T.C. Memo. 1997-532
UNITED STATES TAX COURT
DENNIS C. GANDY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
DENNIS C. GANDY AND CAROLYN S. GANDY, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 26018-93, 26028-93. Filed December 1, 1997.
William A. Roberts and Jeffrey C. Adams, for petitioners.
Shelley D. Turner and Audrey M. Morris, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
COHEN, Chief Judge:1 Respondent determined deficiencies in
Federal income tax and additions to tax for petitioners Dennis C.
and Carolyn S. Gandy as follows:
1
These consolidated cases were tried before Judge Edna G.
Parker. Judge Parker died after completion of the trial. The
parties were afforded an opportunity for a new trial, in whole or
in part, but they consented to disposition of the cases on the
record of the trial before Judge Parker.
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Additions to Tax
Year Deficiency Sec. 6653(b) Sec. 6661
1
1985 $163,221 $ 81,611 $40,805
1
1986 240,868 180,651 60,217
1
1987 39,636 29,727 9,909
1
Plus 50 percent of the interest due on the deficiency.
In the alternative to the additions to tax for fraud, respondent
determined additions to tax for negligence and, for 1987, an
addition to tax for delinquency.
Respondent determined deficiencies in Federal income tax,
additions to tax, and a fraud penalty for petitioner Dennis C.
Gandy as follows:
Additions to Tax Penalty
Year Deficiency Sec. 6653(b) Sec. 6661 Sec. 6663
1988 $ 22,393 $16,795 $5,598 ---
1989 112,205 --- --- $84,154
In the alternative to the fraud addition to tax and penalty,
respondent determined a negligence addition to tax for 1988 and
an accuracy-related penalty under section 6662(a) for 1989. By
amendment to answer, respondent sought revised deficiencies in
income tax, additions to tax, and fraud penalty for petitioner
Dennis C. Gandy as follows:
Additions to Tax Penalty
Year Deficiency Sec. 6653(b) Sec. 6661 Sec. 6663
1988 $27,201 $20,401 $6,800 ---
1989 48,149 --- --- $36,112
Respondent reasserted a negligence addition to tax and penalty in
the alternative to fraud.
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Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
The issues to be decided in these cases are as follows:
(1) Whether the statute of limitations precludes assessment
and collection for any of the taxable years 1985 through 1989;
(2) whether Dennis C. Gandy and Carolyn S. Gandy
(petitioners) received unreported Schedule F income from Dennis
Gandy Nursery (the nursery) for 1985 through 1987;
(3) whether Dennis C. Gandy (Mr. Gandy) received unreported
Schedule F income from the nursery for 1988 and 1989;
(4) whether petitioners received unreported interest income
for 1985 and 1986 and overreported such income for 1987;
(5) whether petitioners failed to report capital gain income
for 1987;
(6) whether petitioners are entitled to a net operating loss
deduction for 1985;
(7) whether petitioners are liable for the additions to tax
for fraud or for negligence for 1985 through 1987;
(8) whether Mr. Gandy is liable for the addition to tax for
fraud or for negligence for 1988 and for the fraud or negligence
penalty for 1989;
(9) whether petitioners are liable for an addition to tax
for delinquency for 1987;
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(10) whether petitioners are liable for the additions to tax
under section 6661 for 1985 through 1987; and
(11) whether Mr. Gandy is liable for an addition to tax
under section 6661 for 1988.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulation of facts and the exhibits attached thereto are
incorporated herein by this reference. Petitioners resided in
Ben Wheeler, Texas, at the time they filed their petitions in
these cases. During 1985 through 1989, petitioners were
residents of Van Zandt County, Texas.
Petitioners were married on August 14, 1970. Carolyn S.
Gandy (Mrs. Gandy) attended high school and completed the 10th
grade prior to marrying Mr. Gandy. Mr. Gandy received a
bachelor’s degree in management in 1971 from the University of
Texas at Austin. Petitioners were divorced on June 14, 1988.
Mrs. Gandy moved back into the marital residence in 1991;
however, petitioners remain divorced.
Burnice Gandy is Mr. Gandy's father. In 1947, Burnice Gandy
received a disability discharge from the military. From that
time, Burnice Gandy's income consisted almost exclusively of
military disability and Social Security benefits.
The Nursery
Petitioners established the nursery in 1972. The nursery
property is located 5 miles south of Van, Texas. Petitioners'
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residence is located on the nursery property. During 1985
through 1987, petitioners owned and operated the nursery as a
sole proprietorship. During 1988 and 1989, Mr. Gandy owned and
operated the nursery as a sole proprietorship. Petitioners were
cash basis taxpayers.
During the years in issue, the nursery sold trees and plants
throughout the southwestern United States. The nursery grew
approximately 70 to 90 percent of its products. Some trees were
grown in the field and, when large enough for the customers'
needs, were dug up by hand, or, if very large, by machinery; the
dirt-covered roots of the tree then were covered with burlap and
wire mesh. This method of growing trees is known as ball and
burlap (B&B). The B&B trees generally were sold to landscapers
or construction companies.
During 1985, approximately 75 percent of the nursery's
production was in B&B trees; by 1989, 95 percent was in
“container” trees. In the container method, a tree is planted
and grown in the container in which it will be sold to its
ultimate purchaser. The nursery sold many of its container trees
to chain stores for resale. During the years in issue, Army-Air
Force, Wal-Mart, K-Mart, and Sears Roebuck & Co. were the major
clients of the nursery.
The nursery grew much of its stock from small seedlings.
The nursery had approximately 200 greenhouses and covered about
450 acres. The nursery would grow seedlings for a year in the
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"seedhouse" and then transplant them into the desired containers,
usually 2-gallon or 5-gallon containers. Those containers were
moved from the seedhouse to pads where they could be spaced,
pruned, and staked. The 5-gallon container trees generally were
spaced two or three times per year as they grew. The nursery
would water the container trees on the pads an average of about
twice per day. The container trees in the field operation would
receive water and be fertilized four times a day. At each stage,
some of the plants would be culled. All aspects of this
operation were done by hand. The B&B trees that were planted in
the fields were also pruned and fertilized by hand.
The nursery hired Mexican laborers to dig up B&B trees on a
piecework basis. For a portion of the earliest years in issue,
petitioners used cash to pay the Mexican pieceworkers. Beginning
in mid-1987, the workers were paid by check. The nursery had a
pulling crew that moved the trees from the field to the loading
dock in order to fill an order. The pulling crew placed by hand
a name tag and a price tag on each of the container trees.
Generally, each year the nursery began shipping in late
December or early January and continued until June or July of the
following year. The nursery owned its delivery trucks and
employed the drivers. The nursery had a loading crew to load the
trucks. The nursery delivered the container trees to its chain
store customers using 45- to 48-foot semitrucks. Approximately
1,500 5-gallon container trees or 3,000 2-gallon container trees
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or 6,000 1-gallon container trees could fit on one truck. The
nursery infrequently shipped B&B trees.
The nursery gave its truck drivers cash advances, generally
in amounts of $300 to $500, to pay for travel expenses. The
drivers were required to bring back receipts. If the total
amount of a driver's receipts was less than the amount of the
advance, the difference was deducted from the driver’s paycheck.
At some point, the nursery changed to a system whereby the
drivers used credit or checks, rather than cash, to pay for fuel.
During harvest and shipping time, the nursery employed
almost twice as many field workers as during growing time.
During the years in issue, the nursery employed 35 to 40 field
workers during growing time and 75 to 100 during shipping time.
Counting turnover, as many as 150 workers might be employed
during a year.
Approximately 90 percent of the nursery's seasonal labor
force came from Mexico. During the earlier years in issue,
laborers were transported from Mexico by persons known as
"coyotes" who charged $500 to $1,000 per laborer. The nursery
advanced the Mexican laborers the coyote payments in cash and
then deducted payments from their paychecks. Some laborers would
leave before all of the advance had been recovered.
Some of the Mexican laborers lived on the nursery property
in a concrete bunkhouse type facility. Petitioners deducted a
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small amount per week from the paychecks of these men as a charge
for housing.
Every year, Mr. Gandy and some of his employees would travel
to Tennessee and dig up trees for up to a month. They would camp
out when on these trips. They would dig up trees for B&B and for
“bareroot” trees. “Bareroot” is a method of preparing trees for
immediate sale. The trees are dug up, then the dirt around the
roots is removed, and the trees are replanted into containers
with fresh soil. Mr. Gandy used cash when he traveled to
Tennessee, purchasing sleeping bags, blankets, and other camping
supplies.
Office Practices
For the first 10 years of the nursery's operation,
petitioners ran the sales and billing activities out of their
residence. At first, Mrs. Gandy prepared invoices and shipping
documents by hand; after a while, she bought and used a
typewriter. In approximately 1982, petitioners built a small
office building. At that time, the office building had three
rooms: a kitchen and tag room (where the picture tags and bands
that would be attached to the trees were stored and organized),
an office for Mr. Gandy, and an office and reception area for
Mrs. Gandy. In approximately 1984, they expanded the office
building, adding three more rooms. With the addition of these
rooms, the building had an office for the use of the nursery's
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salesmen, a separate reception area, and a larger tag room; the
former kitchen/tag room was made into a break room.
In approximately 1984, petitioners bought a Tandy computer
for the nursery. Due to the computer's limited capabilities,
petitioners decided to use it only for billing the nursery's more
detailed and frequent accounts, generally those of the chain
store customers. Petitioners continued the use of the previous
invoice system for the remaining customers; these orders were not
recorded on the computer. The two types of invoices had separate
numbering sequences. Mrs. Gandy established two ledgers, one for
each type of invoice. In 1985, petitioners bought an IBM
computer with a new accounting software package.
During 1985 through a portion of 1987, Mrs. Gandy worked in
the business office of the nursery on a daily basis. She was in
charge of the office and trained the employees who worked there.
Sometime during 1987, Mrs. Gandy quit working in the office. Ann
Dozier (Dozier) became the office manager after Mrs. Gandy left.
Mr. Gandy spent very little time in the office, spending most of
his time in the field. Many of the office employees were either
friends or relatives of petitioners or of each other.
During the years in issue, petitioners maintained a business
bank account at the First State Bank of Van styled "Dennis Gandy
Nursery" (account No. 01-0118-8), which was the business bank
account for the nursery. During 1989, Mr. Gandy maintained a
business bank account at the First National Bank of Canton styled
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"Dennis Gandy Nursery" (account No. 21-5232-0). This latter
account was opened on December 29, 1988. Thereafter, this new
account was used as the business account for the nursery. All
references to the nursery bank account refer to the business bank
account in use as of the date discussed.
During the years in issue, the nursery had office procedures
that generally were followed by petitioners and nursery
employees. Various nursery office employees would assist the
walk-in customers and write up invoices. The chain store
invoices were generated from the computer. Petitioners continued
to maintain the two sets of ledgers. During 1985 through 1989,
petitioners maintained one set of ledgers to record receipts from
the nursery that generally were not deposited into the nursery
bank account. That set consisted of the ledgers that listed the
handwritten or typed invoices; those ledgers were referred to by
the nursery employees as the cash book or cash ledger or the
walk-in book or walk-in ledger (the walk-in ledger). Petitioners
maintained a second set of ledgers to record receipts from the
nursery that generally were deposited into the nursery bank
account. This second set of ledgers contained listings of the
computer-generated invoices; employees referred to these ledgers
as the deposits ledger or deposits book or the chain store book
or the chain store ledger (the chain store ledger).
During 1985 through 1989, the nursery sales invoices were
marked with a "P" when they were first posted to the appropriate
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ledger. The nursery sales invoices were marked with a second "P"
("PP") when the amount due was paid by the customer. Those sales
invoices that were marked with a "PP", but were not dated, were
those sales that were generally paid by the customer on the date
of the invoice. The walk-in invoices and the chain store
invoices were kept in different file drawers. The receptionist
would post the walk-in invoices to the walk-in ledger. The walk-
in ledger was kept in the receptionist's desk, along with any
checks or cash collected. Those two or three employees who
usually worked with the computer posted the chain store invoices
to the chain store ledger. The chain store ledger was kept in
the computer room or in one of the offices.
Generally, each day, one of the nursery's employees, usually
the receptionist, would go to the bank. Certain of the checks
taken to the bank were cashed. Mrs. Gandy generally determined
which checks would be cashed and which would be deposited. The
checks that were cashed generally came from B&B customers or from
those customers who made infrequent purchases, i.e., those listed
in the walk-in ledger, not from the chain store customers. The
receptionist was instructed by Mrs. Gandy to limit the checks
cashed to an amount less than $10,000. The purpose of the
instructions was to avoid reports of currency transactions to the
Internal Revenue Service (IRS). No deposits of currency were
made into the nursery bank account during the years in issue.
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Cash receipts or cash from the negotiation of checks was
turned over to petitioners. Cash was kept in the receptionist's
desk drawer; if a large amount accumulated, Mr. Gandy put it in
the safe at petitioners' residence. At the end of the day, any
cash remaining in the drawer would be given to petitioners.
Mrs. Gandy sometimes used cash from the drawer to buy groceries,
putting in a receipt in order to account for the day's
transactions to Mr. Gandy each night. The office did not have a
safe or alarm system. Money that was put into the safe at
petitioners’ residence was not returned to the office.
Sometimes, Mr. Gandy would make cash payments to the laborers
from the money at the residence.
Some of petitioners' household bills were paid from the
nursery bank account. When paying utility bills that included
both the nursery and their residence, Mrs. Gandy would indicate
in the nursery checkbook what amount was for their residence.
Petitioners wrote a check from the nursery bank account to
themselves every few weeks and deposited it into their personal
checking account for living expenses; the amounts of those checks
usually were $1,000, $1,500, or $2,000. During 1985 through
1987, the total amounts that petitioners withdrew from the
nursery bank account for deposit into their personal checking
account were:
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Year Amount
1985 $6,500
1986 15,000
1987 6,500
In February 1986, petitioners engaged John E. Shinn (Shinn),
a certified public accountant, to prepare the nursery's financial
statements and petitioners' 1985 income tax return. Mr. Gandy
asked Shinn to assist them in procuring more appropriate software
to manage their accounting and inventory functions. Shinn spent
a month or two at the nursery office while analyzing the
nursery's needs. As a result, petitioners purchased new computer
software that would track inventory as well as maintain the
nursery's books and records. This new system was installed
during mid-1987, and the vendor provided training to the nursery
employees.
Loans to Petitioners
Small Business Administration
Petitioners received loans from the Small Business
Administration (SBA). The first loan was in the amount of
$200,000 after a severe drought in approximately 1980 to 1981.
The second loan was for $500,000 in 1983 to 1984, after severe
winter weather damaged the crops. The purpose of the SBA loans
was to enable petitioners to restart their nursery after these
disasters. Petitioners placed the funds from these SBA loans
into certificates of deposit (CD’s). During 1985 and 1986,
petitioners made the following payments on the SBA loans:
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Date Amount
Apr. 5, 1985 $22,600
Sept. 21, 1985 44,975
Mar. 25, 1986 22,600
Oct. 21, 1986 44,975
Production Credit Association
Production Credit Association (PCA) is a lending institution
that makes loans to farmers and ranchers. Petitioners began
borrowing from PCA in about 1979 and borrowed throughout the
years in issue. Generally, the activity on the PCA loans was
seasonal; petitioners received disbursements from PCA beginning
in the late summer through fall and early winter and made
payments in the spring of the year. The PCA loans had maturity
dates of 1 year or less, but any unpaid balance at the maturity
date would be renewed with a new maturity date. Disbursements of
PCA loans to petitioners during the specified years totaled:
Year Amount
1985 $505,000
1986 260,000
1987 203,700
Petitioners made payments on the PCA loans during these same
years by checks drawn on the nursery bank account.
Prior to petitioners' receiving the SBA loans, PCA held as
collateral the equipment and nursery stock inventory and some
real estate. The SBA took a blanket lien with first priority on
petitioners' assets, moving PCA to a secondary position.
Thereafter, petitioners used the CD’s that were funded with the
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SBA loan proceeds as collateral for the loans from PCA and from
other lenders.
On December 18, 1986, Mr. Gandy borrowed $90,000 from
Sunbelt Savings (then Independent American Savings). The
proceeds of this loan were used as a payment on the PCA loans.
On April 16, 1987, at the request of PCA, petitioners redeemed
the CD’s that were being used for collateral in order to reduce
the balance outstanding on their PCA loan; they made a payment of
$356,835.83 on that balance. At the same time, petitioners
repaid the December 18, 1986, loan for $90,000 from Sunbelt
Savings with funds from one of the redeemed CD’s.
Other Loans
On January 15, 1986, Mr. Gandy borrowed $21,000 from the
First State Bank of Van. This money was deposited in the nursery
bank account. Petitioners repaid this loan with funds from the
nursery bank account on February 18, 1986.
On March 10, 1986, Mrs. Gandy borrowed $1,500 from the First
State Bank of Van, the proceeds of which went to Vernon Sexton.
This loan was repaid in approximately monthly payments from a
bank account at Sunbelt Savings styled Carolyn Gandy, Trust for
Vernon Sexton, Jr.
On August 1, 1986, Mr. Gandy borrowed $90,000 from Sunbelt
Savings. Petitioners used the proceeds to fund a portion of a
mortgage loan that they made to Todd Fowler (Fowler), as
discussed below.
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On September 30, 1986, petitioners borrowed $24,836.21 from
Paccar Financial Corporation to purchase a piece of equipment.
Petitioners completed repayment of this loan by January 17, 1988,
making payments from the nursery bank account.
On October 10, 1986, petitioners borrowed $35,000 from the
First State Bank of Van. Petitioners deposited this money into
the nursery bank account. They repaid the loan on March 4, 1987,
from the nursery bank account.
During the fall of 1987, Mrs. Gandy d/b/a the Gandy Travel
Agency borrowed a total of $8,300 from First National Bank of
Canton.
Loans Made by Petitioners
In 1985, petitioners began lending money to individuals,
generally for the purchase or construction of personal
residences, residential rental properties, or commercial
buildings. During 1985 through 1987, petitioners made loans
totaling at least:
Year Amount
1985 $139,222.62
1986 371,546.98
1987 209,918.13
$720,687.73
Petitioners used funds from the nursery receipts to make many of
the mortgage loans; on one occasion, petitioners borrowed $90,000
as partial funding for a $118,500 loan to Fowler. As petitioners
began receiving payments from the early borrowers, they used some
of these funds to make new loans. The mortgage loan payments
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that petitioners received from the borrowers were in the form of
checks. During 1985 through 1987, petitioners received payments
totaling at least:
Year Amount
1985 $ 624.10
1986 40,306.17
1987 152,480.13
$193,410.40
For some of the loans, documents were drawn up and
settlement conducted by an attorney or a title company.
Petitioners provided the borrowers with repayment schedules
indicating the amounts of principal and interest within each
payment.
In about early 1986, Mr. Gandy approached Cary Murray
(Murray), then president of the First State Bank of Van, and told
him that he had approximately $800,000 that he wanted to invest
in real estate loans. Murray and his partner Roy Carty received
a loan from petitioners in the amount of $30,000 on June 24,
1986. Closing was conducted by a title company. Murray received
a second loan in the amount of $25,000 on October 10, 1986.
Closing was conducted by the same title company. Each time,
Mrs. Gandy brought the funds in cash to the title company, which
in turn gave the borrowers cashier's checks. Murray made
payments on these loans by checks made out to "Dennis Gandy",
beginning approximately 1 month after receipt of the loan
proceeds. Petitioners gave Murray a form each year stating the
amount of interest he had paid.
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Some of the closings were handled by attorney Dean White
(White). White made the following deposits of funds that were
received from petitioners for the purpose of making loans:
Date Check Cash Borrower
Aug. 1, 1986 $90,000.00 $28,000.00 Fowler
May 15, 1987 34,000.00 Tankersley
July 10, 1987 9,118.13 9,000.00 Magnusons
Sept. 24, 1987 10,000.00 8,500.00 Spradlin
In many instances, petitioners disbursed the funds directly
to the borrowers, sometimes by check, sometimes in cash. On
August 8, 1986, petitioners disbursed $41,000 in wrapped $100
bills to James E. Carter, Mr. Gandy’s first cousin, and Sandra L.
Carter at petitioners' kitchen table. Petitioners lent the
Carters an additional $30,000, with draws beginning in November
1986. The first such draw, in the amount of $5,000 on
November 14, 1986, was by check. For the subsequent draws,
Mrs. Gandy delivered cash to the Carters' business and wrote
receipts for Sandra L. Carter to sign. A second note was drawn
up on March 20, 1987, after the additional money was advanced to
the Carters. These loans to the Carters were recorded in the
county records.
Terry and Rhonda Wilson borrowed $50,000 from petitioners
to pay for the house the Wilsons were building. Closing occurred
on August 21, 1987. The Wilsons received the funds in draws
beginning in about May 1987 as the funds were needed for
construction. Two draws, one on May 15, 1987, and another on
May 28, 1987, each for $6,000, were in the form of checks.
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Mrs. Gandy disbursed most of the other funds in cash, in bundles
of $100 bills, at petitioners' residence.
Bank Accounts
During 1986, petitioners maintained two personal bank
accounts at the First State Bank of Ben Wheeler styled "Carolyn
or Dennis Gandy" (account No. 80-0255-0 and account No.
29-8816-0). During the 10 days in March 1986 that account No.
29-8816-0 was open, petitioners deposited two checks from
mortgage borrowers and one nursery check in the amount of
$13,871.25; they closed the account and transferred the balance
to open account No. 80-0255-0. During the approximately 4-month
period during 1986 that petitioners used account No. 80-0255-0,
they deposited a total of $428,285.42, including the transfer of
$15,052.60 from account No. 29-8816-0, proceeds of 13 checks from
mortgage borrowers, two nursery checks, and five deposits of
currency, the largest of which was $10,000; they distributed the
majority of the funds to mortgage borrowers.
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During some portion of the years in issue, petitioners
maintained the following personal bank accounts:
Account Name Account No.
Sunbelt Savings
Carolyn Gandy XX-XXXXXXX
Carolyn Gandy, Trust for Vernon Sexton, Jr. 03-10012208
First State Bank of Van
The Carolyn Gandy Irrevocable Trust,
Dennis Gandy, Trustee 01-0892-8
Dennis or Carolyn Gandy 10-5933-6
First National Bank of Canton
Dennis or Carolyn Gandy 12-6064-5
Carolyn Gandy 12-6133-8
Mrs. Gandy used account No. XX-XXXXXXX at Sunbelt Savings as
a personal checking account for the Gandy family until early
September 1987. She deposited checks that were written to
herself from the nursery bank account into this account.
Mrs. Gandy opened account No. 12-6133-8 at First National Bank of
Canton in September 1987. This latter account was used primarily
to pay for personal expenses.
Account No. 01-0892-8 at First State Bank of Van was opened
with a deposit of a check for $19,500 payable to Mrs. Gandy from
the nursery bank account. The funds in this account were used to
make a payment in the amount of $19,308.20 to Executive Life
Insurance Co. on September 11, 1987.
The funds of account No. 10-5933-6 at First State Bank of
Van were used to pay monthly drafts for life insurance premiums.
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With the exception of one check to the nursery in the amount of
$7,667.99 that was paid on September 14, 1987, nearly all of the
funds paid from this account went for the insurance premiums or
bank charges. Previously, both insurance companies were paid
from the nursery bank account. During 1986, petitioners
deposited a total of $13,000 from the nursery bank account into
this account. During 1987, petitioners transferred another
$13,000 from the nursery bank account and, during February 1987,
deposited a small amount of nursery receipts into this account.
Account No. 12-6064-5 at First National Bank of Canton was
used primarily for petitioners' mortgage lending activity. All
11 deposits made during 1986 were in cash, with the largest being
$9,000; the 1986 deposits totaled $42,796.91 and began on
July 28, 1986. All deposits from January through August 1987
were in cash; there were 11 such deposits ranging in amounts from
$1,990 to $7,476.34. Deposits occurring later in 1987 also
included mortgage payment checks from the borrowers. Deposits
during 1987 totaled $104,760.34. All identifiable checks that
were written on this account during 1986 and 1987 were payable to
mortgage borrowers, with the exception of one check for $1,000
that was payable to Mrs. Gandy during 1986 and one check for
$10,000 to the nursery in 1987.
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During some portion of the years in issue, petitioners
maintained the following CD accounts at Sunbelt Savings:
Account Name Account No.
Dennis Gandy 1-03-00006962
Dennis Gandy 1-03-00006970
Dennis Gandy 1-03-00007002
Dennis Gandy, Trustee for Carolyn or Dominick Gandy 1-03-00006988
Dennis Gandy, Trustee for Carolyn or Dominick Gandy 1-03-00007218
The first four CD’s listed above were funded with the
proceeds from the SBA loans. Petitioners deposited a few
mortgage payments into account No. 1-03-00007218, along with the
interest from the other four CD’s. Petitioners transferred funds
from this CD account to the nursery bank account as follows:
Date Amount
July 25, 1985 $45,000.00
Nov. 25, 1985 20,000.00
July 8, 1986 20,000.00
Oct. 1, 1986 23,158.12
Petitioners closed all five CD accounts at Sunbelt Savings on
April 16, 1987. The proceeds were used to reduce the balance of
the PCA loans and to pay off the December 18, 1986, loan for
$90,000, and the August 1, 1986, loan for $90,000.
During some portion of the years in issue, four CD accounts
were maintained with the First National Bank of Canton styled
"Carolyn Gandy" (account Nos. 50-5668-4, 50-5669-2, 50-5827-6,
50-5847-4). The four CD’s that established those four accounts
were purchased during 1987 for a total of $10,800, $8,400 of
which was presented in cash.
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During some portion of the years in issue, Mrs. Gandy
maintained a bank account at the First National Bank of Canton
styled "Gandy Travel Agency" (account No. 00-1471-2). The
business expenses of Gandy Travel Agency (the travel agency) were
paid from this account. Of the $8,300 in loans that Mrs. Gandy
borrowed in the name of the travel agency in 1987, $7,600 was
deposited into this account and $700 into account No. 12-6133-8.
During the years in issue, Burnice Gandy maintained a
personal bank account at the First State Bank of Van styled
"Burnice Gandy" (account No. 10-1106-3) (the Burnice Gandy
account). With very few exceptions, the deposits during 1985 and
1986 consisted of Burnice Gandy's Social Security and veterans'
benefits and interest. However, on January 28, 1985, a check
payable to the nursery in the amount of $9,831.50 was deposited
into the Burnice Gandy account; on the back of the check appeared
the handwritten endorsement "Gandy's Nursery". The total deposit
to the Burnice Gandy account on that date was $10,000. Also on
January 28, 1985, a check in the amount of $10,000 was written
from the Burnice Gandy account to Mr. Gandy. On November 24,
1985, a check in the amount of $10,000 was written from the
Burnice Gandy account to Mr. Gandy.
On March 23, 1987, petitioners deposited into the Burnice
Gandy account $5,000 out of a check for $13,437.32 payable to the
nursery. On July 1, 1987, a check for $10,000 payable to Burnice
- 24 -
Gandy from the nursery bank account was deposited into the
Burnice Gandy account. On October 30, 1987, one check payable to
the nursery ($1,000) and checks from two of petitioners' mortgage
loan borrowers ($233 and $707.25) were deposited into the Burnice
Gandy account.
During 1987, the following deposits of currency were made
into the Burnice Gandy account:
Date Amount
June 22, 1987 $ 5,000.00
Sept. 14, 1987 4,000.00
Sept. 16, 1987 3,000.00
Oct. 6, 1987 3,000.00
Oct. 8, 1987 7,375.60
Oct. 9, 1987 2,600.00
Oct. 22, 1987 6,600.00
Oct. 30, 1987 6,459.75
Nov. 5, 1987 5,000.00
Nov. 30, 1987 5,000.00
Dec. 2, 1987 5,000.00
Dec. 8, 1987 5,000.00
Dec. 10, 1987 5,000.00
Dec. 14, 1987 9,900.00
Dec. 21, 1987 5,000.00
Dec. 23, 1987 5,000.00
$82,935.35
During 1987, the following checks were drawn on the Burnice
Gandy account and deposited into the nursery bank account.
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Date of Check Amount
June 22, 1987 $ 5,000
-- 1987 10,000
Sept. 14, 1987 10,000
-- 1987 10,000
Oct. 23, 1987 10,000
Oct. 31, 1987 10,000
Nov. 6, 1987 10,000
Dec. 2, 1987 10,000
Dec. 7, 1987 10,000
Dec. 13, 1987 10,000
Dec. 23, 1987 10,000
$105,000
During 1988, Mr. Gandy maintained a personal bank account at
the First National Bank of Canton styled "Dennis Gandy" (account
No. 12-6161-9).
During 1988 and 1989, Mr. Gandy and Burnice Gandy maintained
a personal bank account at the First State Bank of Ben Wheeler
styled "Burnice and Dennis Gandy" (account No. 21-4839-0) (the
B&D account). The B&D account was opened on July 19, 1988.
Mr. Gandy opened the bank account by depositing two checks
payable to the nursery that totaled $4,770.10 plus $2,000 in
cash. By late August 1988, a stamp was used to endorse checks;
that stamp read:
Gandy's Nursery
Burnice Gandy
Acct. 21-4839-0
Mr. Gandy regularly caused checks payable to the nursery to be
deposited into the B&D account. Total deposits from July 19,
1988, to December 31, 1988, were $242,172.39. Deposits during
- 26 -
1989 totaled $249,125.89. The following deposits were in
currency:
Date Amount
1988 July 19 $ 2,000.00
July 22 3,830.00
July 25 8,675.50
July 26 5,000.00
July 29 5,000.00
Aug. 1 8,000.00
Aug. 2 8,000.00
Aug. 3 8,000.00
Aug. 4 8,000.00
Aug. 15 5,139.00
Aug. 17 9,000.00
Sept. 1 7,000.00
Sept. 9 5,000.00
Sept. 16 5,000.00
Sept. 28 5,000.00
Oct. 3 9,115.00
Oct. 7 7,000.00
Oct. 13 4,970.00
Oct. 25 5,685.00
Oct. 28 1,958.00
Nov. 23 2,500.00
Dec. 23 2,525.00
Dec. 30 578.00
1988 $126,975.50
1989 June 27 $ 9,500.00
Sept. 8 8,000.00
Sept. 25 9,800.00
Sept. 26 9,800.00
Sept. 27 9,000.00
Nov. 28 3.00
1989 $46,103.00
Mr. Gandy transferred money from the B&D account to the
nursery by check; the memo section on those checks indicated
"Loan". During 1988, a total of $224,500 was deposited into the
nursery bank account from the B&D account. During 1989, the
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amounts transferred into the nursery bank account from the B&D
account totaled $187,000.
At various times during the years in issue, Mr. Gandy made
statements to petitioners’ employees, relatives, and friends to
the effect that he was "sticking it to Uncle Sam" and "going to
beat the government" and that "the only way to get ahead was to
steal from yourself and cheat the government, or not to show my
cash transactions, you know, in business."
The Lake House
At some point prior to January 1985, Mr. Gandy cosigned a
loan for Doug Christensen (Christensen). The security for this
loan was a property known as the lake house. Christensen failed
to make payments, and the bank foreclosed on the mortgage.
Petitioners borrowed $115,000 from Lindale State Bank on
January 10, 1985, and, of that amount, used $99,027.67 to redeem
the lake house; the remaining $15,972.33 went to pay off a loan
of $15,000 that Mr. Gandy had borrowed from Lindale State Bank on
January 16, 1984.
Petitioners made the following payments on the loan from
Lindale State Bank, all of which were made in cash:
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Date Amount
1985 Jan. 27, 1985 $ 5,000.00
Feb. 28, 1985 1,106.40
Feb. 28, 1985 8,500.00
Apr. 7, 1985 1,106.40
Apr. 7, 1985 8,500.00
Apr. 10, 1985 9,500.00
Apr. 11, 1985 9,500.00
Apr. 14, 1985 9,500.00
Apr. 29, 1985 9,500.00
1985 $62,212.80
1986 Feb. 11, 1986 8,500.00
Feb. 20, 1986 9,000.00
Feb. 24, 1986 9,500.00
Feb. 25, 1986 9,500.00
Feb. 26, 1986 9,500.00
Mar. 4, 1986 8,500.00
Mar. 19, 1986 6,266.08
1986 $60,766.08
During 1987, the lake house was destroyed by fire. In 1987,
petitioners received insurance reimbursement in the amount of
$125,000 for the loss of the lake house and its contents. On
April 8, 1987, petitioners deposited the insurance check into the
nursery bank account. Petitioners did not rebuild the house.
During 1987, petitioners sold the lot on which the destroyed lake
house had been located for $31,000. Settlement was conducted on
April 23, 1987; settlement charges to petitioners totaled
$2,637.89.
Personal Expenditures
On June 28, 1985, petitioners bought a 1985 Cadillac. To
purchase this car, petitioners traded in a 1984 Cadillac Eldorado
and paid $17,750 in cash. On July 1, 1986, petitioners paid
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$20,501 in cash for the purchase of real estate, causing a
Currency Transaction Report to be filed by Mineola Federal
Savings and Loan Association. On December 23, 1986, petitioners
purchased a mink coat for $2,097.24; they paid $1,900 of this
amount in cash and charged the balance to their American Express
card.
Petitioners' Divorce
Petitioners were experiencing marital difficulties during
the mid-1980's. Petitioners entered into a divorce agreement on
June 13, 1988. This agreement was incorporated in the final
decree of divorce signed on June 14, 1988. The agreement awarded
the following property to Mrs. Gandy: the loan notes that were
held by petitioners (said to total approximately $869,000);
$50,000 to be paid on the date of divorce; $50,000 per year for
5 years to be paid annually commencing on June 15, 1989; a 1985
Cadillac convertible; a 1986 Chevrolet van; the travel agency;
40 percent of net recovery from a pending lawsuit; and all
personal property items in her possession. The property awarded
to Mr. Gandy was: the nursery, the marital home, 60 percent of
the net recovery from the pending lawsuit, and all personal
property items in his possession. Among the liabilities that
were assumed by Mrs. Gandy were any debts of the travel agency
and 40 percent of the tax liabilities for 1987 and prior years.
Liabilities assumed by Mr. Gandy included those of the nursery
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and 60 percent of the tax liabilities for 1987 and prior years.
At the time of the agreement, petitioners’ 1987 tax return had
not been filed. Petitioners each received physical custody of
one of their two children and visitation rights as to the other
child.
Financial Statements and Federal Income Tax Returns
1985 through 1987
Petitioners engaged Shinn to prepare the nursery's financial
statements and their 1985 income tax return. Mr. Gandy was
interested in seeing how well the nursery was doing, i.e., what
the income and expenses were and determining what his tax
liabilities would be based on that income. Based on
conversations with petitioners, Shinn assumed that all income was
being deposited into the nursery bank account and that all
expenses were being paid by check. Shinn informed petitioners
that he would be using the nursery bank account information to
prepare the financial statements and the tax return and that
income and expense items would have to go through the bank
account to be picked up for tax return purposes. Shinn used the
computer at his office to prepare the nursery's financial
statements, based on the nursery's bank statements. Shinn
reviewed the financial statements with Mr. Gandy regularly
throughout the year. Mr. Gandy never brought to Shinn's
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attention any expenses or receipts that were omitted from those
statements.
Petitioners' 1985 through 1987 Federal income tax returns
were filed reporting a status of married filing jointly. The tax
returns for 1985 through 1987 were prepared by Shinn. Shinn
prepared petitioners' 1985 through 1987 tax returns from
information supplied to him by petitioners, bank statements,
deposit tickets, canceled checks, and check stubs from the
nursery bank account. Petitioners did not provide Shinn with the
ledgers or inform him of their existence. Petitioners never told
Shinn about the checks payable to the nursery that were cashed or
about those deposited into accounts other than the nursery bank
account. Mrs. Gandy never gave personal checking account
information to Shinn. It was Shinn's understanding that
petitioners used the nursery bank account for their personal
expenses and that they did not have a personal checking account.
Shinn followed the method that had been used by the preparer
of petitioners' 1984 tax return. The records from the nursery
bank account were used by Shinn to compute the gross receipts of
the nursery. Mr. Gandy represented to Shinn that the deposits
that were identified as being from Burnice Gandy were loans.
Shinn did not include any cash income or expenses when preparing
Schedule F.
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Shinn used Forms 1099 to calculate petitioners' interest
income. For 1985 and 1986, Schedule B listed interest from
institutional sources only. In 1988, for preparation of their
1987 tax return, petitioners provided to Shinn a list of the
mortgage notes and payment amounts from which Shinn calculated
additional interest income. On petitioners' 1987 Federal income
tax return, they reported a $10,000 capital gain on the
destruction of the lake house ($125,000 insurance proceeds less
$115,000 basis).
Mrs. Gandy did not review or discuss the completed tax
returns with Shinn. Mr. Gandy never reviewed the returns with
Shinn prior to signing them. Later, Mr. Gandy brought to Shinn's
attention that the interest income on the 1987 tax return had
been overreported. After reviewing the list of mortgages, Shinn
realized that the 1987 interest income was overstated and also
that mortgage interest had been received in 1986 and not reported
on the returns for that year. Shinn informed Mr. Gandy of this.
Petitioners did not file amended returns for 1986 or 1987.
1988 and 1989
Mr. Gandy filed tax returns for 1988 and 1989 reporting a
filing status of single. His 1988 tax return was prepared by
Shelby L. Davidson (Davidson). Davidson was not a certified
public accountant at that time. Davidson prepared Mr. Gandy's
1988 tax return from information supplied by Mr. Gandy, including
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the 1988 bank statements from the nursery bank account, yearend
summary, yearend balance sheet, and profit and loss statements.
The financial statements were reports generated from the
nursery's computer. Davidson was not aware of any cash
expenditures by the nursery.
Dozier was the nursery employee who served as Davidson's
contact. Dozier supplied Davidson with a handwritten list of the
deposits into the nursery bank account and the supporting deposit
slips. Both Mr. Gandy and Dozier told Davidson that the deposits
that were identified as being from Burnice Gandy were loans;
these deposits totaled $217,500. They also identified other
purportedly nontaxable amounts, such as loans from PCA or
insurance proceeds.
The 1988 bank statements from the nursery bank account were
used by Davidson to compute the gross receipts of the nursery for
1988. Davidson compared the book amount of gross receipts to the
amount of the bank deposits, excluding those deposits that were
identified as loans or other nontaxable amounts, and used the net
deposits, which was the higher amount. Davidson was not aware of
any deposits of nursery receipts being made into any bank
accounts other than the nursery bank account, nor was he aware of
any checks to the nursery being cashed.
Mr. Gandy represented to Davidson that Mrs. Gandy had
received the mortgage notes in the divorce property settlement
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and that she would be reporting the interest income from those
notes. Davidson met with Mr. Gandy to review the completed
return. Thereafter, Davidson learned that the Gandys' divorce
had occurred during 1988 and, in late 1988, he sent to Mr. Gandy
a letter indicating that the 1988 tax return should be amended to
include the interest earned on the mortgage notes while they were
community property. An amended 1988 tax return was not filed for
Mr. Gandy.
Mr. Gandy's 1989 tax return was prepared by Gary W. Camp
(Camp), a certified public accountant. Camp prepared the 1989
tax return from information supplied to him by Mr. Gandy: a
balance sheet, profit and loss statement, fuel costs, and a list
of equipment that was purchased and traded. This information
provided by Mr. Gandy was used by Camp to compute the gross
receipts of the nursery for 1989. Camp did not have any bank
statements or ledgers.
Summary
The following table summarizes pertinent items from the tax
returns for the years in issue:
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Item 1985 1986 1987 1988 1989
Interest $66,606.75 $44,317.57 $135,924.00 --- ---
income
Capital --- --- 10,000.00 --- ---
gains
Schedule E --- 3,844.61 --- --- ---
income
Schedule F 1,706,646.90 1,971,310.40 2,210,649.00 $2,049,090.00 $2,650,964.00
sales
Schedule F 1,709,159.90 1,973,223.40 2,211,563.00 2,051,565.00 2,696,214.00
gross
income
Schedule F (88,292.14) (77,901.58) (345,272.00) (146,926.00) (140,465.00)
net income
Net (38,201.08) (25,225.39) --- --- (401,239.00)
operating
loss
Adjusted (59,886.47) (54,964.79) (199,348.00) (146,926.00) (541,704.00)
gross
income
Fuel 1,913.00 914.00 2,475.45 3,400.00 2,677.00
credit
Refund 9,913.00 914.00 2,475.45 3,400.00 2,677.00
The nursery's labor and transportation expenses as
determined by respondent were:
Labor Transportation
Percentage Percentage
of Sched. F of Sched. F
Year Dollars Gross Income Dollars Gross Income
1985 $356,607.96 16.46 $245,962.96 11.35
1986 482,581.18 19.40 218,518.61 8.78
1987 717,487.00 27.71 321,173.00 12.40
1988 751,363.00 32.90 262,931.00 11.51
1989 927,436.00 31.02 269,088.00 9.00
The following table summarizes information relating to the time
of filing of petitioners' tax returns:
1985 1986 1987 1988 1989
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Petitioners Aug. 12, 1986 Oct. 15, 1987 Dec. 26, 1988 Oct. 1, 1989 undated1
signed
Post- Aug. 13, 1986 Oct. 15, 1987 Dec. 29, 1988 Oct. 25, 1989 Sept. 20, 1990
marked
Received -- Oct. 16, 1987 -- -- Sept. 24, 1990
Due date -- Oct. 15, 1987 Oct. 15, 1988 Oct. 15, 1989 --
1
Signed by preparer on Sept. 12, 1990.
Criminal Investigation and Respondent's Determination
On November 1, 1989, special agents of the IRS Criminal
Investigation Division executed a search warrant on the nursery.
As a result, IRS agents seized several boxes of records. The
agents located the two sets of ledgers. On the same date,
Mr. Gandy gave his voluntary consent to a search of person,
premises or conveyance. As a result of the consensual search of
the Gandy residence, IRS agents seized several boxes of records,
including customer invoices, real estate records, financial
records, and $32,874 in currency.
For 1985, 1986, and 1987, respondent used the specific items
method to determine petitioners' income. Respondent
reconstructed petitioners' Schedule F income from the nursery's
records, using primarily the nursery's invoices. During the
course of the criminal investigation, IRS special agents sent a
form letter to more than 200 customers of the nursery requesting
information concerning their purchases from the nursery.
Information on petitioners' interest income from the mortgage
loans was obtained by contacting the individual borrowers that
were listed in the divorce records.
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Respondent made the following adjustments to petitioners'
income:
Item 1985 1986 1987
Interest income $519 $31,342 ($55,660)
Capital gain -- -- 13,062
Schedule F gross receipts 457,293 514,264 378,168
Net operating loss 38,201 25,225 --
Respondent allowed an investment tax credit in the amount of
$38,077 for 1985. Respondent determined self-employment tax on
the Schedule F income for each of the years in issue. Respondent
mailed a notice of deficiency for 1985 through 1987 to
petitioners on September 21, 1993.
For 1988 and 1989, respondent used the bank deposits method
to determine Mr. Gandy's income. Respondent mailed a notice of
deficiency for the taxable years 1988 and 1989 to Mr. Gandy on
September 21, 1993. In the notice of deficiency, respondent made
the following adjustments:
Item 1988 1989
Schedule F gross receipts $217,500 $521,975
Net operating loss -- 401,239
Respondent determined self-employment tax on the Schedule F
income for both years.
By amendment to answer, respondent revised adjustments to
income as follows:
Item 1988 1989
Schedule F gross receipts $232,068 $293,203
Net operating loss -- 401,239
- 38 -
Respondent adjusted the amounts of the deficiencies in income
tax, the additions to tax, and the penalty accordingly.
On September 4, 1992, petitioners pleaded guilty and were
convicted of subscribing to a false return for 1987, in violation
of section 7206(1).
OPINION
Petitioners do not deny that they had unreported gross
receipts from the nursery during the years in issue. They also
had unreported interest income during certain of those years.
For 1986, they do not dispute that the omitted income exceeded
25 percent of the gross income stated in their return; thus, for
that year, the period of limitations is 6 years, under section
6501(e)(1)(A), and assessment is not barred.
Mr. Gandy’s return for 1989 was delivered to the IRS on
September 24, 1990. Petitioners claim that the return was
untimely filed; that pursuant to section 7502(a)(1), the return
was filed when postmarked on September 20, 1990; and, therefore,
the notice of deficiency for that year, mailed on September 21,
1993, was untimely. Section 7502(a)(1) only applies, however, if
the postmark date falls within the prescribed period or on or
before the prescribed date for the filing (including any
extension granted for such filing) of the return. Sec.
7502(a)(2). There is no evidence of an extension of time to
file. Without an extension from April 15, 1990, up to or beyond
- 39 -
September 20, 1990, section 7502 does not apply, and the filing
date is the date received by the IRS, September 24, 1990. Emmons
v. Commissioner, 92 T.C. 342, 346-347 (1989), affd. 898 F.2d 50
(5th Cir. 1990). If Mr. Gandy had an extension until September
24 or later, the return was timely, section 7502 would not apply
and the returns would be “filed” when delivered on September 24,
1990. Estate of Mitchell v. Commissioner, 103 T.C. 520, 522
(1994). The notices of deficiency were mailed within 3 years of
that date. Therefore, assessment is not barred for 1989.
For 1985, 1986, 1987, and 1988, respondent relies on section
6501(c)(1) and, therefore, must prove that the returns for those
years were false or fraudulent with the intent to evade tax.
Respondent also has an alternative position under section 6501(e)
for 1986, based on a 25-percent omission from gross income.
Because the question of fraud is determinative as to the
statutory period of limitations for 3 of the 5 years in issue as
well as penalties or additions to tax for all years, we first
discuss the evidence and our conclusions with respect to fraud.
Proof of fraud against either spouse prevents the running of the
period of limitations as to both spouses with respect to the
income tax deficiency on a joint return. Hicks Co. v.
Commissioner, 56 T.C. 982, 1030 (1971), affd. 470 F.2d 87 (1st
Cir. 1972). In these cases, however, the evidence for 1985,
1986, and 1987 implicates both Mr. and Mrs. Gandy.
- 40 -
Underpayments Attributable to Fraud
The addition to tax for fraud is a civil sanction provided
primarily as a safeguard for the protection of the revenue and to
reimburse the Government for the heavy expense of investigation
and the loss resulting from a taxpayer’s fraud. Helvering v.
Mitchell, 303 U.S. 391, 401 (1938).
Section 6653(b) as applicable to 1985 imposes an addition to
tax of 50 percent of the underpayment if any portion of the
underpayment is due to fraud, and an additional amount equal to
50 percent of the interest with respect to the portion of the
underpayment attributable to fraud. For 1986 and 1987, section
6653(b) imposes an addition to tax of 75 percent of the portion
of the underpayment attributable to fraud, and an additional
amount equal to 50 percent of the interest with respect to such
portion. For 1988, section 6653(b) imposes an addition to tax of
75 percent of the underpayment attributable to fraud. For 1989,
the fraud penalty imposed under section 6663 is equal to
75 percent of the portion of the underpayment attributable to
fraud.
To overcome the limitations defense and to sustain the
additions to tax or penalties for fraud, respondent must prove,
by clear and convincing evidence, for each year, an underpayment
of tax and fraudulent intent. Sec. 7454(a); Rule 142(b). Where,
as here, the allegations of fraud are intertwined with unreported
- 41 -
and indirectly reconstructed income, respondent can satisfy the
burden of proving an underpayment in one of two ways, i.e., by
proving a likely source of the underreported income or by
disproving an alleged nontaxable source. See DiLeo v.
Commissioner, 96 T.C. 858, 873-874 (1991), affd. 959 F.2d 16 (2d
Cir. 1992); Parks v. Commissioner, 94 T.C. 654, 661 (1990).
In these cases, petitioners have admitted that they had
unreported income from nursery receipts and from interest.
Respondent reconstructed the income for the first 3 years by
reference to petitioners’ invoices and ledgers and for the last
2 years by reference to bank deposits. Respondent’s agents’
actions were reasonable in view of the state of petitioners’
records and the evidence of the manner in which petitioners’ tax
returns were prepared. Respondent is not required to prove the
exact amount of the underpayment. See Webb v. Commissioner, 394
F.2d 366, 373, 379 (5th Cir. 1968), affg. T.C. Memo. 1966-81;
DiLeo v. Commissioner, supra at 868, 873; Smith v. Commissioner,
T.C. Memo. 1976-114.
Petitioners contend that, notwithstanding their admission of
unreported income, they had additional deductions for expenses
paid by cash that offset or substantially reduce the amount of
unreported income. They further contend that they believed that
they did not owe additional tax because the unreported amounts
were reinvested in the business. However, over the years that
- 42 -
the investigation was conducted by the Government and through
trial of these cases, they did not present any documents or
witnesses that corroborated their claims of substantial
deductible expenses not reported on their tax returns. As
discussed below, their belated attempts to reconstruct deductions
are not persuasive. Even in criminal tax evasion cases, where
the Government bears the greater burden of proof beyond a
reasonable doubt, it is well settled “that evidence of
unexplained receipts shifts to the taxpayer the burden of coming
forward with evidence as to the amount of offsetting expenses, if
any.” Siravo v. United States, 377 F.2d 469, 473 (1st Cir.
1967); accord, e.g., United States v. Hiett, 581 F.2d 1199, 1202
(5th Cir. 1978); United States v. Garguilo, 554 F.2d 59, 62 (2d
Cir. 1977); Elwert v. United States, 231 F.2d 928, 933 (9th Cir.
1956); United States v. Bender, 218 F.2d 869, 871 (7th Cir.
1955); United States v. Link, 202 F.2d 592, 593 (3d Cir. 1953).
See Franklin v. Commissioner, T.C. Memo. 1993-184; Barragan v.
Commissioner, T.C. Memo. 1993-92, affd. without published opinion
69 F.3d 543 (9th Cir. 1995). Respondent’s burden of proving an
underpayment has been satisfied.
Respondent must also prove fraudulent intent. This burden
is met if it is shown that the taxpayer intended to evade taxes
known to be owing by conduct intended to conceal, mislead, or
otherwise prevent the collection of such taxes. Webb v.
- 43 -
Commissioner, supra at 377-380. Fraud will never be presumed.
It may be proved by circumstantial evidence, because direct proof
of the taxpayer’s intent is rarely available. The taxpayer’s
entire course of conduct may establish the requisite fraudulent
intent. Estate of Temple v. Commissioner, 67 T.C. 143, 159, 161
(1976). Both petitioners pleaded guilty and were convicted of
filing a false return for 1987, and their pleas and convictions
may also be considered as evidence of intent. Wright v.
Commissioner, 84 T.C. 636, 643-644 (1985). A pattern of
consistent and substantial understatements of income is strong
evidence of fraud. Webb v. Commissioner, 394 F.2d at 379; Marcus
v. Commissioner, 70 T.C. 562, 577 (1978), affd. without published
opinion 621 F.2d 439 (5th Cir. 1980).
The courts have developed a number of objective indicators
or “badges” of fraud that may establish fraudulent intent,
including understatement of income, inadequate records,
implausible or inconsistent explanations of behavior, concealment
of assets, and substantial dealings in cash. See, e.g., Bradford
v. Commissioner, 796 F.2d 303, 307 (9th Cir. 1986), affg. T.C.
Memo. 1984-601. In these cases, respondent contends that
petitioners engaged in a 5-year pattern of understating
substantial amounts of income, maintained inadequate books and
records, concealed assets by use of “secret” bank accounts, such
as the account in the name of Burnice Gandy and the personal
- 44 -
checking accounts, gave implausible or inconsistent explanations
of behavior, concealed their assets and their income, and had
numerous dealings in cash.
Neither the underreporting of income nor the use of cash is
disputed by petitioners. Petitioners also acknowledge that they
kept two sets of ledgers reflecting income from two groups of
customers. Many of the customers’ checks relating to sales
recorded in one group of ledgers were cashed. The preparers of
petitioners’ tax returns were not advised of the cashing of
customers’ checks and, because the tax returns were prepared
based on records of bank deposits, receipts from the cashed
checks were not reported. We are convinced that both petitioners
knew that these methods of keeping books and preparing returns
would result in underreporting of their income. As discussed
further below, we reject petitioners’ contention that the
proceeds of cashed checks, some of which were used for interest-
bearing loans to others and some for their personal living
expenses, were all spent on deductible expenditures.
We are convinced that petitioners’ use of cash was intended
to conceal their income and their assets. Our view in this
regard is based in part on testimony, corroborated by documentary
evidence, that Mrs. Gandy instructed employees to negotiate
checks or otherwise engage in cash transactions in amounts
- 45 -
totaling less than $10,000 in order to avoid required reporting
of those transactions to the IRS.
Mr. Gandy made several representations, including to his
preparers and to respondent’s agents, that amounts deposited in
the nursery account from Burnice Gandy constituted loans, when
the evidence is convincing that Burnice Gandy could not have made
those loans and that the source of the funds was nursery
receipts. Mr. Gandy contends that receipts were concealed in
relation to the divorce to protect them from Mrs. Gandy. Even if
such concealment served two purposes, the effect and apparent
intention was also to underreport income. Several witnesses
reported that Mr. Gandy expressed his intention to “beat the
government” by devices including use of cash. None of these
incriminating statements were refuted by petitioners.
Petitioners dispute respondent’s agents’ accounts of the
original interview with Mr. Gandy. Even disregarding
respondent’s arguments concerning inconsistencies and false
statements made during that investigation, the record reflects
many inconsistent and implausible statements. Much of the
implausibility is in the form of petitioners’ claimed defenses to
respondent’s determinations. Petitioners engage in rhetoric and
hyperbole unsupported by the record in attempts to blame others
for their current predicament and to obscure the compelling
evidence against them. For example, they assert that an
- 46 -
unspecified amount was embezzled by a former employee, but the
only support they cite is the assertion of counsel during trial
that the employee was indicted. There is neither testimony nor
documentary evidence to substantiate the claim, and indictment
alone would not establish anything. (Counsel was warned several
times during trial that such assertions would be given no
weight.) They argue that they are handicapped by the
Government’s seizure of records, but the Court found that the
records were returned to them. They imply that certain witnesses
have grudges and are biased, but they have failed to discredit
the testimony given by those witnesses. They assert that they
did not take additional steps that would have indicated fraud,
such as asking that their mortgages be repaid in cash; these
arguments are unavailing. Presumably the borrowers wanted
evidence of interest payments for their own purposes. In any
event, it is not a defense that petitioners did not do more to
further their fraud.
Petitioners contend that they relied on their accountants to
prepare accurate returns, and reasonable reliance on a competent
agent may be a sufficient defense to fraud. However, such
reliance indicates an absence of fraudulent intent only when the
agent has been provided with complete information from which an
accurate return could have been prepared and there is no other
evidence indicating fraudulent intent. Merritt v. Commissioner,
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301 F.2d 484 (5th Cir. 1962), affg. T.C. Memo. 1959-172. In this
instance, there is clear and convincing evidence that petitioners
did not inform their tax return preparers of the diverted
receipts and misled the preparers about their income, assets, and
the source of deposits into their bank accounts.
Petitioners contend that they were unsophisticated and
reasonably relied on their preparers. We do not accept their
testimony in this regard. These cases are comparable to Estate
of Temple v. Commissioner, supra, and we incorporate the same
analysis here. There the Court stated:
* * * [The taxpayer’s] conduct was intimately
entwined with the inaccurate recording of his business
income. He often took receipt of incoming checks,
endorsed them, sometimes withheld cash, and carried
them to the bank for deposit. This subsequently
resulted in omitted or inaccurate journal entries.
* * * In addition, * * * [the taxpayer] had a
consistent practice of cashing checks, which generated
no deposit slips, and thereby prevented income from
being recorded in the journal.
While a taxpayer’s reliance upon his accountant to
prepare accurate returns may indicate an absence of
fraudulent intent, this is true in the first instance
only if the accountant has been supplied with all the
information necessary to prepare the returns. * * *
[The estate] argues in this regard that * * * [the
preparer] had total access to all of the * * *
[business’] books and records, so that even though the
journal was inaccurate, a thorough professional job of
accounting would have uncovered the inaccuracies. Of
course, the thorough audit conducted by respondent’s
agents did discover many omitted and erroneous entries.
However, we cannot conclude on the basis of the record
before us that * * * [the preparer] was retained to
check with * * * [the business’] customers in order to
find out whether they made payments to * * * [the
business] which were not recorded in the journal or to
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otherwise doublecheck the journal entries made by the
bookkeepers. The evidence points to the contrary.
* * * [Estate of Temple v. Commissioner, 67 T.C. at
162-163; citation and fn. ref. omitted.]
See also Webb v. Commissioner, 394 F.2d at 379-380; Foster v.
Commissioner, 391 F.2d 727-732 (4th Cir. 1968), affg. on this
issue and revg. on another issue T.C. Memo. 1965-246; Roose v.
Commissioner, T.C. Memo. 1995-585, affd. without published
opinion 108 F.3d 1377 (6th Cir. 1997); Morris v. Commissioner,
T.C. Memo. 1992-635, affd. without published opinion 15 F.3d 1079
(5th Cir. 1994); Becerra v. Commissioner, T.C. Memo. 1984-134.
For 1985, 1986, and 1987, respondent has presented clear and
convincing evidence of fraud as to both petitioners relating to
unreported gross receipts of the nursery. For 1988 and 1989,
respondent has presented clear and convincing evidence of fraud
with respect to Mr. Gandy. The evidence is also clear and
convincing that petitioners used cash to conceal income and
assets. That they may also have used cash for deductible
expenses was, in our view, in furtherance of their fraudulent
activities. Thus, we are convinced that the entire net
underpayments, after adjustment of the nursery income as set
forth below, are due to fraud. The statute of limitations,
therefore, does not bar assessment for any year, and the
additions to tax and penalties for fraud will be sustained for
each year.
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Nursery Income
Petitioners have failed to raise any bona fide disputes
about the unreported income for the years in issue, and Mr. Gandy
acknowledges that his expenses were not understated for 1988 or
1989. From the time of the investigation in 1992 through filing
of the petition in 1993 and prior to trial in 1996, petitioners
contended that their expenses were correctly reported on their
tax returns and failed to raise any claim for additional
deductions. At the time of trial, and in their briefs, however,
they assert that they are entitled to additional labor and
transportation expense deductions as follows:
Item 1985 1986 1987
Labor $346,172 $325,229 $123,094
Transportation 24,356 92,178 2,127
$370,528 $417,407 $125,221
These claims are based on their assertions that their profit
percentage for those years, under respondent’s determinations,
exceeded their profits in other years and profits earned by their
competitors. These claims are based on vague estimates by
Mr. Gandy and by competitors that are totally unsupported by
reliable evidence. The claims were neither timely nor detailed
enough to provide respondent with a reasonable opportunity to
investigate their validity. Moreover, to the extent that the
claims are based on payments in cash of expenses for wages, to
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“coyotes” who transported the laborers from Mexico, and
unsubstantiated trucking expenses, they are undermined by
evidence that payments to “coyotes” and trucking expenses for
which no receipts were obtained were recouped by deductions from
wages paid to the employees. Finally, the amounts claimed are
simply not credible. Petitioners seek to increase the deductions
for labor costs by nearly doubling them for 1985 (adding $346,172
to $356,607.96 claimed on the original return) and adding an
additional two-thirds of the amount claimed for 1986 (adding
$325,229 to $482,581.18 claimed on the return). We are not
persuaded that they had that much cash available, after diverting
cash to their loan business and other personal uses, unless they
had substantial amounts of unreported cash income as well.
Nonetheless, in view of the nature of petitioners’ business
during the years in issue and their use of imported labor and
payments of those laborers in cash, it is likely that some
expenses that would be deductible were paid in cash. Under these
circumstances, we must weigh heavily against petitioners, whose
inexactitude is of their own making. We also bear in mind that
petitioners had some cash sales in undetermined amounts during
the years in issue that were not included in respondent’s
computation of unreported income. Cohan v. Commissioner, 39 F.2d
540 (2d Cir. 1930). However, the Court must have some basis on
which an estimate may be made. Williams v. United States, 245
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F.2d 559 (5th Cir. 1957); Vanicek v. Commissioner, 85 T.C. 731,
743 (1985). We have taken into account the changing nature of
the nursery’s business from primarily B&B to container trees and
the effect on transportation costs as well as labor costs. We
conclude that petitioners may deduct an additional $100,000 for
labor in 1985 and in 1986 and $50,000 for labor in 1987. We are
not persuaded that they are entitled to deduct any additional
transportation expenses.
Interest Income
Petitioners admit making loans and receiving interest
payments beginning with the 1985 taxable year. Their argument is
that not all payments were made in a timely fashion and, thus,
respondent has overstated the amount of interest received.
Respondent obtained copies of some of the borrowers' checks
or other records of payments. They also interviewed the
borrowers. From this information, respondent calculated the
amount of petitioners' mortgage interest income. Petitioners
have submitted no records that they may have kept regarding the
borrowers' repayments of the mortgage loans. Nor have they
testified that any borrowers failed to make the payments used by
respondent in calculating the additional interest income. We are
persuaded that the amounts of interest income determined by
respondent were correct. We sustain respondent's determination
of petitioners' interest income.
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Capital Gains From Lake House
Sections 1001 and 61 require a taxpayer to recognize gain on
the disposition of property. The gain is the excess of the
amount realized over the adjusted basis. Sec. 1001(a). Adjusted
basis is the basis, or cost, of the property subject to certain
adjustments not pertinent here. Secs. 1001, 1012.
Petitioners paid $99,027.67 to redeem the lake house from
foreclosure. Petitioners have not proven any additional basis in
the property. They received $125,000 in insurance proceeds and
sold the property for $31,000. They paid $2,637.89 in closing
costs. The amount realized was $153,362.11 ($125,000 plus
$31,000 less $2,637.89). Petitioners' gain was thus $54,334.44
($153,362.11 less $99,027.67). Petitioners reported gain of
$10,000. In the notice of deficiency, respondent increased
petitioners' income by $13,062. The adjustment for the gain on
lake house will be sustained as to this amount.
Net Operating Losses
Petitioners contend that they are entitled to a net
operating loss carried forward to 1985 from 1983 and 1984.
Petitioners presented no evidence concerning the net operating
losses. They rely solely on a schedule attached to their return
as filed and an assertion that an audit of their return for 1984
resulted in no change. The loss claimed apparently related back
to 1981 and 1982, years for which there was no evidence at all.
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Petitioners merely testified vaguely about losses in 1983 and
1984. Even if respondent had audited the return for 1984 without
change, there is no evidence that the net operating loss was
correctly computed for that year or would have made a difference
for that year. To be entitled to deduct the claimed net
operating loss, petitioners would have to show that the losses
were sustained and how much was offset against taxable income in
earlier years. See sec. 172(b); Davis v. Commissioner, 674 F.2d
553 (6th Cir. 1982), affg. T.C. Memo. 1980-581; Jones v.
Commissioner, 25 T.C. 1100 (1956), revd. and remanded on another
issue 259 F.2d 300 (5th Cir. 1958); Egly v. Commissioner, T.C.
Memo. 1988-223; Naegle v. Commissioner, T.C. Memo. 1965-212,
affd. per curiam 378 F.2d 397 (9th Cir. 1967).
Additions to Tax and Penalties
Our discussion above concludes that petitioners are liable
for the additions to tax and penalties for fraud for each year,
and the alternative determinations with respect to negligence and
delinquency are therefore moot.
Respondent also determined additions to tax under section
6661 for 1985 through 1988. Section 6661 imposes an addition to
tax if there was a substantial understatement of income tax for
any taxable year. There was a substantial understatement if the
amount of the understatement exceeded the greater of
(1) 10 percent of the tax required to be shown on the return for
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the taxable year or (2) $5,000. Sec. 6661(b)(1). The amount of
the understatement is reduced by the portion attributable to (1)
the tax treatment of any item if there is or was substantial
authority for such treatment or (2) any item with respect to
which the relevant facts are adequately disclosed. Sec.
6661(b)(2)(B).
The understatements of income tax for 1985 through 1988 were
substantial. No authority exists for petitioners’ failure to
report income. Petitioners did not disclose any facts concerning
the unreported items in their returns. Petitioners are liable
for the additions to tax under section 6661 for 1985 through
1987, and Mr. Gandy is liable for that addition to tax for 1988.
To reflect the above holdings,
Decisions will be entered
under Rule 155.