T.C. Memo. 1997-565
UNITED STATES TAX COURT
SARKIS N. AND BAKA S. BALABANIAN, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15947-95. Filed December 23, 1997.
Richard P. Slivka and Charles D. Henson, for petitioners.
Virginia L. Hamilton, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
GERBER, Judge: Respondent determined a $189,212 income tax
deficiency and a $37,842 penalty under section 66621 for
1
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the period under
consideration. Rule references are to this Court's Rules of
Practice and Procedure.
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petitioners' 1990 taxable year. The issues2 presented for our
consideration are: (1) Whether respondent correctly
reconstructed petitioners' income by use of the bank deposits
method, and (2) whether petitioners are liable for a penalty
under section 6662.
FINDINGS OF FACT3
Petitioners resided in Boulder, Colorado, at the time their
petition was filed in this case. Sarkis Balbanian (petitioner),
a jeweler since 1956, beginning in 1987 owned and operated a
retail jewelry business located in Northglenn, Colorado.
Petitioners used the cash method of accounting for financial and
tax reporting purposes.
Petitioner met Robert Joseph (Joseph) and, about 1983, began
manufacturing and/or selling jewelry to Joseph. Joseph operated
a Ponzi scheme under the name M&L Business Machine Co., Inc.
(M&L). Under the scheme, Joseph accepted currency from
individuals and promised them an extraordinary rate of return on
a monthly basis. The scheme was operated by Joseph’s paying
"investors" monthly interest funded by the currency received from
newer investors. At some point, Joseph turned to check kiting to
keep his Ponzi scheme afloat.
2
Petitioners conceded a third issue of whether their cost
of goods sold was overstated by $15,000 for 1990.
3
The parties’ stipulation of facts and attached exhibits
are incorporated by this reference.
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Beginning in 1988, petitioners became involved in a complex
and circuitous relationship with Joseph. Petitioners’
involvement with Joseph began with $30,000 and increased to over
$200,000 by July 1990. The monthly "interest" paid by Joseph was
either paid to petitioners or credited as an increase in their
investment. Petitioners did not report any interest from these
transactions on their Federal income tax returns, including the
1990 return. M&L also made payments totaling $10,000 toward
petitioners' purchase of a motor vehicle.
Also beginning sometime in 1988, petitioner became involved
with Joseph/M&L in a check exchanging arrangement that ultimately
became part of a check kiting scheme. M&L had cash-flow
problems, and the goal of the scheme was to obtain some "float"
in order to extend the time to pay commitments. The kiting also
made it appear that M&L had more cash because of the inflation
caused by the kiting activity. Under the arrangement, M&L would
draw a check in favor of petitioner, and petitioner, in turn,
would draw several checks totaling approximately the same amount
to M&L. For 1989 and 1990, M&L's checks to petitioner exceeded
petitioner's checks to M&L as follows:
1989 1990
Amount from M&L $5,866,328 $3,263,124
Amount to M&L 5,815,280 2,571,129
Excess received by
petitioner 51,048 691,995
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Petitioners did not report for 1989 or 1990 income from the check
exchanging arrangement. Also, during July 1990, M&L caused a
$207,000 check to be deposited in petitioners' Santa Barbara
Savings and Loan account.
Clara Spake (Spake) had been petitioners' tax return
preparer for about 15 years, and she prepared their 1990 return.
She was aware of the check exchanges with M&L, and she kept track
of them for a short time during 1988. Spake advised petitioner
that she did not know whether it was illegal, but if petitioner
came out ahead of M&L in any year, the difference would be
income. Petitioner encouraged several others, including Spake,
to invest with Joseph/M&L, and he received a "broker fee" for new
investors steered to M&L. Petitioner's broker fee was "paid" by
means of increases to his M&L investment. M&L filed for
bankruptcy during October 1990, and petitioners, in August 1993,
filed a $140,000 claim against the M&L bankrupt estate.
Spake performed the monthly bookkeeping and prepared
petitioners' annual tax returns, computing income on the basis of
the jewelry store register receipts and undocumented information
from petitioner. Petitioner, in addition to selling jewelry
through his store, manufactured and sold custom jewelry.
Numerous payments for custom jewelry received by petitioner were
not run through the jewelry store register and, instead, were
reported orally to Spake without documentation subject to
verification. Spake recorded petitioners' business bank deposits
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in a ledger, but she did not verify or check the amount of the
bank deposits in relation to the amount of recorded sales.
During October 1992, M&L's bankruptcy trustee filed a
complaint against petitioners to recover any funds they held that
may have belonged to the bankruptcy estate. Petitioners were
represented by Kevin Allen (Allen) in the bankruptcy matter. The
trustee was seeking amounts approaching $5 million from
petitioners on the theory of preferential transfers and
fraudulent conveyances. Petitioners contended that they held no
funds or assets of M&L, and they also disputed whether the
asserted legal theories applied to them. A settlement was
reached, and petitioners paid the bankruptcy estate $280,000
($220,000 in 1993 and $60,000 in 1994).
Respondent's agent, Monty Careswell (Careswell), a certified
public accountant with a master’s degree in taxation, began an
examination of M&L and related individuals, including
petitioners. Initially, Careswell examined petitioners'
involvement with M&L and attempted to reconstruct petitioners'
income using a check exchange analysis, but he found that the
payments from M&L for jewelry and those for the check exchanges
could not be distinguished. Additionally, Careswell could not
reconcile or verify the gross jewelry sales reported by
petitioners. Careswell concluded that petitioners' records were
inadequate, and he prepared a bank deposits reconstruction of
petitioners' income.
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Careswell performed the following steps in his bank deposits
analysis for petitioners' 1990 taxable year: He calculated total
deposits of $4,898,961 from four different accounts, including
Colorado National Bank, Bank of Boulder, Santa Barbara Savings
and Loan, and Merrill Lynch. From that amount he subtracted
nontaxable deposits of $1,148,549 and income reported by
petitioners of $594,374, and he added cash and other income items
of $34,646, to arrive at unexplained deposits not reported of
$3,190,684. Careswell then made a further reduction of
$2,571,129, representing the transfers from petitioners to M&L,
thereby arriving at $619,555 of unreported income for 1990.
Careswell did a similar analysis for 1989 and determined
unreported income of $106,104.
OPINION
Respondent, by means of a bank deposits analysis,
reconstructed petitioners' 1990 income. Petitioners do not
disagree with respondent's bank deposits mathematics. Instead,
petitioners question respondent's use of the bank deposits
analysis over the check spread analysis. In addition,
petitioners argue whether they should have to recognize the
portions of the bank deposits attributable to the check exchange
scheme with M&L. Petitioners assert that they were not entitled
to any portion of the income attributable to the check exchanges
until the resolution of the bankruptcy proceedings in 1993.
Accordingly, we must consider whether respondent's use of the
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bank deposits method was reasonable and whether petitioners must
recognize any portion of the income attributable to the check
exchanges in 1990.
The Commissioner may use a method to clearly reflect income
if a taxpayer does not maintain adequate records. Sec. 446(b);
Holland v. United States, 348 U.S. 121 (1954); sec. 1.446-
1(b)(1), Income Tax Regs. A bank deposits reconstruction of
income is one method the Commissioner may use to determine
income. DiLeo v. Commissioner, 96 T.C. 858, 867 (1991), affd.
959 F.2d 16 (2d Cir. 1992). The bank deposits analysis is
conducted by examining deposits into an individual's bank
account. Reported income and any nontaxable items are subtracted
from total deposits in order to determine unreported income.
Unexplained bank deposits are prima facie evidence of income
where a taxpayer has failed to maintain adequate records.
Tokarski v. Commissioner, 87 T.C. 74, 77 (1986). The evidence
here shows that petitioners' records were inadequate and that
there were sources of income petitioners did not report.
Therefore, respondent's use of the bank deposits analysis was
justified by the circumstances.
When using the bank deposits method, the Commissioner is not
required to show that each deposit or part thereof constitutes
income, Gemma v. Commissioner, 46 T.C. 821, 833 (1966), or that
it came from a likely or particular source. Clayton v.
Commissioner, 102 T.C. 632, 645 (1994); Estate of Mason v.
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Commissioner, 64 T.C. 651, 656-657 (1975), affd. 566 F.2d 2 (6th
Cir. 1977).
The parties stipulated that Agent Careswell's bank deposits
analysis is correctly computed. Normally, when the
Commissioner's agents have performed such an analysis, taxpayers
attempt to show that the bank deposits analysis is faulty by
identifying nontaxable deposits. By stipulating to the
mathematical correctness of respondent's bank deposits analysis,
petitioners are left with the option of either showing a method
that more correctly reflects income or explaining why particular
deposits are nontaxable.
Petitioners argue that a check exchange analysis rather
than a bank deposits analysis should be used to determine
petitioners' taxable income. Petitioners, however, do not
precisely explain how the bank deposits analysis should be
adjusted to account for their theory. In particular, they do not
account for the possibility that other likely and demonstrated
sources of unreported income may be more accurately reflected by
the bank deposits analysis. It is petitioners' obligation to
show that particular deposits or amounts should be subtracted
from the deposits computed by respondent. Parks v. Commissioner,
94 T.C. 654, 658 (1990). This petitioners have not done.
Petitioners contend that we should rely on a modified
version of the bank deposits analysis that was performed by Agent
Careswell. Careswell prepared a check spread to analyze
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petitioners' check exchange involvement with M&L. Careswell was
unable to reconcile petitioners' deposits with their records and
found that the records were inadequate. Therefore, Careswell
turned to a bank deposits analysis to reconstruct petitioners'
income from all sources, including the involvement with M&L and
the jewelry business.
Using the bank deposits analysis, Careswell calculated total
deposits of $4,898,961 and subtracted nontaxable deposits of
$1,148,549 and the income reported by petitioners of $594,374.
To that amount he added cash and other income items of $34,646 to
arrive at taxable deposits not reported of $3,190,684. Careswell
then made a further reduction of $2,571,129, representing
petitioners' payments and transfers to M&L under the check kiting
scheme. This resulted in net unexplained bank deposits of
$619,555 for 1990.
The $2,571,129 amount by which Careswell reduced the
unexplained bank deposits was determined from his check spread
analysis of check exchanges with M&L. Careswell's analysis
reflects $3,263,124 remitted by M&L to petitioners and $2,571,129
remitted by petitioners to M&L for a net excess to petitioners of
$691,995 for 1990. Petitioners argue that their unreported
taxable income should be determined using the net difference from
the check spread analysis reduced for certain adjustments
asserted by petitioners.
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First, petitioners assert that Careswell's analysis
overstates the net difference by approximately $75,000. In part,
the difference between Careswell's analysis and petitioners' is
that Careswell analyzed the check exchanges on an annualized
basis, and petitioners' analysis is for a continuum beginning
January 2, 1989, through October 3, 1990. Petitioners then
further reduced the net excess from the check exchanges by
amounts of alleged jewelry sales to M&L in the approximate
amounts of $126,000 for 1989 and $176,000 for 1990. In addition,
petitioners deducted the $280,000 settlement paid by them to the
bankruptcy trustee in 1993 and 1994. By ignoring annual
accounting principles and by means of the other reductions from
Careswell's analysis, petitioners attempt to reduce the amount of
the net difference between M&L's and their check payments to
approximately $161,000, as opposed to the $691,995 developed in
Careswell's check exchange analysis.
Respondent contends that the reductions proposed by
petitioners are improper. For example, some of petitioners'
reductions are based on the presumption that Careswell included
in his check exchange analysis amounts that should have been
attributed to jewelry sales from petitioners to M&L. Respondent
contends that petitioners' financial records were inadequate to
permit accurate delineation between jewelry sales and M&L check
exchanges. In that regard it cannot be determined whether any of
those jewelry sales occurred and/or were included in part or
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whole in the sales reported on petitioners' 1990 return. Because
respondent has given credit for the sales petitioners reported,
the reductions proposed by petitioners may be duplications.
Since petitioners have failed to distinguish adequately between
the jewelry sales and M&L check exchanges, respondent's
determination stands.
We also note that petitioners have not shown how their
adjustments to Careswell's check exchange analysis can be
integrated with the bank deposits analysis. In addition,
petitioners have not shown that the check exchange analysis
performed by Careswell and/or the modified version advanced by
petitioners would more accurately reflect income than the bank
deposits method used by respondent. The record reflects more
than one potential source of unreported income, and the check
exchange analysis would only partially address that aspect,
whereas the bank deposits analysis would include all deposited
and identified income from all sources.
Petitioners’ final argument is an attempt to attack
indirectly the bank deposits analysis by arguing that any income
from the check exchanges was either not known or not reportable
until after the 1990 taxable year. Relying on the includability
rule of section 451 and cases4 addressing whether there is a
4
Some of the cases cited by petitioners include Estate of
Whitaker v. Commissioner, 259 F.2d 379, 382 (5th Cir. 1958),
affg. 27 T.C. 399 (1956); Penn v. Robertson, 115 F.2d 167, 173
(continued...)
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"fixed or unconditional right to receive" income, petitioners
argue that they were not required to report any income they may
have had from the check exchanges until the matter was finally
resolved during 1993 in the bankruptcy proceeding. Petitioners'
argument is premised on their contention that the check exchanges
represent the heart of respondent's bank deposits analysis and
that the analysis would be defective if any income from the
exchanges were not taxable for 1990. Respondent argues that
under the claim of right doctrine petitioners should report the
excess of M&L payments over their payments to M&L. We agree with
respondent.
The principle of the doctrine is explained in the following
quotation from Healy v. Commissioner, 345 U.S. 278, 281-282
(1953):
Not infrequently, an adverse claimant will contest
the right of the recipient to retain money or property,
either in the year of receipt or subsequently. In
North American Oil v. Burnet, 286 U.S. 417 (1932), we
considered whether such uncertainty would result in an
amount otherwise includible in income being deferred as
reportable income beyond the annual period in which
received. That decision established the claim of right
doctrine "now deeply rooted in the federal tax system."
The usual statement of the rule is that by Mr. Justice
Brandeis in the North American Oil opinion: "If a
taxpayer receives earnings under a claim of right and
without restriction as to its disposition, he has
received income which he is required to * * * [report],
even though it may still be claimed that he is not
entitled to retain the money, and even though he may
4
(...continued)
(4th Cir. 1940); H. Liebes & Co. v. Commissioner, 90 F.2d 932,
938 (9th Cir. 1937), affg. 34 B.T.A. 677 (1936).
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still be adjudged liable to restore its equivalent."
286 U.S., at 424.
The phrase "claim of right" is a term known of old
to lawyers. * * * There is a claim of right when
funds are received and treated by a taxpayer as
belonging to him. The fact that subsequently the claim
is found to be invalid by a court does not change the
fact that the claim did exist. * * * [Citation
omitted; fn. refs. omitted.]
Petitioners, on the cash basis, had an excess of receipts
over payments for the 1990 taxable year in their exchanges with
M&L. Petitioners claimed as their own that excess and did not
make any claim in the bankruptcy estate until 1993.
Additionally, they resisted and denied any liability in
connection with the trustee's claim against them. Petitioners
were made aware by their bookkeeper that if they were ahead of
M&L at the close of the taxable year, they were liable for
reporting the same as income. Even though petitioners have
argued that they were engaged in the check exchanges with M&L as
a convenience, the record supports our finding that they expected
to be and were compensated for assisting M&L in maintaining float
and for their participation in the kiting scheme. After the
fact, the bankruptcy trustee sought a substantial amount from
petitioners, and petitioners made a $140,000 claim against the
bankrupt's estate. Ultimately, however, petitioners settled the
dispute by their payment to the bankruptcy estate of $280,000,
part in 1993 and the remainder in 1994. Petitioners could have
accounted for the exchanges with M&L and known the amount they
were ahead or behind, but they chose not do so and did not
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require their bookkeeper to do so, even though she, in the
initial stages, had done so. Petitioners are required to report,
as income, the amount of the excess in their check exchanges with
M&L.
Respondent also determined that petitioners are liable for
substantial understatement penalties under section 6662.
Petitioners bear the burden to show they are not liable for the
penalty. Rule 142(a); Bixby v. Commissioner, 58 T.C. 757, 791-
792 (1972). Section 6662 imposes the penalty on any portion of
an underpayment of tax required to be shown on a return if, as
pertinent here, there is any substantial understatement of income
tax. Sec. 6662(b)(2). A substantial understatement exists if
the amount of the understatement for the taxable year exceeds the
greater of 10 percent of the amount of tax required to be shown
on the return or $5,000. Sec. 6662(d)(1). A substantial
understatement may be reduced for any item reported for which
there was substantial authority or for which there was adequate
disclosure of the facts. Sec. 6662(d)(2)(B). Substantial
authority requires a showing that the weight of authorities
supporting a taxpayer's position is substantial in relation to
those supporting a contrary view. Antonides v. Commissioner, 91
T.C. 686, 702 (1988), affd. 893 F.2d 656 (4th Cir. 1990). In
addition, no penalty will be applied to any portion of an
underpayment if there was a reasonable cause for such portion and
the taxpayer acted in good faith. Sec. 6664(c)(1).
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Petitioners argue that they should not be liable for the
penalty because "They held a good faith belief that the check
exchange did not involve income to them." The facts of this case
belie any claim of good faith on petitioners’ part. Their
bookkeeper/tax return preparer advised petitioners that any
excess in their favor at the end of the year was taxable income.
Also, petitioners failed to report any of the interest and/or
broker fees either paid or credited to them by M&L. Finally,
petitioners did not keep adequate books and records, and the bank
deposits analysis shows a substantial understatement of income.
Accordingly, we hold that the entire underpayment is subject to
the section 6662 penalty.
To reflect the foregoing,
Decision will be entered for
respondent.