T.C. Memo. 1998-143
UNITED STATES TAX COURT
ROBERT A. & GERRI M. SMITH, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2369-97. Filed April 16, 1998.
George B. Smith and Carolyn A. Truby, for petitioners.
George D. Curran, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
FOLEY, Judge: Respondent determined the following
deficiencies, additions to tax, and accuracy-related penalties
for 1990 through 1993:
Addition to Tax Penalty
Year Deficiency Sec. 6651(a)(1) Sec. 6662(a)
1990 $45,031 $11,258 $9,006
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1991 61,687 15,422 12,337
1992 98,291 24,573 19,658
1993 175,247 43,811 35,049
After concessions, the issues for decision are:
1. Whether respondent's determinations are entitled to the
presumption of correctness. We hold that they are.
2. Whether petitioners demonstrated that respondent's
determinations were erroneous. We hold that they did to the
extent provided below.
3. Whether petitioners are liable for additions to tax for
failure to file their tax returns in a timely manner. We hold
that they are.
4. Whether petitioners are liable for accuracy-related
penalties for substantial understatements. We hold that they are
to the extent provided below.
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.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
Robert and Gerri Smith resided in Felton, Delaware, at the time
they filed their petition. At all relevant times, petitioners
owned and operated: Guns & Goodies, a retail sporting goods
store located in Dover, Delaware, and National Distributors, an
ammunition wholesale business. Mrs. Smith managed Guns &
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Goodies, which sold a wide variety of hunting and fishing goods,
while Mr. Smith managed National Distributors, which sold
ammunition at gun shows. Petitioners also owned three
residential rental properties. Petitioners did not maintain any
personal bank accounts but did maintain two business accounts: a
general checking account into which they deposited business and
rental receipts and a payroll checking account.
During each year in issue, Guns & Goodies and National
Distributors had total gross receipts of approximately $1
million, 60 percent to 70 percent of which were in cash.
Petitioners regularly deposited most of their business receipts
into their general checking account. Some of petitioners'
business receipts, however, were never deposited and were used to
pay petitioners' personal living expenses. Petitioners did not
maintain records of the cash that they received but did not
deposit, and they regularly disposed of cash register tapes and
deposit slips. They did not maintain inventory records, except
for 1993 ending inventory, or sales receipts. Petitioners
retained monthly bank statements and maintained a firearms log
which recorded the identity of the purchaser and serial number of
every gun purchased.
Petitioners failed to pay taxes relating to their employees
and, as a result, on December 23, 1993, the Internal Revenue
Service (IRS) seized Guns & Goodies. The IRS informed
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petitioners that they would not be allowed to reopen their
business until they paid their payroll tax delinquencies and
filed their 1990, 1991, and 1992 Federal income tax returns.
The accounting firm of Faw, Casson, & Co., LLP (Faw),
prepared petitioners' 1990, 1991, and 1992 returns and filed them
on January 5, 1994. On each return, the activities of both
businesses are combined and reported under the name National
Distributors; accrual is designated as the method of accounting;
and cost is designated as the method of valuing closing
inventory. Petitioners failed to provide Faw with sufficient
information to calculate accurately gross receipts and cost of
goods sold. As a result, the return entries were based largely
on estimates (e.g., gross receipts were ascertained by analyzing
bank deposits). Each return contains the following statement:
Amounts contained in this return were obtained from the
best available information. In certain cases this
includes estimates. As additional / better information
becomes available this return may be amended.
On November 8, 1994, petitioners filed amended returns for
1990, 1991, and 1992. Each amended return contains the following
statement:
Taxpayers' original Form 1040 was prepared using
estimates where data was not available. Missing
information has been obtained and reviewed and the
original figures have been adjusted accordingly. * * *
Petitioners, on their amended returns, designated accrual as the
method of accounting and cost as the inventory method. On June
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5, 1995, petitioners filed their 1993 return, on which they
designated cash as the method of accounting and marked the "Does
not apply" box when asked to identify the inventory method. Most
of the entries on the 1990, 1991, and 1992 amended returns and on
the 1993 return were estimates based on Faw's work papers. In
April of 1995, respondent assigned petitioners' case to Revenue
Agent Eric Brown. Agent Brown issued Information Document
Requests for a variety of documents and work papers, including
financial statements, general ledgers, books of original entry,
inventory records, bank statements, canceled checks, deposit
slips, cash register tapes, and purchase invoices. Petitioners
did not provide financial statements, contemporaneous books of
original entry (other than for 1993 ending inventory), deposit
slips, or cash register tapes. Petitioners did provide copies of
bank statements, canceled checks, a disorganized assortment of
purchase invoices, and work papers that Faw prepared. Agent
Brown requested information from vendors that sold goods to
petitioners, but received only documents relating to guns sold to
petitioners in 1992 and 1993.
After reviewing the documents that petitioners maintained
and that Faw created to prepare petitioners' returns, Agent Brown
requested a clarification of how petitioners arrived at the
ending inventory figure on petitioners' 1993 return. In a letter
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prepared by Faw, signed by Mrs. Smith, and dated November 10,
1995, petitioners responded:
Inventory was counted at retail (market price). After
all inventory was counted and totaled, guns were marked
down 15% to cost (by multiplying retail price by 85%)
and other inventory was marked down 40% to cost (by
multiplying retail price by 60%). This method of
deriving the year-end inventory valuation has been used
by me since the inception of the business,
approximately 30 years ago.
After reading the letter, Agent Brown determined that petitioners
had a 15-percent gross profit on guns and a 40-percent gross
profit on other goods. Mrs. Smith intended, however, for the
percentages stated in her letter to reflect markup, rather than
gross profit percentages. A markup percentage is profit divided
by cost while a gross profit percentage is profit divided by
sales. For example, an item that costs $100 and sells for $118
has an 18-percent markup (i.e., $18 profit divided by $100 cost)
and a 15-percent gross profit (i.e., $18 profit divided by $118
sales). Accordingly, a 15-percent gross profit is equal to an
18-percent markup, and a 40-percent gross profit is equal to a
67-percent markup.
With the information from petitioners and third parties,
Agent Brown adjusted petitioners' cost of goods sold and
reconstructed their gross receipts as follows:
1990 1991
original amended adjusted original amended adjusted
Gross Receipts $916,099 $881,353 $1,001,017 $999,482 $992,372 $1,177,850
Cost of Goods Sold 667,606 711,496 622,769 728,371 797,224 729,929
Beginning Inventory 131,250 131,250 131,250 131,250 88,014 131,250
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Purchases 667,606 668,260 622,769 728,371 763,995 729,929
Ending Inventory 131,250 88,014 131,250 131,250 54,785 131,250
1992 1993
original amended adjusted original adjusted
Gross Receipts $887,837 $1,125,400 $1,412,380 $1,308,700 $1,750,539
Cost of Goods Sold 645,550 912,465 884,197 1,061,858 1,088,859
Beginning Inventory 131,250 54,785 131,250 93,817 131,250
Purchases 645,550 951,497 884,197 1,122,691 1,108,576
Ending Inventory 131,250 93,817 131.250 154,650 165,082
To determine gross receipts, Agent Brown first allocated cost of
goods sold between guns and other goods. He determined that each
beginning and ending inventory figure for 1990 through 1993
consisted of 28.2 percent guns and 71.8 percent other goods
(i.e., this allocation was consistent with petitioners' 1993
inventory records). He accepted as correct the purchase amounts
from Faw's work papers, used information received from vendors to
determine the amount of purchases attributable to gun purchases,
and subtracted gun purchases from total purchases to determine
the amount of purchases attributable to other goods. Agent Brown
did not have sufficient information to categorize the 1990 and
1991 purchases. After allocating cost of goods sold between guns
and other goods, Agent Brown applied the gross profit percentages
to determine gross receipts. For 1992 and 1993, he applied a
gross profit of 15 percent to the cost of guns (i.e., he
multiplied cost by 118 percent) and 40 percent to the cost of
other goods (i.e., he multiplied cost by 167 percent). He did
not have sufficient information to allocate between the cost of
guns and the cost of other goods sold in 1990 and 1991, so he
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determined gross receipts by applying a 37-percent "weighted
gross profit percentage", which was based on his analysis of 1992
and 1993 gross profit percentages, to the total cost of goods
sold for 1990 and 1991.
On December 26, 1996, respondent issued a notice of
deficiency to petitioners for their 1990 through 1993 tax years.
On February 6, 1997, petitioners filed their petition, and on
February 19, 1997, they submitted a second amended return for
1992.
OPINION
I. Respondent's Presumption of Correctness
We must first ascertain whether respondent's determinations
are presumed correct. Anastasato v. Commissioner, 794 F.2d 884,
886 (3d Cir. 1986), vacating and remanding T.C. Memo. 1985-101;
see Welch v. Helvering, 290 U.S. 111, 115 (1933). For the
presumption to attach respondent must link petitioners to a tax-
generating activity. Anastasato v. Commissioner, supra at 887.
Respondent has linked petitioners to two tax-generating
activities--Guns & Goodies and National Distributors.
Petitioners contend, however, that respondent's determinations
were arbitrary.
First, petitioners contend that they kept adequate records
and, therefore, respondent did not have the authority to
reconstruct gross receipts. To support their contention,
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petitioners note that respondent accepted as correct most of the
information that petitioners provided and that maintenance of the
records that petitioners did not provide (e.g., cash register
receipts) is not required. The fact that petitioners' own
accountants had to resort to estimates and reconstruction methods
to prepare the original and amended returns, however, belies
petitioners' contention. It is well settled that taxpayers have
a duty to maintain records that enable them to file correct
returns, DiLeo v. Commissioner, 96 T.C. 858, 867 (1991), affd.
959 F.2d 16 (2d Cir. 1992); sec. 1.446-1(a)(4), Income Tax Regs.,
and that in the absence of such records respondent has the
authority to reconstruct a taxpayer's income, Petzoldt v.
Commissioner, 92 T.C. 661, 686-687 (1989). Petitioners' records
for National Distributors were nonexistent, and their records for
Guns & Goodies were, at best, scant. In addition, they routinely
disposed of important source documents such as cash register
tapes and sales slips. Cf. Kikalos v. Commissioner, T.C. Memo.
1998-92 (finding that failure to maintain source documents,
particularly cash register tapes, justified respondent's use of
an indirect method of reconstruction); Edgmon v. Commissioner,
T.C. Memo. 1993-486 (finding that the absence of source documents
such as cash register tapes and sales slips amounted to
inadequate records). Therefore, we reject petitioners'
contentions.
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Second, petitioners contend that respondent could only
resort to an indirect method of reconstruction (i.e., the gross
profit percentage method) if the direct methods of reconstruction
(e.g., bank deposit method, net worth method, etc.) were
infeasible. Contrary to petitioners' assertion, respondent may
use the gross profit percentage method as long as such method is
reasonably implemented. See Schroeder v. Commissioner, 40 T.C.
30, 33 (1963) (stating that respondent is not limited to any
particular method of reconstruction and may use any method that
is reasonable in light of the surrounding facts and
circumstances); Bollella v. Commissioner, T.C. Memo. 1965-162,
affd. 374 F.2d 96 (6th Cir. 1967). Respondent's use of the gross
profit percentage method was both appropriate and reasonable in
light of the information that petitioners provided (e.g.,
petitioners' letter to respondent).
Third, petitioners contend that respondent's determination
was arbitrary because respondent had no authority or factual
basis to adjust cost of goods sold or to change petitioners'
method of accounting. Respondent may change a taxpayer's method
of accounting whenever the taxpayer's method of accounting does
not clearly reflect income. Sec. 446(b); Thor Power Tool Co. v.
Commissioner, 439 U.S. 522 (1979). For 1990, 1991, and 1992,
petitioners kept virtually no records, yet they reported their
income on the accrual method--a method that demands strict
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accounting. For 1993, petitioners changed to the cash method
without the Commissioner's permission to do so, and they used a
method of valuing inventory that fails to comport with any
recognized method. Respondent, in essence, placed petitioners on
the cash method of accounting and the retail method of valuing
inventory, which is the method that most closely resembles
petitioners' inventory method. Given respondent's broad
authority pursuant to section 446, the paucity of information
that petitioners maintained with respect to cost of goods sold,
and the fact that petitioners did not have a valid method of
accounting for reporting inventories, we reject petitioners'
contention.
Accordingly, respondent's determinations were not arbitrary
and petitioners must prove the correct amount of their tax
liability by a preponderance of the evidence.
II. Adjustments to Respondent's Determinations
The Court may redetermine petitioners' tax liability if and
to the extent that petitioners demonstrate by a preponderance of
the evidence that respondent's determination is wrong.
Anastasato v. Commissioner, supra at 888; Miller v. Commissioner,
237 F.2d 830, 838 (5th Cir. 1956), affg. in part, revg. in part
and remanding T.C. Memo. 1955-112. With respect to cost of goods
sold, to the extent the cost of hunting and fishing licenses was
included in purchases for the years in issue, such costs should
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be subtracted from purchases and deducted as business expenses.
With respect to gross receipts, two adjustments are warranted.
First, the cost of goods sold used in the calculations of gross
receipts should be adjusted pursuant to the previous sentence.
Second, instead of applying gross profits of 15 percent (i.e., a
markup of 18 percent) to guns and 40 percent (i.e., a markup of
67 percent) to other goods, the cost of guns and other goods
should be marked up by 15 percent and 40 percent, respectively
(i.e., cost of guns should be multiplied by 115 percent and cost
of other goods should be multiplied by 140 percent).
In all other respects that have not been specifically
addressed, we conclude that respondents' deficiency determination
is correct.
III. The Additions to Tax
Respondent determined additions to tax pursuant to section
6651(a)(1) for each of the years in issue. Section 6651 provides
an addition to tax for failure to file a tax return in a timely
manner, unless such failure was due to reasonable cause and not
due to willful neglect. Petitioners concede liability for 1990,
1991, and 1992 and have the burden of proving that their 1993
return was timely. See Welch v. Helvering, 290 U.S. at 115.
They contend that they filed their 1993 return in a timely manner
but they failed to present any credible evidence supporting their
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contention. Accordingly, petitioners are liable for the section
6651(a)(1) additions to tax.
IV. The Accuracy-Related Penalties
Respondent also determined that for 1990 through 1993
petitioners were liable, pursuant to section 6662(a), for
substantial understatements of tax penalties. Section 6662(a)
imposes a penalty equal to 20 percent of the amount of any
underpayment attributable to a substantial understatement of
income tax. Pursuant to section 6662(d), an understatement is
the amount by which the correct tax exceeds the tax reported on
the return. The understatement is substantial if it exceeds the
greater of $5,000 or 10 percent of the correct tax. Sec.
6662(d)(1)(A).
Respondent calculated petitioners' understatement by
subtracting the tax reported on their originally filed returns
from the tax that should have been reported on those returns.
Petitioners contend that the amount of any understatement should
be based on the tax reported on the amended returns for 1990,
1991, and 1992 instead of the original returns for those years.
We reject petitioners' contention. Petitioners filed their
returns only upon the demand of the IRS collection officer that
seized their retail store. Under these circumstances, we
conclude that it was appropriate for respondent to use the amount
reported on petitioners' original returns. See sec. 1.6662-
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4(b)(4), Income Tax Regs. (cross-referencing sec. 1.6664-2(c),
Income Tax Regs.). Accordingly, if the recomputed deficiencies
satisfy the statutory percentage or amount, petitioners will be
liable for such penalty.
All other contentions raised by the parties are either
irrelevant or without merit.
To reflect the foregoing,
Decision will be entered
pursuant to Rule 155.