
Counsel, Internal Revenue Service, from 1971 through July 1975.
Since July 1975, petitioner has been engaged in private practice,
specializing in Federal tax law, and is currently a member of the
bar of this Court. Petitioner was a name partner in the law firm
of Grossman & Flask, located in Washington, D.C., during the
years in issue. Petitioner does not prepare tax returns for
himself or others.
Petitioner and Betsy married in 1967. They had three
children, two daughters and a son, who were born in the 1970’s--
RobBee (1970), Wendi (1973), and Geoffrey (1976). Petitioner and
Betsy were married during the years in issue; they separated in
September 1986 and divorced in 1991.
Betsy holds a bachelor of science degree from the University
of Colorado and a masters degree in special education and
learning disabilities from the University of Florida. In 1966,
Betsy worked for the Sley Corporations, described infra. For
about 2 years, Betsy was employed as a schoolteacher and earned a
yearly salary of about $5,100. At some point, Betsy was employed
as a substitute teacher and as a gift store clerk for “minimal”
salary.
During the years in issue, petitioner and Betsy had only one
joint checking account. Through September 1986, this was
petitioner’s only checking account. Betsy wrote and signed
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almost all the checks drawn on this account. While petitioner
and Betsy were married, petitioner deposited his earnings into
the joint bank account, and Betsy was responsible for spending
these funds. Betsy made the decisions regarding petitioner’s and
Betsy’s expenditures.
Betsy is the daughter of Harry Sley, hereinafter sometimes
referred to as Harry, and Beatrice Sley, hereinafter sometimes
referred to as Beatrice. Harry died on December 11, 1977.
During the years in issue, Beatrice generally divided her time
between Potomac, Maryland, and Miami, Florida. From about May to
November, Beatrice lived at least part of the time in a home in
Potomac, which she rented from petitioner and Betsy. From about
November to May, Beatrice lived in a Miami Beach condominium that
she owned. Beatrice died in 1991.
Betsy’s brother, Benjamin Harry Beryll Sley, hereinafter
sometimes referred to as Ben, lived in Corpus Christi, Texas,
during the years in issue. Ben is an attorney; he holds a J.D.
degree from Baylor Law School (1974) and an LL.M. in Taxation
degree from Southern Methodist University (1982).4 He was first
in his class at Southern Methodist University. From 1975 to
1979, Ben served as a judge advocate in the U.S. Marine Corps.
4
The parties stipulated that Ben received his LL.M. in
Taxation degree from New York University. Our finding, contrary
to the stipulation, is in accord with Ben’s trial testimony and
petitioner’s proposed finding, not objected to by respondent.
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During the years in issue, Ben practiced law in Texas. He is
also a registered stockbroker and a consolidated life
underwriter. In 1984, Ben ran for county attorney in Neuces
County, Texas.
Petitioner, Betsy, and Ben grew up in the Miami, Florida,
area. Petitioner and Betsy went to the same high school.
Petitioner and Ben have known one another since they were
children, and petitioner was best man at Ben’s wedding.
Petitioner’s parents also lived in the Miami area during some
part of the years in issue.
Sley Corporations
Background
Harry formed a number of corporations to conduct parking
lot, garage, and real estate investment businesses in more than
60 locations in Philadelphia, Pennsylvania. In general, these
corporations, hereinafter sometimes referred to collectively as
the Sley Corporations, owned and operated properties at different
locations.
The Sley Corporations’ businesses and offices originally
were located in Philadelphia; they remained in Philadelphia,
until the fall of 1980, when the offices were moved to
Washington, D.C. The Sley Corporations include Brine Corp.,
Girard Holding Co., Inc., Markette Corp. (hereinafter sometimes
referred to as Markette), Parkette Corp. (hereinafter sometimes
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referred to as Parkette), Chestnut Parking Corp., Locust Corp.,
Nine Ten Chestnut Corp., Stephen Girard Investment Corp., and
Twelfth and Sansom Corp. Parkette is the administrative umbrella
for the Sley Corporations.
Some of the Sley Corporations became holding companies when
Harry sold some of the parking lots and garages, and kept the
proceeds of the sales in those corporations.
Harry was the president of each of the Sley Corporations,
and controlled them, until his death in 1977. At that time, some
of the Sley Corporations were still operating as landlords.
After Harry’s death, Beatrice and Lorraine Hicks, hereinafter
sometimes referred to as Hicks, Harry’s secretary for 50 years,
oversaw the investments of the Sley Corporations and continued to
sell some of the lots that some of the Sley Corporations held.
Hicks resigned from the Sley Corporations in the fall of 1980.
Betsy was a corporate officer of each of the Sley
Corporations during the years in issue; she first became an
officer of some of these corporations in the 1960’s. After
Harry’s death, all of the stock in the Sley Corporations has been
owned, either directly or beneficially (through inter vivos and
testamentary trusts) by Beatrice, Betsy, and Ben. Harry intended
that all the Sley Corporations stock was to be owned exclusively
by Beatrice, Betsy, and Ben; he intended that in-laws, such as
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petitioner, would not have an ownership interest in the Sley
Corporations.
Investments
In 1978, after Harry died, Ben started to become interested
in learning about investments and began going to seminars and
reading financial publications. In 1979, Ben began taking an
active role in the investment decisions of the Sley Corporations.
Ben devised investment strategies for the Sley Corporations. On
September 20, 1979, Ben bought 1,750 Krugerrands at a cost of
about $700,000 for the Sley Corporations. On October 3, 1979,
Ben sold the 1,750 Krugerrands at a profit of about $40,000 for
the Sley Corporations. On October 4, 1979, Ben bought 38
diamonds at a cost of $2,369,190 for the Sley Corporations. On
October 9, 1979, Ben bought another 1,750 Krugerrands at a cost
of about $700,000 for the Sley Corporations. At some later date,
Ben and petitioner traveled to New York to receive the diamonds.
Each of them wore a money belt that contained more than $1
million worth of diamonds, which they carried to Washington,
D.C., and then put into the Sley Corporations’ safe deposit box
in a Washington, D.C., bank. Ben received a Gemological
Institute of America (hereinafter sometimes referred to as GIA)
certificate for each diamond. A GIA certificate is a written
description of a diamond’s physical characteristics. At various
other dates, Ben bought (in 1979 and 1980) and sold (in 1980)
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Krugerrands for the Sley Corporations. The sales produced a 1980
profit of $75,150 for the Sley Corporations.
In 1981, there was a very rapid drop in the prices of both
diamonds and gold.
In 1980, Ben was employed as a stockbroker; he engaged in
transactions on behalf of the Sley Corporations that year. In
1981, Ben went back to law school full-time. From 1981 through
1986, Ben did not perform any investment services for the Sley
Corporations other than generally keeping abreast of financial
markets for the Sley Corporations and for his own investment
purposes, and reviewing monthly account statements from the banks
at which the Sley Corporations had cash management accounts. In
1987, Ben made some investments for Markette’s pension and
profit-sharing plan.
On January 20, 1984, Girard Holding Co., Inc., sold land and
parking lot improvements for $640,000; it reported a $511,658
gain on this sale. Twelfth and Sansom Corp. was liquidated in
1985. The liquidation included about $1 million worth of assets.
Apart from the disposition of Krugerrands when Twelfth and
Sansom Corp. was going through its liquidation, none of the Sley
Corporations bought or disposed of any Krugerrands or diamonds
between the end of 1980 and the end of 1986. See infra table 1.
In fact, the Sley Corporations still owned those same Kruggerands
and diamonds during the trial of the instant cases.
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Table 1 shows the investment portfolios of the Sley
Corporations for 1980 through 1986. The values shown are the
historical costs of these assets. Apart from the limited buying
and selling of certificates of deposit and moving money from one
bank or account to another done by petitioner, see infra, the
1984 Girard Holding Co., Inc., land and parking lot sale, and the
1985 Twelfth and Sansom Corp. liquidation, the assets held by the
Sley Corporations did not change during the years in issue. The
cash management accounts shown in table 1 were accounts held at
the trust department of a bank; the trust department
automatically fully invested the accounts’ income and principal
on a daily basis.
Table 1
Brine Corporation
Asset 1980 1981 1982 1983 1984 1985 1986
Cash management acct $1,556,190 $1,533,220 $1,957,913 $1,984,248 $937,270 $817,270 $1,627,989
Diamonds 518,001 518,001 518,001 518,001 518,001 518,001 518,001
Krugerrands 96,180 96,180 96,180 96,180 96,180 96,180 96,180
Affiliate 100 100 100 100 100 100 100
Marketable securities 48,750 48,750 48,750 48,750 48,750 48,750 48,750
Certificates of deposit -- -- -- -- 1,030,822 1,088,863 --
Totals $2,219,221 $2,196,251 $2,620,944 $2,647,279 $2,631,123 $2,569,164 $2,291,020
Girard Holding Co., Inc.
Asset 1980 1981 1982 1983 1984 1985 1986
Cash management acct $752,260 $745,700 $762,823 $815,823 $963,819 $855,717 $1,245,356
Diamonds 101,269 101,269 101,269 101,269 101,269 101,269 101,269
Krugerrands 96,180 96,180 96,180 96,180 96,180 96,180 96,180
Affiliate 1,725 1,725 1,725 1,625 1,625 1,625 200
Ready assets -- 917 1,032 1,123 1,241 1,342 1,428
Marketable securities 188,703 188,703 188,703 188,703 188,703 188,703 173,603
Repurchase agreement -- 5,000 5,337 5,796 6,350 6,805 7,185
Certificates of deposit -- -- -- -- 395,980 429,934
Totals 1,140,137 1,139,494 1,157,069 1,210,519 1,755,167 1,681,575 1,625,221
Markette Corporation
Asset 1980 1981 1982 1983 1984 1985 1986
Cash management acct $2,838,000 $2,790,680 $2,755,258 $2,710,130 $839,386 $766,980 $2,195,735
Diamonds 1,477,377 1,477,377 1,477,377 1,477,377 1,477,377 1,477,377 1,477,377
Krugerrands 96,180 96,180 96,180 96,180 96,180 96,180 96,180
Affiliate 100 100 100 100 100 100 100
Repurchase agreements 19,000 -- -- -- -- -- --
Certificates of deposit -- -- -- -- 1,681,386 1,570,098
Totals 4,430,657 4,364,377 4,328,915 4,283,787 4,094,429 3,910,735 3,769,392
Chestnut Parking Corporation
Asset 1980 1981 1982 1983 1984 1985 1986
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Cash management acct $50,700 $45,000 $45,032 $45,032 $45,032 $28,032 $27,032
Diamonds 269,745 269,745 269,745 269,745 269,745 269,745 269,745
Krugerrands 96,180 96,180 96,180 96,180 96,180 96,180 96,180
Affiliate 100 100 100 100 100 100 100
Totals 416,725 411,025 411,057 411,057 411,057 394,057 393,057
Con’t. Table 1
Locust Corporation
Assets 1980 1981 1982 1983 1984 1985 1986
Cash management acct $32,260 $22,970 $22,974 $22,974 $22,974 $20,974 $19,774
Diamonds 252,842 252,842 252,842 252,842 252,842 252,842 252,842
Krugerrands 96,180 96,180 96,180 96,180 96,180 96,180 96,180
Affiliate 100 100 100 100 100 100 100
Totals 381,382 372,092 372,096 372,096 372,096 370,096 368,896
Nine Ten Chestnut Corporation
Asset 1980 1981 1982 1983 1984 1985 1986
Cash management $11,000 $497,980 $416,126 $416,127 $412,327 $312,327 $297,327
Krugerrands 13,740 13,740 13,740 13,740 13,740 13,740 13,740
Affiliate 100 100 100 100 100 100 100
Ready assets 16,567 18,666 20,298 22,435 24,248 25,817
Repurchase agreement 15,000 16,012 17,388 19,050 20,415 21,562
Totals $24,840 543,387 464,644 467,653 467,652 370,830 358,546
Stephen Girard Investment Corporation
Asset 1980 1981 1982 1983 1984 1985 1986
Cash management acct $113,700 $99,900 $99,708 $99,708 $99,708 $99,708 $99,708
Diamonds 100,125 100,125 100,125 100,125 100,125 100,125 100,125
Krugerrands 96,180 96,180 96,180 96,180 96,180 96,180 96,180
Affiliate 100 100 100 100 100 100 100
Totals 310,105 296,305 296,113 296,113 296,113 296,113 296,113
Twelfth and Sansom Corporation
Asset 1980 1981 1982 1983 1984 1985 1986
Cash management acct $286,870 $288,390 $969,655 $845,655 $845,655 -- --
Krugerrands 96,180 96,180 96,180 96,180 96,180 -- --
Affiliate 100 100 100 100 100 100 100
Ready assets -- 821 925 1,005 1,111 -- --
Repurchase agreement -- 15,000 16,012 17,388 19,050 -- --
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Marketable securities 84,500 84,500 84,500 84,500 84,500 84,500 --
Totals 467,650 484,991 1,167,372 1,044,828 1,046,596 84,600 100
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Daily Operations: 1980 Through March 1986
In the fall of 1980, after Hicks resigned, the business
offices of the Sley Corporations were moved from Philadelphia to
Washington, D.C., into space sublet from and adjacent to Grossman
& Flask’s office. Later, when the Grossman & Flask office was
moved, the Sley Corporations’ office was simultaneously moved, so
that the Sley Corporations’ office remained in sublet office
space of Grossman & Flask throughout the years in issue. When
the Sley Corporations’ offices moved to Washington, D.C.,
petitioner took control of the daily operations of the Sley
Corporations. Betsy did not give petitioner directions as to how
to run the daily operation of the Sley Corporations.
Tanja Baybrook, hereinafter sometimes referred to as
Baybrook, was the bookkeeper for the Sley Corporations from
September 1980 to March 1986. She has a B.S. degree in
accounting from Northeastern University. Petitioner interviewed
and hired Baybrook for this bookkeeping position. Petitioner
explained to Baybrook her duties with the Sley Corporations, and
told her that she was to report to him in connection with that
work. Petitioner supervised Baybrook in carrying out her duties
for the Sley Corporations. During Baybrook’s interview,
petitioner told her that he was administering the Sley
Corporations. Baybrook saw Betsy and Ben in the Sley
Corporations’ office on a few occasions, but not on a regular
basis; she saw Beatrice there only once. Baybrook never received
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instructions as to how to perform her duties from Beatrice,
Betsy, or Ben. Baybrook’s salary started at about $15,000 per
year and increased a little over time.
In early 1981, Baybrook also began doing the bookkeeping for
Grossman & Flask. Baybrook spent about 75 percent of her time
doing the bookkeeping for Grossman & Flask. Baybrook was paid by
Parkette; she was not paid by Grossman & Flask. Petitioner
explained to Betsy that, because he was not being paid directly
for his administrative work on behalf of the Sley Corporations,
Parkette’s payment of Baybrook’s entire salary was, in effect, an
indirect way of the Sley Corporations paying for his
administrative work.
Pursuant to her duties for the Sley Corporations, Baybrook
did bank reconciliations, disbursed payroll checks, and prepared
general ledger and payroll quarterly tax returns; she also
prepared checks for paying bills, and prepared summary financial
statements and monthly financial statements. Baybrook created,
among other documents, computerized books of accounts and bank
statements for the investment accounts of Brine Corp., Girard
Holding Co., Inc., and Markette. Baybrook did this work after
discussing it with petitioner, and chose the computer and program
after petitioner approved the purchases. Baybrook did not
prepare any minutes for the Sley Corporations. Baybrook
occasionally prepared corporate correspondence, which generally
was signed by petitioner.
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Baybrook opened the Sley Corporations’ mail. For those
bills that came into the office that were readily identifiable,
Baybrook prepared checks as payment; for those bills that she had
questions about, she asked petitioner. Petitioner told Baybrook
which of the Sley Corporations would pay a particular bill;
Baybrook used her own judgment to categorize the expenses on the
Sley Corporations’ books. Baybrook prepared the checks as
payment for bills that came in on a particular day, attached the
bills to the checks, then took the bills and checks to petitioner
so that he could review the bills and sign the checks.
Petitioner closely reviewed the checks that Baybrook prepared
against each underlying bill.
Petitioner usually signed the Sley Corporations checks
prepared by Baybrook. Betsy occasionally signed Sley
Corporations checks. Baybrook generally prepared about 12 Sley
Corporations checks per month as payments for dividends, rent,
telephone, payroll, and travel, although there was heavier
activity in some months. Petitioner signed more than 98 percent
of the Sley Corporations checks that were written from January 1,
1983, thought March 31, 1986.
The invoices that came into the Sley Corporations’ offices
from American Express discussed infra (under Travel and
Entertainment Expenses), were processed a bit differently. These
invoices were addressed primarily to petitioner at his home.
Petitioner usually brought these invoices to Baybrook and told
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her which of the Sley Corporations would pay for the charges on a
particular invoice. If Baybrook had a question as to which of
the Sley Corporations would pay for a particular charge, then
Baybrook asked petitioner. Baybrook prepared the check, attached
the invoice to the check, and returned the invoice with the
attached check to petitioner for his final review. Petitioner
closely reviewed the checks that Baybrook prepared against each
invoice; he also reviewed each transaction on each invoice.
Baybrook categorized these charges as “TRAVEL/TRANSPORTATION”
expenses on Markette’s books and records. Petitioner never told
Baybrook that a travel expense was personal, as opposed to
business, and thus was not to be paid by the Sley Corporations.
At one time, when Baybrook was going to Orlando, Florida, for
personal purposes, petitioner asked Baybrook to check on the
health of two people who were receiving checks from Harry’s
estate. Petitioner arranged for Baybrook to be paid $200 by the
Sley Corporations, which was payment for her time and the
expenses she incurred while doing work for Harry’s estate5 while
in Florida, not the cost of her entire trip to Florida.
Baybrook prepared Sley Corporations’ payroll checks to be
paid to Beatrice, Betsy, and Ben. Petitioner told Baybrook the
5
Petitioner’s proposed finding 318 states that this work
was for Markette. Respondent did not object to this proposed
finding. Nevertheless, Baybrook’s detailed testimony, on which
petitioner’s proposed finding was based, makes it clear that the
work was done for Harry’s estate, and we have so found.
- 23 -
amount for which each payroll check should be written and later
told her when the amounts of the payroll checks changed. See
infra Salaries and Dividends. Baybrook was not told the reasons
for the changes. When petitioner gave these instructions to
Baybrook, he did not indicate to her that he was passing on
instructions from the Sley Corporations’ officers. Baybrook also
prepared the Sley Corporations payroll tax returns; petitioner
signed them. Petitioner signed Sley Corporations tax returns as
an “officer”; the “title” he used was “attorney”.
Baybrook prepared summary financial statements of
petitioner’s income based on the books she kept for the Sley
Corporations and for Grossman & Flask; Baybrook did not intend
that these summaries be all-inclusive, but she tried and intended
to include everything that occurred “inside the office”--that is,
the income from Grossman & Flask and from the Sley Corporations.
Baybrook was not asked by petitioner to prepare the summary
financial statements; Baybrook prepared them as a courtesy to
Harvey J. Berger, hereinafter sometimes referred to as Berger,
the accountant who, from 1980 on, prepared the Sley Corporations’
tax returns and petitioner’s and Betsy’s joint tax returns.
Baybrook gave the summary financial statements to petitioner so
that he could make sure that all items of income and deductions
were included. Baybrook was never asked to prepare a schedule of
constructive dividends.
- 24 -
During 1983 through March 1986, when Baybrook left the Sley
Corporations, Baybrook did not have any communication with either
Beatrice, Betsy, or Ben about the Sley Corporations. During
these years, Baybrook did not send to Beatrice, Betsy, or Ben
copies of bills, the financial statements she prepared, or any
other correspondence that came into the office. Baybrook did not
see any correspondence that was signed or received by Beatrice,
Betsy, or Ben on behalf of the Sley Corporations, except for (1)
occasional checks signed by Betsy or (2) promissory notes signed
by Sley Corporations officers. During this period, Baybrook was
in the Sley Corporations offices virtually every day, except when
she was on vacation.
Betsy did not direct either petitioner or Baybrook as to
which, if any, of the Sley Corporations should pay for the
expenses appearing on the American Express invoices. Petitioner
checked with Betsy as to whether Betsy charged particular items
or incurred particular expenses, but he did not ask Betsy whether
particular expenses should be paid by the Sley Corporations.
Neither Betsy nor Ben gave petitioner instructions to pass along
to Baybrook as to the amount of salary Beatrice, Betsy, and Ben
were to receive, nor did they give instructions as to which of
the Sley Corporations were to pay the salaries.
In addition to supervising Baybrook and running the daily
operations of the Sley Corporations, petitioner transferred money
among the Sley Corporations’ bank accounts and bought
- 25 -
certificates of deposit for the Sley Corporations. For example,
in July 1984, petitioner told Baybrook to telephone the Mellon
Bank, where Markette had an investment account, and have $1
million transferred from the Mellon Bank to the National
Permanent Bank of Washington to buy certificates of deposit. In
October 1984, petitioner told Baybrook to telephone the Mellon
Bank and have that bank transfer $75,000 to Markette’s checking
account.
On February 3, 1986, petitioner moved the amounts shown in
table 2 from the National Permanent Bank of Washington and
deposited these funds into accounts he had opened in the names of
the Sley Corporations at the National Bank of Washington.
Table 2
Corporation Amount Transferred
Markette $1,663,963.84
Brine Corp. 1,171,718.68
Girard Holding Co. 433,638.66
On February 4, 1986, petitioner transferred by wire
$432,638.66 from Girard Holding Co., Inc.’s account at the
National Bank of Washington to the Mellon Bank. On February 4 or
5, 1986, $1,170,718.68 was transferred by wire to Brine Corp.’s
account at Mellon Bank and $1,654,754.92 was transferred by wire
to Markette’s account at Mellon Bank. Generally, Ben was not
involved in decisions to invest money in particular certificates
of deposit or to move money from one bank or account to another;
- 26 -
however, petitioner did speak to Ben before he moved funds out of
the National Permanent Bank of Washington in February 1986.
In January 1981, petitioner became the named fiduciary for
the Markette Corporation Comprehensive Health Plan, which was
created at that time. Petitioner was the administrator and one
of the trustees of the Parkette Corporation Profit Sharing Plan
and also of the Parkette Corporation Pension Plan. Both of these
plans were established “as of” December 31, 1980, and both plans
covered employees of all the Sley Corporations. In 1984,
petitioner handled the sale of real estate that belonged to one
of the Sley Corporations.
From 1980 to about March 1986, Betsy did not take an active
interest in the Sley Corporations, nor did she have a working
knowledge of the Sley Corporations’ operations. During the years
in issue until March 1986, Betsy entrusted the entire operations
of the Sley Corporations to petitioner so that she could stay at
home to take care of her children; Betsy also was very involved
in civic activities. During the years in issue until 1986, Betsy
and petitioner had, in Betsy’s words, an “old-fashioned
relationship” where she took care of the children and the
household, and petitioner took care of business matters, those
being his law practice and the daily operations of the Sley
Corporations. However, see our findings as to petitioner’s and
Betsy’s joint checking account, under Background, supra.
- 27 -
Before 1986, Betsy had a general understanding of what
assets the Sley Corporations held, participated in general family
discussions about the Sley Corporations, and “just read up on
different things and the Wall Street Journal.” From 1980 through
about March 1986, Betsy did not go into the Sley Corporations’
office, review the monthly financial statements, or sign Sley
Corporations’ correspondence on a regular basis. From 1979
through early 1986, Betsy merely signed whatever petitioner asked
her to sign. Before 1986, Betsy did not have any involvement in
the preparation, review, or filing of the Sley Corporations’ tax
returns.
Ben lived in Texas during the years in issue and did not
take responsibility for, nor have any involvement in, the daily
operations of the Sley Corporations. Ben received copies of the
Sley Corporations’ tax returns, but he did not have any
involvement in the preparation and filing of those tax returns.
In 1984, Ben was involved in decision-making that led to the
liquidation of Twelfth and Sansom Corp. Also in 1984, Ben
proposed consideration of liquidating all the Sley Corporations.
Petitioner and Ben received a letter from Berger stating the pros
and cons of liquidation; Twelfth and Sansom Corp. was the only
one of the Sley Corporations that was liquidated.
In September of 1984, 1985, and 1986, Beatrice, Betsy, and
Ben met as the Markette board of directors, to authorize the
redemption of stock held by trusts of which Betsy and Ben were
- 28 -
the beneficiaries. From 1983 to 1986, these three meetings were
the only meetings held of the Sley Corporations’ directors. The
minutes prepared for these three meetings were the only minutes
prepared for the Sley Corporations for about 1982 through 1989.
During the period 1980 through 1986, petitioner and his law
firm performed legal services for the Sley Corporations. When
such services were performed, Grossman & Flask billed the client
for fees.
Daily Operations: After March 1986
Matters between petitioner and Betsy were deteriorating.
Petitioner and Betsy separated permanently in September 1986.
When Baybrook left the Sley Corporations in March 1986,
Betsy began to become more involved with the operation of the
Sley Corporations. Betsy began signing checks and tax returns;
she interviewed and hired a bookkeeper in July 1986, Bridgette
Coupeon, and a replacement for Bridgette Coupeon in September
1986, Evelyn Wilson, hereinafter sometimes referred to as Wilson.
Maggie-Jo Brown, hereinafter sometimes referred to as Brown,
is an accountant who originally was employed by the accounting
firm of Grant Thornton under Berger’s supervision. The first
week after Brown started at Grant Thornton, in February 1985,
Berger assigned her to prepare the 1984 tax returns and
compilation financial statements for the Sley Corporations.
(For a description of the compilation financial statements, see
Financial Statements, etc., infra.) After Baybrook left the Sley
- 29 -
Corporations, Brown began going into the Sley Corporations’
office on a weekly basis, at night or on the weekend, to do work
for the Sley Corporations that Baybrook had left undone; at this
point, Brown was still employed by Grant Thornton. Brown did the
bookkeeping, made sure that checks were written and payroll tax
returns were filed, and answered correspondence.
Brown first met Betsy and Ben in April 1986. Thereafter,
Brown dealt with both petitioner and Betsy regarding the Sley
Corporations. Over the course of 1986, however, petitioner told
Brown to start directing questions regarding the Sley
Corporations to Betsy. After Wilson was hired as the Sley
Corporations’ bookkeeper in September 1986, Brown no longer went
into the Sley Corporations’ office on a weekly basis and mainly
dealt with Wilson over the telephone about questions concerning
the Sley Corporations when preparing the compilation financial
statements and the tax returns. Although petitioner’s status in
the Sley Corporations’ operations diminished after March 1986, he
continued to play a role throughout 1986.
In January 1987, Betsy, petitioner, and Brown met with a
bond investor; the purpose of the meeting was to have Betsy begin
to think about the investment portfolios of the Sley
Corporations, which had not changed since 1980. See supra table
1. In April 1987, Brown ended her employment with Grant
Thornton. In May 1987, petitioner and Betsy hired Brown to work
for the Sley Corporations as the comptroller; this position
- 30 -
combined the bookkeeping and the tax preparation duties. As a
practical matter, Betsy ran the Sley Corporations by the time
Brown was hired, and Betsy supervised Brown.
Salaries and Dividends
Beatrice started receiving a salary from the Sley
Corporations in 1978, when she and Hicks took over the operations
of the Sley Corporations. Beatrice also received dividends from
the Sley Corporations.
Before 1980, Betsy and Ben received dividends, but not
salaries, from the Sley Corporations. In 1980, Betsy received a
salary of $25,000. From 1981 through 1987, Betsy and Ben each
received salaries of at least $100,000. In 1986, each of them
received a salary of $124,583. Betsy and Ben were not doing
anything more for the Sley Corporations in 1981 and later years
than they were doing before 1981.
Neither Betsy nor Ben set the salaries for themselves or for
their mother. Betsy does not know why she received her salary
from Markette,6 nor does she know why she received the amounts of
salaries she received. Likewise, Ben does not know why he
received his salary from Brine Corp.,7 nor does he know why he
6
Betsy received her salary exclusively from Markette,
except for 1983, when she also received $1,562 from Girard
Holding Co., Inc.
7
Ben received his salary exclusively from Brine Corp.,
except for 1983, when he also received $1,563 from Girard Holding
Co., Inc.
(continued...)
- 31 -
received the amounts of salaries he received. Beatrice, Betsy,
and Ben received salaries from only one or two of the Sley
Corporations, so that, as to any one shareholder or one
corporation, the salaries were grossly disproportionate to the
shareholdings. However, the aggregate salaries of each of them
were closely proportionate to their respective aggregate
ownerships of the Sley Corporations.
Betsy and Ben learned the amounts of their Sley Corporations
salaries from petitioner; they did not direct petitioner on this
matter. Petitioner set Betsy’s and Ben’s Sley Corporations
salaries, at least up to early 1986.
Table 3 shows the amounts that Markette withheld as Social
Security taxes, hereinafter sometimes referred to as F.I.C.A.
taxes, from the amounts Markette paid as salary to Betsy.
Table 3
Year Amount
1983 $2,391.91
1984 2,532.59
1985 2,791.78
1986 3,003.00
1987 3,131.70
1988 3,379.50
At the end of each year, Berger came into the Sley
Corporations’ office to calculate the amounts of the dividends
7
(...continued)
- 32 -
each of the Sley Corporations had to pay out in order to avoid
the personal holding company tax.
Table 4 shows the amounts of Sley Corporations dividends
paid to Betsy and reported on Schedules B of petitioner’s and
Betsy’s joint tax returns.
Table 4
Year Amount
1983 $36,384
1984 1
37,609
1985 13,481
1986 18,153
1
Petitioner’s proposed finding 59, not objected to by
respondent, shows this total as $37,573. Our finding is the sum
of the component dividend amounts, which are correctly
transcribed from petitioner’s and Betsy’s 1984 joint tax return.
The $36 difference between our finding and the total on
petitioner’s proposed finding does not affect our analysis.
Travel and Entertainment Expenses8
8
On brief, in proposed finding 165, respondent asks us
to find that “During the years 1893[sic] through 1986, Markette
paid and deducted the following travel expenses”. The proposed
finding then sets forth the amounts shown on Markette’s tax
returns for those years. In compliance with Rule 151(e)(3),
respondent shows exhibits Q, R, and S, retained copies of
Markette’s tax returns, as the sources in the record supporting
the proposed finding as to what Markette deducted as travel
expenses for 1983, 1984, and 1985. As respondent properly alerts
us on brief, “Exs. Q, R, and S were admitted into evidence for
the limited, non-hearsay, purpose of establishing the
compensation and dividends reported by the corporation.”
Respondent’s counsel limited his offer of those exhibits at trial
to the compensation and dividend information shown on those tax
returns. We overruled petitioner’s objections to that limited
offer. The trial adjourned for the weekend, resumed the
following Monday, and continued for an additional 496 pages of
transcript.
Later that same day, respondent’s counsel properly asked to
expand the limited admission. Respondent’s counsel explained as
(continued...)
- 33 -
During the years in issue, Markette had several American
Express credit card accounts on which credit cards were issued in
petitioner’s name and in Betsy’s name. Petitioner and Betsy
8
(...continued)
follows:
I had stipulated that the nonhearsay purpose for which
I was offering those returns was to prove, I believe I said,
salary and dividends. I would like to modify that to cover
all compensation and dividends.
The Revenue agent, in preparing her summary, included
other things in compensation besides salary, to include
particularly contributions to pension and profit sharing
plans. Those also would be nonhearsay purposes. We don’t
care if they are true or not; we just want to show what was
reported to the IRS.
The Court accepted the expansion. The expansion clearly did not
relate to deductions of travel expenses.
If respondent’s counsel overlooked the travel expenses
matter before the instant cases were submitted and later
concluded that it was important to secure a further expansion,
then respondent’s counsel should have either (1) secured
petitioner’s agreement or (2) moved before opening briefs were
due to reopen the record to expand the limited admission. We do
not believe it is appropriate to allow petitioner to write and
file his opening brief on the assumption that these exhibits were
offered and received only for a specified limited purpose and,
afterward, learn that these exhibits are being used for another
purpose. True, petitioner has (and used) the opportunity to
respond on answering brief. However, if the Court were to accede
to respondent’s request in this situation, then petitioner would
have been deprived of the opportunity to use the expanded
admission in crafting his own proposed findings.
There may be extraordinary circumstances under which such a
delay in presenting the matter may be excusable. We do not
decide that hypothetical; in the instant cases, we do not reach
the question of what we would have ruled if respondent had
presented the matter seasonably. We shall expand the limited
admission. Exhibits Q, R, and S were admitted at trial for
limited purposes and, as so limited, do not support respondent’s
proposed finding.
- 34 -
charged travel and entertainment expenses on these credit cards,
as detailed infra.
Since the 1960’s, Betsy has held credit cards issued in the
name of one or another of the Sley Corporations. Harry
originally gave these credit cards to Betsy. Betsy had used the
credit cards, both before and during the years in issue, without
regard to whether the charges made had a business purpose. Betsy
understood that, as a result, Markette would be paying for the
amounts she charged, and that she and petitioner would not be
paying for these amounts. Petitioner used his Markette American
Express credit card only once after 1986.
When Betsy took a trip without petitioner, she informed him
of the trip.
1983
Table 5 lists certain checks written on the Markette account
in 1983. The table shows the date the check was written, check
number, payee, and amount. All of these checks were signed by
petitioner. Respondent determined that petitioner and Betsy
failed to report $18,611.70 of constructive dividends received
from Markette in 1983, the sum of the checks listed in table 5,
$15,299.88, plus the amount of a $3,311.82 debit memorandum
resulting from a transfer of funds to Media Communications, Inc.9
9
Respondent’s travel and entertainment expense
determinations in the notices of deficiency are based on amounts
of certain Markette checks. It is apparent to us that, in
general, our redetermination should be based on evaluations of
the specific trips or the occasions of the specific entertainment
(continued...)
- 35 -
Table 5
Date Check
1983 Number Payee Amount
Jan. 05 1824 American Express $42.80
Feb. 03 1844 American Express 3,588.87
Mar. 28 1856 American Express 1,038.08
Apr. 18 1862 Eastern Airlines 1,302.00
May 111 1870 American Express 795.59
May 24 1873 American Express 964.41
June 29 1884 American Express 2,210.00
Aug. 04 1896 American Express 3,366.19
2
Sept. 19 115417 American Express 1,001.60
Sept. 29 1903 American Express 496.00
Nov. 113 1912 American Express 494.34
15,299.88
Debit Memorandum4
June 02 -- Media Communications 3,311.82
Total 18,611.70
1
Markette’s cash disbursements journal shows the date as May 9,
but the check itself is dated May 11.
2
Markette’s cash disbursements journal shows the check No. as
115416800, but the check itself is numbered 115417; it appears to
be a counter check.
9
(...continued)
items. The trips often cut across the American Express vouchers
and the Markette checks. It is often difficult to determine
which voucher items are to be matched with a specific trip or
entertainment item, or with a specific Markette check. These
difficulties are heightened in those instances in which American
Express allowed credits for amounts previously paid, but the
record herein does not clearly describe the specific charge that
is being reversed in whole or in part by the specific credit. As
a result, notwithstanding the extensive record and long briefs,
there are many items as to which we have been unable to make
meaningful findings. The sums of these items appear infra in
tables 6, 8, 10, and 12, in the columns headed "Unknown".
- 36 -
3
Markette’s cash disbursements journal shows the date as Nov.
10, but the check itself is dated Nov. 11.
4
Markette’s cash disbursements journal shows this item as check
No. 1877, the date as June 1, and the payee as National Seminar,
Inc. The bank’s debit memorandum itself shows the information
set forth in the table.
During the years in issue, petitioner, Betsy, and the
children usually flew to Miami to see Beatrice in December and in
the spring, and stayed for about one week. No notes or records
were kept of any Miami Sley Corporations’ business discussions.
Baybrook was never asked to make copies of the Sley Corporations’
financial statements to take to Miami, nor was Baybrook asked to
make travel arrangements.
Check No. 1862--Miami. In February 1983, five Eastern
Airlines tickets, costing $1,302, were bought for petitioner,
Betsy, and the children to fly to Miami to visit Beatrice. The
primary purpose of this trip was personal--a family vacation.
These tickets were paid for by Markette check No. 1862.
Check No. 1896--Lake Tahoe. The American Express July
invoice includes petitioner’s charges totaling $1,351.50 for five
United Airlines tickets for petitioner, Betsy, and their children
to fly round-trip from Washington, D.C., to Reno, Nevada. The
primary purpose of this trip was personal--a family vacation to
Lake Tahoe to visit relatives in the area (petitioner’s father
rented a condominium in Lake Tahoe) and to go skiing. These
charges were paid for by Markette check No. 1896. The family
usually went to Lake Tahoe in August. However, petitioner did
- 37 -
not go on this trip, and the $318 charge for his ticket was
refunded by a credit on the American Express August invoice.
Thus, the $318 that was later refunded is not properly part of
the cost of this Lake Tahoe trip.
Check No. 1896, Debit Memo--Hawaii. The American Express
July invoice includes charges totaling $2,014.69 for
miscellaneous hotel and airline expenses on a trip to Hawaii by
petitioner, Betsy, and the children. Petitioner charged all of
these expenses on his Markette American Express credit card. The
primary purposes of this trip were (1) for petitioner to appear
as a panelist on a video conference to be broadcast from Hawaii
by satellite, (2) to meet Howard Ruff (hereinafter sometimes
referred to as Ruff) in person, and (3) to take a family
vacation. These charges were paid for by Markette check No.
1896.
Petitioner was invited to be a panelist by a radio talk show
host, H.I. “Sonny” Bloch, hereinafter sometimes referred to as
Bloch. Bloch’s brother, a Washington, D.C., attorney, was a
client of petitioner. Bloch also became a client of petitioner.
Ruff, a well-known financial adviser, described by petitioner as
“the greatest guru”, was the other panelist. On the video
conference, Ruff spoke about financial aspects of investing, and
petitioner spoke about tax aspects of investing. The video
conference was a segment of “Investor’s Action Line”, a
nationally syndicated television program for investors and
- 38 -
financial specialists. The video conference took place in Hawaii
to accommodate Ruff’s schedule. Ben was an admirer of Ruff and
believed in Ruff’s views. At Ben’s suggestion, petitioner and
Betsy went to a seminar that Ruff was conducting on Maui apart
from his appearance on the video conference, and “went through
the seminar to see what was going on”.
Petitioner, Betsy, and the children checked into a hotel on
Maui on June 7, 1983. The video conference was conducted on June
8, 1983, in Honolulu, on Oahu, and lasted about 2 hours.
Honolulu is about 100 miles from Maui by air. Petitioner, Betsy,
and the children checked into another hotel on Maui on June 13,
1983. Their stay in Hawaii lasted altogether 10 days or more.
The $2,014.69 of charges related to the Hawaii trip includes
two items for $39.95 each. The charge on one of the $39.95 items
was refunded by a credit on the American Express August invoice,
and so is not properly part of the cost of the Hawaii trip.
On June 2, 1983, $3,311.82 was transferred, via debit
memorandum, from Markette to Media Communications, Inc.
Markette’s cash disbursements journal shows a June 1, 1983, check
(No. 1877) in the amount of $3,311.82 to National Seminar, Inc.,
the company that produced the video satellite broadcast on which
petitioner appeared. The record does not include a copy of the
June 1, 1983, check, nor does it enable us to determine whether
the check to National Seminar, Inc., and the June 2, 1983, debit
memorandum to Media Communications, Inc., are essentially the
- 39 -
same transaction. Likewise, the record does not enable us to
determine the purpose of either the check or the debit
memorandum.
There was no, or practically no, Sley Corporations business
purpose for the Hawaii trip, and the predominant purposes of the
Hawaii trip were personal and Grossman & Flask business.
Check Nos. 115417 and 1896--1984 Olympics. On August 12,
1983, Betsy bought $1,359.55 of tickets to the 1984 Olympics in
Los Angeles, and charged this on her Markette American Express
credit card. The tickets were used by petitioner, Betsy, and
their children to attend the 1984 Olympics. The purpose of this
trip was personal. Betsy told petitioner that she would
reimburse Markette for the cost of the Olympics tickets, but she
did not reimburse Markette.
Against the bill for the 1984 Olympics tickets, American
Express allowed credits on account of the $318 Lake Tahoe trip
ticket refund (Check No. 1896--Lake Tahoe, supra) and the $39.95
Hawaii trip ticket refund. Check No. 1896, Debit Memo--Hawaii,
supra. As a result, the American Express August invoice netted
to $1,001.60, which Markette paid by check No. 115417.
Check Nos. 1903, 1912--New York City. On September 29,
1983, Markette issued check No. 1903, in the amount of $496, to
American Express, to pay for round-trip airline tickets to New
York City. On November 11, 1983, Markette issued check No. 1912,
in the amount of $494.34, to American Express, to pay for hotel,
- 40 -
telephone, and meal expenses in New York City. All the charges
were on Betsy’s Markette American Express credit card, but
petitioner signed the credit slips for the hotel, etc., expenses.
The expenses were incurred for a trip by petitioner, Betsy, and
the children to New York City on September 9, 1983, and back on
September 11, 1983. The purpose of this trip was for petitioner
and Betsy to go to the “diamond district” in New York City to
talk with diamond brokers about selling the Sley Corporations’
diamonds. Petitioner and Betsy took GIA certificates on their
visits to the diamond district, but did not take the actual
diamonds. Petitioner and Betsy did not keep notes or records of
their discussions with the diamond brokers, nor did they get
written quotations on the value of their diamonds.
The children were ages 13, 10, and 7 at the time of this New
York trip. Petitioner and Betsy took the children to New York
City because it was more convenient to take the children with
them than to get a babysitter for the children in Maryland.
Petitioner’s and Betsy’s airline tickets cost a total of
$220; the children’s tickets a total of cost $276. Petitioner,
Betsy, and the children took two rooms at the Grand Hyatt New
York; the cost (including taxes) of each room for the two nights
was $183.70. Telephone call charges total $7.18. Charges for
meals total $119.76.
This New York City trip was taken for Sley Corporations
business purposes and was not a personal or family vacation or
- 41 -
sightseeing trip. However, there were no Sley Corporations
business purposes for the children’s presence on this trip; their
presence was for Betsy’s personal purposes. Of the $990.34 of
expenses paid by Markette ($496 airline plus $494.34 hotel,
etc.), $520 (the children’s airline tickets, one of the hotel
rooms, and about half the meals) is attributable to the children
and the remaining $470.34 is attributable to petitioner and
Betsy.
Summary.
The record does not provide an adequate basis for findings
as to the purposes of the other expenditures listed supra on
table 5.
Table 6 shows our allocations with respect to respondent’s
determinations listed supra on table 5.
Table 6
Purpose
Credit Generated
Date Check Check Personal or Sley Corporations or
1983 Number Payee Amount Grossman & Flask Business Unknown (Allowed)
Jan. 05 1824 American Express $42.80 -- -- $42.80 --
Feb. 03 1844 American Express 3,588.87 -- -- 3,588.87 --
Mar. 28 1856 American Express 1,038.08 -- -- 1,038.08 --
Apr. 18 1862 Eastern Airlines 1,302.00 $1,302.00 -- -- --
May 11 1870 American Express 795.59 -- -- 795.59 --
May 24 1873 American Express 964.41 -- -- 964.41 --
June 29 1884 American Express 2,210.00 -- -- 2,210.00 --
Aug. 04 1896 American Express 3,366.19 3,008.24 -- -- $318.00
(July invoice)
Sept.19 115417 American Express 1,001.60 1,359.55 -- -- 39.95
(Aug. invoice)
Sept.29 1903 American Express 496.00 276.00 220.00 -- (318.00)
(Sept. invoice)
Nov. 11 1912 American Express 494.34 244.00 250.34 -- (39.95)
(Oct. invoice)
June 02 Debit memorandum 3,311.82 -- -- 3,311.82 --
Total for 1983 18,611.70 6,189.79 470.34 11,951.57
- 43-
1984
Table 7 lists certain checks written on the Markette account
in 1984. The table shows the date the check was written, check
number, payee, and amount. All of these checks, except for check
Nos. 1951, 1975, and 1995, were signed by petitioner. Check No.
1951 was unsigned (but was processed and paid, anyway), check No.
1975 was signed by Betsy, and check No. 1995 does not appear in
the record. Respondent determined that petitioner and Betsy
omitted to report $14,894.26 of constructive dividends received
from Markette in 1984, the sum of the checks listed in table 7.
In the notice of deficiency, this figure was adjusted downward by
$1,214 for the amount of check No. 1995 and by $138 for a travel
and entertainment reimbursement. See supra note 9.
Table 7
Check
Date Number Payee Amount
Jan. 09 1929 American Express $2,526.53
Feb. 21 1946 Eastern Airlines 1,616.50
Mar. 12 1951 American Express 800.00
Mar. 13 1952 American Express 1,840.28
Apr. 17 1966 American Express 930.75
May 25 1975 American Express 694.20
July 20 1987 United Airlines 2,057.00
Aug. 02 1993 American Express 1,399.00
Aug. 31 1995 American Express 1,214.00
Sept.19 2003 Sean Henry 240.00
Oct. 08 2008 American Express 1,576.00
14,894.26
Less adjustments 1,352.00
1
Total 13,542.26
1
In the notice of deficiency, respondent made a mathematical
error and stated this figure as $13,452.26. Respondent, however,
- 44-
used the arithmetically correct figure, $13,542.26, in
calculating the total constructive dividend amount and thus used
the arithmetically correct total in determining the 1984
deficiency.
Check No. 2008--Orlando. As payment for the American
Express September invoice, Markette issued check No. 2008,10 for
$1,576, to American Express on October 8, 1984. By this check,
Markette paid for five Eastern Airlines tickets appearing on the
August invoice and a Pan American World Airways ticket appearing
on the September invoice.
The Markette American Express invoice with a closing date of
October 17, 1984, shows charges for five Eastern Airlines
tickets, costing $780, and no other charged items. The October
invoice also shows the $1,576 payment made with check No. 2008
and a $860 credit on account of the return or cancellation of
five Eastern Airlines tickets that had appeared on the August
invoice. The October invoice charges were on Betsy’s card. The
October invoice had a credit balance of $80, the net of the $780
charges and the $860 credit.
The five Eastern Airlines tickets on the October invoice
were bought for petitioner, Betsy, and the children to fly from
Washington, D.C., to Orlando, Florida, on September 27, 1984, and
back on September 30, 1984. The purpose of this trip was
10
The notice of deficiency shows this as check No. 2007.
However, it is clear from the context that 2008 is intended.
- 45-
personal--a family vacation to meet Ben and to take the children
to Walt Disney World.
No payment was made on the October invoice. The five
Eastern Airlines tickets to Orlando on the October invoice were
“paid for” with the $860 credit issued on account of the refund
of the five Eastern Airlines tickets appearing on the August
invoice. Markette had paid for the five Eastern Airlines tickets
on the August invoice, later refunded, with check No. 2008.
Thus, in effect, Markette used check No. 2008 to pay $780 for the
five Eastern Airlines tickets to Orlando on the October invoice.
Check No. 1995. As payment for the August invoice, Markette
issued check No. 1995, for $1,214, to American Express on August
31, 1984. Check No. 1995 was voided on September 10, 1984.
Summary.
The record does not provide an adequate basis for findings
as to the purposes of the other expenditures listed on table 7,
supra.
Table 8 shows our allocations with respect to respondent’s
determinations listed on table 7, supra.
Table 8
Purpose
Personal or Sley Corporations
Date Check Check Grossman & Business or
1984 Number Payee Amount Flask Voided Unknown
Jan. 09 1929 American Express $2,526.53 -- -- $2,526.53
Feb. 21 1946 Eastern Airlines 1,616.50 -- -- 1,616.50
Mar. 12 1951 American Express 800.00 -- -- 800.00
Mar. 13 1952 American Express 1,840.28 -- -- 1,840.28
Apr. 17 1966 American Express 930.75 -- -- 930.75
May 25 1975 American Express 694.20 -- -- 694.20
July 20 1987 United Airlines 2,057.00 -- -- 2,057.00
Aug. 02 1993 American Express 1,399.00 -- -- 1,399.00
(July invoice)
Aug. 31 1995 American Express 1,214.00 -- $1,214.00 --
(Aug. invoice)
Sept. 19 2003 Sean Henry 240.00 -- -- 240.00
Oct. 08 2008 American Express 1,576.00 -- -- 796.00
(Sept. invoice)
American Express -- $780.00 -- --
(Oct. invoice)
Less adjustments (1,352.00) (1,214.00) (138.00)
Total for 1984 13,542.26 780.00 -- 12,762.26
- 47 -
1985
Table 9 lists certain checks written on the Markette account
in 1985. The table shows the date the check was written, check
number, payee, and amount. Betsy signed the checks numbered
2036, 2050, 2078, and 2092. All of the other checks were signed
by petitioner. Respondent determined that petitioner and Betsy
omitted to report $23,014.34 of constructive dividends received
from Markette in 1985, the sum of the checks listed in table 9.
See supra note 9.
Table 9
Check
Date Number Payee Amount
Jan. 06 2036 American Express $1,802.00
Feb. 04 2043 Eastern Airlines 1,192.00
Feb. 26 2050 American Express 2,002.25
Feb. 26 2051 Eastern Airlines 974.00
Apr. 03 2068 American Express 2,636.42
May 15 2078 American Express 3,514.96
May 24 2080 American Express 208.00
June 06 2084 American Express 3,494.66
July 10 2092 American Express 292.18
Aug. 02 2098 American Express 2,587.86
Aug. 27 2100 American Express 457.00
Oct. 28 2108 American Express 3,530.01
Nov. 25 2118 American Express 45.00
Dec. 03 2123 American Express 278.00
Total 23,014.34
Check No. 2036--Miami--Betsy. The American Express December
1984 invoice includes a $198 charge for an Eastern Airlines
ticket for Betsy to fly round-trip to Miami. Betsy bought the
ticket in November 1984. She left Washington, D.C., on November
- 48 -
15, 1984, and returned on November 21, 1984. The primary purpose
of the trip was personal--to see Beatrice. This charge was paid
for by Markette check No. 2036.
Check No. 2036--Miami--Children. The American Express
December 1984 invoice includes charges totaling $397 for three
Eastern Airlines one-way tickets for the children from New York
City to Miami. Betsy bought the tickets on December 3, 1984.
The children left New York on December 26, 1984.11 Petitioner,
Betsy, and the children had gone to New York City for Christmas.
It was intended that all five of them would go to Miami to meet
with Beatrice--a personal family vacation purpose. However,
petitioner had some business to do in Washington, D.C., before
the end of the year, so he and Betsy returned to Washington,
D.C., from New York City, while the children went directly from
New York City to Miami. A few days later, petitioner and Betsy
went on to Miami to meet Beatrice. These charges for the
children’s three tickets were paid for by Markette check No.
2036.
11
Petitioner’s proposed finding of fact 507 indicates
that this trip was on Dec. 26, 1987, and on answering brief
respondent does not dispute the date. Even if we were to regard
the parties’ agreement on this point as a supplemental
stipulation, we would disregard the stipulation because it is
contrary to the persuasive evidence in the record that the trip
was on Dec. 26, 1984. Jasionowski v. Commissioner, 66 T.C. 312,
318 (1976).
- 49 -
Check Nos. 2084 and 2092--Acapulco. In April 1985,
petitioner, Betsy, and the children went to Acapulco, Mexico.
Petitioner and Betsy charged the following items, totaling
$3,682.21, for this trip on Markette credit cards: $2,988.46
(Acapulco Princess)--petitioner signing the charge slip made on
his card, $426.21 (Viajes Mexicanos de Acapulco) and $187.55
(Aeronaves de Mexico)--Betsy signing the charge slip made on her
card, and $79.99 (Andersons)--petitioner signing the charge slip
made on Betsy’s card. The purpose of this trip was personal--a
family spring vacation, and not to conduct Sley Corporations
business. The first, second, and fourth items, totaling
$3,494.66, appear on the American Express May invoice, and were
paid for by Marquette check No. 2084. The third item, $187.55,
appears on the American Express June invoice, and was paid for by
Marquette check No. 2092.
Check Nos. 2092 and 2098--Stamford. The American Express
June invoice includes a $59.6312 charge at LePavillon, in
Stamford, Connecticut. Petitioner charged this item on his
American Express credit card on June 8, 1985. Petitioner and
Betsy went to Stamford from New York to attend a bar mitzvah--a
personal purpose--and not on Sley Corporations’ business. This
charge was paid for by Markette check No. 2092.
12
The charge slip shows $59.93, but the American Express
invoice shows only $59.63, so Markette paid only $59.63.
- 50 -
The American Express July invoice includes charges totaling
$290 for two adult ($65 ea.) and four children’s ($40 ea.) one-
way Eastern Airline tickets between Washington, D.C., and New
York City, for travel on June 8, 1985. The tickets, which do not
indicate the direction of the flight, were charged on Betsy’s
American Express credit card. These transportation expenses were
incurred in connection with the same trip on which petitioner and
Betsy went to Stamford for a bar mitzvah. These charges were
paid for by Markette check No. 2098.
Check No. 2092--American Express Fee. The American Express
June invoice includes a charge of $45 for the annual membership
fee for petitioner’s American Express credit card. This business
expense was paid for by Markette check No. 2092.
Check No. 2098--Corpus Christi. The American Express July
invoice includes charges totaling $1,137.50 for four American
Airlines tickets for Betsy and the children to fly round-trip
from Washington, D.C., to Corpus Christi, Texas. The charges
were made on Betsy’s American Express credit card on June 24,
1985. This trip was for personal purposes, for Betsy to visit
with her mother and brother, and for the children to visit with
their grandmother and uncle. Petitioner did not go on this trip.
The record does not enable us to determine how long Betsy and the
children stayed in Corpus Christi. These charges were paid for
by Markette check No. 2098.
- 51 -
Check No. 2098--San Diego. The American Express July
invoice includes a $450 charge for an American Airlines ticket
for Betsy to fly round-trip from Washington, D.C., to San Diego,
California. The purpose of this trip was personal, and not for
Sley Corporations’ business. The charge was made on Betsy’s
American Express credit card on July 7, 1985, and was paid for by
Markette check No. 2098.
Check Nos. 2098 and 2108--Canada. On July 15, 1985, five
USAir tickets were bought for petitioner and Betsy to fly from
Washington, D.C., to Buffalo, New York, and the children to fly
from Washington, D.C., to Buffalo, and from Buffalo to Natchez,
Mississippi, in August 1985. In August 1985, petitioner, Betsy,
and the children rented an automobile in Buffalo, and incurred
expenses at hotels in Montreal, Toronto, and Ottawa. The trip in
Canada lasted about 10 days. The purpose of this trip was
personal--to take a 10-day family vacation trip to Canada, and
not for Sley Corporations business. The record does not provide
a basis for findings as to why (or even whether) the children
went to Natchez. The airline tickets, which total $710.36, were
charged on Betsy’s Markette American Express credit card, and
were paid for by Markette check No. 2098. The automobile rental
and hotel expenses, which total $2,900.01, were charged on
petitioner’s Markette American Express credit card, and were paid
for by Markette check No. 2108.
- 52 -
Check No. 2100--Los Angeles. The American Express August
invoice includes a $457 charge for a one-way American Airlines
ticket from Los Angeles to Washington, D.C. Petitioner bought
this ticket on or about July 28, 1985, and charged it on his
American Express credit card. This charge was paid for on August
27, 1985, by Markette check No. 2100.
Check No. 2108--Lake Tahoe. The American Express September
invoice includes charges totaling $630 for Continental Airlines
ticket, between Reno, Nevada, and Washington, D.C. On August 6,
1985, Betsy bought a ticket for herself to fly round-trip from
Washington, D.C. The next day Betsy bought a one-way ticket for
petitioner from Reno to Washington, D.C. Betsy flew to Reno on
August 7, 1985; Betsy and petitioner flew back 4 days later. The
primary purpose of this trip was personal--a vacation to visit
petitioner’s relatives’ condominium in the Lake Tahoe area. The
charges were paid for by Markette check No. 2108.
Check No. 2118--American Express Fee. The American Express
November invoice includes a charge of $45 as the annual
membership fee for Betsy’s American Express credit card. This
business expense was paid for by Markette check No. 2118.
Summary.
The record does not provide an adequate basis for findings
as to the purposes of the other expenditures listed on table 9,
supra.
- 53 -
Table 10 shows our allocations with respect to respondent’s
determinations listed supra on table 9.
Table 10
Purpose
Date Check Check Personal or Sley Corporations
1985 Number Payee Amount Grossman & Flask Business Unknown
Jan. 06 2036 American Express $1,802.00 $595.00 -- $1,207.00
(Dec. invoice)
Feb. 04 2043 Eastern Airlines 1,192.00 -- -- 1,192.00
Feb. 26 2050 American Express 2,002.25 -- -- 2,002.25
(Feb. invoice)
Feb. 26 2051 Eastern Airlines 974.00 -- -- 974.00
Apr. 03 2068 American Express 2,636.42 -- -- 2,636.42
May 15 2078 American Express 3,514.96 -- -- 3,514.96
(Apr. invoice)
May 24 2080 American Express 208.00 -- -- 208.00
June 06 2084 American Express 3,494.66 3,494.66 -- --
(May invoice)
July 10 2092 American Express 292.18 247.18 45.00 --
(June invoice)
Aug. 02 2098 American Express 2,587.86 2,297.86 -- 290.00
(July invoice)
Aug. 27 2100 American Express 457.00 -- -- 457.00
(Aug. invoice)
Oct. 28 2108 American Express 3,530.01 3,530.01 -- --
(Sept. invoice)
Nov. 25 2118 American Express 45.00 -- 45.00 --
(Nov. invoice)
Dec. 03 2123 American Express 278.00 -- -- 278.00
Total for 1985 23,014.34 10,164.71 90.00 12,759.63
- 55 -
1986
Table 11 lists certain checks written on the Markette
account in 1986. The table shows the date the check was written,
check number, payee, and amount. Check Nos. 2137, 2148, and 2203
were signed by petitioner. The remaining checks were signed by
Betsy. Respondent determined that petitioner and Betsy failed to
report $12,447.69 of constructive dividends received from
Markette in 1986, the sum of the checks listed in table 11. In
the notice of deficiency, this figure was adjusted downward by
$788.07 for net constructive dividends of $11,659.62.13 See
supra note 9.
Table 11
Check
Date Number Payee Amount
1
Jan. 23 2137 American Express $5,076.65
1
Mar. 13 2148 American Express 1,447.00
Mar. 31 2203 American Express 958.18
1
May 10 2162 American Express 1,656.33
Sept.30 2200 American Express 86.42
Oct. 31 2213 American Express 39.00
1
Dec. 05 2220 American Express 1,017.50
Dec. 31 2227 VISA 2,166.61
12,447.69
13
The only explanation that respondent gives in the
notice of deficiency for this $788.07 negative adjustment is the
cryptic “Less JE[JB?] 284 11/30/86”. We have not found any
explanation in the record for this negative adjustment. Under
the circumstances, we shall subtract the $788.07 from whatever
amount we otherwise find to be the total 1986 constructive
dividends to Betsy on account of Markette payments of Betsy’s, or
her household’s, personal expenses. This subtraction is to be
applied in calculating income omissions resulting from fraud, as
well as total income omissions.
- 56 -
Less adjustment (788.07)
Total 11,659.62
1
The total amounts for check Nos. 2137, 2162, and 2220 are
$6,750.65, $4,713.94, and $1,615.50, respectively. The check
amounts listed in table 11 are the net amounts respondent
determined were constructed dividends.
Check Nos. 2137, 2148, and 2203--Miami. Petitioner or his
family traveled to Miami in late November 1985, in January 1986,
and in February 1986. Of the net $5,424.86 expenses for these
three trips charged on Markette American Express credit cards,
$4,265.28 was paid for by Markette check No. 2137,14 $438 was
paid for by Markette check No. 2148,15 and $721.58 was paid for
by Markette check No. 2203.
On November 14, 1985, Betsy bought six round-trip Eastern
Airlines tickets to Miami, to leave Washington, D.C., on November
27 and return on December 1. Three of the tickets cost $399 each
14
In the notice of deficiency, respondent allowed as Sley
Corporations business expenses $1,674 of the expenses paid for by
Markette check No. 2137. At trial, respondent’s revenue agent
testified that the allowed $1,674 “related to November `85,
January `86 and February `86 airfare to Miami.” Neither side has
offered, and we have been unable to discover, a likely
identification of which are the items of the total $4,265.28
Miami expenses paid by check No. 2137 that respondent determined
to be includable in petitioner’s and Betsy’s income, and which
are the items in the $1,674 not so includable.
15
For some reason undisclosed by the record, Markette
check No. 2137 was not used to pay the charges shown on one of
the four pages of the American Express Jan. 1986 invoice.
Instead, the two $219 Eastern Airlines charges on that page were
paid together with American Express Feb. 1986 invoice items by
Markette check No. 2148. See infra Check No. 2148--Betsy’s
Western Trip.
- 57 -
and the other three cost $219 each. The tickets were for
petitioner, Betsy, the children, and another adult, probably
Beatrice. All six of these tickets, totaling $1,854, were
charged on Betsy’s Markette American Express credit card.
Eastern Airlines refunded $200, which was credited on the
December statement. On the same Miami trip, petitioner charged
$179.24 at Pershing Auto Leasing in Miami Beach.
On November 26, 1985, a purchase was made of a Pan American
World Airlines round-trip ticket from Dulles Airport to Miami and
back to Washington, D.C. The ticket was bought for petitioner
but was charged on Betsy’s Markette American Express credit card;
the price was $1,095. The record does not indicate which of the
Miami trips this item relates to.
On or about January 6, 1986, petitioner, Betsy, and the
children were in Miami. They stayed at the Omni International
Hilton. Petitioner charged the $719.04 hotel bill on his
Markette American Express credit card.
On December 19, 1985, Betsy bought five round-trip Eastern
Airlines tickets to Miami, to leave Washington, D.C., on February
14, 1986, and return on February 17, 1986. Two of the tickets
cost $399 each and the other three cost $219 each. The tickets
were for petitioner, Betsy, and the children. All five of these
tickets, totaling $1,455, were charged on Betsy’s Markette
American Express credit card. On January 24, 1986, Betsy bought
a round-trip United Airlines ticket for herself from Washington,
- 58 -
D.C., to Miami, to Tucson, Arizona, then San Diego, California,
to Denver, Colorado, and back to Washington, D.C. This is
discussed further infra, at Check No. 2148--Betsy’s Western Trip.
It had been intended that Betsy would fly from Denver to
Washington, D.C., where she would join petitioner and the
children on the February 14 trip to Miami. However, petitioner’s
mother died in Miami at that time. What had been planned as a
Presidents Day weekend visit to Miami was turned into a funeral
trip to Miami. Instead of returning to Washington, D.C., Betsy
bought a United Airlines one-way ticket from Denver to Miami for
herself. Betsy charged the $399 cost of this ticket on her
Markette American Express credit card. On or about February 15,
1986, petitioner charged the $322.58 Miami Omni International
Hilton hotel bill on Betsy’s Markette American Express credit
card.
The $399 Denver-Miami ticket and the $322.58 Miami Hotel
item appeared on the American Express March invoice. The $721.58
total of these expenses was paid for by Markette check No. 2203.
The remaining above-described expenses for these Miami trips were
paid for as indicated in the text supra at notes 14 and 15.
However, Betsy did not use her $399 ticket that had been bought
on December 19, 1985--the one that had been replaced by the
Denver-Miami ticket. Markette received a credit for that ticket
on the American Express April invoice. Accordingly, that $399 is
not properly an expense of the Miami trips paid for by check Nos.
- 59 -
2137, 2148, and 2203, but rather is properly attributable to one
of the trips paid for by check No. 2162. Thus, the net Miami
trip expenses paid for by check No. 2137 are $4,265.28.
The primary purpose of Betsy’s Denver-Miami trip ($399) and
the Miami mid-February hotel stay ($322.58) was personal. The
primary purpose of $1,674 of the Miami trips’ expenses that
appeared on the American Express December 1985 and January 1986
invoices was Sley Corporations business (see supra note 14).
The $438 paid for by check No. 2148 was not included in the
$1,674 Sley Corporations business expenses. The primary purpose
of the remaining $2,591.28 of these expenses paid for by check
No. 2137 was personal.
Check No. 2137--Snowmass. The American Express December
1985 invoice includes charges totaling $1,693.22 for four round-
trip United Airlines tickets to Aspen, Colorado. The ticket for
Betsy cost $521 and the other three tickets cost $390.74 each.
Betsy bought the tickets on November 19, 1985. The American
Express January 1986 invoice includes a $326.15 charge for a stay
at the Silvertree Motel at Snowmass Village, Colorado. The
$2,019.37 total of these Snowmass expense charges were paid for
by Markette check No. 2137. The purpose of this trip was to take
a Christmas vacation to Snowmass, a ski resort near Aspen,
Colorado. Although petitioner did not go on this trip, he knew
that Betsy and the children were going to Snowmass.
- 60 -
Petitioner, Betsy, and the children had gone to Snowmass in
1983. Betsy may have paid for the 1983 transportation by
charging it on her Markette American Express credit card, but
neither Betsy nor petitioner charged any of the other expenses of
that trip on their Markette American Express credit cards.
Check No. 2137--Shoreham. The American Express December
1985 invoice includes a $67 charge for petitioner’s and Betsy’s
dinner at the Shoreham Hotel in Washington, D.C. Petitioner made
this charge on his Markette American Express credit card on
December 7, 1985. This meal expense was paid for by Markette
check No. 2137. The primary purpose of this “night out” was
personal.
Check No. 2148--Betsy’s Western Trip. As we found, supra
(Check Nos. 2137, 2148, and 2203--Miami), on January 24, 1986,
Betsy bought a round-trip United Airlines ticket for herself from
Washington, D.C., to Miami, to Tucson, then San Diego, to Denver,
and back to Washington, D.C. The Tucson-San Diego leg of the
trip required a separate ticket on Pacific Southwest Airlines.
The former ticket cost $945 and the latter ticket cost $64; both
were charged on Betsy’s Markette American Express credit card.
Both tickets appeared on the American Express January invoice.
The $1,009 total of these western trip expenses was paid for by
Markette check No. 2148. This was a personal vacation trip for
Betsy.
- 61 -
Check No. 2203--Miscellaneous. The American Express March
invoice includes charges of $53.6016 for Lenny’s Restaurant, $173
for Vista International Hotel (Washington, D.C.), and $10 for
delinquency. Petitioner charged the Lenny’s item on March 3,
1986, and the Vista item on March 6, 1986. These items, totaling
$236.60, were paid for by Markette check No. 2203.
The record does not provide an adequate basis for findings
as to the purposes of these expenses.
Check No. 2162--Miami, Key West, Daughters. The American
Express April invoice includes charges totaling $1,016.50 for
four round-trip Eastern Airlines tickets to Miami, to leave
Washington, D.C., on March 27, 1986, and return on April 5, 1986.
One of the tickets cost $362.50, and the other three cost $218
each. The tickets were for Betsy and the children. Betsy
charged the tickets on March 12, 1986. The American Express
April invoice also includes charges totaling $231 for three
round-trip Piedmont Airlines tickets to Key West, Florida, to
leave Miami on April 1, 1986, and return the next day. Each
ticket cost $77. The tickets were for Betsy and the daughters.
Betsy charged the tickets on April 1, 1986. The $1,247.50 total
16
The charge slip shows a charge of $46.22 and a tip of
$6.78, for a total of $53.00. However, the invoice shows the
amount as $53.60, and the entire invoiced amount was paid.
- 62 -
of these Miami-Key West expenses was paid for by Markette check
No. 2162.17
The purpose of this trip was for Betsy and the children to
take a personal vacation to Miami during the spring school break.
The side trip to Key West was to see Halley’s Comet. The son was
sick, and so he stayed in Miami while the others went to Key
West.
Check No. 2162--Miami, Key West, Son. The American Express
April invoice includes charges totaling $827 for three round-trip
Eastern Airlines tickets to Miami, to leave Washington, D.C., on
April 11, 1986. The tickets, for petitioner, Betsy, and the son,
cost $289, $319, and $219, respectively. The American Express
April invoice also includes charges totaling $352 for three one-
17
As shown supra table 14, respondent determined that a
net of $1,656.33 ($4,713.94 less $3,057.61) of check No. 2162 was
a constructive dividend. The remaining amount, $3,057.61,
represents $897 of travel expenses and $2,160.61 in connection
with a computer; respondent later concluded that the computer was
not paid for by check No. 2162. Respondent has not identified
which travel expenses are included in the $897 that was allowed.
Also, respondent has not asked for an increased deficiency, or
otherwise acted, with regard to the $2,160.61 computer expense
that was allowed.
As we noted in the next-to-last paragraph of supra Check
Nos. 2137, 2148, and 2203--Miami, Markette received a $399 credit
on its American Express April invoice. Markette used this credit
to pay charges appearing on this invoice, and paid the balance by
its check No. 2162. See infra table 12. For purposes of
determining whether Markette paid for an item, and whether that
payment constitutes a constructive dividend, it does not make any
difference whether Markette’s payment was accomplished by
applying the credit or by check No. 2162. For convenience in our
findings we shall refer to all the payments of April invoice
items as being accomplished by check No. 2162.
- 63 -
way Piedmont Airlines tickets from Miami to Key West for April
11, 1986, and another three tickets from Key West to Miami for
April 13, 1986. Each adult ticket cost $66 and each child ticket
cost $44. Betsy charged all nine of these tickets on April 11,
1986. The American Express April invoice also includes a $790.23
charge for a stay at the Marriott Casa Marina at Key West.
Petitioner charged this item on or about April 11, 1986. The
$1,969.23 total of these Miami-Key West expenses was paid for by
Markette check No. 2162.
There was a two-fold purpose for the trip: (1) To take the
son to Key West to see Halley’s Comet for his birthday, this to
make up for his inability to see Halley’s Comet with his sisters
because he was sick when his sisters went; and (2) for petitioner
to meet with a Grossman & Flask client.
Check No. 2162--Corpus Christi. The American Express April
invoice includes charges totaling $983.78 for four American
Airlines tickets to Corpus Christi, Texas. Betsy charged these
tickets on March 31, 1986. These expenses were paid for by
Markette check No. 2162. The purpose of this trip to Corpus
Christi was personal--to visit Ben and to attend a wedding.
Check No. 2162--Philadelphia. The American Express April
invoice includes a $115.22 charge for a bill from the Franklin
Plaza Hotel, in Philadelphia. Petitioner charged this item on or
about March 7, 1986. This item was paid for by Markette check
No. 2162. The charge from the Franklin Plaza Hilton was incurred
- 64 -
in connection with a trip petitioner took to Philadelphia to do
Pennsylvania State tax work for one of the Sley Corporations.
Check No. 2162--Miscellaneous Washington, D.C. Miscel-
laneous hotel, airlines, restaurant, and theater expenses,
totaling $797.21, appear on the American Express April invoice.
These expenses were incurred by petitioner and Betsy in the
Washington area. These expenses were paid for by check No. 2162.
The record does not provide an adequate basis for findings as to
the purposes of these expenses.
Check No. 2220--Miami. The American Express November
invoice includes charges totaling $1,570.50 for six round-trip
Eastern Airlines tickets to Miami. Three of the tickets cost
$299 each, and the other three cost $224.50 each. The tickets
were for Betsy, the children, probably petitioner, and another
adult. Betsy charged the tickets on October 10, 1986. These
tickets were paid for by Markette check No. 2220. Respondent
conceded that two of the adult tickets ($598) were for business
purposes and reflected this concession in the notice of
deficiency. The remaining expenses were for personal purposes--a
family vacation.
Check No. 2220--American Express Fee. The American Express
November invoice includes a charge of $45 as the annual
membership fee for Betsy’s American Express credit card. This
business expense was paid for by Markette check No. 2220.
- 65 -
Summary.
The record does not provide an adequate basis for findings
as to the purposes of the other expenditures listed supra on
table 11.
Table 12 shows our allocations with respect to respondent’s
determinations listed supra on table 11.
Table 12
Purpose
Credit Generated
Date Check Check Personal or Sley Corporations or
1986 Number Payee Amount Grossman & Flask Business Unknown (Allowed)
Jan. 23 2137 American Express $6,750.65 $3,593.46 -- -- --
(Dec. invoice)
American Express -- 2,758.19 -- -- $399.00
(Jan. invoice)
less adjustments (1,674.00) (1,674.00)
Mar. 13 2148 American Express 1,447.00 438.00 -- -- --
(Jan. invoice)
American Express 1,009.00 -- -- --
(Feb. invoice)
Mar. 31 2203 American Express 958.18 721.58 -- $236.60 --
(Mar. invoice)
May 10 2162 American Express 4,713.94 4,200.51 $115.22 797.21 (399.00)
(Apr. invoice)
less adjustments (3,057.61) (3,057.61)
Sept. 30 2200 American Express 86.42 -- -- 86.42 --
(Sept. invoice)
Oct. 31 2213 American Express 39.00 -- -- 39.00 --
(Oct. invoice)
Dec. 05 2220 American Express 1,615.50 1,570.50 45.00 -- --
(Nov. invoice)
less adjustments (598.00) (598.00)
Dec. 31 2227 VISA 2,166.61 -- -- 2,166.61 --
12,447.69 8,961.63 -- -- --
less adjustment (788.07) (788.07)
Total for 1986 11,659.62 8,173.56 160.22 3,325.84 --
- 67 -
Financial Statements, Tax Returns, Audits, Notices of Deficiency
Berger is a Certified Public Account and a partner in the
accounting firm of Grant Thornton;18 he also has a J.D. degree
from the University of Maryland School of Law. Petitioner
approached Berger to prepare tax returns for the Sley
Corporations for 1980. Berger continued to prepare or supervise
the preparation of such tax returns for the years through 1986.
Berger also prepared or supervised the preparation of compilation
financial statements and made or supervised the making of
dividend calculations to avoid the personal holding company tax
for the Sley Corporations. Berger prepared or supervised the
preparation of petitioner’s and Betsy’s joint tax returns for
1980 through 1987, and petitioner’s individual tax returns for
1988 through 1991. During the years in issue, Berger or those he
supervised came into the Sley Corporations’ offices in February
to prepare the corporate tax returns and the compilation
financial statements, and in November or December to calculate
the dividends needed to avoid the personal holding company tax.
18
When Berger was first engaged to prepare tax returns
for petitioner and Betsy, and for the Sley Corporations, he was
with the accounting firm of Fox and Co. In 1985, Fox and Co.
merged with Alexander Grant, and was known under the latter name
for about 1 year. Thereafter, Berger’s accounting firm was known
as Grant Thornton.
- 68 -
Berger prepared the Sley Corporations’ tax returns based on
the books and records of the Sley Corporations, primarily the
general ledger and the trial balances.19 Berger did not
routinely verify the general ledger and the trial balances
against supporting documents before preparing the corporate tax
returns; Berger’s firm was not retained to do any audit work on
behalf of the Sley Corporations. Baybrook was Berger’s principal
contact at the Sley Corporations and the person who provided
Berger with information; petitioner was the secondary contact
person. Berger did not have any business discussion with Betsy
about the Sley Corporations until late 1986. Berger had access
to all of the Sley Corporations’ books and records that he asked
for.
Berger did not give Baybrook instructions about how to
report transactions or how to define expenses for the Sley
Corporations.
Berger was aware that Beatrice, Betsy, and Ben were
receiving six-figure salaries from the Sley Corporations; Berger
did not know how the salary structure was established, who
established the salary structure, or what Beatrice, Betsy, and
19
A trial balance is a listing of all account balances.
It provides a means of testing whether total debits equal total
credits for all accounts. Generally, trial balances are used to
prepare financial statements. Skousen et al, Financial
Accounting 62, 758 (4th ed. 1991).
- 69 -
Ben were doing for the Sley Corporations to earn the salaries
that they were paid. Berger did not set the salary structure,
nor did he participate in the setting of salary levels at any
time. Berger also did not participate in the decision to
allocate the officers’ salaries among the Sley Corporations or
among the officers themselves. Berger did not have anything to
do with the decisions to raise and lower the salaries from year
to year.
Berger or those he supervised prepared annual compilation
financial statements for the Sley Corporations for 1980 through
1986. These compilation financial statements were a form of
financial statement whereby the accounting firm takes the least
responsibility for the figures. Berger and those he supervised
took the Sley Corporations’ figures and basically put them into
financial statement format. There was no routine verification of
the Sley Corporations’ figures in the process of preparing
compilation financial statements.
Each compilation financial statement for those years has two
parts, the accountants’ compilation report and the financial
statements. Each accountants’ compilation report for those years
includes the following paragraphs:
A compilation is limited to presenting in the form of
financial statements information that is the representation
of management. We have not audited or reviewed the
accompanying [December 31, 1980, 1981, etc.] financial
- 70 -
statements and[,] accordingly, do not express an opinion or
any other form of assurance on them.
Management has elected to omit substantially all of the
disclosures and the statements of changes in financial
position required by generally accepted accounting
principles. If the omitted disclosures and statement[s] of
changes in financial position were included in the financial
statements, they might influence the user’s conclusions
about the company’s [Corporations’] financial position,
results of operations and changes in financial position.
Accordingly, these financial statements are not designed for
those who are not informed about such matters.
Attached to each of these accountants’ compilation reports are
financial statements for each of the Sley Corporations. The
financial statements for each corporation include a balance sheet
listing that corporation’s assets and liabilities and
stockholders’ equity, and a statement of income and retained
earnings. Each page of each financial statement refers the
reader to the accountants’ compilation report. The figures used
in the compilation financial statements came from the books and
records of the Sley Corporations; the compilation financial
statements were prepared at the end of each year, as soon as the
books were closed.
In conjunction with the preparation of the compilation
financial statements for 1981 through 1984, Berger and those he
supervised used a financial statement compilation program, which
is a checklist of steps to be followed in preparing a compilation
financial statement. The introductory paragraphs on the
financial statement compilation program are as follows:
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Our OBJECTIVE for compilation engagements is to present in
the form of financial statements information that is the
representation of management. No assurances may be given.
INSTRUCTIONS: This form specifies the procedures necessary
to comply with [the accounting firm’s] standards when
engaged to compile financial statements of nonpublic
entities in accordance with Statements on Standards for
Accounting and Review Services (SSARS). Form PF-06 is also
required documentation for compilation engagements.
We are not required by SSARS to make inquiries or perform
procedures to corroborate or review information supplied by
the client. Any information we may have indicating that
client-supplied data is incorrect, incomplete or
unsatisfactory must be addressed by us and resolved
regardless of the source of such data. [Emphasis in
originals.]
Berger prepared or supervised the preparation of
compilations of financial statements as checklists in preparing
the compilation financial statements for 1985 and 1986. The
introductory language of the compilations of financial statements
states the following as the compilation objectives:
A. To assist the client in presenting its financial data in
financial statement form. B. Determine that professional
standards for compilation engagements have been met and that
any significant matters that came to our attention have been
adequately considered and resolved.
Baybrook and petitioner were the contact personnel for the
Sley Corporations on the financial statement compilation programs
for 1981 through 1984, and on the compilation of financial
statements for 1985. Betsy and Wilson were the contact personnel
for the Sley Corporations on the compilation of financial
statements for 1986.
- 72 -
Berger also calculated the amount of dividends to be paid
out by the Sley Corporations at the end of the year so as to
avoid the personal holding company tax. The amount of the
dividends was dictated by the amount of the taxable income of the
Sley Corporations--if taxable income decreased, then dividends
decreased; if taxable income increased, then dividends increased.
Before 1987, there were no Forms 1099 issued to shareholders
for dividends income in the form of payment of travel expenses.
At some point in the period 1980-1986, Berger discussed the
travel expenses paid by the Sley Corporations, with someone
associated with the Sley Corporations. Berger was told that the
travel and entertainment expenses were incurred so that the
officers of the Sley Corporations could meet to discuss corporate
business, and that there were no personal expenses included in
those amounts. Berger had never seen the travel records of the
Sley Corporations before the trial, nor had he heard of specific
trips taken by petitioner, Betsy, and the children. If Berger
would have heard of trips to the resort destinations, described
under Travel and Entertainment Expenses, supra, then he would
have asked whether the trips were taken for personal or business
purposes. If a trip was taken for personal purposes, then Berger
would not have deducted the trip expenses on the Sley
Corporations’ tax return, and he probably would have treated the
- 73 -
Sley Corporations’ payment of those expenses as dividends to the
shareholders.
Petitioner understood that Berger was not engaged to audit
the travel and entertainment expenses of the Sley Corporations.
In calculating income for purposes of preparing petitioner’s
and Betsy’s individual tax returns, Berger and those he
supervised used third-party information such as Forms W-2, 1099,
and K-1 that petitioner gave to Berger, schedules prepared by the
Sley Corporations’ bookkeeper, and information on transactions
that petitioner had with his law firm.
During the years in issue, petitioner and Betsy were cash-
basis taxpayers.
Brown worked for Grant Thornton as a tax specialist from
January 1985 to April 1987. Brown worked under Berger’s
supervision. Berger assigned her to prepare the 1984 tax returns
and the compilation financial statements for the Sley
Corporations. Pursuant to her assignment to the Sley
Corporations’ account, Brown was told to prepare trial balances,
corporate tax returns, and compilation financial statements, and
to make adjustments to the compilation financial statements for
accrued income and expenses; she was not told to audit the books
of the Sley Corporations. Brown used the books and records
prepared by Baybrook to prepare trial balances and then used the
- 74 -
trial balances to prepare the Sley Corporations’ tax returns.
Brown was not assigned to do, and did not do, any verification of
the truth of the figures on the books and records kept by
Baybrook.
Baybrook was Brown’s primary contact person regarding the
Sley Corporations’ tax returns during the period February 1985
through March 1986; Brown occasionally spoke to petitioner about
the Sley Corporations’ tax returns. Brown had no discussions
regarding the Sley Corporations’ tax returns with either Betsy or
Ben before April 1986; Brown had never even met either of them.
In April 1987, Brown ended her employment with Grant
Thornton; in May 1987, petitioner and Betsy hired Brown to work
for the Sley Corporations. Brown prepared the Sley Corporations’
tax returns for 1987 and 1988. As part of her duties, Brown also
prepared tax returns for trusts of which Betsy or Ben were
beneficiaries.
In 1988 Betsy hired an independent accountant named Olshan,
primarily to help with investments. Brown began to discuss the
travel expenses and some other matters that she noted on the Sley
Corporations’ tax returns. As a result of a discussion between
Betsy, Brown, and Olshan, in early 1988 Betsy had the Sley
Corporations issue a Form 1099 for 1987 dividend income received
in the form of payment of travel expenses. Also, for 1988,
- 75 -
Betsy’s and Ben’s salaries were reduced to $95,000 and Beatrice’s
salary was reduced to $60,000.
Petitioner and Betsy timely filed joint tax returns for 1983
through 1987. Petitioner timely filed a separate tax return for
1988.20 On January 30, 1990, petitioner, Betsy, and respondent
extended to June 15, 1990, the period for assessment for 1986.
Respondent audited petitioner’s and Betsy’s 1983 joint tax
return sometime before March 1987, and concluded that petitioner
and Betsy had overstated their income for that year by $69,885;
this overstatement resulted in a $34,942 overstatement of
petitioner’s and Betsy’s 1983 tax liability. The resulting Form
4549 (Income Tax Examination Changes) for 1983, agreed to on
March 5, 1987, shows that petitioner and Betsy were entitled to a
$69,885 downward adjustment to income for “Sale of Partnership
Interest”. Petitioner and Betsy reported this item on their 1983
tax return as ordinary income from the sale of “Integrated
Natural Gas Partnership.” Apparently, petitioner and Betsy
received a credit or refund of the $34,942.
20
The tax returns for 1983 through 1987 were filed on or
about Apr. 15 of the appropriate years. The tax return for 1988
was filed on July 3, 1989, which was timely because Berger had
timely filed, on petitioner’s and Betsy’s behalf, an application
for a 4-month automatic extension to Aug. 15, 1989.
- 76 -
Table 13 sets forth petitioner’s and Betsy’s 1983 adjusted
gross income, taxable income, and income tax liability as (1)
shown on their 1983 tax return, (2) adjusted by respondent in
1987, and (3) determined in the notice of deficiency in the
instant cases.
Table 13
1987
Audit--Revenue Notice of
Tax Return Agent’s Report Deficiency1
2
Adjusted gross income $407,347 2
Taxable income 354,112 $284,227 $309,497
Income tax liability 160,344 125,402 138,142
1
These amounts are as shown in the notice of deficiency, and do
not take into account respondent’s later concessions. See supra
note 2.
2
Adjusted gross income is not shown on the indicated documents.
Respondent audited petitioner’s and Betsy’s 1985 joint tax
return sometime before February 1987, and concluded that
petitioner and Betsy had overstated their income for that year by
$18,033; this overstatement resulted in a $9,016 overstatement of
petitioner’s and Betsy’s 1985 tax liability. The resulting Form
4549 (Income Tax Examination Changes) for 1985 shows that
petitioner and Betsy were entitled to a $8,333 increase in
deduction for “Rental Expenses” and a $9,700 increase in
deduction for “Contributions”. Apparently, petitioner and Betsy
- 77 -
received a credit or refund of the $9,016. Respondent audited
petitioner’s and Betsy’s 1985 joint tax return again sometime
before May 1988, and concluded that petitioner and Betsy had
$2,760 of unreported dividend income for that year; this
unreported income resulted in a $1,380 understatement of
petitioner’s and Betsy’s 1985 tax liability. On May 9, 1988,
respondent mailed to petitioner and Betsy a notice of deficiency
for 1985, based on the $1,380 deficiency; Betsy paid the
deficiency.
Table 14 sets forth petitioner’s and Betsy’s 1985 adjusted
gross income, taxable income, and income tax liability as (1)
shown on their 1985 tax return, (2) adjusted by respondent in
1987, (3) adjusted by respondent in 1988, and (4) determined in
the notice of deficiency in the instant cases.
Table 14
1
Tax 1987 1988 Notice of
Return Audit Audit Deficiency
2 2
Adjusted gross income $272,480 2
Taxable income 191,733 $173,700 $176,460 $205,679
Income tax liability 76,110 67,094 68,474 83,398
1
The notice of deficiency issued in 1988 mistakenly sets forth
the “corrected” taxable income and tax liability by making the
$2,760 (income) and $1,380 (liability) adjustments as adjustments
directly to the amounts set forth on the 1985 tax return as
filed, ignoring the adjustments made in the 1987 audit. The
effects of the 1988 audit are correctly shown in the notice of
deficiency in the instant cases as the basis for purposes of
- 78 -
calculating the 1985 deficiency that respondent determined in the
instant cases.
2
Adjusted gross income is not shown on the indicated documents.
In 1989, Brown photocopied some Sley Corporations records.
She turned those records over to respondent’s agent in August
1989, and provided other information to that agent.
On June 14, 1990, respondent mailed to petitioner and Betsy
a notice of deficiency for 1986. On April 4, 1991, respondent
mailed to petitioner and Betsy a notice of deficiency for 1983,
1984, 1985, and 1987. Also on April 4, 1991, respondent mailed
to petitioner a notice of deficiency for 1988. Petitioner filed
petitions in response to these three notices of deficiency,
giving rise to the instant cases.
The notice of deficiency for 1986 was mailed more than 3
years after the 1986 tax return was filed, but within the period
agreed upon in the parties’ timely extension agreement. Sec.
6501(c)(4). The notice of deficiency for 1983, 1984, 1985, and
1987 was mailed more than 3 years after the 1983, 1984, and 1985
tax returns were filed, but within 3 years after the 1987 tax
return was filed. The notice of deficiency for 1988 was mailed
within 3 years after the 1988 tax return was filed.
Interest Expense for 1987.
At sometime before 1987, Betsy borrowed money from Markette,
a portion of which was to be repaid in 1987. Betsy wrote check
- 79 -
No. 121 on her checking account for $13,167.96 as a payment of
interest on the loan and delivered it to Brown sometime between
December 22, 1987, and February 12, 1988. The check was dated
December 22, 1987. The check was posted to Markette’s bank
account on February 12, 1988, and to Betsy’s checking account on
February 16, 1988. Betsy wrote checks in her checking account in
numerical order. Check No. 120 was recorded on Betsy’s checking
account register on November 30, 1987, and check No. 122 was
recorded on June 25, 1988.
Starting in December 1987, Betsy and Brown began to pack up
the Sley Corporations books and records in boxes because they
were going to move the Sley Corporations office out of the
Grossman & Flask sublet office space. Betsy arranged to have
professional movers move the Sley Corporations office on January
13, 1988.
On their 1987 joint tax return, petitioner and Betsy listed
a $13,168 personal interest expense to Markette and deducted 65-
percent of it--$8,559--as an itemized deduction on Schedule A.
Respondent disallowed this deduction.
For each of the years 1983 through 1986, petitioner had an
underpayment of income tax required to be shown on his tax
return; some part of the underpayment for each of the years 1985
and 1986 was due to petitioner’s fraud.
- 80 -
For 1986, petitioner knew and had reason to know of the
underpayment due to his and Betsy’s failure to report Betsy’s
constructive dividends; it would not be inequitable to hold
petitioner liable for this underpayment.
OPINION
I. Statute of Limitations
Petitioner has properly raised in his petition the
affirmative defense of the statute of limitations under section
6501(a). Rule 39.
In general, section 650121 bars assessment of an income tax
deficiency more than 3 years after the later of (1) the date the
tax return was filed, or (2) the due date of the tax return. If
21
Sec. 6501 provides, in pertinent part, as follows:
Sec. 6501. LIMITATIONS ON ASSESSMENT AND COLLECTION.
(a) General Rule.--Except as otherwise provided in this
section, the amount of any tax imposed by this title [title
26, the Internal Revenue Code] shall be assessed within 3
years after the return was filed (whether or not such return
was filed on or after the date prescribed) * * * and no
proceeding in court without assessment for the collection of
such tax shall be begun after the expiration of such period.
(b) Time Return Deemed Filed.--
(1) Early return.--For purposes of this section, a
return of tax imposed by this title, * * * filed before
the last day prescribed by law or by regulations
promulgated pursuant to law for the filing thereof,
shall be considered as filed on such last day.
- 81 -
the taxpayer proves that the notice of deficiency was mailed more
than 3 years after the later of the filing or the due date, then
respondent has the burden of pleading and proving the existence
of an exception to the general period of limitations. Stratton
v. Commissioner, 54 T.C. 255, 289 (1970); Farmers Feed Co. v.
Commissioner, 10 B.T.A. 1069, 1075-1076 (1928); see Miami
Purchasing Service Corp. v. Commissioner, 76 T.C. 818, 823
(1981); see also Minahan v. Commissioner, 88 T.C. 492, 506
(1987).
In the instant cases, we found that the tax returns for
1983, 1984, and 1985 were filed more than 3 years before the
notice of deficiency for those years was issued, and that the tax
returns for 1987 and 1988 were filed less than 3 years before the
notices of deficiency for those years were issued. Although the
tax return for 1986 was filed more than 3 years before the notice
of deficiency for that year was issued, we found that the parties
had timely extended the period for assessment as to 1986, and the
notice of deficiency was mailed within that extended period.
Thus, the statute of limitations is in issue only for 1983, 1984,
and 1985.
Respondent contends that the instant cases fall within the
exception to the general period of limitations set forth in
- 82 -
section 6501(c)(1),22 which provides that if a false or
fraudulent return is filed with the intent to evade tax, then the
tax may be assessed at any time.23 Petitioner contends that
respondent has failed to prove fraud by clear and convincing
evidence for 1983, 1984, and 1985 and thus, assessment and
collection of tax for 1983, 1984, and 1985 are barred by the
statute of limitations.
We agree with respondent as to 1985, and with petitioner as
to 1983 and 1984.
Respondent has the burden of proving the applicability of
the fraud exception to the general period of limitations.
22
SEC. 6501. LIMITATIONS ON ASSESSMENT AND COLLECTION.
* * * * * * *
(c) Exceptions.--
(1) False return.--In the case of a false or
fraudulent return with the intent to evade tax, the tax
may be assessed, or a proceeding in court for
collection of such tax may be begun without assessment,
at any time.
23
Proof that either spouse committed fraud on a joint tax
return extends the limitations period for both spouses on that
tax return, even though only one of the spouses may be liable for
the fraud addition to tax. Hicks Co. v Commissioner, 56 T.C.
982, 1030 (1971), affd. 470 F.2d 87 (1st. Cir. 1972); Stone v.
Commissioner, 56 T.C. 213, 227-228 (1971). In the joint notices
of deficiency, respondent had determined that both Betsy and
petitioner had committed fraud for 1983 through 1987. However,
in the instant cases respondent’s counsel made it plain at trial
that respondent is relying, as to the statute of limitations,
solely on the fraud determined against petitioner, and not on any
contention that Betsy committed fraud.
- 83 -
Farmers Feed Co. v. Commissioner, 10 B.T.A. at 1075-1076. This
burden is the same as that which respondent has under section
6653(b). Asphalt Industries, Inc. v. Commissioner, 384 F.2d 229,
232 (3d Cir. 1967), revg. on other grounds 46 T.C. 622 (1966);
Botwinik Brothers of Mass., Inc. v. Commissioner, 39 T.C. 988,
996 (1963).
To carry this burden for a year, respondent must prove two
elements, as follows: (1) That petitioner has an underpayment of
tax for that year, and (2) that some part of that underpayment is
due to fraud. Sec. 7454(a);24 Rule 142(b); e.g., Carter v.
Campbell, 264 F.2d 930, 936 (5th Cir. 1959); Stone v.
Commissioner, 56 T.C. 213, 220 (1971); Otsuki v. Commissioner, 53
T.C. 96, 105, 114 (1969). Each of these elements must be proven
by clear and convincing evidence. DiLeo v. Commissioner, 96 T.C.
858, 873 (1991), affd. 959 F.2d 16 (2d Cir. 1992); Parks v.
Commissioner, 94 T.C. 654, 663-664 (1990); Hebrank v.
Commissioner, 81 T.C. 640, 642 (1983).
For this purpose, respondent need not prove the precise
amount of the underpayment resulting from fraud, but only that
24
SEC. 7454. BURDEN OF PROOF IN FRAUD, FOUNDATION
MANAGER, AND
TRANSFEREE CASES.
(a) Fraud.--In any proceeding involving the issue
whether the petitioner has been guilty of fraud with intent
to evade tax, the burden of proof in respect of such issue
shall be upon the Secretary.
- 84 -
there is some underpayment and that some part of it is
attributable to fraud. E.g., Lee v. United States, 466 F.2d 11,
16-17 (5th Cir. 1972); Plunkett v. Commissioner, 465 F.2d 299,
303 (7th Cir. 1972), affg. T.C. Memo. 1970-274. In carrying this
burden, respondent may not rely on petitioner’s failure to meet
his burden of proving error in respondent’s determinations as to
the deficiencies. E.g., Petzoldt v. Commissioner, 92 T.C. 661,
700 (1989); Habersham-Bey v. Commissioner, 78 T.C. 304, 312
(1982), and cases cited therein.
Where fraud is determined for each of several years,
respondent’s burden applies separately for each of the years.
Drieborg v. Commissioner, 225 F.2d 216, 219-220 (6th Cir. 1955),
affg. in part and revg. in part a Memorandum Opinion of this
Court dated Feb. 24, 1954; Estate of Stein v. Commissioner, 25
T.C. 940, 959-963 (1956), affd. sub nom. Levine v. Commissioner,
250 F.2d 798 (2d Cir. 1958). A mere understatement of income
does not establish fraud. However, a pattern of consistent
underreporting of income for a number of years is strong evidence
of fraud. Estate of Mazzoni v. Commissioner, 451 F.2d 197, 202
(3d Cir. 1971), affg. T.C. Memos. 1970-144 and 1970-37; Adler v.
Commissioner, 422 F.2d 63, 66 (6th Cir. 1970), affg. T.C. Memo.
1968-100; Otsuki v. Commissioner, 53 T.C. at 108.
The issue of fraud poses a factual question that is to be
decided on an examination of all the evidence in the record.
- 85 -
Plunkett v. Commissioner, 465 F.2d at 303; Mensik v.
Commissioner, 328 F.2d 147, 150 (7th Cir. 1964), affg. 37 T.C.
703 (1962); Stone v. Commissioner, 56 T.C. at 224.
In order to establish fraud, respondent must show that
petitioner intended to evade taxes, which petitioner knew or
believed he owed, by conduct intended to conceal, mislead, or
otherwise prevent the collection of taxes. E.g., Webb v.
Commissioner, 394 F.2d 366, 377 (5th Cir. 1968), affg. T.C. Memo.
1966-81; Powell v. Granquist, 252 F.2d 56, 60 (9th Cir. 1958);
Danenberg v. Commissioner, 73 T.C. 370, 393 (1979); McGee v.
Commissioner, 61 T.C. 249, 256-257 (1973), affd. 519 F.2d 1121
(5th Cir. 1975). This intent may be inferred from circumstantial
evidence, Powell v. Granquist, 252 F.2d at 61; Gajewski v.
Commissioner, 67 T.C. 181, 200 (1976), affd. without published
opinion 578 F.2d 1383 (8th Cir. 1978), including the
implausibility of petitioner’s explanations, Bradford v.
Commissioner, 796 F.2d 303, 307 (9th Cir. 1986), and cases there
cited, affg. T.C. Memo. 1984-601; Boyett v. Commissioner, 204
F.2d 205, 208 (5th Cir. 1953), affg. a Memorandum Opinion of this
Court dated Mar. 14, 1951.
We consider first whether petitioner has an underpayment of
tax for any of the statute of limitations years, and then we
consider whether any part of that underpayment is due to fraud.
- 86 -
A. Underpayments of Tax
In order to determine whether there were any underpayments
of tax, we first determine whether petitioner had unreported
income for 1983 through 1986.25
In the notices of deficiency, respondent determined that
petitioner and Betsy omitted to report, on their 1983 through
1986 joint tax returns, constructive dividends in the form of
personal travel and entertainment expenses paid on behalf of
Betsy by Markette. Other adjustments are briefly described supra
in notes 2 and 3. On opening brief, however, respondent states
that respondent relies only on certain of the travel and
entertainment items to carry the fraud burden of proof. The
latter items are listed in table 15. Table 15 also shows the
totals of the travel and entertainment constructive dividend
adjustments in the notices of deficiency. Because a year is
“open” under section 6501(c)(1) only if respondent succeeds in
proving by clear and convincing evidence that there is an
underpayment due to fraud, we focus in this part of the opinion
on only the items listed in table 15.
25
We have determined, supra, that the statute of
limitations is in issue only for 1983, 1984, and 1985.
Nevertheless, we consider petitioner’s 1986 actions at this point
because any pattern established may have a bearing on our
analysis of other years. E.g., Adler v. Commissioner, 422 F.2d
63, 66 (6th Cir. 1970), affg. T.C. Memo. 1968-100.
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Table 15
1983 1984 1985 1986
Miami, Fla. $1,302.00 $1,616.50 $397.00 $1,854.00
716.00 2,166.00 1,777.58
-- -- -- 1,570.50
Miami, Key West, Fla. -- -- -- 3,216.73
Hawaii 5,326.51 -- -- --
Lake Tahoe, Nev. 1,351.50 -- 630.00 --
L.A. Olympics 1,359.55 2,057.00 -- --
New York, N.Y. 990.34 -- -- --
Orlando, Fla. -- 780.00 -- --
Acapulco, Mexico -- -- 3,682.24 --
Stamford, Conn. -- -- 349.63 --
Corpus Christi, Tex.1 -- -- 1,137.50 983.78
San Diego, Calif. -- -- 450.00 --
Canada -- -- 3,610.37 --
Los Angeles, Calif. -- -- 457.00 --
Snowmass, Colo. -- -- -- 2,019.37
Western Trip -- -- -- 1,009.00
Miscellaneous Washington -- -- -- 846.36
Annual Fee -- -- -- 45.00
Totals--fraud per 10,329.90 5,169.50 12,879.74 13,322.32
respondent’s brief
2
Total Travel and 18,611.70 13,452.26 23,014.34 11,659.62
entertainment
adjustments
--notice of deficiency
1
Respondent does not set forth the amounts of the Corpus
Christi, Texas, trips constructive dividends at the same place in
the brief at which the other amounts are listed. The amounts we
show for the Corpus Christi constructive dividends are taken from
Appendix VI to respondent’s opening brief.
2
See infra text following note 29 for discussion of the effect
of unexplained allowance items in the notices of deficiency.
Section 61(a)(7) includes dividends in gross income.
Section 316(a) provides that a dividend is any property
distributed by a corporation to its shareholders out of post-1913
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accumulated or current earnings and profits.26 Sec. 316(a). A
distribution taxable as a dividend under section 301 may be found
even though the corporation has not formally declared a dividend
or even intended to distribute a dividend. Loftin and Woodard,
Inc. v. United States, 577 F.2d 1206, 1214 (5th Cir. 1978);
Crosby v. United States, 496 F.2d 1384, 1388 (5th Cir. 1974);
Hash v. Commissioner, 273 F.2d 248, 250 (4th Cir. 1959), affg.
T.C. Memo. 1959-96. Accordingly an expenditure made by a
corporation for the personal benefit of one of its shareholders,
or the personal use of corporate property by a shareholder, may
result in the shareholder’s being treated as having received a
constructive dividend. Ireland v. United States, 621 F.2d 731,
735 (5th Cir. 1980); Commissioner v. Riss, 374 F.2d 161, 170 (8th
Cir. 1967), affg. on this issue and revg. on another issue T.C.
Memo. 1964-190; Challenge Manufacturing Co. v. Commissioner, 37
T.C. 650, 663 (1962), and opinions there cited. See also Old
Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929).
In determining whether constructive dividends have been
received, the key factors are whether the shareholders received
26
Petitioner has not argued that Markette’s earnings and
profits for 1983 through 1986 were insufficient to cover any of
the determined constructive dividends. Thus, we do not
redetermine the amounts of the relevant earnings and profits, nor
do we address the “wrongful diversion” and sec. 312 issues dealt
with in Hagaman v. Commissioner, 958 F.2d 684, 692 (wrongful
diversion), 695 (sec. 312) (6th Cir. 1992), affg. and remanding
T.C. Memo. 1987-549.
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economic benefits from the corporation without expectation of
payment therefor, Ireland v. United States, 621 F.2d at 735;
United States v. Smith, 418 F.2d 589, 593 (5th Cir. 1969), and
opinions there cited, and whether the company-provided benefits
made available to the shareholders were primarily of a personal
nature rather than in the business interests of the corporation.
Ireland v. United States, 621 F.2d at 735; Loftin and Woodard,
Inc. v. United States, 577 F.2d at 1215-1217.
The fact that certain payments are not deductible by a
corporation as business expenses, does not automatically result
in income to that corporation’s shareholder. The disallowed
expenses also must represent an economic gain or benefit to the
shareholder. See Dolese v. United States, 605 F.2d 1146, 1152
(10th Cir. 1979); Falsetti v. Commissioner, 85 T.C. 332, 356-357
(1985); Ashby v. Commissioner, 50 T.C. 409, 418 (1968). Whether
a shareholder received a constructive dividend is a question of
fact. Loftin and Woodard, Inc. v. United States, 577 F.2d at
1215. See generally, Bittker and Eustice, Federal Income
Taxation of Corporations and Shareholders, par. 8.05[8] at 8-48
(6th ed. 1994).
The disputed items we deal with in the fraud portion of the
opinion are predominantly travel expenses. Where respondent has
succeeded in establishing that the travel was by petitioner,
Betsy, and the children to a vacation resort or for a family
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function, petitioner contends that the Sley Corporations business
purpose in most such instances is that the travel was undertaken
so that Betsy could confer with Beatrice or petitioner, or
sometimes with Ben, about Sley Corporations business.
Petitioner states his view of the situation as follows in
his answering brief:
Every trip Petitioner and Betsy took was partly related
to business. On the trips, petitioner and Betsy would
talk about business and about the Sley Corporations
continuously.
In the context of closely held, personal holding
companies differentiating between shareholder purpose
and corporate purpose makes no sense because the
shareholders and their corporation generally have
identical interests.
Of course, a trip that is primarily for the taxpayer’s
individual pleasure is not converted into a business trip merely
because some short portions of the trip involve business
activities, even when it is clear that the asserted business
activities actually occurred and that those business activities
actually affected the cost of the trip. This has been the rule
under section 162 and its predecessors, even without regard to
the restrictions of section 274, enacted in 1962. E.g., George
R. Holswade, M.D., P.C. v. Commissioner, 82 T.C. 686 (1984);
Hoover v. Commissioner, 35 T.C. 566 (1961).
In the instant cases, we doubt that there were significant
business discussions on these trips. Petitioner’s general
testimony about business discussions was sometimes disputed by
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Betsy; where it was supported by Betsy, in almost all instances
Betsy’s testimony was no more believable on this point than
petitioner’s. For example, we simply do not believe that
petitioner, Betsy, and the children spent thousands of dollars to
travel to Miami during the 6 months or so each year that Beatrice
was there, simply to facilitate Sley Corporations business
discussions, or even in significant part to have such
discussions. We do not believe Betsy’s testimony that, when she
and the children were in Miami for a week she and Beatrice spent
1-2 hours a day discussing Sley Corporations business.
We consider the disputed items year-by-year and, for any
year, trip-by-trip in the order appearing supra in table 15.
(1) 1983
Miami
Markette paid $1,302 airfare for petitioner, Betsy, and the
children to fly to Miami in early 1983 to visit Beatrice.
See Findings Check No. 1862--Miami, supra.
In the context of the entire record, we are convinced that
the Miami trips in general, and this early 1983 Miami trip in
particular, were primarily personal and that Sley Corporations’
business, if it was discussed at all, was at most an incidental,
side aspect.
The personal nature of the Miami trips is demonstrated by
the fact that these were trips taken by the entire household to
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visit Betsy’s mother, the children’s grandmother. In addition,
petitioner and Betsy grew up in the Miami area, and petitioner’s
parents lived in the Miami area during at least some of the years
in issue.
Another indication of the personal nature of these trips is
that petitioner and Betsy did not make notes of what business
activities occurred on the trips. The general rule as to
allowance of deductions for ordinary and necessary expenses paid
or incurred during the taxable year for trade or business
purposes, is now codified at section 162. Section 274,
originally enacted as part of the Revenue Act of 1962, imposes
requirements in addition to those of section 162 for the
deductibility of travel and entertainment expenses incurred in
the conduct of a trade or business; subsection (d) of section 274
mandates specific substantiation requirements. Petitioner has
been a tax attorney since 1971; we believe that during the years
in issue, he knew of the substantiation requirements of section
274(d). If the trips to Miami were indeed business trips, then
we believe petitioner would have kept the records required by
section 274. Thus, petitioner’s exceptional knowledge of the tax
laws coupled with the fact that no records were kept of what
petitioner claims were business expenses, is further evidence
that leads us to conclude that the trips to Miami were not
business trips.
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We conclude, and we have found, that the trip to Miami was
primarily of personal nature. Markette’s payment of $1,302 of
the expenses of this trip constitutes a constructive dividend to
Betsy from Markette in this amount.
We hold for respondent on this issue.
Hawaii
Markette paid $2,014.69 of charges that petitioner made on
his Markette American Express credit card that was associated
with a trip to Hawaii taken by petitioner, Betsy, and the
children. Of this amount, a $39.95 airline ticket related to the
Hawaii trip later was refunded by way of a credit against the Los
Angeles Olympics tickets bill, discussed infra. Respondent also
contends that the $3,311.82 debit memorandum dated June 2, 1983,
was an expenditure by Markette associated with the trip to Hawaii
and that this expenditure had a primarily personal purpose. We
have found that the primary purposes of the trip to Hawaii were
(1) for petitioner to appear as a panelist on a video conference
to be broadcast from Hawaii by satellite, (2) meet Ruff in
person, and (3) to take a family vacation. See Findings Check
No. 1896, Debit Memo--Hawaii, supra.
Petitioner’s appearance on the video conference may have
been significant in enhancing his reputation as a tax lawyer,
although it appears to have netted him only one client, but no
Sley Corporations purpose has been suggested as being served by
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this appearance.27 Petitioner’s opportunity to meet Ruff might
conceivably have served a Sley Corporations purpose, but we have
no information suggesting that petitioner or Betsy learned, or
even sought to learn, anything from Ruff that would have been of
use to the Sley Corporations.
Petitioner’s role in the video conference on Oahu lasted
only about a few hours, with perhaps some studio preparation the
day before. Petitioner and Betsy visited Ruff’s operations on
Maui, but the record does not indicate that this was anything
more than a walk-through. On the other hand, petitioner, Betsy,
and the children were in Hawaii for 10 days or more. Thus,
substantially all of the time that petitioner, Betsy, and the
children spent in Hawaii was spent having a family vacation--
clearly a personal purpose and not a Sley Corporations’ business
purpose.
We conclude, and we have found, that there was no, or
practically no, Sley Corporations business purpose for the Hawaii
trip, and the predominant purposes of the Hawaii trip were
personal pleasure and Grossman & Flask business.
However, we do not agree with respondent’s contention that
Betsy should be charged with $5,326.51 constructive dividend
27
Petitioner has not contended for, or pointed to
evidence as a basis for, any allowance of an offsetting deduction
on account of his trade or business as a lawyer.
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income on account of this trip. Firstly, $39.95 of the amount
Markette paid by its check No. 1896 on account of this trip was
refunded to Markette by way of a credit against the Los Angeles
Olympics tickets bill discussed infra. As we understand
respondent’s contentions, respondent includes the $39.95 in the
Hawaii trip expenses (because that was paid as part of Markette’s
check No. 1896 payment of the July 1983 American Express invoice)
and also includes the $39.95 in the Los Angeles Olympics expenses
(because the credit was used against the charge for Olympics
tickets paid as part of Markette’s payment of the August 1983
American Express invoice). This is improper double-counting. We
conclude, and we have found, that the $39.95 is not properly an
expense of the Hawaii trip.
Secondly, our Findings of Fact detail the little information
that the record reveals about the $3,311.82 debit memorandum.
Respondent’s conclusion that this is properly a Markette
expenditure for a constructive dividend purpose is neither
adequately supported nor adequately refuted by evidence in the
record. Respondent, who has the burden of proving on this issue
that the debit memorandum represents an economic gain or benefit
to Betsy, Dolese v. United States, 605 F.2d at 1152; Falsetti v.
Commissioner, 85 T.C. at 356-357; Ashby v. Commissioner, 50 T.C.
at 418, must bear the consequence of failing to carry that
burden.
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We conclude that the trip to Hawaii was primarily of a
personal nature. Respondent proved by clear and convincing
evidence that $1,974.74 ($2,014.69 minus $39.95) of Markette’s
expenditures for this trip was associated with that purpose.
Thus, Betsy received a $1,974.74 constructive dividend in 1983
from Markette.
We hold for respondent as to $1,974.74 and for petitioner as
to $3,351.77 ($3,311.82 plus $39.95), on this issue.
Lake Tahoe
Markette paid $1,351.50 for round-trip airline tickets for
petitioner, Betsy, and their children to visit Lake Tahoe. See
Findings Check No. 1896--Lake Tahoe, supra. However, petitioner
did not go on that trip, and American Express refunded the $318
cost of his ticket. Thus, the net Markette payment for this trip
was $1,033.50. Betsy testified that the primary purpose of the
family’s usual midsummer Lake Tahoe trips was pleasure, and we
have found that that was the primary purpose of this trip.
On brief, petitioner refers to (1) Betsy’s testimony that
“we looked at investment properties around the Tahoe area” and
(2) his testimony “that he talked about the corporations’ assets
with Betsy ‘every waking moment, maybe too much.’” Firstly,
there is no basis for allocating any part of the expenses of this
Lake Tahoe trip to Sley Corporations business, as distinguished
from petitioner’s and Betsy’s personal and family purposes.
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Secondly, petitioner did not go on that trip, so he could not
have “looked at investment properties” with Betsy on that trip.
Thirdly, Betsy testified that she never did anything about the
alleged investment property examination.
We are satisfied that respondent has shown by clear and
convincing evidence that the 1983 Lake Tahoe trip was for
personal pleasure and not for Sley Corporations’ business, and
that Markette’s payment of the cost of the airline tickets
constituted income to Betsy, reportable on petitioner’s and
Betsy’s 1983 joint tax return.
However, we do not agree with respondent’s contention that
petitioner and Betsy should be charged with $1,351.50
constructive dividend income on account of this trip. We have
found that $318 of the amount Markette paid by its check No. 1896
on account of this trip was refunded to Markette by way of a
credit against the Los Angeles Olympics tickets bill discussed
infra. As we understand respondent’s contentions, respondent
includes the $318 in the Lake Tahoe trip expenses (because that
was paid as part of Markette’s payment of the American Express
July 1983 invoice) and also includes the $318 in the Los Angeles
Olympics expenses (because the credit was used against the charge
for Olympics tickets paid as part of Markette’s payment of the
American Express August 1983 invoice). This is improper double-
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counting. We conclude, and we have found, that the $318 is not
properly an expense of the Lake Tahoe trip.
We conclude that the trip to Lake Tahoe was primarily of a
personal nature. Respondent proved by clear and convincing
evidence that $1,033.50 ($1,351.50 minus $318) of Markette’s
expenditures for this trip were associated with that purpose.
Thus, Betsy received a $1,033.50 constructive dividend from
Markette.
We hold for respondent as to $1,033.50 and for petitioner as
to $318, on this issue.
Los Angles Olympics
Markette paid $1,359.55 for tickets to the 1984 Los Angeles
Olympics to be used (and in 1984 in fact used) by petitioner,
Betsy, and the children. See Check Nos. 115417 and 1896--1984
Olympics, supra. This payment was made by issuance of a check in
the amount of $1,001.60, and application of credits on Markette’s
American Express invoice on account of a $39.95 overpayment
resulting from the Hawaii trip, see supra, and a $318 overpayment
resulting from the Lake Tahoe trip, see supra. See supra table
6.
Apart from his general contention that “on every trip, Betsy
and petitioner discussed the business of her multimillion dollar
enterprise”, petitioner does not suggest that there was any Sley
Corporations business purpose for Markette to buy the tickets, or
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for himself, Betsy, and the children to go to the Los Angeles
Olympics in 1984, and we do not perceive any such business
purpose.
Petitioner testified that Betsy told him that she would
reimburse Markette, but she did not in fact reimburse Markette.
We conclude, and we have found, that the tickets to the 1984
Los Angeles Olympics were personal. Respondent proved by clear
and convincing evidence that Markette paid $1,359.55 for these
tickets. Thus, Betsy received a $1,359.55 constructive dividend
from Markette.
We hold for respondent on this issue.
New York
Markette paid $496 for airfare and $494.34 for hotel and
meals for a trip to New York, N.Y., on September 9, 1983, and a
return on September 11, 1983, for petitioner, Betsy, and the
children. See Findings Check Nos. 1903 and 1912--New York City,
supra. On opening brief, petitioner “concedes that any travel
related to the children is a constructive dividend.” As detailed
in our findings, supra, of the total $990.34, we have attributed
$520 to the children and the remaining $470.34 to petitioner and
Betsy.
We have accepted petitioner’s and Betsy’s testimony to the
effect that the purpose of this trip was for petitioner and Betsy
to go to the “diamond district” in New York City to talk with
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diamond brokers about selling the Sley Corporations’ diamonds.
We have accepted their testimony that this was not a vacation
trip.
We conclude, and we have found, that the expenditures for
the children on this New York trip were for personal purposes and
not for Sley Corporations business purpose. Thus, Betsy received
a $520 constructive dividend from Markette.
We hold for respondent as to $520, and for petitioner as to
$470.34, on this issue.
Summary--1983
Our fraud issue holdings as to 1983 constructive dividends
are summarized in table 16.
Table 16
Respondent’s
1983 Trip Contention on Brief Court’s Holding
Miami $1,302.00 $1,302.00
Hawaii 5,326.51 1,974.74
Lake Tahoe 1,351.50 1,033.50
L.A. Olympics 1,359.55 1,359.55
New York 990.34 520.00
Totals 10,329.90 6,189.79
(2) 1984
Miami
On February 21, 1984, Markette issued check No. 1946 to
Eastern Airlines, Inc., in the amount of $1,616.50.
Apart from photocopies of the front and back of the check,
the only evidence in the record as to this item is the following
colloquy:
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Q [McDougal] Check number 1946 should be probably a
couple page down for Eastern Air, $1616.50, February 17,
1984. Would that be for a Miami trip?
A [Betsy] I haven’t found it yet.
Q I’m sorry.
A Okay, I found it. It might be. I don’t have the
bills to match it up.
Q But that time of year would Eastern Airline’s
flights have been to Miami?
A Most likely.
We cannot determine from the foregoing whether or not Betsy
received a constructive dividend on account of that payment.
Respondent has failed to carry the burden of proving that
constructive dividend by clear and convincing evidence.
We hold for petitioner on this issue.
Miami
On or about August 5, 1984, Betsy charged a round-trip
ticket on Pan American World Airways to Miami for $716. Markette
paid for this on October 8, 1984, by check No. 2008.
Apart from photocopies of the front and back of the check;
photocopies of the fronts of the charge slip, the September
invoice, and the invoice stub; and the fact that petitioner’s and
Betsy’s son was 8 years old at the time, the only evidence in the
record as to this item is the following colloquy:
Q [McDougal] If you’ll turn back to Exhibit AQ again,
please, page 15. On the invoice at the bottom is an
American Express charge for Pan Am ticket for G. Grossman
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from Dulles to Miami in the amount of $716. Your son’s name
begins with a “G”--Geoffrey?
A [Betsy] Yes.
Q Would that pertain to him?
A Well, I have a son named Geoffrey.
Q Do you remember sending him on a flight to Florida
in 1984?
A I’m not sure. This is an awful large amount for one
ticket.
Q You think it might have been more than one ticket?
A What?
Q Do you think it might have been for more than one
ticket?
A I have no idea. Usually my children are in camp in
August, until about the middle of August. I’m not really
sure.
Q During this general period of time, <83 through <86,
do you recall sending your son to Florida, say to visit his
grandparents?
A We usually went to Tahoe in August, after the
children came home from camp, so I’m not really sure about
this ticket, or this invoice.
Q Do you remember any time during this general period
of time when you sent your son to Florida to meet with his
grandparents?
A I don’t think I would have sent him by himself. He
was too young.
Q So you don’t know what this ticket is for?
A No, I can’t tell you.
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We cannot determine from the foregoing whether or not Betsy
received a constructive dividend on account of that payment.
Respondent has failed to carry the burden of proving that
constructive dividend by clear and convincing evidence.
We hold for petitioner on this issue.
Los Angeles Olympics
On July 20, 1984, Markette issued check No. 1987 to United
Airlines, in the amount of $2,057. Apart from photocopies of the
front and back of the check, and testimony that petitioner,
Betsy, and the children had attended the 1984 Olympics (for which
Markette had bought them tickets in 1983), the only evidence in
the record as to this item is the following colloquy:
Q [McDougal] One more check in [Exhibit] AP, Mrs.
Grossman, number 1987. That should be a check to United
Airlines and it appears that there are five ticket numbers
noted at the top.
A [Betsy] I don’t know what’s noted at the top.
Q At the end of that long number, does that appear to
be a sequence of five tickets?
* * * * * *
Q Mrs. Grossman, I don’t have the number right in
front of me, but does it appear to you that that number
refers to a series of about five ticket numbers?
A I can’t read the number. I don’t know if they
are numbers or letters. It’s not--I must need better
glasses. I can’t tell you.
Q I can’t read it to you. We’ll just move on. The
check was written I believe July 20th 1984.
A That’s what it says.
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Q The Olympics that year were late July and early
August of 1984?
A Yes.
Q Would you have flown United Airlines to the
Olympics?
A I don’t remember.
Q So you don’t know whether this check went to the
Olympics or not?
A The check didn’t go to the Olympics. The check is
written out to United Airlines.
Q My question was very poorly worded. You don’t have
any idea whether this check related to the Olympics trip?
A I can’t say for sure.
Q Do you remember any business trips you took on
behalf of Markette Corporation at around the time of the
Olympics?
A I can’t say for sure.
We cannot determine from the foregoing whether or not Betsy
received a constructive dividend on account of that payment.
Respondent has failed to carry the burden of proving that
constructive dividend by clear and convincing evidence.
We hold for petitioner on this issue.
Orlando
On September 27, 1984, petitioner, Betsy, and the children
flew to Orlando, Florida; they returned on September 30, 1984.
See Findings Check No. 2008--Orlando, supra. Betsy testified
that they went to Orlando to meet Ben at Walt Disney World. She
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testified that Ben had “some kind of new computer system that he
was working with futures in the market.”
We are satisfied that, when parents take their three
children (then aged 14, 11, and 8) to Walt Disney World on a 3-
day trip, the trip is for personal purposes unless something
appears in the record to lead us to a different conclusion. The
only suggestion in the record as to a Sley Corporations business
purpose is Betsy’s reference to Ben’s “computer system”. There
is no evidence of any discussions at Walt Disney World about the
Sley Corporations possible use of whatever Ben had found or
developed, nor is there anything in the record indicating why it
made business sense to travel from Washington, D.C., to Orlando
(and, in Ben’s case, from Corpus Christi to Orlando) for any such
discussions. See George R. Holswade, M.D., P.C. v. Commissioner,
82 T.C. at 701-702.
As we have found, Markette’s American Express October
invoice showed an $860 credit on account of an item paid for on
the August invoice and carried over to the September invoice.
The September invoice was paid. The October invoice also showed
the $780 charge for the Orlando tickets. This left a credit
balance of $80 to be carried over to the next invoice. Thus the
Orlando tickets were indirectly paid for by Markette’s check No.
2008.
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We are satisfied, and we have found, that respondent has
shown by clear and convincing evidence that the Orlando trip was
for personal pleasure and not for Sley Corporations business. We
conclude that Markette’s payment of the cost of the airline
tickets constituted constructive dividend income to Betsy,
reportable on petitioner’s and Betsy’s 1984 joint tax return.
We hold for respondent on this issue.
Summary--1984
Our fraud issue holdings as to 1984 constructive dividends
are summarized in table 17.
Table 17
Respondent’s
1984 Trip Contention on Brief Court’s Holding
Miami $1,616.50 --
Miami 716.00 --
L.A. Olympics 2,057.00 --
Orlando 780.00 $780
Totals 5,169.50 780
(3) 1985
Miami
Markette paid $397 for airfare to Miami for the children
that Betsy charged on her Markette American Express credit card.
Our Findings of Fact (Check No. 2036--Miami--Children, supra)
detail the arrangements that led to the children flying from New
York to Miami on December 26, 1984. It is clear that the
children were on vacation in New York and traveled from there to
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Miami to meet their grandmother, Beatrice. Petitioner does not
even bother to suggest a possible Sley Corporations business
purpose, and we have found that the Miami trip was for a personal
family vacation purpose. Betsy testified that “The reason that
they [the children] went to Miami was because of the babysitter
situation.”
We are satisfied that respondent has shown by clear and
convincing evidence that the children’s Miami trip was for
personal purposes and not for Sley Corporations business, and
that Markette’s payment of the cost of the airline tickets
constituted constructive dividend income to Betsy, reportable on
petitioner’s and Betsy’s 1985 joint tax return.
We hold for respondent on this issue.
Miami
On February 4, 1985, Markette issued check No. 2043 to
Eastern Airlines, Inc., in the amount of $1,192. On February 26,
1985, Markette issued check No. 2051 to Eastern Airlines, Inc.,
in the amount of $974.
Apart from photocopies of the fronts and backs of the
checks, totaling $2,166, the only evidence in the record as to
this item is the following colloquy:
Q [McDougal] If you’ll turn, please, to page 20, we
will skip the Marriott invoice at the top because it does
not appear to have been charged to the corporation.
Mrs. Grossman, would you look at AP, the checks, the
‘85 section, check number 2043, which is about the fifth
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page down. There’s a check to Eastern Airlines for $1192 on
February 24th. It’s about three pages beyond that, 2051,
Eastern Airlines in the amount of $974 again in February
‘85.
* * * * * * *
THE COURT: Now what was your question again?
MR. McDOUGAL: The question is would Eastern Airline
tickets purchased at that time of year be for the spring
Miami trip.
THE WITNESS [Betsy]: I have no idea what they’re for.
BY MR. McDOUGAL:
Q I’m sorry?
A I have no idea what they were for in February.
Q Do you recall flying Eastern Airlines for trips
other than to Miami?
A No.
Q We just looked at 2051. The check above that, 2050,
is American Express, February 26th 1985 for $2002.25.
If the Eastern checks were for a trip to Miami, would
the American Express charges for the same period be for some
other purpose?
A I don’t know.
Although respondent referred to Markette check No. 2050 in
the colloquy and determined in the notice of deficiency that the
amount of that check ($2,002.25) also was constructive dividend
income to Betsy, the record does not include information shedding
further light on check No. 2050 or its connection to check Nos.
2043 and 2051.
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We cannot determine from the foregoing whether Betsy
received a constructive dividend on account of the $2,166 payment
by check Nos. 2043 and 2051. Respondent has failed to carry the
burden of proving that constructive dividend by clear and
convincing evidence.
We hold for petitioner on this issue.
Lake Tahoe
Markette paid for $630 of airfare to Reno--$420 round-trip
for Betsy and $210 Reno-to-Washington, D.C., for petitioner. See
Findings Check No. 2108--Lake Tahoe, supra. Betsy testified as
follows regarding this trip:
Q [McDougal] So this trip would be purely personal.
A [Betsy] Well, we went out there and I guess it was
basically personal. We were there by ourselves. We
probably took sometime to talk about what was going on with
the business.
Betsy flew to Reno on August 7, 1985. The record does not
indicate when petitioner went there, or how his flight there was
paid for. Betsy and petitioner flew back on August 11, 1985. As
we noted in analyzing the 1983 Lake Tahoe trip, Betsy testified
that the primary purpose of the family’s usual midsummer Lake
Tahoe trips was pleasure. We have found that the 1985 Lake Tahoe
trip, almost precisely in the middle of the summer, also was
taken primarily for pleasure.
Respondent has shown by clear and convincing evidence that
petitioner’s and Betsy’s Lake Tahoe trip was for personal
- 110 -
purposes and not for Sley Corporations business, and that
Markette’s payment of the cost of the airline tickets constituted
constructive dividend income to Betsy, reportable on petitioner’s
and Betsy’s 1985 joint tax return.
We hold for respondent on this issue.
Acapulco
Markette paid $3,682.21 on account of an April 1985 trip by
petitioner, Betsy, and the children to Acapulco. See Findings
Check Nos. 2084, and 2092--Acapulco, supra. Betsy testified as
follows regarding this trip:
Q [McDougal] Thank you. I’m going to ask you to move
back to [Exhibit] AQ again, this time page 19. The invoice
on page 19, both pages, show charges for the Acapulco
Princess in Mexico and a couple of other charges in Mexico,
and page 21 appears to show the backup charge slips for that
invoice.
Do you recall the purpose of the trip to Acapulco?
A [Betsy] The purpose was a spring vacation trip.
Q Did it have anything to do with the business of
Markette Corporation?
A Not specifically.
Petitioner’s analysis of the Sley Corporations business
purpose of this trip is as follows:
Betsy and petitioner travelled to destinations that
were conducive to business discussions, and business
discussions were held. (P.R.F. ¶ 463). The Grossman house
was being renovated, (P.R.F. ¶ 510), and was at that time an
unsuitable forum to discuss Sley System business. * * *
[There follows an attack on respondent’s expenditures of
“tax money he collects in cases like the one at bar.”]
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Petitioner worked in a busy law office. (P.R.F. ¶
57(A)). He devoted 99.99 percent of his time to his law
firm. (P.R.F. ¶ 57(A)). The trips to Mexico and Canada
preceding the end of his marriage were trips where Markette
Corp. business was discussed and the expenses paid are not
dividends to petitioner.
Obviously, Betsy and petitioner had substantial trouble
communicating at home. When Betsy and petitioner travelled
to Acapulco and Canada, Markette Corp. business was
discussed. (P.R.F. ¶¶ 512, 518).
We are satisfied that Betsy’s testimony captured the essence
of the situation. Respondent has shown by clear and convincing
evidence, and we have found, that petitioner’s, Betsy’s, and the
children’s Acapulco trip was for personal purposes and not for
Sley Corporations business. We conclude that Markette’s payment
of the costs of the trip constituted income to Betsy, reportable
on petitioner’s and Betsy’s 1985 joint tax return.
We hold for respondent on this issue.28
Stamford
Markette paid a $59.63 bill from Le Pavillon, dated June 8,
1985, that petitioner charged on his Markette American Express
credit card. This expenditure was associated with a trip to
Stamford, Connecticut, to attend a bar mitzvah. On the same day,
petitioner and Betsy charged two adult ($65 ea.) and four
28
On brief, respondent asserts that Betsy had $3,682.24
constructive dividend income on account of the Acapulco trip.
Our addition comes to $3,682.21, and we have so found. The
latter number appears to be consistent with respondent’s
determination in the notice of deficiency. Our holding is for
the latter number.
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children’s ($40 ea.) one-way shuttle airline tickets between
Washington, D.C., and New York. Markette also paid the $290 cost
of these airline tickets. See Findings Check Nos. 2092 and 2098-
-Stamford, supra. The trip to Stamford to attend the bar mitzvah
was personal and not on Sley Corporations business. Although the
evidence of record as to the $290 is equivocal, petitioner
appears to concede that the shuttle travel was the Washington-New
York or the New York-Washington portion of the Stamford trip.
Petitioner’s only contention on this point, on answering brief,
is that “the $290 trip to the New York diamond market was a
legitimate business expense.”
Although it is clear that the Stamford trip is entirely
personal (and thus the $59.63 is entirely personal), we cannot
tell from the record how the six shuttle tickets fit in, and what
was the length and nature of the associated New York City trip.
Betsy, for example, could not recall any trip to New York with
four children.
Respondent has shown by clear and convincing evidence, and
we have found, that petitioner’s and Betsy’s Stamford trip was
for personal purposes and not for Sley Corporations business. We
conclude that Markette’s payment of the $59.63 item related to
this trip constituted income to Betsy, reportable on petitioner’s
and Betsy’s 1985 joint tax return. Respondent has failed to make
the same showing as to the shuttle tickets.
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We hold for respondent as to $59.63, and for petitioner as
to $290, on this issue.
Corpus Christi
Markette paid $1,137.50 for round-trip airfare to Corpus
Christi, Texas, for Betsy and the children. See Findings Check
No. 2098--Corpus Christi, supra.
Betsy testified as follows regarding this Corpus Christi
trip:
Q [McDougal] Do you remember the purpose of the trip?
A [Betsy] I think my mother was out there and I think
I had gone out there to meet with my mother and my brother.
Q And was that for the business of Markette
Corporation.
A I think there was some business that was discussed.
Q Was that the primary purpose of the trip?
A I don’t remember specifically.
Q What interest did Markette Corporation have in
having your children go to Corpus Christi?
A I don’t know. I mean all these bills were given
over to Harvey Berger and it was not my procedure to ever
really question what was done with these things.
Respondent has shown by clear and convincing evidence, and
we have found, that Betsy’s and the children’s Corpus Christi
trip was for personal purposes and not for Sley Corporations’
business. We conclude that Markette’s payment of the $1,137.50
airfare constituted constructive dividend income to Betsy,
reportable on petitioner’s and Betsy’s 1985 joint tax return.
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We hold for respondent on this issue.
San Diego
Markette paid $450 for Betsy’s round-trip airfare to San
Diego. See Findings Check No. 2098--San Diego, supra.
Betsy testified as follows regarding this trip:
Q [McDougal] Now the invoice back on page six also
shows an American Airline charge of $450. Do you see that?
It’s the next charge down after the U.S. Air charges.
A [Betsy] Yes.
Q Page eight shows a receipt in your name from Dulles
to O’Hare to San Diego in the amount of $450, at the bottom
of the page.
A Yes.
Q What was the purpose of the trip to San Diego?
A I had gone out there myself.
Q For what purpose?
A Pleasure.
On answering brief, petitioner’s only response seems to be
“Petitioner knew nothing about said trip.”
Respondent has shown by clear and convincing evidence, and
we have found, that Betsy’s San Diego trip was for personal
purposes and not for Sley Corporations business. We conclude
that Markette’s payment of the $450 airfare constituted
constructive dividend income to Betsy, reportable on petitioner’s
and Betsy’s 1985 joint tax return.
We hold for respondent on this issue.
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Canada
Markette paid $3,610.37 for expenses of petitioner, Betsy,
and the children on a trip to Canada. See Findings Check Nos.
2098 and 2108--Canada, supra. When asked what the purpose was of
this 10-day August 1985 trip, Betsy testified that “Basically it
was a family trip.” On answering brief, petitioner states that
“While in Canada, Betsy Grossman and petitioner continually
discussed Markette Corp. business.” We do not believe
petitioner’s protestations about “continually” discussing Sley
Corporations business in Buffalo, Montreal, Toronto, Ottawa, and
places in between.
At trial, petitioner appeared to have acknowledged that the
expenses of the Canada trip should have been subject to an
“allocation * * * to do the right thing”. However, taking into
account factors described in George R. Holswade, M.D., P.C. v.
Commissioner, 82 T.C. at 701-702, and the allocations we made in
that opinion, the record herein leads us to the conclusion that
no allocation should be made in the instant cases; all the Canada
trip expenses here in dispute are personal.
Respondent has shown by clear and convincing evidence, and
we have found, that petitioner’s, Betsy’s, and the children’s
Canada trip was for personal purposes and not for Sley
Corporations business. We conclude that Markette’s payment of
the costs of the trip constituted constructive dividend income to
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Betsy, reportable on petitioner’s and Betsy’s 1985 joint tax
return.
We hold for respondent on this issue.
Los Angeles
Markette paid $457 for petitioner’s airfare from Los Angeles
to Washington, D.C., that petitioner charged on his Markette
American Express credit card. See Findings Check No. 2100--Los
Angeles, supra.
Respondent asked Betsy about the airline ticket, and Betsy
testified that she did not remember anything about the trip and
did not “specifically” remember anything about petitioner’s being
in Los Angeles on Sley Corporations business. Respondent did not
ask petitioner about the trip, and petitioner did not testify
about it.
Respondent has failed to show by clear and convincing
evidence that petitioner’s Los Angeles trip was for personal
purposes and provided a benefit to Betsy.
We hold for petitioner on this issue.
Summary--1985
Our fraud issue holdings as to 1985 constructive dividends
are summarized in table 18.
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Table 18
Respondent’s Contention
1985 Trip on Brief Court’s Holding
Miami $397.00 $397.00
Miami 2,166.00 --
Lake Tahoe 630.00 630.00
Acapulco 3,682.24 3,682.21
Stamford 349.63 59.63
Corpus Christi 1,137.50 1,137.50
San Diego 450.00 450.00
Canada 3,610.37 3,610.37
Los Angeles 457.00 --
1
Totals 12,879.74 9,966.71
1
Table 10, supra, shows that we found that Betsy had $10,164.71
of constructive dividend income from 1985 Markette payments for
personal travel and entertainment expenses. The $198 difference
between that amount and the $9,966.71 shown in table 18 is
accounted for by Betsy’s round-trip ticket to Miami, described in
our findings of Check No. 2036--Miami--Betsy, supra. Respondent
included that item in the notice of deficiency, but not in the
listing of fraudulent items.
(4) 1986
On answering brief, petitioner contends as follows:
12. 1986 trips.
Respondent contends at pages 124 - 126 of her
[opening] brief that Betsy had constructive dividend
income from corporate expenditures which was
fraudulently omitted from petitioner’s 1986 joint
return. Petitioner in his Opening Brief at pages 177 -
184, inclusive, argues that he is an innocent spouse
for 1986. Petitioner relies on his innocent spouse
argument as his response to respondent’s 1986
constructive dividend claim. Petitioner neither signed
nor saw Markette’s 1986 tax return. P.R.F. ¶ 255(A).
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The pages of respondent’s opening brief to which petitioner
refers are where respondent details respondent’s contentions as
to fraudulently omitted constructive dividends totaling
$13,322.32. See supra table 15. Thus, petitioner appears to
concede these omissions, although contesting his involvement in
these omissions and in any fraud that might be associated
therewith. Despite petitioner’s broad concession, however, we
reduce this $13,322.32 figure by (1) $6,117.68 of allowances by
respondent and (2) $1,241.21 of expenses determined by respondent
to be fraudulently omitted constructive dividends, but with
respect to which we did not find a personal purpose.29
In the notice of deficiency for 1986, respondent determined
that omitted constructive dividend income was only $11,659.62.
See supra table 11. This resulted from respondent’s allowing a
total of $6,117.68 from the challenged items--the sum of the four
adjustments shown on supra table 12, in connection with check
Nos. 2137 ($1,674), 2162 ($3,057.61), and 2220 ($598), and the
$788.07 adjustment not related to a specific check. Although
there is some suggestion that respondent has had second thoughts
about some or all of those allowances, respondent has not moved
to amend the answer to reduce the amount of any of these
allowances. Also, respondent has failed to clarify precisely
29
On the other side of the coin, we found that certain
expenses had a personal purpose, with respect to which respondent
did not allege fraud. Compare supra table 12 with table 15.
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which of the disputed expenditures are being allowed, and in what
amounts. Thus, we construe these allowances against respondent.
We also reduce the $13,322.32 figure by $1,241.21, as
follows: (1) $797.21 of miscellaneous Washington area expenses,
as we found that the record does not support a finding that these
expenditures had a personal purpose, see supra Check No. 2162--
Miscellaneous Washington, D.C., (2) $45 annual membership fee
that we found had a business purpose, see supra Check No. 2220--
American Express Fee, and (3) $399 refund of one of the five
Washington-Miami tickets, see supra Check Nos. 2137, 2148, and
2203--Miami.
We hold for respondent to the extent of $5,963.43
($13,322.32 less $6,117.68 and less $1,241.21) and for petitioner
to the extent of $7,358.89 ($6,117.68 plus $1,241.21), on this
issue.
(5) Conclusions
Table 19 shows the amounts of constructive dividends Betsy
received from Markette that petitioner and Betsy omitted from
their 1983 through 1986 tax returns.
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Table 19
Respondent’s Contentions
Year (Table 15) Court’s Holdings
1983 $10,329.90 $6,189.79
1984 5,169.50 780.00
1985 12,879.74 9,966.71
1986 13,322.32 5,963.43
Petitioner does not contend that he is entitled to
offsetting deductions or credits for any of those years.30 Thus,
we conclude that respondent has shown by clear and convincing
evidence that petitioner had an underpayment of tax for each of
the years 1983 through 1986.
We hold for respondent on this issue.
B. Fraudulent Intent
Respondent contends that “petitioner’s returns for four
consecutive years omitted substantial amounts of constructive
dividend income”, petitioner was “intimately aware” of the
pattern of omissions, petitioner’s “specialized knowledge and
30
The parties have stipulated that petitioner and Betsy--
are entitled to credits in the above amounts [the amounts of
F.I.C.A. taxes withheld from Sley Corporations’ payments to
Betsy] for 1983, [$2,391.91] 1984 [$2,532.59] and 1985
[$2,791.78; see supra table 3] in determining the amounts of
overpayments or deficiencies to be paid with respect to
their joint returns for said years.
We understand this to be an agreement relating to payments, and
not an agreement affecting the determination of the
“underpayment” as used in sec. 6653(b)(1). However, this
agreement would affect the amount of any additional addition to
tax under sec. 6653(b)(2).
- 121 -
experience in the tax field” makes this awareness of greater
significance, this pattern of omissions “was part of a larger
pattern of tax evasion in which distributions of earnings and
profits of Markette and related corporations were disguised as
deductible compensation and in which petitioner had the guiding
hand”, and petitioner’s “false and misleading statements to
respondent and the Court”, all lead to the conclusion that
petitioner had a “fraudulent intent”, in omitting the
constructive dividend income.
Petitioner maintains that “Betsy managed all Grossman family
affairs” and “made arrangements for all travel”, during the years
in issue “Betsy oversaw corporate administration” of the Sley
Corporations, “Betsy gave petitioner instructions on how to carry
out his duties, [regarding the Sley Corporations] and petitioner
followed them”, and “petitioner relied upon Betsy, Ben, Bea and
Berger to allocate through reimbursements and their yearly
dividend declarations between business and personal expenses”.
Petitioner also points out that respondent had previously audited
petitioner’s and Betsy’s 1983 and 1985 tax returns, and
respondent then determined that petitioner and Betsy had overpaid
their taxes. Finally, petitioner insists that he relied on
Baybrook and Berger--both of whom were highly qualified and had
access to all books and records--to (1) assure the accuracy of
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his and Betsy’s, and the Sley Corporations’, tax returns and (2)
determine the amounts of Betsy’s dividends.
We agree with significant portions of respondent’s
contentions, but conclude that respondent failed to carry the
heavy burden of proof as to 1983 and 1984.
Petitioner knew that he and Betsy charged personal expenses
on Markette’s American Express credit cards. Petitioner oversaw
the Sley Corporations’ daily operations and knew that Markette
paid these charges and did not identify these payments as
payments of personal expenses. Petitioner knew that Berger was
not retained to audit the Sley Corporations’ books and records,
and so Berger almost certainly would not discover that Markette
paid petitioner’s and Betsy’s personal expenses. Petitioner, a
tax lawyer familiar with constructive dividend rules, understood
that he and Betsy were failing to report income on which they
were taxable. Petitioner’s attempts to blame the omissions on
Baybrook, Berger, and Betsy are not credible; these attempts are
a further indication of petitioner’s fraudulent intent. We
consider these elements seriatim, and then deal with other
considerations.
(1) Petitioner’s Knowledge of Credit Card Charges
Firstly, petitioner went on almost all of the trips
discussed in part A. If petitioner did not go with his family on
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a particular vacation trip, then Betsy told petitioner of the
trip.
Secondly, petitioner knew that expenses of these vacation
trips were charged to Markette, because he, himself, charged many
of those expenses on his Markette American Express credit card.
In 1983, petitioner charged on his American Express credit card
the airfare to Lake Tahoe and all the expenses associated with
the Hawaii trip. On the 1983 New York City trip, all the charges
were on Betsy’s Markette American Express credit card, but
petitioner signed the credit slips for the hotel, etc., expenses.
In 1985, petitioner charged most of the expense of the Acapulco
trip, the expense associated with the trip to Stamford, and all
but the airline ticket portion of the expenses associated with
the trip to Canada. In 1986, petitioner charged part of the
expenses associated with the trips to Miami, dinner for
petitioner and Betsy at the Shoreham Hotel, the charges from
Lenny’s Restaurant and Vista International Hilton, and part of
the expenses associated with the second trip to Key West.
(2) Petitioner’s Knowledge of Payments
Petitioner knew that Markette paid for the charges on the
Markette American Express credit cards, because he directed
Baybrook to make those payments. Petitioner supervised Baybrook
in her duties for the Sley Corporations, and she took directions,
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including directions with respect to paying bills, exclusively
from petitioner.
Petitioner brought the American Express invoices to Baybrook
and told her which of the Sley Corporations was to pay for the
charges on a particular invoice. After Baybrook prepared a check
as payment, she attached the check to the invoice and returned it
to petitioner for his final review. Petitioner closely reviewed
each check against each invoice, as well as each transaction on
each invoice. Petitioner signed most of the Markette checks to
pay for the charges on the American Express invoices; Betsy
signed checks when petitioner asked her to do so. In verifying
the charges on the American Express invoices, petitioner checked
with Betsy, on at least some occasions, to determine whether
Betsy had made a particular charge. Petitioner never told
Baybrook that a travel expense on an American Express invoice was
a personal item, and thus was not to be paid by the Sley
Corporations.
(3) Petitioner’s Knowledge of Berger’s Limited Role
Petitioner brought Berger into the picture, initially to
prepare the Sley Corporations’ 1980 tax returns. Berger
continued preparing the Sley Corporations’ tax returns,
petitioner’s and Betsy’s tax returns, and the Sley Corporations’
compilation financial statements; he also calculated the amounts
- 125 -
of dividends necessary to avoid imposition of personal holding
company taxes on the Sley Corporations.
Berger was not retained to do any audit work on behalf of
the Sley Corporations. Each of Berger’s compilation financial
statements includes a compilation report that starts as follows:
A compilation is limited to presenting in the form
of financial statements information that is the
representation of management. We have not audited or
reviewed the accompanying [December 31, 1980, 1981,
etc.] financial statements and[,] accordingly, do not
express an opinion or any other form of assurance on
them.
Because petitioner knew that Berger did not audit the Sley
Corporations books--and was reminded of this in each year’s
compilation financial statements--petitioner knew that Berger
would not discover that Markette paid petitioner’s and Betsy’s
personal expenses. As a result, no one in the system would be
likely to realize that Betsy had constructive dividends that were
not reported on petitioner’s and Betsy’s joint tax returns.
(4) Petitioner’s Knowledge of the Tax Laws
In analyzing whether some part of the underpayments of the
tax was due to petitioner’s fraud, we consider petitioner’s
background and knowledge of tax law. Scallen v. Commissioner,
877 F.2d 1364, 1370-1371 (8th Cir. 1989), affg. T.C. Memo. 1987-
412; Solomon v. Commissioner, 732 F.2d 1459, 1461-1462 (6th Cir.
1984), affg. T.C. Memo. 1982-603; Beaver v. Commissioner, 55 T.C.
85, 93-94 (1970). As we have said, “In determining the presence
- 126 -
or absence of fraud, the trier of the facts must consider the
native equipment and the training and experience of the party
charged.” Iley v. Commissioner, 19 T.C. 631, 635 (1952).
Petitioner is a practicing attorney with an LL.M. in
taxation degree from New York University. Petitioner was a
senior trial attorney in the Trial Branch of the Tax Court
Litigation Division, Office of Chief Counsel, Internal Revenue
Service, for 4 years. He has been in private practice,
specializing in tax law, for about 20 years. Petitioner is a
member of the bar of this Court.
Petitioner understands that a shareholder-taxpayer receives
a constructive dividend when a corporation in which a taxpayer
owns stock pays the personal expenses of that shareholder without
the expectation of repayment. We take judicial notice of a case
in this Court, First Teachers Investment Corp. v. Commissioner,
T.C. Memo. 1980-302, involving constructive dividends, in which
petitioner appeared as counsel for the taxpayer, and a Case
before the Court of Appeals for the Fourth Circuit, Clevenger v.
Commissioner, 826 F.2d 1379 (4th Cir. 1987), affg. T.C. Memo.
1986-149, also involving constructive dividends, in which
petitioner appeared on brief for the taxpayer. Petzoldt v.
Commissioner, 92 T.C. at 674; Estate of Reis v. Commissioner, 87
T.C. 1016, 1027 (1986). Further, we believe that petitioner
knows that expenses can be apportioned between the business and
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personal portions of a trip, because petitioner arranged for the
Sley Corporations to pay for only that portion of Baybrook’s trip
to Florida that she spent on business (see supra note 5), not her
entire trip.
Petitioner’s background increases our confidence that he
understood that, when he told Baybrook that Markette was to pay
for the travel and entertainment expenses on the Markette
American Express invoices, it would result in the constructive
dividends’ not being reported on his and Betsy’s joint tax
returns. We believe that petitioner acted in bad faith, with the
intention that the constructive dividends not be reported.
Petitioner points to the relatively small amounts of omitted
constructive dividends, compared to the substantial amounts of
income that he and Betsy reported, and substantial amounts of
income taxes they paid. Compare, for example, table 19 with
tables 13 and 14. The significance of large relative omissions
in most fraud opinions decided for respondent is that the
relative magnitude of the omissions convinced us that the
omissions could not have been inadvertent. In the instant cases,
petitioner’s knowledge of the tax laws combines with the other
elements we discuss to convince us that these omissions could not
have been inadvertent. Thus, in the instant cases, the
comparatively small relative magnitude of omissions does not
point toward inadvertence.
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(5) Petitioner’s Misleading Explanations
Petitioner claims that he was merely acting as Betsy’s agent
in her administration and oversight of the Sley Corporations and
that Betsy gave petitioner instructions on how to carry out his
duties. The extension of petitioner’s argument then, is that
petitioner cannot be held responsible for any income that may
have been omitted from petitioner’s and Betsy’s joint tax return
because petitioner was merely acting under Betsy’s control and
direction. This claim is squarely contradicted by the record.
We are not concerned with whether petitioner was Betsy’s
agent in the sense that Betsy is bound by, or liable for,
petitioner’s actions. Our concern is as to petitioner’s
liability for his own actions. It was petitioner, not Betsy, who
hired and supervised Baybrook. It was petitioner, not Betsy, who
directed Baybrook as to Markette’s payment of American Express
invoices, knowing that those invoices included numerous charges
for petitioner’s and Betsy’s personal benefits. It was
petitioner, not Betsy, who brought Berger into the picture and
who understood that Berger’s limited engagement meant that (in
the words of the accountants’ compilation reports that
accompanied the Sley Corporations financial statements) Berger
would merely present “information that is the representation of
management”. Petitioner, thus, made and effectuated the
decisions that led to the omission of constructive dividend
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income from his and Betsy’s joint tax returns. Petitioner
controlled the situation and knew what was happening with regard
to the omitted income. Petitioner’s claim that he was merely
acting for Betsy, and implicitly that any blame should be shifted
from him to Betsy, is belied by the record. The transparent
falseness of petitioner’s effort is itself an indicator of
petitioner’s fraudulent intent. Bahoric v. Commissioner, 363
F.2d 151, 153-154 (9th Cir. 1966), affg. T.C. Memo. 1963-333;
Boyett v. Commissioner, 204 F.2d at 208.
Respondent contends that petitioner’s role in the Sley
Corporations’ payments of salaries to Betsy and Ben is
significant because it “bear[s] upon his [petitioner’s] attitude
toward reporting and paying taxes generally.” Petitioner points
out that Betsy and he reported all of Betsy’s salary receipts on
their joint tax returns, and contends that “Betsy’s salary is
neither a badge of fraud nor relevant to this case.” After
examining the record in the instant case, we conclude that the
most significant elements of the salary matter are (1)
petitioner’s role in the salary determinations and (2)
petitioner’s contentions regarding that role. We do not decide
whether the payments were salary or whether the payments were
fraudulent.31
31
We note that the question of whether the amounts paid
to Betsy as salary really were salary or really were dividends
(continued...)
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Petitioner proposed findings of fact that he “did not
participate in setting the yearly salaries paid by the Sley
Corporations”, that he “does not know who decided how to allocate
the salaries among the Sley Corporations”, and that he “believes
decisions regarding salaries paid by the Sley Corporations were
made by the corporations’ officers.”
Before the Sley Corporations were moved into Grossman &
Flask facilities, Betsy and Ben did not receive salaries from the
Sley Corporations. Then Betsy and Ben received salaries, but
31
(...continued)
affects petitioner’s and Betsy’s income taxes, not just the
income taxes of the payor corporations. In particular, it
affects the Schedule W deduction (sec. 221) and the I.R.A.
contribution deduction (sec. 219), both of which are dealt with
supra note 3, and the excise tax (sec. 4973), which is dealt with
supra note 2. It also has a consequence as to the proper
treatment of the amounts withheld as F.I.C.A. taxes from the
amounts paid to Betsy. See supra table 3; supra note 30.
However, petitioner implicitly conceded the Schedule W and I.R.A.
contribution adjustments, respondent conceded the excise tax, and
neither side pursued the dispute about the credit for withheld
F.I.C.A. taxes.
Respondent contends that the salary arrangement was part of
a “corporate tax evasion scheme” guided by petitioner, and so
shows petitioner willing to commit tax fraud. At the same time,
(1) respondent understands that both the Schedule W and I.R.A.
deductions “turn on the question whether amounts paid to Betsy by
Markette Corporation during those years represent compensation
for services actually rendered”, but (2) respondent does not
contend that the underpayments resulting from the Schedule W and
I.R.A. deductions in the instant cases are due to fraud.
In light of this apparent inconsistency in respondent’s
position, coupled with the above-described resolutions of the
adjustments that flow from the salary issue, we conclude that it
is not necessary for us to decide in the instant cases whether
the payments to Betsy constituted salary or additional dividends.
- 131 -
only from certain of the Sley Corporations. See supra notes 6
and 7. Petitioner did not challenge Betsy’s and Ben’s testimony
that each of them was notified by petitioner when her or his
salary was set or changed, and that neither Betsy nor Ben
participated in the decision-making. Indeed, petitioner proposed
findings of fact to the effect that Betsy and Ben did not know
who made the decision that the Sley Corporations would pay them
salaries, how the salary structure was set for the Sley
Corporations, or who decided how much their salaries would be.
The parties agree that Berger did not set the salary structure,
and that he did not participate in the setting of salary levels
at any time. The parties agree that Berger also did not
participate in the decision to allocate the officers’ salaries
among the Sley Corporations or among the officers themselves.
The parties agree that Berger did not have anything to do with
the decisions to raise and lower the salaries from year to year.
Petitioner does not suggest that Beatrice gave him instructions,
or even consulted with him, in this matter. Harry was long dead
by the time the salaries in question began to be paid.
Petitioner does not explain how he got the salary information
that he then presented to Betsy and Ben. That leaves petitioner
as the only person who could have made the salary decisions.32
32
How often have I [Sherlock Holmes] said to
you [Dr. Watson] that when you have
(continued...)
- 132 -
We conclude, and we have found, that petitioner set Betsy’s and
Ben’s salaries from the Sley Corporations, at least up to early
1986. Petitioner had a substantial degree of control over many
matters at the Sley Corporations. The transparent falseness of
petitioner’s contentions that he did not participate in the
decisions and that he did not know who made the decisions as to
Betsy’s and Ben’s salaries is itself an indicator of petitioner’s
fraudulent intent. Bahoric v. Commissioner, 363 F.2d at 153-154;
Boyett v. Commissioner, 204 F.2d at 208.
On brief petitioner lauds Baybrook’s and Berger’s
qualifications and abilities, and declares his reliance on them
to (1) assure the accuracy of his and Betsy’s, and the Sley
Corporations’ tax returns, and (2) determine the amounts of
Betsy’s dividends.
A taxpayer’s reliance on his or her accountant to prepare
accurate returns may indicate an absence of fraudulent intent.
Marinzulich v. Commissioner, 31 T.C. 487, 492 (1958). This is
so, however, only where the accountant has been supplied with all
the information necessary to prepare the returns accurately.
Scallen v. Commissioner, 877 F.2d at 1371; Foster v.
32
(...continued)
eliminated the impossible, whatever remains,
however improbable, must be the truth?
[Emphasis in original.]
Doyle, “The Sign of Four”, Sherlock Holmes: The Complete
Novels and Stories (vol. l) 107, 139 (Bantam Books 1986).
- 133 -
Commissioner, 391 F.2d 727, 732-733 (4th Cir. 1968), affg. on
this issue and revg. on another issue T.C. Memo. 1965-246; Estate
of Temple v. Commissioner, 67 T.C. 143, 162-163 (1976).
In the instant cases, petitioner supervised Baybrook in such
a manner that Baybrook was not informed of the personal nature of
the charges that she was noting on the Sley Corporations books.
Also petitioner knew that this meant that Berger’s access to the
books would not enable Berger to realize that Markette was paying
petitioner’s and Betsy’s personal expenses.
Petitioner’s effort to claim that he relied on Baybrook and
Berger is belied by the record. The transparent falseness of
petitioner’s efforts is itself an indicator of petitioner’s
fraudulent intent. Bahoric v. Commissioner, 363 F.2d at 153-154;
Boyett v. Commissioner, 204 F.2d at 208.
(6) Other Considerations
We believe that petitioner established a pattern that
continued into 1986 with regard to constructive dividends, and
there is strong evidence about his fraudulent intent with regard
to the omission of that income from his and Betsy’s joint tax
returns. However, determinations about fraud must be made year-
by-year. Drieborg v. Commissioner, 225 F.2d at 219-220; Estate
of Stein v. Commissioner, 25 T.C. at 959-963. We consider at
this point matters of particular significance to individual
years.
- 134 -
(a) 1983. Petitioner contends that the fact that an earlier
audit of petitioner’s and Betsy’s 1983 joint tax return revealed
that they overstated their income for that year indicates that
petitioner lacked an intent to evade tax for 1983. Respondent
contends that because petitioner did not offer any explanation of
this audit, it is impossible to draw conclusions from this audit
that are relevant to determining petitioner’s intent with respect
to the unreported income for 1983. Respondent also contends that
the lack of evidence in the record regarding the audit conducted
in 1987 should be construed against petitioner. Respondent urges
that, under the Wichita Terminal doctrine, petitioner’s failure
to offer further evidence of the earlier audit gives rise to the
inference that any such evidence would not be favorable to
petitioner. See Wichita Terminal Elevator Co. v. Commissioner, 6
T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947).
We agree with petitioner’s conclusion.
As table 13, supra, shows, petitioner and Betsy reported a
joint liability of $160,344 for 1983. In the notice of
deficiency in the instant cases, respondent determined a joint
tax liability of $138,142--$22,202 less than what petitioner and
Betsy reported. In other words, respondent’s determination in
the notice of deficiency means that petitioner and Betsy
originally overstated their 1983 tax liability by $22,202. As a
result of respondent’s concessions (supra note 2), respondent now
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contends, in effect, that petitioner and Betsy originally
overstated their 1983 tax liability by significantly more than
$22,202.
As the text preceding table 13, supra, shows, this state of
affairs results from a 1987 audit that resulted in respondent’s
deciding that petitioner and Betsy overstated their taxable
income (by $69,885) and tax liability (by $34,942). The record
herein does not explain why the 1987 audit adjustment was made.
The stipulated revenue agent’s report does not show that this
adjustment was related to any other adjustment for any other
year. In this regard, the instant cases are materially different
from those where a nonfraudulent tax return was made fraudulent
by a later action of the taxpayer fraudulently claiming a
carryback to the originally nonfraudulent year. E.g., Arc Elec.
Const. Co. v. Commissioner, 923 F.2d 1005 (2d Cir. 1991), revg.
T.C. Memo. 1990-30; Toussaint v. Commissioner, 743 F.2d 309 (5th
Cir. 1984), affg. T.C. Memo. 1984-25. The instant cases also are
materially different from those where the taxpayer unsuccessfully
claimed that the original fraud was “cured” (i.e., the
underpayment was eliminated, in whole or in part) by a later
action of the taxpayer. E.g., Romm v. Commissioner, 245 F.2d
730, 736 (4th Cir. 1957), affg. on this issue and revg. on
another issue T.C. Memo. 1956-104 (payment of correct tax
liability before notice of deficiency); Gum Products, Inc. v.
- 136 -
Commissioner, 38 T.C. 700, 706-707 (1962) (nonfraudulent
carryback); Elmbrook Home, Inc. v. United States, 559 F.Supp. 787
(D.R.I. 1983) (nonfraudulent sec. 1341 adjustment).
Neither side has cited us to, and our research has not
disclosed, any other opinion involving the pattern of events that
we find in the instant cases for 1983.
Respondent contends that petitioner should bear the
consequences of the failure to explain on the record why the 1987
adjustment to his and Betsy’s 1983 tax liability was made.
However, (1) respondent has the burden of proving fraud by clear
and convincing evidence, and (2) we are looking for an
explanation of respondent’s determination, resolving respondent’s
audit. We do not agree that the failure to provide the
explanation should be borne by petitioner.
On answering brief, respondent invokes the Wichita Terminal
doctrine, stating that--
If petitioner really felt that he had such an argument
in this case, he certainly could have testified about
the basis of the examination and submitted himself to
cross-examination on the point, or he could have
offered some other independent evidence of the nature
of the adjustments.
However, respondent overlooks the requirement of the adverse
inference rule that an uncalled witness not only must be within a
party’s power to produce but also must be “peculiarly” within
that party’s power to produce before such an inference may be
drawn against that party. See United States v. Rollins, 862 F.2d
- 137 -
1282, 1297-1298 (7th Cir. 1988). If a witness is “equally
available” to both parties and neither party calls that witness
at trial, then no adverse inference is warranted. See Kean v.
Commissioner, 469 F.2d 1183, 1187-1188 (9th Cir. 1972), affg. on
this issue and revg. on another issue 51 T.C. 337, 343-344
(1968).
The fact that the tax liability shown on petitioner’s and
Betsy’s timely filed 1983 tax return is substantially greater
than the tax liability determined in the notice of deficiency in
the instant cases is apparent; it should be explained by
respondent in a fraud case. The issue of the audit conducted in
1987 and its impact on the question of fraud for 1983 was
referred to in petitioner’s pretrial memorandum. Petitioner was
called as respondent’s witness, and so petitioner was available
to respondent, and respondent should have dealt with the matter.
In addition, we may assume (at least, in the absence of
explanation to the contrary) that respondent’s records indicate
the sequence of events and the names of respondent’s
participating agents with respect to the 1987 audit. Thus, there
is no basis for invoking the Wichita Terminal doctrine against
petitioner; rather, we might fairly consider applying it against
respondent.
Petitioner’s and Betsy’s 1983 tax return, as filed,
substantially overstated their actual 1983 tax liability. But
- 138 -
for respondent’s 1987 audit and the resulting refund, there could
not be a holding of fraud against petitioner for 1983. For all
we can tell, petitioner did not initiate that refund. We do not
decide in the instant cases whether on these facts, a taxpayer is
entitled to a ruling of “no fraud” as a matter of law, but we do
conclude that, on these facts, the evidence of fraud is less than
“clear and convincing”.
We hold for petitioner as to 1983.
(b) 1984. The circumstances of the American Express
invoices for 1984 present a special problem. For 1984, in part
I.A.(2), supra, we concluded that respondent proved by clear and
convincing evidence that Betsy received from Markette a $780
constructive dividend, which petitioner and Betsy omitted from
their 1984 joint tax return. See supra table 17. Based on the
record in the instant cases, however, it is not clear that
petitioner knew that Markette paid for the trip to Orlando.
Petitioner and Baybrook established the routine discussed supra
(Daily Operation: 1980-March 1986) for payment of the charges on
the Markette American Express invoices. From this description,
it appears that petitioner did not examine the American Express
invoices in detail until they were returned to him with an
attached check prepared by Baybrook. The record is not clear as
to what steps petitioner and Baybrook took to process an invoice,
like the October 1984 invoice on which the airlines tickets to
- 139 -
Orlando appeared, which showed a net credit and not a net amount
due. Because Baybrook would not have had to prepare a check as
payment for the October 1984 invoice, it is not clear whether
petitioner examined the October invoice in detail. If petitioner
had examined the October invoice and traced the charges and
payments made back to the August 1984 invoice, then petitioner
would have realized that the airlines tickets to Orlando
appearing on the October invoice were “paid for” with credit
issued on account of the refund of charges appearing on the
August invoice. It is not clear that petitioner went through
such deliberation. It is not clear whether petitioner actually
knew, much less intended, that Markette paid for the airlines
tickets to Orlando; thus, it is not clear that petitioner knew
and intended that that amount be omitted from petitioner’s and
Betsy’s 1984 joint tax return. Respondent has failed to prove by
clear and convincing evidence that the omission of the $780
constructive dividend in 1984 was due to petitioner’s fraud.
As shown supra table 17, this $780 item is the only one of
the items that respondent relies on as to which we have found
that respondent showed by clear and convincing evidence that
petitioner had an underpayment of tax for 1984. Respondent’s
failure to show by clear and convincing evidence that this $780
omission was fraudulent leads to the conclusion that respondent
- 140 -
failed to prove by clear and convincing evidence that petitioner
had a fraudulent underpayment for 1984.
We hold for petitioner as to 1984.
(c) 1985. Petitioner’s contentions as to 1985 are the same
as those he makes for 1983. However, the material facts are
different. Compare supra tables 13 and 14. Petitioner’s and
Betsy’s tax liability for 1985 clearly is greater than the amount
they reported on their 1985 tax return. We conclude that no
special 1985 element detracts from our general conclusions as to
petitioner’s fraud.
We hold for respondent as to 1985.
(d) 1986. Petitioner points to his vastly reduced role at
the Sley Corporations after March 1986 as a basis for his lack of
responsibility for what occurred at the Sley Corporations.
However, (1) the systems that petitioner oversaw continued to
operate for a while, at least; (2) substantially all of the 1986
constructive dividends were for expenses charged on Markette’s
American Express credit cards while petitioner was fully in
charge; (3) petitioner continued to play a role in Sley
Corporations’ affairs through 1986 and at least into early 1987;
and (4) petitioner signed his and Betsy’s 1986 joint tax return
with knowledge of the foregoing. We conclude that no special
1986 element detracts from our general conclusions as to
petitioner’s fraud, and that some part of the $5,963.43 omitted
- 141 -
constructive dividend income (supra table 19) was omitted because
of petitioner’s fraud.
We hold for respondent as to 1986.
C. Conclusions
We conclude that respondent has shown by clear and
convincing evidence that petitioner intended to evade his income
taxes for each of the years 1985 and 1986, which taxes petitioner
knew or believed he owed, by conduct intended to conceal this
income.
Accordingly, the statute of limitations does not bar
respondent’s assessment of deficiencies against petitioner for
1985. Sec. 6501(c)(1).
We hold for respondent with respect to 1985, and for
petitioner with respect to 1983 and 1984, on this statute of
limitations issue.
II. Additions to Tax
A. Fifty-Percent Fraud Addition--1985
In order to impose the 50-percent fraud addition to tax for
1985 under section 6653(b)(1),33 respondent must prove, by clear
33
Sec. 6653(b) for 1985 provides, in pertinent part, as
follows:
SEC. 6653. FAILURE TO PAY TAX.
* * * * * * *
(b) Fraud.--
(continued...)
- 142 -
and convincing evidence, that petitioner has an underpayment of
tax for that year, and that some part of that underpayment is due
to fraud. Sec. 7454(a); Rule 142(b). Our conclusion as to the
statute of limitations issue results in our concluding that
respondent has carried this burden of proof as to the 50-percent
fraud addition to tax for 1985.
We hold for respondent on this issue with respect to 1985.
B. Additional Amount for Portion Attributable to Fraud--1985
The additional amount added to the tax under section
6653(b)(2) is equal to 50 percent of the interest payable under
33
(...continued)
(1) In general.--If any part of any underpayment
(as defined in subsection (c)) of tax required to be
shown on a return is due to fraud, there shall be added
to the tax an amount equal to 50 percent of the
underpayment.
(2) Additional amount for portion attributable to
fraud.--There shall be added to the tax (in addition to
the amount determined under paragraph (1)) an amount
equal to 50 percent of the interest payable under
section 6601--
(A) with respect to the portion of the
underpayment described in paragraph (1) which is
attributable to fraud, and
(B) for the period beginning on the last day
prescribed by law for payment of such underpayment
(determined without regard to any extension) and
ending on the date of the assessment of the tax
(or, if earlier, the date of the payment of the
tax).
This provision was amended by sec. 1503 of the Tax Reform Act of
1986 (TRA 86), Pub. L. 99-514, 100 Stat. 2085, 2742. See infra
note 35.
- 143 -
section 6601 and applies only to the portion of the underpayment
that is attributable to fraud. Respondent has the burden of
proving, by clear and convincing evidence, what portion of the
deficiency is attributable to fraud.34
Our analysis in part I., supra, leads us to conclude that
respondent proved by clear and convincing evidence that the
unreported amount for 1985 (supra table 19) was omitted from
petitioner’s and Betsy’s joint tax return due to petitioner’s
fraud.
We hold for respondent on this issue with respect to the
indicated amount for 1985. (The payment described supra in note
30, shall be taken into account in determining the amount of this
addition to tax.) We hold for petitioner on this issue with
respect to the remaining amount for 1985.
C. Fraud Additions--1986
In order to impose the fraud 75-percent addition to tax or
the additional addition to tax for 1986 under paragraph (1) of
section 6653(b),35 respondent must prove, by clear and convincing
34
The 1986 amendments include a provision under which the
burden of proof shifts to the taxpayer. See sec. 6653(b)(2), set
forth infra in note 35. The statute applicable to 1985 (set
forth supra in note 33) does not have any such provision, and so
the general fraud burden-of-proof rules of sec. 7454(a) (supra
note 24) apply for 1985.
35
Sec. 6653 for 1986 provides, in pertinent part, as
follows:
(continued...)
- 144 -
35
(...continued)
SEC 6653. ADDITIONS TO TAX FOR NEGLIGENCE AND FRAUD.
(a) Negligence.--
(1) In general.--If any part of any underpayment
(as defined in subsection (c)) is due to negligence or
disregard of rules or regulations, there shall be added
to the tax an amount equal to the sum of--
(A) 5 percent of the underpayment, and
(B) an amount equal to 50 percent of the
interest payable under section 6601 with respect
to the portion of such underpayment which is
attributable to negligence for the period
beginning on the last date prescribed by law for
payment of such underpayment (determined without
regard to any extension) and ending on the date of
the assessment of the tax (or, if earlier, the
date of the payment of tax).
(2) Underpayment taken into account reduced by
portion attributable to fraud.--There shall not be
taken into account under this subsection any portion of
an underpayment attributable to fraud with respect to
which a penalty is imposed under subsection (b).
* * * * * * *
(b) Fraud.--
(1) In general.--If any part of any underpayment
(as defined in subsection (c)) of tax required to be
shown on a return is due to fraud, there shall be added
to the tax an amount equal to the sum of--
(A) 75 percent of the portion of the
underpayment which is attributable to fraud, and
(B) an amount equal to 50 percent of the
interest payable under section 6601 with respect
to such portion for the period beginning on the
last day prescribed by law for payment of such
underpayment (determined without regard to any
(continued...)
- 145 -
evidence, that petitioner has an underpayment of tax for that
year, and that some part of that underpayment is due to fraud.
If respondent establishes that petitioner has an underpayment of
tax some part of which is due to fraud, then section 6653(b)(2)
shifts the burden of proof to petitioner to establish what
portion of the underpayment is not attributable to fraud. Our
conclusion as to the statute of limitations issue results in our
concluding that respondent has carried respondent’s burden of
proof.
35
(...continued)
extension) and ending on the date of the
assessment of the tax or, if earlier, the date of
the payment of the tax.
(2) Determination of portion attributable to
fraud.--If the Secretary establishes that any portion
of an underpayment is attributable to fraud, the entire
underpayment shall be treated as attributable to fraud,
except with respect to any portion of the underpayment
which the taxpayer establishes is not attributable to
fraud.
These provisions were added by sec. 1503(a) of TRA 86, 100
Stat. 2742, and apply to tax returns the due date of which is
after Dec. 31, 1986.
The later amendments of these provisions by sec. 1015(b)(2)
of the Technical and Miscellaneous Revenue Act of 1988 (TAMRA
88)(Pub. L. 100-647, 102 Stat. 3342, 3569) and by sec. 7721(a) of
the Omnibus Budget Reconciliation Act of 1989 (OBRA 89--Pub. L.
101-239, 103 Stat. 2106, 2395) do not affect the instant cases.
As the result of OBRA 89, the revised negligence addition to
tax appears in sec. 6662, and the revised fraud addition to tax
now appears in secs. 6663 and 6651(f).
- 146 -
In part I.B.(4), supra, we described our conclusion that
respondent proved by clear and convincing evidence that
petitioner and Betsy omitted $5,963.43 from income and that all
of this was due to petitioner’s fraud. In the notice of
deficiency, respondent determined that all the constructive
dividend omissions were due to petitioner’s fraud, but on brief
respondent took the position that only certain of the travel and
entertainment constructive dividends were fraudulently omitted.
Compare supra tables 12 and 15, and text following note 29. As
to $797.21 of miscellaneous Washington area expenses, we held
that respondent did not prove fraud by clear and convincing
evidence; however, petitioner has failed to carry his section
6653(b)(2) burden of proof as to these expenses. Accordingly, we
hold that the fraud additions to tax for 1986 apply to so much of
the underpayment as is attributable to $6,760.64 ($5,963.43 plus
$797.21) of constructive income dividend omissions.
We hold for respondent as to $6,760.64; we hold for
petitioner as to the remaining amount on this issue.
D. Negligence Additions--1986
Respondent determined in the alternative that, if petitioner
is not liable for part or all of the additions to tax for fraud
for 1986, then petitioner is liable for negligence additions to
tax under subparagraphs (A) and (B) of section 6653(a)(1).
Petitioner did not address this issue on brief. Because
- 147 -
petitioner has the burden of proof on the negligence issue, we
conclude that petitioner conceded this issue. See subparagraphs
(4) and (5) of Rule 151(e); Sundstrand Corp. v. Commissioner, 96
T.C. 226, 344 (1991); Money v. Commissioner, 89 T.C. 46, 48
(1987).
The negligence addition to tax applies to those 1986 items
in supra table 12, that we found had a personal purpose and with
respect to which we did not sustain respondent’s fraud
determination or with respect to which respondent did not
determine fraud. The negligence addition to tax also applies to
those 1986 items in supra table 12, the purpose of which we were
unable to determine on this record; those items total $3,325.84.
We hold for respondent on this issue.
III. Amounts of Deficiencies
In this part of the opinion, petitioner has the burden of
proving by a preponderance of the evidence that respondent erred
in the notice of deficiency determinations as to matters of fact.
Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).
A. Amounts of Constructive Dividends
In supra table 10, we set forth our conclusions that
$10,164.71 of the disputed 1985 amounts was constructive
dividends to Betsy, that $90 were Sley Corporations’ business
expenses, and that we could not find that the remaining
$12,759.63 of disputed Markette payments fit into either
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category. Petitioner failed to carry his burden of proving that
respondent erred in determining that the remaining $12,759.63
constitutes unreported constructive dividend income to Betsy.
In supra table 12, we set forth our conclusions that
$8,173.56 of the disputed 1986 amounts were constructive
dividends to Betsy, that $160.22 were Sley Corporations’ business
expenses, and that we could not find that the remaining $3,325.84
of disputed Markette payments fit into either category.
Petitioner failed to carry his burden of proving that respondent
erred in determining that the remaining $3,325.84 constitutes
unreported constructive dividend income to Betsy.
We hold for respondent on this issue, except that we hold
for petitioner as to $90 for 1985 and as to $160.22 for 1986.
B. Interest Deduction
Respondent contends that petitioner’s and Betsy’s 1987 joint
tax return overstated an itemized personal interest deduction by
$8,559. Petitioner contends that the interest deduction was
properly taken for 1987. The deduction in issue stems from the
$13,167.96 interest payment Betsy made to Markette.
We agree with respondent’s conclusion.
- 149 -
For 1987, section 16336 allowed a deduction, subject to the
36
Sec. 163 provides, in pertinent part, as follows:
SEC. 163. INTEREST.
(a) General Rule.--There shall be allowed as a
deduction all interest paid or accrued within the taxable
year on indebtedness.
* * * * * * *
(d) Limitation on Investment Interest.--
* * * * * * *
(6) Phase-in of disallowance.--In the case of any
taxable year beginning in calendar years 1987 through
1990--
* * * * * * *
(B) Applicable percentage.--for purposes of
this paragraph, the applicable percentage shall be
determined in accordance with the following table:
In the case of taxable The applicable
years beginning in: percentage is:
1987 . . . . . . . . . . . . . . . . . . 35
1988 . . . . . . . . . . . . . . . . . . 60
1989 . . . . . . . . . . . . . . . . . . 80
1990 . . . . . . . . . . . . . . . . . . 90
* * * * * * *
(h) Disallowance of Deduction for Personal Interest.--
* * * * * * *
(2) Personal interest.--For purposes of this
subsection, the term “personal interest” means any
interest allowable as a deduction under this chapter
* * *
* * * * * * *
(continued...)
- 150 -
limitations of subsections (d) and (h), for personal interest
paid during the taxable year in the amount of 65 percent of the
interest paid. ($13,167.96 times 65 percent is $8,559.17.) A
cash-basis taxpayer properly takes a deduction for interest for
the year in which the interest is paid. Sec. 461(a); sec. 1.461-
1(a), Income Tax Regs.; e.g., Heyman v. Commissioner, 652 F.2d
598 (6th Cir. 1980), affg. 70 T.C. 482 (1978). Delivery of a
check37 to the payee, not deposit of the check by the payee,
constitutes payment for purposes of determining the year in which
a sum is deductible by a cash-basis taxpayer. Estate of Bradley
v. Commissioner, 19 B.T.A. 49 (1930), affd. 56 F.2d 728 (6th Cir.
1932); see Weber v. Commissioner, 70 T.C. 52, 57 (1978). In the
instant cases, the parties do not dispute whether the interest
36
(...continued)
(6) Phase-in of limitation.--In the case of any
taxable year beginning in calendar years 1987 through
1990, the amount of interest with respect to which a
deduction is disallowed under this subsection shall be
equal to the applicable percentage (within the meaning
of subsection (d)(6)(B)) of the amount which (but for
this subsection) would have been so disallowed.
Although the year before us on this issue is 1987, we apply
the statute as amended in 1988, because sec. 1005(c)(9) of the
TAMRA 88, Pub. L. 100-647, 102 Stat. 3342, 3392, amended sec.
163(h)(6) retroactively to taxable years beginning after Dec. 31,
1986. See TAMRA 88, sec. 1019(a), 102 Stat. at 3593; TRA 86,
sec. 511(e), 100 Stat. at 2249.
37
When a check is mailed, as opposed to being hand
delivered as in the instant case, the mailing of the check,
properly addressed, generally constitutes delivery of that check
to the addressee. See, e.g.; Griffin v. Commissioner, 49 T.C.
253, 261 (1967).
- 151 -
payment was made, but when. Also, no question is raised as to
acceptance of Betsy’s check, and presentation to and payment by
the drawee bank. See Weber v. Commissioner, 70 T.C. at 57-58.
Also, no question is raised as to Brown’s being an appropriate
agent of Markette for purposes of accepting delivery. Broussard
v. Commissioner, 16 T.C. 23 (1951).
Thus, the question of whether petitioner and Betsy
overstated an interest deduction for 1987 turns on whether Betsy
delivered her check, dated December 22, 1987 (Griffin v.
Commissioner, 49 T.C. 253, 261 (1967)), to Markette’s bookkeeper,
Brown, in 1987 or in 1988.
Both Betsy and Brown testified on this matter; their
testimony conflicted. We do not believe that either of them
lied, but clearly at least one of them misremembered what had
occurred during the turmoil when the Sley Corporations moved out
of the Grossman & Flask sublet office space. All the other
evidence in the record is consistent with the testimony of both
Betsy and Brown. In effect, the evidence is in equipoise. Thus,
petitioner failed to carry his burden of proving that it is more
likely than not that respondent erred with respect to this
adjustment. See Brookfield Wire Co., Inc. v. Commissioner, 667
F.2d 551, 553 n.2 (1st Cir. 1981), affg T.C. Memo. 1980-321;
Deskins v. Commissioner, 87 T.C. 305, 322-323 n.17 (1986).
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We hold for respondent on this issue.38
IV. Innocent Spouse Relief
Petitioner contends that he is entitled to innocent spouse
relief for 1986 under section 6013(e), because he separated from
Betsy in September of that year and did not see Markette’s 1986
tax return. Respondent contends that petitioner is not entitled
to innocent spouse relief.
We agree with respondent.
Section 6013(a) permits a husband and wife to elect to file
a joint tax return. Together with section 1(a), this joint tax
return option is a valuable privilege, which ordinarily operates
to lower the tax liability for the income reported on the joint
tax return. The price taxpayers must pay for this benefit is
joint and several liability. Sec. 6013(d)(3); Stevens v.
Commissioner, 872 F.2d 1499, 1503 (11th Cir. 1989), affg. T.C.
Memo. 1988-63; Murphy v. Commissioner, 103 T.C. 111, 117 (1994);
Bokum v. Commissioner, 94 T.C. 126, 151-152 (1990), affd. 992
38
Ordinarily, when the item should be deductible in one
of two years and both of these years are before us, a taxpayer
does not lose the deduction entirely merely because of failure to
prove which of the two years is the correct one. However, in the
instant cases the interest deduction is properly an item of
Betsy’s, and petitioner and Betsy did not file a joint tax return
for 1988. Accordingly, petitioner’s failure to carry his burden
of proof for 1987 means that he has lost the deduction entirely,
even though Betsy apparently would be entitled to a 1988
deduction on account of the interest payment.
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F.2d 1132 (11th Cir. 1993); Pesch v. Commissioner, 78 T.C. 100,
129-130 (1982).
Under section 6013(e),39 however, a spouse may be relieved
of this joint liability for a year only if certain requirements
are met for that year. The putative innocent spouse must show
the following: (1) A joint income tax return was filed for the
39
Sec. 6013(e) provides, in pertinent part, as follows:
SEC. 6013. JOINT RETURNS OF INCOME TAX BY HUSBAND AND WIFE.
* * * * * * *
(e) Spouse Relieved of Liability in Certain Cases.--
(1) In general.--Under regulations prescribed by
the Secretary, if--
(A) a joint return has been made under this
section for a taxable year,
(B) on such return there is a substantial
understatement of tax attributable to grossly
erroneous items of one spouse,
(C) the other spouse established that in
signing the return he or she did not know, and had
no reason to know, that there was such substantial
understatement, and
(D) taking into account all the facts and
circumstances, it is inequitable to hold the other
spouse liable for the deficiency in tax for such
taxable year attributable to such substantial
understatement,
then the other spouse shall be relieved of liability
for tax (including interest, penalties, and other
amounts) for such taxable year to the extent such
liability is attributable to such substantial
understatement.
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year (sec. 6013(e)(1)(A)); (2) on this tax return there is a
substantial understatement of tax (sec. 6013(e)(1)(B)); (3) this
substantial understatement of tax is attributable to grossly
erroneous items (sec. 6013(e)(1)(B)); (4) the grossly erroneous
items are items of the other (the putative “guilty”) spouse (sec.
6013(e)(1)(B)); (5) when the tax return was signed, the putative
innocent spouse did not know, and had no reason to know, that
there was this substantial understatement of tax (sec.
6013(e)(1)(C)); and (6) it is inequitable to hold the putative
innocent spouse liable for the tax deficiency that is
attributable to this substantial understatement of tax (sec.
6013(e)(1)(D)).
The spouse seeking relief has the burden of proof on each of
these requirements. Rule 142(a); Purcell v. Commissioner, 826
F.2d 470, 473 (6th Cir. 1987), affg. 86 T.C. 228 (1986); Bokum v.
Commissioner, 94 T.C. at 138. Because the statute is phrased in
the conjunctive, failure to prove any one of the requirements
will prevent the taxpayer from qualifying for relief. Hayman v.
Commissioner, 992 F.2d 1256, 1260 (2d Cir. 1993), affg. T.C.
Memo. 1992-228; Bokum v. Commissioner, 992 F.2d at 1134, 94 T.C.
at 138; Clevenger v. Commissioner, 826 F.2d at 1382.
These factors, taken together with the well-established
principle that exemptions from taxation are to be narrowly
construed, place a significant burden on the taxpayer. United
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States v. Stewart, 311 U.S. 60, 71 (1940); Matthews v.
Commissioner, 907 F.2d 1173, 1174, 1178 (D.C. Cir. 1990), affg.
92 T.C. 351, 361 (1989); Bokum v. Commissioner, 94 T.C. at 155,
and cases cited therein.
The parties agree that requirements (1) through (4) have
been satisfied. The parties dispute only whether (5) in signing
the 1986 joint tax return, petitioner knew or had reason to know
that there was a substantial understatement of tax, and (6) it is
inequitable to hold petitioner liable for the tax deficiency that
is attributable to the substantial understatement of tax.
In part I.C., supra, we concluded that petitioner knew and
intended that Betsy had constructive dividend income that was
omitted from petitioner’s and Betsy’s 1986 joint tax return.
Further, petitioner enjoyed a large number of the trips for
which he caused Markette to pay. Under these circumstances, it
is not inequitable to hold petitioner liable for the resulting
tax deficiency. Clevenger v. Commissioner, 826 F.2d at 1382.
We hold for respondent on this issue.
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To take account of the foregoing,40
Decisions will be entered
under Rule 155.
40
In the notices of deficiency, respondent made
determinations as to the alternative minimum tax for 1984, 1987,
and 1988. Petitioner asserted error with regard to adjustments
to income for 1984 and 1987 and thus asserted error with regard
to the alternative minimum tax, a function of the adjustments to
income. Petitioner conceded liability with regard to the
alternative minimum tax for 1988. Our redeterminations with
regard to the adjustment to income may have arithmetic effects on
the application and calculation of the alternative minimum tax;
they are to be dealt with in the computations under Rule 155.