T.C. Memo. 1997-141
UNITED STATES TAX COURT
ALBERT J. AND HELEN R. DESANTIS, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 5766-90, 13108-91. Filed March 18, 1997.
Albert J. DeSantis, pro se.
Aaron P. Rosenfeld and George N. Corey, for petitioner Helen
R. DeSantis.
John A. Freeman, Robin L. Herrell, James W. Ruger, and Nancy
Ortmeyer Kuhn, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
DAWSON, Judge: This case was assigned to Chief Special
Trial Judge Peter J. Panuthos pursuant to the provisions of
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section 7443A(b)(4) and Rules 180, 181, and 183.1 The Court
agrees with and adopts the opinion of the Special Trial Judge,
which is set forth below.
OPINION OF THE SPECIAL TRIAL JUDGE
PANUTHOS, Chief Special Trial Judge: In a notice of
deficiency dated December 27, 1989, respondent determined
deficiencies in and additions to petitioner Albert J. DeSantis'
(hereinafter petitioner) Federal income tax for 1982, 1983, and
1984:
Docket No. 5766-90
Additions to Tax
Year Deficiency Sec. 6653(b)(1) Sec. 6653(b)(2) Sec. 6661
1
1982 $329,250 $164,625 $82,313
1
1983 1,326,062 663,031 331,516
1
1984 319,814 159,907 79,953
1
50 percent of the interest due on the deficiency.
The deficiencies and additions to tax are based upon
respondent's claim that petitioner fraudulently, and with intent
to evade tax, failed to report income in the amounts of $658,498,
$2,655,666, and $639,624 on his 1982, 1983, and 1984 returns,
respectively. While deficiencies in tax and additions to tax
under sections 6653(a)(1) and (2) and 6661 were determined
1
All section references are to the Internal Revenue Code
in effect for the years in issue, unless otherwise indicated.
All Rule references are to the Tax Court Rules of Practice and
Procedure.
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against petitioner Helen R. DeSantis, said deficiencies and
additions were resolved prior to trial.2
In her amended answer at docket No. 5766-90, respondent
asserted that the deficiencies in and additions to petitioner's
Federal income tax be increased by the following amounts:
Additions to Tax
Year Deficiency Sec. 6653(b)(1) Sec. 6653(b)(2) Sec. 6661
1
1982 $64,429.86 $32,214.93 $16,106.97
1
1983 12,621.33 6,310.67 3,154.83
1
1984 1,066,763.88 533,381.94 266,691.47
1
50 percent of the interest due on the deficiency.
The increases to the deficiencies in and additions to tax
are based upon respondent's claim that petitioner fraudulently,
and with the intent to evade tax, failed to report income in the
additional amounts of $128,860.71, $25,237.66, and $2,133,528.76
on his 1982, 1983, and 1984 returns, respectively. Therefore,
the total deficiencies in and additions to tax in dispute with
respect to docket No. 5766-90 are as follows:
Additions to Tax
Year Deficiency Sec. 6653(b)(1) Sec. 6653(b)(2) Sec. 6661
1
1982 $393,679.86 $196,839.93 $98,419.97
1
1983 1,338,683.33 669,341.67 334,670.83
1
1984 1,386,577.88 693,288.94 346,644.47
1
50 percent of the interest due on the deficiency
2
Respondent, in a second notice of deficiency dated Apr.
9, 1991, determined additions to tax under secs. 6653(b)(1) and
(2) and 6661 against petitioner Helen R. DeSantis. A timely
petition was filed at docket No. 13108-91. Respondent conceded
the adjustments in this notice of deficiency.
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The adjustments raised by respondent in the notice of
deficiency, answer, and amendment to answer are as follows:
Tax Years Ended
Adjustments to Income 1982 1983 1984
a. Partnership fee income $624,000.00 $1,017,900.00 $291,700.00
ADJ/Bethel Woods, Ltd. -0- 153,900.00 -0-
ADJ/Bethel Woods, Ltd. -0- 3,222.00 -0-
1
b. Newtowne 31,014.00 1,282,500.00 -0-
Park Place -0- -0- 180,000.00
Saltergate I 120,000.00 -0- -0-
Cost savings -0- 106,037.66 202,028.76
Architectural fee -0- -0- 30,000.00
Ford Van 8,860.71 -0- -0-
c. Savko -0- 124,330.00 34,000.00
d. Interest -0- (10,524.00) -0-
e. Schedule C
Oil & gas exploration 3,484.00 -0- -0-
Uncollectible operating expense -0- -0- 2,516,224.00
Gross receipts -0- -0- (480,800.00)
Total 787,358.71 2,677,365.66 2,773,152.76
1
This amount reflects the difference between $158,000, as determined by respondent
in the notice of deficiency, and $126,986, as reported on petitioner's 1982 return.
After concessions,3 the issues for decision are: (1)
Whether petitioner failed to report income he received from
several partnerships on his 1982, 1983, and 1984 Federal income
tax returns; (2) whether petitioner received income from
Newtowne, Inc., which was not reported by petitioner on his 1982,
3
Respondent concedes the following issues raised in the
notices of deficiency and amendment to answer: (1) An increase
in taxable income for 1984 in the amount of $34,000 identified in
the amendment to answer as "a kickback from Savko"; (2) $1,060.71
of the Ford Van income raised in the amendment to answer for
1982; (3) $1,371.02 of the cost savings adjustment raised in the
amendment to answer for 1984; and (4) the addition to tax for
fraud under sec. 6653(b)(2) on that portion of the deficiencies
attributable to:
Year Adjustment Amount
1982 Schedule C - Oil and gas exploration $3,484
1983 Partnership fee income (AJD/Development. Co.) 65,650
1983 Partnership fee income (Savko) 124,330
1983 Partnership fee income (AJD/Bethel Woods, Ltd.) 3,222
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1983, and 1984 returns; (3) whether petitioner received $124,330
in income from Savko which was not reported on his 1983 return;
(4) whether petitioner is entitled to claim a deduction for
windfall profits tax withheld in the amount of $3,484 on his 1982
return; (5) whether petitioner is entitled to claim a bad debt
deduction in the amount of $2,516,224 on his 1984 return; (6)
whether respondent erroneously decreased reported 1984 income by
$1,933,600, as determined in the notice of deficiency, and
whether the proper decrease of reported income is $480,800, as
claimed by respondent in her amended answer; (7) whether
petitioner is liable for the additions to tax for fraud pursuant
to section 6653(b)(1) and (2) for the tax years ended 1982, 1983,
and 1984; and (8) whether petitioner is liable for the additions
to tax for substantial understatement of income tax for 1981,
1982 and 1983 under section 6661.
Procedural Background
These cases have a long history. The petition in docket No.
5766-90 was filed in March 1990. The first notice of trial was
issued in June 1991 setting this matter for trial in November
1991. The matter was continued based on a joint motion by the
parties. During 1992 through 1994, the matter was continued
three more times. In August 1993, we granted Aaron P.
Rosenfeld's and George N. Corey's motion to withdraw as counsel
for petitioner Albert J. DeSantis. When the matter was continued
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in January 1994, the parties represented that they believed they
might settle the case or at least narrow the issues. The cases
were specially assigned in November 1994, and in December 1994
the cases were set for trial in May 1995. During the period
between December 1994 and May 1995, extensive motions were filed
by respondent seeking to compel discovery as well as seeking to
enforce stipulation under Rule 91(f). The Court held hearings on
some of the motions and issued appropriate orders.
On the eve of the scheduled May 8, 1995, trial (May 5,
1995), the Court received copies of documents from petitioner
indicating his unavailability for trial. The documents consisted
of notes from doctors indicating that petitioner was suffering
from vertigo and imbalance. The Court attempted to schedule a
conference call; however, petitioner advised a representative of
the Court that he was unwilling to engage in a conference call.
The matter was called for trial in Columbus, Ohio, on May 8,
1995. Petitioner did not appear. The Court filed the documents
previously received on May 5, 1995, as petitioner's motion to
continue. Respondent presented Dr. Hurlbutt as a witness so that
the Court could get a sense of petitioner's medical condition.
Dr. Hurlbutt was the attending physician in the emergency room
where petitioner sought treatment. Dr. Hurlbutt testified that
petitioner complained of vertigo; however, there were no
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objective physical symptoms of the condition such as nystagmus.4
Dr. Hurlbutt indicated that he originally wrote on a prescription
that petitioner should remain out of work for 1 week; however,
petitioner asked that the prescription be more specific and
coincide with a prescription for an episode that occurred a few
years earlier. As a result, Dr. Hurlbutt rewrote the
prescription suggesting 2 weeks of minimal activity. After
hearing Dr. Hurlbutt's testimony, respondent indicated that she
did not object to a continuance and asked that the cases be set
for trial in a few weeks. On the basis of the record, the Court
granted the motion to continue. The Court expressed its concern
at the continued delay of this matter and advised that it would
reset the cases for trial in the near future. The Court's order
dated May 8, 1995, directed petitioner to review the transcript
of the May 8, 1995, proceeding and further indicated that the
Court would be inclined to deny any further requests for a
continuance.
By order served May 30, 1995, the Court set the cases for
trial on July 31, 1995. The order, among other things, pointed
out that the Court attempted on a number of occasions after May
5, 1995, to arrange conference calls with the parties.
Petitioner advised representatives of the Court on more than one
4
Nystagmus is a quick oscillation of the eyes that often
is noted in patients who suffer vertigo.
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occasion of his unwillingness to engage in a conference call.5
The Court further reiterated that it would not be inclined to
grant any further continuances. On June 23 and 28, 1995, the
Court issued orders respectively relating to respondent's motion
to show cause why proposed facts and evidence should not be
accepted as established, Rule 91(f), and respondent's motion in
limine. The Court had previously issued an order sanctioning
petitioner for failure to respond to respondent's discovery. The
Court also deemed certain facts and evidence stipulated based on
the record.
On July 24, 1995, a week before the scheduled trial,
petitioner filed a motion to continue. Petitioner asserted that
he continued to suffer from dizziness. The Court denied the
motion to continue on July 26, 1995, and conducted a conference
call with the parties. Petitioner advised that he would not
appear at the trial scheduled for July 31, 1995. Respondent
advised that she would appear and present her case with respect
to those matters on which she had the burden of proof. The Court
advised petitioner that the trial would proceed on July 31, 1995,
and that his failure to appear or his failure to have counsel
appear could have adverse consequences.
5
The Court sought to schedule conference calls to obtain
updates on petitioner's medical condition and coordinate the
scheduling of hearings and the trial.
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When the case was called for trial at Columbus, Ohio, on
July 31, 1995, petitioner did not appear for trial. Respondent
presented Dr. Kelly Lee Mckeraham, a physician at the Ohio State
University family practice clinic. Dr. Mckeraham did not examine
petitioner, nor was he able to express an opinion as to whether
petitioner's medical condition was so severe as to prevent him
from appearing in Court. At petitioner's request and based on
petitioner's medical file, Dr. Mckeraham provided a note for
petitioner excusing him from upcoming business meetings.
On the basis of the record, the Court concluded that the
matter should proceed to trial despite petitioner's absence. The
Court was far from satisfied that petitioner's failure to appear
was based on his medical condition rather than his desire to
further delay the trial. The record in this case revealed a
history of delay and failure to communicate and cooperate. The
Court simply could not tolerate any further delay tactics by
petitioner. The Court also notes that there were substantial
stipulations of fact and exhibits already in the record, some of
which petitioner had agreed to and some of which were the result
of orders issued under Rule 91(f). The Court issued an order
providing the parties an opportunity to file briefs. In fact,
petitioner did file a posttrial brief.
When this case was called for trial on July 31, 1995,
respondent orally moved to dismiss this case for failure to
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properly prosecute as to those issues on which petitioner bears
the burden of proof. At the conclusion of trial, respondent
filed a written motion to dismiss for petitioner's failure to
properly prosecute. The Court took the motion under advisement.
Since respondent bears the burden of proof with respect to the
additions to tax for fraud, the increased deficiencies, and the
additions to tax claimed in her amended answer, the case
proceeded to trial wherein respondent presented her case.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.6
The stipulation of facts and attached exhibits are incorporated
herein by this reference. At the time of filing the petition
herein, petitioner resided in Columbus, Ohio.
1. General Background
During the years at issue, petitioner was self-employed in
various businesses relating to the development of residential
real estate. Petitioner has a bachelor of science degree from
Miami University, with a major in accounting, and a master of
business administration degree from Ohio State University, with a
major in finance. Petitioner has also completed a major portion
6
A stipulation of facts was filed by the parties
containing almost 500 paragraphs and hundreds of attached
exhibits. The Court also deemed certain facts and evidence
stipulated pursuant to Rule 91(f). Also, petitioner was
sanctioned for failure to comply with discovery, in that he was
prevented from presenting evidence of certain matters. In any
event, petitioner did not appear nor offer any evidence at trial.
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of the work toward a doctoral degree in finance. Petitioner has
10 years of part-time teaching experience in the areas of
finance, business, and accounting. Petitioner was associated
with the Graduate School of Central Michigan University with
teaching responsibility in the finance area for Central Michigan
University/American Society of Medical Technologists' Business
Program for 8 years.
On September 1, 1989, petitioner pled guilty to the willful
making of false Federal income tax returns for the years 1982 and
1983, pursuant to section 7206(1). Section 7206 provides in
pertinent part:
Any person who--
(1) Declaration under penalties of perjury.--
Willfully makes and subscribes any return, statement,
or other document, which contains or is verified by a
written declaration that it is made under the penalties
of perjury, and which he does not believe to be true
and correct as to every material matter; * * *
* * * * * * *
shall be guilty of a felony * * *
In a Sentencing Decision filed December 28, 1989, in the U.S.
District Court for the Southern District of Ohio, the court
stated:
It is agreed between the Government and Mr.
DeSantis that Mr. DeSantis' federal income tax returns
for the years 1982 and 1983 failed to include a
substantial amount of income, from one or more sources,
the amount of which is in dispute. * * *
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The defendant stands before this Court as an
apparently intelligent, hard driving business man who
has succeeded in his chosen field. Unfortunately, the
defendant for whatever reason, chose to commit perjury
in the preparation and verification of his tax returns
which means that they were not true and correct as to
every material matter.
2. The Partnerships
Petitioner organized over 100 general and limited
partnerships (the partnerships) for the purpose of acquiring and
developing property for his real estate activities in the
northwest region of Columbus, Ohio. Petitioner was either the
sole general partner or controlled the general partner in each
partnership. DeSantis Associates, for example, was a general
partnership in which DeSantis, Inc., was a general partner, and
petitioner was the managing partner. The stock of DeSantis,
Inc., was owned solely by petitioner. Each partnership had a
separate bank account with BancOhio National Bank (BancOhio) in
Columbus, Ohio. Petitioner also maintained a personal checking
account, No. 830536146, with BancOhio.
Petitioner, as general partner, entered into separate
written contracts with the partnerships in which he agreed to
provide the latter with financial and consulting services.
Specifically, the contracts were entitled "Ongoing Financial and
Tax Analysis, and Investment Counseling Agreements". Petitioner,
as the general partner of the partnerships, signed the agreement
on behalf of the parties. Petitioner agreed to perform the
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financial services for a set fee. The partnerships paid
petitioner in accordance with the agreements. The partnerships
deducted the fees on their income tax returns as the cost of
services provided by petitioner.
From 1981 through 1990, John Meeks (Meeks), a certified
accountant, assisted in the preparation of petitioner's
individual income tax returns and Forms 1065 for most of the
partnerships. Petitioner gave Meeks photocopies of returns which
were completed in pencil. Meeks reviewed the photocopies for
mathematical errors and forwarded them to petitioner. Petitioner
typed the corrected information on the returns and Meeks reviewed
this information before petitioner mailed the returns to the IRS.
Meeks did not ask petitioner for documentation verifying the
amounts reflected on any of petitioner's returns.
The record reflects that petitioner received the following
amounts from partnerships which he controlled:
1982
Partnership
AJD/Bethel Colony II
AJD/Chillowick
AJD/Olde Sawmill on the Lake II
AJD/Olde Sawmill on the Lake
AJD/Rivergreen
Bethel Colony, Buildings 1--10
Bethel Office Buildings 5 & 7
Brafferton, Buildings 19, 29, 30, & 31
Brafferton Village Associates
Saltergate, Buildings 1--10
Saltergate II, Buildings 1--9
Woodbridge Buildings 10--15
Mobile Office Building
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Total received
1983
Partnership Amount
JD/Dierker Rd., Ltd. $96,000
AJD/Robin Woods, Ltd. 80,900
Bethel Office Buildings 1, 2, 5--7 60,000
Brafferton Buildings 19 & 30 13,600
Rivergreen Buildings 1--10 135,000
AJD Development/The 161 Company 47,700
Mobile Office Building 6,000
Olde Sawmill on the Lake Buildings 1--8 128,900
Olde Sawmill on the Lake II, Buildings 1--6 & 9 106,600
AJD/Bethel Woods 153,900
Total received 828,600
Less concession (12,000)
Total 816,600
1984
Partnership Amount Amount Previously Reported Conce
AJD Development/The 161 Company $192,750 $54,050
AJD/Robin Woods 215,900 63,000 $17,
Total received 408,650
Less concession (17,900)
Less amount previously reported (117,050)
Total 273,700
Petitioner does not contest respondent's claim that he
received payments from the partnerships during the years in
issue. Petitioner asserts that the payments were either: (1)
Repayments to petitioner of loans allegedly made to the
partnerships; (2) nontaxable partnership withdrawals by
petitioner which are properly chargeable to his capital accounts;
or (3) loans to petitioner from the partnerships.
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Petitioner recorded his transactions with each partnership
on a ledger (the ledger). Respondent introduced into evidence a
computer spreadsheet outlining those transactions, which utilized
the ledger. Petitioner also recorded certain financial
information concerning petitioner and the partnerships on several
documents entitled "GAP loan interest payments" (GAP sheets).
The GAP sheets purport to record short-term loans from petitioner
to the partnerships. The amounts and dates of payment reflected
on the GAP sheets are virtually identical to the entries listed
on the ledgers. The only difference is the manner in which
certain of the payments are recorded. On the GAP sheets, these
payments are recorded as loans from petitioner to the
partnerships. On the ledgers, they are recorded as miscellaneous
draws from the partnerships. The ledgers do not reflect loans
from petitioner to the partnerships in the amounts and on the
dates indicated on the GAP sheets. Apart from the GAP sheets,
there is no evidence in the record that petitioner lent money or
otherwise transferred funds to the partnerships during the years
at issue. Some of the ledgers reflect negative balances at the
close of the year.
The limited partnerships' offering circulars specifically
state: "No loans of any type or description shall be made or
given to the General Partner, its constituent partners or its
affiliates". The offering circulars did permit petitioner, as
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general partner, to make short-term or GAP loans to the limited
partnerships at an interest rate of 2 percent above the prime
rate. The GAP sheets purport to record that petitioner made such
loans and that the limited partnerships paid interest to
petitioner. The record does not reflect that the limited
partnerships made payments of principal to petitioner.
Petitioner caused checks to be issued from the partnerships
payable to himself, bearing the notation "second mortgage
interest". The second mortgage interest is attributable to
second mortgage loans purportedly made by petitioner to the
partnerships. The record does not reflect the terms of any
second mortgage loans. Furthermore, there is no evidence that
petitioner transferred any funds to the partnerships in
accordance with the purported second mortgage loans.
Petitioner also caused the partnerships to pool funds to
purchase jumbo certificates of deposit during the years at issue.
A jumbo certificate of deposit is a certificate of deposit in the
amount of $100,000 or more.
Petitioner owned rental properties in the Ohio State
University and other Columbus, Ohio, areas. During the years in
issue, petitioner owned from 31 to 79 such rental properties.
Petitioner hired several independent contractors (the laborers)
to clean and repair the rental units. Petitioner would present
the laborers with their weekly paychecks which they, in turn,
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would endorse back to petitioner. Petitioner would give the
laborers cash in return for the checks. The checks were drawn on
different partnership accounts and were often left blank in
amount. Petitioner instructed his secretary to write a specified
dollar amount on the front of the checks that exceeded the amount
of cash paid to laborers. The checks were cashed on the
following day at BancOhio. Petitioner had an arrangement with
BancOhio whereby the checks could be cashed without his
endorsement.
Some of the checks drawn on the partnership accounts were
for services that were not performed by the persons who endorsed
the checks. For example, the record reflects notations on
several checks for "cleaning" services. The record further
reflects that these checks were actually yearend bonuses paid to
petitioner's secretaries. Some of the checks were in payment of
petitioner's personal expenditures. For example, petitioner
caused checks to be drawn from his partnership accounts to pay
for supplies for his Arabian horses. The checks, however,
reflect that payment was made for "duck feed" for a duck pond on
one of the partnership's properties.
The inflated checks written on partnership accounts and
other payments made from partnership accounts for personal
expenditures are part of the basis of the increased partnership
income determined by respondent and not disputed by petitioner.
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3. Newtowne, Inc., and Related Transactions
Newtowne, Inc. (Newtowne), an Ohio corporation founded in
1972, was the construction company which served as petitioner's
general contractor for most of his real estate projects. Phillip
Fankhauser (Fankhauser), William Riat (Riat), Steven Branam
(Branam), and Frederick Forster (Forster) were officers and
shareholders of Newtowne. Fankhauser served as Newtowne's
president during the years in issue. In 1992, Newtowne filed a
chapter 11 petition in bankruptcy. During the years in issue,
Newtowne was desperate for business from petitioner and, thus,
acceded to many of petitioner's wishes and demands. As a result
of the lack of arm's-length dealing, petitioner was able to
manipulate many of the transactions with Newtowne to his benefit.
Newtowne entered into contracts with the partnerships to
provide the latter with construction and design services.
Newtowne also entered into several "Market Research Analysis and
Ongoing Planning [Agreements]" and "Warranty Service
[Agreements]" with the partnerships. With the exception of two
contracts, petitioner signed the contracts on behalf of both
parties.
Petitioner advised representatives of Newtowne that he did
not expect to receive the services set forth in the market
research and warranty agreements. Petitioner sent messengers to
Newtowne's office with checks that were drawn on various
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partnership accounts and bore the following preprinted
endorsement: "Pay to the Order of Albert J. DeSantis in Partial
Payment of Consulting Services." The messengers were instructed
to wait for Fankhauser to endorse the checks before returning to
petitioner. The messengers returned the endorsed checks to
petitioner who deposited the checks into account No. 830536146 at
BancOhio.
So-called Ongoing Financial & Tax Analysis & Investment
Counseling Agreements reflect that funds were drawn on various
partnership accounts, and were made payable to petitioner as
follows:
1982
Partnership Amount Concession
AJD/Bethel Colony II, Building 1 $15,000
AJD/Bethel Colony II, Building 2 10,000
AJD/Bethel Colony II, Building 3 15,000
AJD/Bethel Colony II, Building 4 10,000
AJD/Bethel Colony II, Building 5 15,000
AJD/Bethel Colony II, Building 6 10,000
AJD/Bethel Colony II, Building 7 15,000
AJD/Bethel Colony II, Building 8 10,000
AJD/Bethel Colony II, Building 9 15,000
AJD/Bethel Colony II, Building 10 10,000
AJD/Bethel Colony II, Building 11 15,000
AJD/Bethel Colony II, Building 12 10,000
Bethel Office, Building 7 12,000 $4,000
Total received 162,000
Less concession (4,000)
Total 158,000
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1983
Check
Partnership Date Deposit Date Amount Conc
AJD/Bethel Colony II 12/31/82 1/3/83 $150,000 $1
AJD/Olde Sawmill on the Lake 12/31/82 1/3/83 126,000
AJD/Olde Sawmill on the Lake II 12/31/82 1/3/83 144,000
AJD/Rivergreen 12/31/82 1/3/83 171,000
Saltergate II 1/25/83 1/27/83 120,000
AJD/Dierker Rd. 6/15/83 6/23/83 184,000
Bethel Colony II 8/16/83 8/16/83 150,000 13
Rivergreen 11/8/83 11/14/83 142,500
OSOTL 11/8/83 11/14/83 115,000
OSOTLII 11/8/83 11/14/83 120,000
Total 1,422,500
Less concessions (150,000)
Total 1,272,500
1984
Partnership Date Amount
Park Place 10/15/84 $18,000
Park Place 10/15/84 18,000
Park Place 10/15/84 18,000
Park Place 10/15/84 18,000
Park Place 10/15/84 108,000
Total 180,000
In the preparation of petitioner's Federal income tax
returns, Meeks did not determine whether the checks from Newtowne
that were endorsed to petitioner, some of which were deducted on
the partnerships' returns, were included in petitioner's income.
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Meeks did not examine the endorsements written on the back of the
checks.
Petitioner failed to attach a schedule to his 1982 or 1983
return indicating how he determined gross receipts from his
financial consulting activity. Petitioner attached a schedule to
his 1984 return which itemized the income he received from
financial consulting for that year. The attached schedule does
not reflect that petitioner received $180,000 from Park Place.
Rather, the schedule reflects that petitioner received $30,525
from Park Place and $180,000 in "other consulting fees", without
indicating what "other consulting fees" represents.
After the completion of a project known as Bethel Colony I,
petitioner signed all contracts on behalf of the partnerships and
negotiated with subcontractors, while Newtowne did most of the
estimating and bidding for the projects. Petitioner required
that Newtowne use Reno Morine, a cement contractor, and Nicholas
Savko & Sons (Savko) for excavation and site preparation
services. Petitioner threatened the employees of Newtowne so
that they would comply with his demands. For example, at one of
petitioner's meetings with the employees of Newtowne, petitioner
posted the following message:
Your business is at stake. Your homes are at stake. Your
reputation is at stake. Your livelihood is at stake. I
want performance not damn excuses or I will go elsewhere,
and if you don't like it, you are welcome to go elsewhere.
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At the bottom of the message, Riat wrote "And so we did".
Petitioner's manipulation of Newtowne enabled him to obtain
personal benefits that he would not have been able to enjoy under
an ordinary business relationship. Through his intimidation
tactics, petitioner was able to reap the benefits from "cost
savings", the purchase of two office buildings at a reduced cost,
the construction of his personal residence, and a Ford van,
infra.
(a) Cost Savings (Including Park Place)
Before obtaining financing for a given project, Newtowne
would prepare a detailed budget estimating specific costs
allocated to specific line items in the budget. Any funds
remaining upon the completion of the project were known
internally as "cost savings". Cost savings were determined on a
line-by-line basis for each item of the project by comparing the
estimated cost to the actual cost. Petitioner and Newtowne
entered into an agreement whereby petitioner would receive 100
percent of the cost savings for certain items of the budget,
Newtowne would receive 100 percent for other items, and the cost
savings from the remaining items would be split equally. The
checks Newtowne received for cost savings were often endorsed
over to petitioner.
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Petitioner applied a portion of the cost savings towards the
construction cost of his home. The amounts of the cost savings
from each construction project that were applied by Newtowne to
petitioner's construction account in 1983 and 1984 as follows:
1983
Partnership Check Date Amount
Saltergate I 2/23/83 $10,842.54
Saltergate II 6/30/83 42,942.03
Bethel Colony II 11/01/83 31,756.51
Owner's Check Request1 8/31/83 20,496.58
Total 106,037.66
1
See discussion infra.
1984
Partnership Date Amount
Bethel Colony II/Park Place 2/84 $2,324.04
Bethel Woods 8/84 9,000.00
Park Place 7/84 9,457.15
OSOTL 7/84 10,686.61
Bethel Woods 7/84 13,300.00
Park Place 6/84 5,475.00
OSOTL 6/84 15,986.81
Park Place 5/84 15,000.00
1
Park Place/SAVKO 4/84 28,000.00
OSOTL 4/84 19,000.00
Park Place 4/84 9,671.40
OSOTL 3/84 24,499.98
OSOTL 3/84 15,000.00
Rivergreen 1/84 13,256.70
Park Place 12/83 10,000.00
Total 200,657.69
1
See discussion entitled "Construction of Petitioner's
Home", infra.
- 24 -
Distributions from particular line items in the construction
budgets were also made to petitioner before cost savings were
computed. Such distributions were known internally as "owner's
check request(s)". On August 31, 1983, for example, an owner's
check request was issued to petitioner from Newtowne in the
amount of $20,496.58. This amount is not reflected on
petitioner's 1983 return. Petitioner failed to attach to that
return a schedule indicating how he determined his gross receipts
for 1983. Petitioner prepared a document entitled "1099 Income"
which purports to reflect amounts he received during 1983 for his
financial consulting services. This document was not presented
to Meeks when he reviewed petitioner's return for that year. The
owner's check request is not reflected on this document.
Petitioner's 1984 return does not reflect the amounts he
received from Newtowne in cost savings. As indicated, petitioner
attached a schedule to his 1984 return which itemized the income
he received from "Financial Consulting". The schedule does not
state that he received payments from Newtowne. Petitioner
reported "other consulting fees" on the schedule in the amount of
$180,000. It is unclear whether "other consulting fees"
represents the amounts petitioner received from Newtowne for his
consulting services, cost savings, or a portion of the cost
- 25 -
associated with Newtowne's construction of petitioner's home,
infra.
Meeks was not aware that petitioner received cost savings
from Newtowne when he assisted in the preparation of petitioner's
1984 return. Meeks was also not aware that Newtowne acted as the
general contractor for the construction of petitioner's home.
(b) Saltergate I
On July 30, 1982, petitioner, acting as general partner of
two limited partnerships, purchased two office buildings from
Newtowne for $430,000 and $50,000, respectively. The limited
partnerships participated in a real estate construction project
known as Saltergate Village Phase I. Petitioner received credits
for syndication and consulting fees from Newtowne in the amounts
of $110,000 and $10,000, respectively, which were applied to the
purchase price of the office buildings. The $120,000 in credits
petitioner received was not reported as income on his 1982
return.
On December 1, 1982, petitioner caused the two limited
partnerships to enter into separate "Market Research Analysis and
Ongoing Planning [Agreements]" with Newtowne. The agreements
were signed on behalf of both parties by petitioner. On July 30,
1982, petitioner caused checks to be drawn on the accounts of the
- 26 -
limited partnerships totaling $120,000 payable to Newtowne.
Petitioner caused the checks to bear a notation indicating that
payment was for warranty and/or market research fees. The
partnerships did not owe Newtowne any amounts for warranty and/or
market research fees in 1982. The checks were endorsed to the
Huntington Mortgage Co. and deposited into an account entitled
"Newtowne III" at Huntington Bank. These checks represent the
amounts referred to above as syndication and consulting fees.
Huntington Bank issued a loan commitment letter to petitioner
setting forth the provisions of loans in the amount of $320,000
for the purchase of the two office buildings.
(c) Construction of Petitioner's Home and Architectural
Services
As a condition to signing one of the contracts between a
partnership that petitioner controlled and Newtowne, petitioner
approached Riat with the prospect of swapping petitioner's home
for Riat's home. Instead of swapping homes, Riat suggested that
he design and build, with Newtowne, a 10,000-square-foot home for
petitioner. The parties entered into a contract to build the
home in November 1983, and construction began shortly thereafter.
On February 28, 1985, Newtowne and petitioner entered into a
separation agreement. The construction of the home was not
completed at the time Newtowne entered into the separation
- 27 -
agreement. Newtowne was never compensated for its services as a
general contractor, which are estimated at $100,000. Riat
received $5,000 from petitioner for the architectural services he
provided that had a value of approximately $35,000. Petitioner
failed to report on his 1984 return the $30,000 difference
between the value of Riat's services, $35,000, and the amount he
actually paid, $5,000. Newtowne's cost of constructing the home,
not taking into account any credits for petitioner's consulting
services, was $361,055. The cost of constructing petitioner's
home and the value of the contractor services provided by
Newtowne were not reported as income on petitioner's 1984 return.
As indicated earlier, Savko was the excavation and site
preparation firm that performed most of the excavation work for
petitioner. Petitioner obtained a construction loan account for
four of his projects at Chicago Title Insurance Co. (Chicago
Title). Specific amounts of construction loan funds in the
Chicago Title account were budgeted to cover specific costs.
During the construction of petitioner's home, petitioner drew on
this construction loan account to pay Newtowne and Savko for
their services. Savko endorsed the checks it received from
Chicago Title to Newtowne in payment of the costs associated with
the construction of petitioner's home. For example, on April 13,
- 28 -
1984, Chicago Title issued a check in the amount of $28,000
payable to Savko and petitioner. The check was endorsed by Savko
and petitioner and made payable to Newtowne on April 17, 1984.
The $28,000 was applied to petitioner's construction account at
Newtowne. Petitioner failed to report this amount as income on
his 1984 return.
Branam served as treasurer of Newtowne from May 1982 to
September 1988. When Branam first received the check drawn on
the Chicago Title account, he questioned why it should be applied
to petitioner's construction account. Savko indicated that the
check was in partial payment of petitioner's consulting services.
Upon receiving this information, Branam credited this check to
petitioner's account.
The total amount of credits applied to petitioner's
construction account was not reported on his 1983 and 1984
returns. As indicated above, Meeks was unaware that petitioner
was subsidizing the construction of his home with his purported
financial consulting services through Newtowne and Savko.
(d) The Ford Van
In 1982, Newtowne was working on the first phase in a real
estate project, the Saltergate Village project, with one of the
partnerships. Forster, who was vice president of Newtowne during
- 29 -
the years at issue, was the superintendent in charge of the
Saltergate Village project.
Petitioner informed the other owners of Newtowne that he did
not want Forster working on the project. Petitioner indicated
that if Forster continued working on the project, he would
terminate the contract between the partnerships and Newtowne.
The parties finally agreed that Forster could remain on the
project if he purchased a Ford van for petitioner. Petitioner
also indicated that Forster could not write a company check for
this purchase. Instead, petitioner wanted Forster to pay for
this van using funds from his personal checking account.
In accordance with petitioner's instructions, Forster
presented petitioner with a check for $7,800 payable to a Ford
dealership. Petitioner invited his secretaries and other
employees into his office to witness the exchange. As Forster
handed him the check, petitioner announced: "I want to thank you
for this gift". Forster remained on the Saltergate Village
project, and Newtowne reimbursed him for the $7,800. Petitioner
did not report receipt of this van on his 1982 return.
4. Unreported Income From Savko
Respondent determined in the notice of deficiency that
petitioner failed to report $124,330 and $34,000 in income he
- 30 -
received from Savko on his 1983 and 1984 returns, respectively.
Respondent conceded $34,000 of income from Savko with respect to
1984.
5. Schedule C Oil and Gas income
One of the Schedules C of petitioner's 1982 return reflects
that petitioner, doing business as "Albert J. DeSantis", engaged
in "Oil & Gas Exploration". Petitioner claimed a deduction for
windfall profits tax withheld in 1982 in the amount of $3,484.
In the notice of deficiency, respondent disallowed the deduction
of windfall profits tax withheld in 1982 and increased
petitioner's 1982 taxable income by $3,484.
6. Uncollectible Operating Expenses
On Schedule C of his 1984 return, petitioner reported
$2,742,409 in gross receipts or sales. Petitioner also claimed a
bad debt deduction in the amount of $2,516,224, attributable to
his financial consulting activity, as "Uncollectible operating
advances". Meeks advised petitioner that in order to claim the
bad debt deduction, petitioner was required to file amended
partnership returns to reflect this discharge of indebtedness
income. Petitioner did not heed this advice despite Meeks'
insistence on making these changes. The only partnership that
reported discharge of indebtedness income during 1984 was Bethel
- 31 -
Colony II, Building 9, Ltd. Petitioner deducted $28,000 for
worthless debts owed him by that partnership on his 1984 return.
In the notice of deficiency, respondent disallowed the
claimed bad debt. Also in the notice of deficiency, respondent
decreased reported income by $1,933,600. The basis for the
adjustment was that petitioner incorrectly reported fee income in
1984 that should have been reported in other years. In the
amendment to answer and on brief, however, respondent asserts
that reported income for 1984 should have been reduced by
$480,800, rather than the $1,933,600 determined in the notice of
deficiency. Therefore, as a result of her amendment to answer,
respondent's claimed adjustment with respect to Schedule C of the
1984 return is $2,035,424, rather than $582,624 as originally
determined.
In her amendment to answer, respondent reduced the 1984
reported consulting fee income by $480,800 and specifically
identified the amounts of payments from named partnerships
controlled by petitioner. The following fee income was reported
on the 1984 return; however, respondent contends that it properly
belongs on the 1982 and 1983 returns and was so determined in the
notice of deficiency:
- 32 -
AJD/Robin Woods, Ltd. $63,000
Rivergreen Buildings 1--10 135,000
Brafferton Buildings 30 and 31 20,000
Olde Sawmill on the Lake Buildings 1--8 128,100
Old Sawmill on the Lake II Buildings 1--9 134,700
Total 480,800
7. The Tax Returns
Petitioners filed joint Federal income tax returns for the
taxable years 1982, 1983, and 1984. Schedules C of these returns
reflect that petitioner, doing business as "Albert J. DeSantis",
engaged in "Financial Consulting". On Schedule C of his 1982
return, petitioner reported $361,222 in gross receipts or sales.
On Schedule C of his 1983 return, petitioner reported $470,806 in
gross receipts or sales. Petitioner did not indicate on the 1982
and 1983 returns what specific items of income represented the
gross receipts. There is no explanation as to how petitioner
calculated gross receipts on Schedules C of his 1982 and 1983
returns. On Schedule C of his 1984 return, petitioner reported
$2,742,409 in gross receipts or sales. Petitioner attached a
schedule which itemized the income he received from "Financial
Consulting" in 1984. There is an entry on the schedule for
"other consulting fees" in the amount of $180,000. As indicated,
petitioner did not provide an explanation of what fees he
received and how he calculated this amount.
- 33 -
8. Petitioners' Bankruptcy
After submission of these cases, petitioners filed a
petition for bankruptcy on July 17, 1996. By order of the
bankruptcy court dated October 4, 1996, the stay was lifted,
permitting the Tax Court to proceed in this matter.
OPINION
1. Dismissal
With respect to the deficiencies determined in the notice of
deficiency, respondent moved to dismiss these cases for
petitioner's failure properly to prosecute. The primary basis of
the motion is that petitioner failed to appear at the scheduled
trial of this case. Respondent's motion to dismiss was limited
to the deficiencies determined by respondent in the notice of
deficiency upon which petitioner bears the burden of proof. Rule
142(a). We took this motion under advisement. Because we find,
based on the extensive record, that petitioner has failed to
carry his burden of proof, we will deny respondent's motion as
moot.
2. Burden of Proof
As we have indicated with respect to the deficiencies
determined in the notice of deficiency, petitioner bears the
burden of proving that those determinations are erroneous. Rule
- 34 -
142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). With
respect to the increased deficiencies asserted by respondent in
her amended answer, respondent bears the burden of proof. Rule
142(a); Achiro v. Commissioner, 77 T.C. 881, 889-890 (1981).
With respect to the additions to tax for fraud under section
6653(b)(1) and (2), respondent bears the burden of proving fraud
by clear and convincing evidence. Rule 142(b). In order to
establish petitioner's liability for fraud under section
6653(b)(1), respondent bears the burden of proving by clear and
convincing evidence that: (1) An underpayment of tax exists for
each of the years in issue, and (2) some portion of the
underpayment is due to fraud. Sec. 7454(a); Rule 142(b);
Petzoldt v. Commissioner, 92 T.C. 661, 698-699 (1989); Hebrank v.
Commissioner, 81 T.C. 640, 642 (1983). To meet this burden,
respondent must show that petitioner intended to evade taxes
known to be owing by conduct intended to conceal, mislead or
otherwise prevent the collection of such taxes. Rowlee v.
Commissioner, 80 T.C. 1111, 1123 (1983). For purposes of section
6653(b)(2), respondent must also prove the portion of the
underpayment attributable to fraud. Sec. 6653(b)(2); DiLeo v.
Commissioner, 96 T.C. 858, 873 (1991), affd. 959 F.2d 16 (2d Cir.
1992).
- 35 -
3. The Deficiencies
(a) Unreported Income From the Partnerships
In the notice of deficiency, respondent determined that
petitioner failed to report fee income in the amounts of
$624,000, $1,252,600, and $57,000 on his 1982, 1983, and 1984
returns, respectively. Respondent also determined that
petitioner had overstated his 1983 interest income by $10,524 and
decreased that item accordingly. Respondent further determined
that petitioner's distributive share of partnership loss from
ADJ/Bethel Woods, Ltd., for 1983 was $56, and not $3,278 as
reported on petitioner's return. Since these matters were
determined in the notice of deficiency, petitioner bears the
burden of proof.
In her amendment to answer, respondent decreased her
determination with respect to petitioner's 1983 partnership fee
income by $234,700, and increased her determination with respect
to 1984 partnership fee income by an equal amount. Respondent
also asserts that petitioner failed to report additional
partnership fee income in the amount of $153,900 in 1983.
Respondent bears the burden of proof with respect to the
increased deficiencies. Rule 142(a).
- 36 -
Petitioner does not dispute that he received payments in the
amounts determined by respondent for the years in issue. In any
event, respondent presented substantial evidence that petitioner
received such payments (with slight modifications as found by the
Court). Petitioner contends that such payments were not
partnership fee income but were either: (1) Repayments of loans
from the partnerships to petitioner; (2) nontaxable partnership
withdrawals by petitioner chargeable to the capital accounts; or
(3) loans to petitioner from the partnerships. We will now
consider these arguments.
Section 707(a) provides that, if a partner engages in a
transaction with a partnership other than as a partner, the
transaction shall, except as otherwise provided, be treated as
occurring between the partnership and one who is not a partner.
Section 707(c) provides that payments to a partner for services
or the use of capital, if fixed without regard to the income of a
partnership, are to be considered as made to one who is not a
member of the partnership, but only for the purposes of including
such amounts in the recipient's gross income and allowing a
business expense deduction to the partnership. Specifically,
section 707(c) provides:
(c) Guaranteed Payments.--To the extent determined
without regard to the income of the partnership,
- 37 -
payments to a partner for services * * * shall be
considered as made to one who is not a member of the
partnership, but only for the purposes of section 61(a)
(relating to gross income), and, subject to section
263, for purposes of section 162(a) (relating to trade
or business expenses).
Whether a partner is acting in his capacity as a partner
while providing services to his partnership is a factual
determination. Falconer v. Commissioner, 40 T.C. 1011, 1015
(1963). The regulations indicate: "In all cases, the substance
of the transaction will govern rather than its form." Sec.
1.707-1(a), Income Tax Regs. The inquiry under section 707(c) is
whether the payments for petitioner's services were determined
"without regard to the income of the partnership." Falconer v.
Commissioner, supra at 1016; see also sec. 1.707-1(c), Income Tax
Regs.
We are satisfied that the facts of this case clearly place
the payments made to petitioner pursuant to the "Ongoing
Financial and Tax Analysis, and Investment Counseling
[Agreements]", within the ambit of the term "guaranteed payments"
pursuant to section 707(c). Petitioner contracted with each
partnership to provide the latter with financial consulting
services for a fixed fee. The fees were not dependent upon the
profits of the partnerships. Therefore, the fees were determined
"without regard to the income of the [partnerships]." Falconer
- 38 -
v. Commissioner, supra at 1016. Accordingly, we find that the
payments to petitioner made in accordance with the partnership
agreements were guaranteed payments.
We now address petitioner's argument that the payments he
received are not income because they are repayments of loans from
petitioner to the partnerships. Whether a transaction is a loan
for Federal income tax purposes is a question of fact. The
following factors are considered in determining whether a loan is
bona fide: (1) The existence of a sum certain; (2) the
likelihood of repayment; (3) a definite date of repayment; and
(4) the manner of repayment. Seay v. Commissioner, T.C. Memo.
1992-254; Mangham v. Commissioner, T.C. Memo. 1980-280.
Petitioner's argument that the payments represent the
repayment of loans from petitioner to the partnerships is not
supported by the record. As indicated, petitioner recorded the
transfer of funds to and from the partnerships on the ledgers.
The ledgers do not reflect that petitioner transferred funds to
the partnerships as reflected on his GAP sheets. In addition,
there are no documents in the record, other than the GAP sheets,
setting forth the terms of the purported loans, terms of
repayment, collateral, etc. Some of the ledgers reflect negative
yearend balances, indicating that petitioner withdrew more funds
- 39 -
than he transferred to the partnerships. Although the GAP sheets
indicate that some interest payments were made to petitioner,
there is no evidence of repayments of principal.7
We now address petitioner's second argument, that the
payments are not income but are nontaxable distributions
chargeable to his capital accounts. Section 731 provides that a
partner recognizes gain to the extent that the amount of any
money distributed exceeds the adjusted basis of the partner's
interest in the partnership. Sec. 731(a). Section 1.731-1(a),
Income Tax Regs., provides that this rule is applicable to
current distributions and distributions in liquidation of a
partner's entire interest in a partnership. Section 707 is not
applicable to distributions of money or property by a partnership
to a partner. Sec. 1.707-1(a), Income Tax Regs.
Since we have determined that the payments petitioner
received are guaranteed payments within the purview of section
707(c), the payments are not distributions within the meaning of
section 731. Therefore, petitioner's argument that the payments
are chargeable to his capital accounts is without merit.
7
If petitioner had lent funds to a partnership and was
paid interest, such payment would, in any event, constitute
income, whereas a return of principal would not constitute
income.
- 40 -
Petitioner's final argument, that the payments represent
loans from the partnerships to petitioner, is also without merit.
There is no evidence in the record which indicates that such
loans were made. In addition, the offering circulars for the
limited partnerships clearly prohibit the making of such loans to
petitioner, the general partner.
We hold that petitioner failed to report fee income in the
total amounts of $624,000, $806,076,8 and $273,700, on the 1982,
1983, and 1984 returns, respectively.
(b) Unreported Income From Newtowne and Related
Transactions
In the notice of deficiency, respondent determined that
petitioner failed to report income he received from Newtowne in
the amounts of $31,014 and $1,282,500 on his 1982 and 1983
returns, respectively. Petitioner has the burden of proof with
respect to these adjustments.
In her amendment to answer, respondent claims that
petitioner failed to report income he received from Newtowne and
from transactions with Newtowne in the amounts of $8,860.71,
8
Calculated as follows:
Amount received less concession $816,600
Less interest conceded (10,524)
1983 omitted fee income 806,076
- 41 -
$106,037.66, and $232,028.76 on his 1982, 1983, and 1984 returns,
respectively. Respondent concedes $1,060.71 and $1,371.02 of
omitted income with respect to petitioner's 1982 and 1984
returns, respectively. Respondent also claims that petitioner
failed to report income that he received through Newtowne from
Saltergate I and Park Place in the amounts of $120,000 and
$180,000 on his 1982 and 1984 returns, respectively. Respondent
bears the burden of proof with respect to these claimed increased
deficiencies. Rule 142(a).
Petitioner does not deny that he received the amounts as set
forth in the findings herein. In any event, substantial evidence
was presented which leads us to the conclusion that petitioner
received the amounts of income claimed by respondent (as modified
by the Court). Petitioner asserts that the payments from
Newtowne originated with the partnerships and were either: (1)
Repayments to petitioner of loans he made to the partnerships or
(2) nontaxable partnership withdrawals.
We addressed petitioner's arguments in our discussion
regarding the unreported partnership fee income supra. In
holding that the payments petitioner received from the
partnerships were income, we found that there was no evidence in
the record which indicates that the amounts were: (1) Repayments
- 42 -
of loans from petitioner to the partnerships; (2) loans from the
partnerships to petitioner; or (3) nontaxable partnership
withdrawals. Since petitioner is advancing the same theories of
nonincludability as he did with respect to payments he received
from the partnerships, we see no need to reiterate our analysis
herein. We hold that petitioner failed to report income from
Newtowne and related transactions in the total amounts as
follows:
1982
Amount received $162,000.00
Ford van 7,800.00
Saltergate I 120,000.00
289,800.00
Less amount reported (126,986.00)
Less respondent's concession (4,000.00)
Total 158,814.00
1983
Amount received $1,422,500.00
Cost savings 106,037.66
1,528,537.66
Less respondent's concession (150,000.00)
Total 1,378,537.66
1984
Cost savings $174,028.76
Park Place 180,000.00
Owner's check request 28,000.00
Riat's architectural services 30,000.00
Less amount reported with respect
to Park Place (30,525.00)
Less respondent's concession (1,371.02)
- 43 -
Total $380,132.74
(c) Unreported Income From Savko and Schedule C Oil
and Gas Income
With respect to respondent's determination that petitioner
received unreported income from Savko in 1983 and 1984,
petitioner has not met his burden of proving that respondent's
determination is erroneous. No evidence or argument was
presented that the amount petitioner received from Savko in 1983
or 1984 does not represent taxable income. In addition,
petitioner has not met his burden of proving that respondent's
determination erroneously disallowed a deduction for windfall
profits tax withheld in 1982, relating to petitioner's oil and
gas exploration business. Accordingly, respondent's
determinations are sustained.
(d) Uncollectible Operating Expenses in 1984 and the
Adjustment to Gross Receipts
As indicated, respondent's notice of deficiency determined
that petitioner was not entitled to a claimed bad debt deduction
in the amount of $2,516,224, purportedly attributable to
"Uncollectible operating advances". Petitioner, however, has
failed to produce any evidence of loans related to the claimed
bad debts. Accordingly, we sustain respondent's determination.
- 44 -
In her amendment to answer, respondent asserted that gross
receipts as reported by petitioner on the 1984 return should be
reduced by $480,800 rather than $1,933,600 as originally
determined by respondent. Petitioner presented no arguments or
facts to dispute this assertion. Upon a review of this record,
we are satisfied that respondent's claim in her amendment to
answer is correct. Therefore, we sustain respondent's adjustment
to petitioner's Schedule C income for 1984 in the amount of
$2,035,424 ($2,516,224 less $480,800).
4. Additions to Tax (Section 6653(b)(1) and (2))
Respondent determined that petitioner is liable for
additions to tax for fraud under section 6653(b)(1) and (2) for
1982, 1983, and 1984. As we previously indicated, respondent
bears the burden of proving by clear and convincing evidence that
there is an underpayment for each of the years in issue and that
some portion of the underpayment is due to fraud. Sec.
6653(b)(1).
(a) Section 6653(b)(1)
We first consider the additions to tax under section
6653(b)(1). The existence of fraud is a question of fact to be
resolved upon consideration of the entire record. Gajewski v.
Commissioner, 67 T.C. 181, 199 (1976), affd. without published
- 45 -
opinion 578 F.2d 1383 (8th Cir. 1978). Fraud may be proven by
circumstantial evidence and reasonable inferences drawn from
proven facts because direct proof of a taxpayer's intent is
rarely available. Spies v. United States, 317 U.S. 492, 499
(1943); Rowlee v. Commissioner, 80 T.C. 1111 (1983). A
taxpayer's entire course of conduct may establish the requisite
fraudulent intent. Stone v. Commissioner, 56 T.C. 213, 223-224
(1971); Otsuki v. Commissioner, 53 T.C. 96, 105-106 (1969). The
intent to conceal or mislead may be inferred from a pattern of
conduct. Spies v. United States, supra at 499.
Respondent has established, and we have held that there are,
understatements of tax for 1982, 1983, and 1984. Respondent has
proven by clear and convincing evidence the existence of
understatements of tax in all of the years at issue. Having
proved understatements of tax, respondent must also prove that
some portion of each understatement is attributable to fraud.
The courts have developed a number of objective indicators
or "badges" of fraud. Recklitis v. Commissioner, 91 T.C. 874,
910 (1988). Evidence that may give rise to a finding of
fraudulent intent includes: (1) Understatement of income; (2)
inadequate or no records; (3) failure to file tax returns; (4)
implausible or inconsistent explanations of behavior; (5)
- 46 -
concealment of assets; (6) failure to cooperate with tax
authorities; (7) failure to make estimated tax payments; (8)
dealing in cash; (9) engaging in illegal activity; and (10)
attempting to conceal an illegal activity. Clayton v.
Commissioner, 102 T.C. 632, 647 (1994). These badges of fraud
are nonexclusive. Miller v. Commissioner, 94 T.C. 316, 334
(1990).
In light of the record, taken as a whole and by reasonable
inferences therefrom, we find that the facts show by clear and
convincing evidence that petitioner intended to evade taxes known
to be owing by conduct intended to conceal, mislead, or otherwise
prevent the collection of taxes.
The consistent understatement of large amounts of income for
a number of years is evidence of willful intent to evade.
Holland v. United States, 348 U.S. 121, 139 (1954); Rogers v.
Commissioner, 111 F.2d 987, 989 (6th Cir. 1940), affg. 38 B.T.A.
16 (1938); Conforte v. Commissioner, 74 T.C. 1160, 1201 (1980),
affd. in part and revd. on another issue 692 F.2d 587 (9th Cir.
1982); Otsuki v. Commissioner, supra at 107-108. We are mindful
that fraud cannot be inferred from a mere inadvertent
understatement of income. Holland v. United States, supra.
Petitioner is an intelligent and financially astute individual.
- 47 -
Despite his business acumen, petitioner failed to report his
receipt of substantial amounts of income on his 1982, 1983 and
1984 returns. Hughes v. Commissioner, T.C. Memo. 1994-139;
LiButti v. Commissioner, T.C. Memo. 1985-314.
A taxpayer's use of cash to conceal income is evidence of
fraud. Bradford v. Commissioner, 796 F.2d 303, 307-308 (9th Cir.
1986), affg. T.C. Memo. 1984-601; United States v. Chapman, 168
F.2d 997, 1000 (7th Cir. 1948). Petitioner's method of paying
the laborers in cash, and cashing their checks in larger amounts
for himself without a valid business reason, is strong evidence
of fraud.
Petitioner attempted to conceal the receipt of substantial
amounts of income from the partnerships and Newtowne by entering
into a series of transactions that camouflaged receipt of these
funds. For example, petitioner asked Newtowne to endorse the
partnership checks to petitioner in "partial payment for his
consulting services", even though it was understood between the
parties that no such services would be provided. Petitioner also
caused the partnerships to pay him in accordance with the
respective financial consulting agreements.9
9
We note that, despite these agreements, petitioner argued
in his petition that these payments from the partnerships and
(continued...)
- 48 -
The failure to keep records of all earnings may be material
evidence of fraud. Otsuki v. Commissioner, supra at 109; see
also Baumgardner v. Commissioner, 251 F.2d 311, 314 (9th Cir.
1957), affg. T.C. Memo. 1956-112. To hold otherwise would, as
the Supreme Court stated in United States v. Johnson, 319 U.S.
503, 518 (1943), "be tantamount to holding that skillful
concealment is an invincible barrier to proof". During the years
at issue, petitioner failed to maintain adequate books and
records with respect to his financial consulting activity as
required by law. Sec. 6001; sec. 1.6001-1, Income Tax Regs. In
addition, petitioner failed to provide his tax adviser and return
preparer with the records he did maintain.
Petitioner's conviction under section 7206(1) is also
probative that petitioner intended to evade taxes for 1982 and
1983. Wright v. Commissioner, 84 T.C. 636, 643-644 (1985).
For the reasons stated above, we hold that petitioner is
liable for the additions to tax for the tax years 1982, 1983, and
1984 pursuant to section 6653(b)(1).
(b) Section 6653(b)(2)
(...continued)
Newtowne were not income.
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We now turn to respondent's additions to tax under section
6653(b)(2). Section 6653(b)(2) imposes an addition to tax equal
to 50 percent of the interest payable on the portion of the
understatement attributable to fraud. Respondent must prove the
portion of the understatement attributable to fraud. Sec.
6653(b)(2); DiLeo v. Commissioner, 96 T.C. 858, 873 (1991), affd.
959 F.2d 16 (2d Cir. 1992).
Respondent asserts that the following amounts of income that
petitioner failed to report on his 1982, 1983, and 1984 returns,
respectively, are attributable to fraud for purposes of section
6653(b)(2):
1982 1983 1984
Partnership fee income $624,000 $1,095,626.00 $291,700.00
Newtowne 31,014 1,282,500.00 -0-
Park Place -0- -0- 180,000.00
Saltergate 120,000 -0- -0-
Cost savings -0- 106,037.66 230,657.69
Bad debt deduction -0- -0- 2,035,424.00
Ford Van 7,800 -0- -0-
Total 782,814 2,484,163.66 2,737,781.69
(1) Partnership Fee Income
We have concluded that petitioner failed to report
$624,000, $806,076, and $273,700 in partnership fee income for
1982, 1983, and 1984, respectively. Now we must determine what
portion, if any, of each underpayment is attributable to fraud.
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We conclude that respondent has met her burden of proving
that $624,000, $806,076, and $273,700 in partnership fee income
for 1982, 1983, and 1984, respectively, is attributable to fraud.
In an attempt to camouflage or conceal his receipt of the
partnership fee income, petitioner entered into complex
transactions with numerous partnerships. Despite the written
agreements petitioner entered into with the partnerships,
petitioner failed to report as income the fees he received for
the contracted services. Petitioner's failure to accurately
report receipt of these funds was due to fraud.
(2) Newtowne
We have concluded that petitioner failed to report income he
received from Newtowne in the amounts of $31,014 and $1,272,500
on his 1982 and 1983 returns, respectively. We have also
concluded that petitioner failed to report income from the
Saltergate I project in the amount of $120,000 on his 1982
return. Respondent asserts that $151,01410 and $1,282,500 for
1982 and 1983, respectively, is attributable to fraud.
10
Respondent determined that petitioner failed to report
$31,014, or the difference between $158,000 and the amount
reported on his 1982 return, $126,986. We added the $120,000
that petitioner failed to report from the Saltergate I project to
the $31,014 for a total of $151,014. The $7,800 petitioner
received for the Ford van is discussed infra.
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As indicated, petitioner caused the partnerships to enter
into market research and warranty agreements with Newtowne
without expecting that the partnerships would receive services in
accordance with the contracts. Petitioner "paid" for these
nonexistent services with checks that were drawn on the
partnerships' accounts and bore preprinted endorsements payable
to himself. In substance, petitioner was simply draining the
partnerships of funds and using Newtowne as a conduit to carry
out this fraudulent scheme. The fact that petitioner did not
expect that the partnerships would receive services from Newtowne
indicates that the transactions were a sham. Petitioner's
failure to report the income on his returns was due to fraud.
Of the $151,014 of unreported income in 1982, $120,000
represents the amount petitioner received from the limited
partnerships in the Saltergate I project. Petitioner was in
control of the limited partnerships and caused them to enter into
financial consulting and warranty agreements. Newtowne credited
the $120,000 to petitioner's purchase of the two office
buildings. By this method, petitioner was able to
surreptitiously drain the limited partnerships of $120,000.
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Petitioner's failure to report this amount, and the method he
utilized to obtain the $120,000, clearly indicate his intent to
conceal his receipt of this income. Respondent has met her
burden of proving that $151,014 and $1,272,500, for 1982 and
1983, respectively, is attributable to fraud for section
6653(b)(2) purposes.
(3) Park Place
Respondent alleges that petitioner failed to report $180,000
in income from Newtowne and the Park Place partnership on his
1984 return. Petitioner reported $30,525 in income from the Park
Place partnership on his 1984 return.
Petitioner caused checks to be drawn on the Park Place,
Ltd., partnership account totaling $180,000. These checks were
made payable to Newtowne and were presented to Fankhauser with
the following preprinted endorsement: "Pay to the Order of
Albert J. DeSantis in Partial Payment of Consulting Services".
It was agreed that petitioner would not provide Newtowne with the
consulting services as indicated on the checks. Petitioner sent
the checks by messengers to Newtowne's office where they waited
for Fankhauser's endorsement before returning the checks to
petitioner. Petitioner deposited the checks into his personal
checking account at BancOhio.
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The method by which petitioner withdrew funds from the
partnership accounts, caused the checks to be paid to Newtowne,
and caused Newtowne to endorse those amounts back to petitioner
is clearly fraudulent given the parties' expectation that no
services would actually be provided. Even if the parties
anticipated that petitioner would perform the stated services,
the amounts received would clearly be income. Sec. 61(a)(1).
Petitioner's failure to report the entire $180,000 is also
indicative of his intent to conceal. Because petitioner did
report $30,525 of the income he received from Park Place, we hold
that $149,475 is attributable to fraud for purposes of section
6653(b)(2).
(4) Cost Savings
Respondent asserts that petitioner's failure to report
$106,037.66 and $230,657.6911 in cost savings on his 1983 and
1984 returns, respectively, is attributable to fraud for section
6653(b)(2) purposes.
Through his tactics, petitioner caused Newtowne to construct
a 10,000-square-foot house. Petitioner financed the project with
cost savings from various construction projects he caused the
partnerships to enter into with Newtowne. As indicated,
11
The $230,657.69 equals $200,657.69 in cost savings plus
$30,000 in architectural services provided by Riat.
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petitioner determined how much of the cost savings he would
receive from line item savings in the construction budget for
each project. Even though petitioner determined how much of the
cost savings he was to receive, petitioner failed to report these
amounts as income on his 1983 and 1984 returns. Petitioner also
failed to inform Meeks that Newtowne was constructing his house,
and that the cost savings were being credited to his construction
account.
Petitioner's failure to report this income, coupled with the
method by which he obtained the funds, indicates petitioner's
fraudulent intent. We have found that petitioner failed to
report $106,037.66 and $230,657.69 on his 1983 and 1984 returns,
respectively. Accordingly, we hold that $106,037.66 and
$230,657.69 is attributable to fraud for section 6653(b)(2)
purposes.
(5) Uncollectible Operating Expenses
Petitioner claimed a bad debt deduction in the amount of
$2,516,224 on his 1984 return attributable to "Uncollectible
operating advances". Respondent asserts that the entire amount
of the underpayment due to petitioner's bad debt deduction is
attributable to fraud. As indicated, we have held that
petitioner was not entitled to claim the bad debt deduction in
the amount of $2,035,424 on his 1984 return. We must now
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determine what portion of the bad debt deduction claimed on
petitioner's return is attributable to fraud.
The record is devoid of any evidence of loans being made to
or by the partnerships. Meeks advised petitioner that he would
have to file amended partnership returns to reflect the discharge
of indebtedness income in order to claim the deduction.
Petitioner knew that the deduction was improper and
unsupportable. Petitioner did not follow the advice of his tax
adviser. We conclude that the claimed deduction was for the sole
purpose of evading tax.
Accordingly, on the basis of the record, we hold that the
amount of $2,035,424 which petitioner claimed as a bad debt
deduction was fraudulent in its entirety.
(6) The Ford Van
As indicated, Forster presented petitioner with a personal
check in the amount of $7,800, payable to a Ford dealership, to
enable petitioner to purchase a van. Petitioner failed to report
this amount in income on his 1982 return. Respondent asserts
that the entire $7,800 is attributable to fraud.
We hold that petitioner's failure to report the $7,800 on
his 1982 return is fraudulent. Forster did not present the check
to petitioner as a gift. Rather, petitioner coerced Forster by
threatening to cancel Newtowne's project if Forster refused to
- 56 -
comply with his demand. At the time, petitioner was aware that
Newtowne was in dire financial straits and did not have other
contracts. Petitioner's failure to report the $7,800 as income
is fraudulent given the manner in which the check was obtained
and petitioner's attempt to characterize it as a gift.
(c) Section 6661
Respondent determined that petitioner is liable for the
additions to tax under section 666112 for 1982, 1983, and 1984.
Respondent's determinations are presumed correct, and
petitioner bears the burden of proving otherwise. Rule 142(a);
Bixby v. Commissioner, 58 T.C. 757, 791-792 (1972).
Section 6661(a) provides for an addition to tax equal to 10
percent of the amount of any underpayment attributable to a
substantial understatement of tax. An understatement, for
purposes of this addition to tax, is the amount by which the
amount required to be shown on a return exceeds the amount
actually reported on the return. Sec. 6661(b)(2); Tweeddale v.
Commissioner, 92 T.C. 501, 505 (1989). An understatement is
substantial if it exceeds the greater of $5,000 or 10 percent of
the tax required to be shown on the return. Sec. 6661(b)(1)(A).
12
Sec. 6661 is applicable to returns required to be filed
after Dec. 31, 1982.
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The amount of the understatement may be reduced under
section 6661(b)(2)(B) for amounts adequately disclosed or
supported by substantial authority. In addition, section 6661(c)
authorizes the Secretary to--
waive all or any part of the addition to tax * * * on a
showing by the taxpayer that there was reasonable cause
for the understatement * * * and that the taxpayer
acted in good faith.
Petitioner argues that there is substantial authority for
the positions taken on his 1982, 1983, and 1984 returns with
respect to the payments he received from the partnerships and
Newtowne, and the bad debt deduction claimed on his 1984 return.
Petitioner further argues that he acted in good faith and that
there is reasonable cause for the understatements. Finally,
petitioner argues that he accurately described the relevant facts
relating to the positions taken on his returns.
Petitioner has not demonstrated what authorities he
purportedly relied upon for the positions taken on his returns.
Nor has he shown that any authority he relied upon was
substantial. Given that we have found that petitioner
fraudulently, and with the intent to evade tax, substantially
understated his income tax for the years in issue, we cannot
conclude that petitioner acted in good faith or with reasonable
cause with respect to the positions taken on his 1982, 1983, and
1984 returns. Furthermore, we have found that petitioner did not
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fully disclose all of the facts to his return preparer, Meeks.
In addition, petitioner did not make adequate disclosures on his
returns. Accordingly, respondent's determination is sustained.
To reflect the foregoing,
An appropriate order will
be issued and decisions will be
entered under Rule 155.13
13
The $180,000 petitioner reported as "other consulting
fees" on his 1984 return should be subtracted from the total
amount of income we have determined that petitioner failed to
report from the partnerships and Newtowne.