T.C. Memo. 2000-83
UNITED STATES TAX COURT
CHUNG UI KIM AND OK HUI KIM, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12880-98. Filed March 13, 2000.
Donald L. Field, Jr., for petitioners.
Allan D. Hill, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, Judge: Respondent determined the following
deficiencies in and penalties on petitioners’ Federal income
taxes:
Year Deficiency Sec. 6663(a) Penalty
1993 $174,815 $131,111
1994 156,263 117,057
1995 179,928 134,945
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After concessions, we must determine the following issues:
(1) Whether respondent’s bank deposit analyses correctly
determined petitioners’ unreported gross receipts during 1993,
1994, and 1995 in the amounts of $721,408,1 $735,207, and
$542,641, respectively. We hold that they did.
(2) Whether petitioners are liable for penalties on their
1993, 1994, and 1995 tax for fraud pursuant to section 6663(a).
We hold they are. (Accordingly, we do not decide respondent’s
alternative determination that petitioners are liable for
penalties for negligence pursuant to section 6662(a).)2
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years in issue. Rule
references are to the Tax Court Rules of Practice and Procedure.
Dollar amounts are rounded to the nearest dollar.
FINDINGS OF FACT
Some of the facts were stipulated. The stipulation of facts
and the exhibits submitted therewith are incorporated herein by
reference. When the petition was filed, petitioners Chung Ui Kim
1
Respondent determined that petitioners had $791,408 of
unreported gross receipts for 1993 but subsequently conceded that
$70,000 was from a nontaxable source.
2
Respondent also determined, and we agree, that for the
years in issue, certain computational adjustments should be made,
which would: (1) Reduce petitioners’ itemized deductions, (2)
increase petitioners’ self-employment tax liability, and (3)
reduce petitioners’ claimed exemptions. These are mathematical
adjustments that the parties can make in their Rule 155
computation.
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(Chung Kim) and Ok Hui Kim (Ok Kim) resided in Hayward,
California.
Petitioners were married in Korea during 1970 and immigrated
to the United States in 1973. Petitioners have been U.S.
residents from that date through the years at issue.
Chung Kim, a high school graduate, worked in Korea in the
Korean movie industry and then as an artist in the United States.
Ok Kim, also a high school graduate, worked as a dance instructor
in Korea and then as a typist in the United States. In 1977,
petitioners opened a retail store of approximately 800 square
feet on O’Farrell Street in San Francisco, California.
In 1992, petitioners relocated their store to a 3,000-
square-foot retail space on Geary Boulevard in San Francisco.
During the years at issue, petitioners operated their store as a
sole proprietorship named Top Blue Jeans/TBJ Collection (TBJ) and
sold merchandise at retail including clothing, cosmetics,
jewelry, leather goods, and other items of personal property.
Petitioners filed joint 1993, 1994, and 1995 Federal income
tax returns (Form 1040). The only source of taxable income
reported on those returns was gross receipts from TBJ of
$698,632, $846,030, and $1,032,759, respectively. Petitioners
initially reported costs of goods sold for the respective years
of $506,960, $625,553, and $765,298. The parties stipulated that
petitioners’ costs of goods sold were $859,563, $973,460, and
$866,771, respectively.
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Petitioners maintained two banking accounts: A personal
account in their joint names and a business banking account in
the name of TBJ Collections and Chung Kim, both with the
California Korea Bank. The net deposits into these two accounts
for 1993, 1994, and 1995 were $1,490,039, $1,481,237, and
$1,575,400, respectively.3
OPINION
Issue 1. Unreported Income
When respondent audited petitioners’ 1993, 1994, and 1995
income tax returns in 1996, petitioners failed to provide any
accounting records from which a determination could be made of
TBJ’s gross receipts. Respondent therefore performed a bank
deposits analysis, under which he determined that petitioners had
made deposits in excess of the reported gross receipts as
follows:
Year Amount
1
1993 $791,408
1994 735,207
1995 542,641
1
Respondent concedes that this amount should be decreased to
$721,408.
In cases where taxpayers have not maintained business
3
The net figures account for amounts attributable to
transfers, sales taxes, returned checks, and paid item reversals.
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records or where their business records are inadequate, the
Courts have authorized the Commissioner to use the bank deposits
method to compute income. See Factor v. Commissioner, 281 F.2d
100, 116 (9th Cir. 1960), affg. T.C. Memo. 1958-94; DiLeo v.
Commissioner, 96 T.C. 858 (1991), affd. 959 F.2d 16 (2d Cir.
1992). Bank deposits are prima facie evidence of income. See
Tokarski v. Commissioner, 87 T.C. 74, 77 (1986). The burden,
generally, is on the taxpayers to show that the bank deposits are
derived from nontaxable sources. See Rule 142(a); Welch v.
Helvering, 290 U.S. 111 (1933); Reaves v. Commissioner, 31 T.C.
690, 718 (1958), affd. 295 F.2d 336 (5th Cir. 1961); Nicholson v.
Commissioner, T.C. Memo. 1993-183.
Petitioners admit that the amounts determined to be
unreported income in the notice of deficiency were deposited into
their banking accounts. However, petitioners contend that these
excess deposits represent inheritance and loan proceeds received
from various relatives which were deposited into the TBJ bank
account. Petitioners assert that they needed these funds to
cover expenses associated with the relocation of their store to a
larger retail space in 1992.
Petitioners assert that they received nontaxable funds from
the following sources and in the following years:
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1993 U.S. Dollars Korean Won Equivalent
1
Bok Rye Kim $440,324 350 million
Sung Bae Kim 246,354 200 million
Ki Soon Yun 70,000
Young Ae Hong 187,676 150 million
_________
Total: 944,354
1994 U.S. Dollars Korean Won Equivalent
Bok Rye Kim $491,672 400 million
Sul Ja Kim 100,000
Mr. Moon 20,000
Il Sup Cha 184,377 150 million
_________
Total: 796,049
1
Petitioners claim that several of the loans were paid in
Korean currency and later converted to U.S. dollars before being
deposited into the TBJ account. In these instances, the U.S.
dollar amounts represent the agreed conversion value.
a. Nontestifying Lenders
Of these seven individuals, only Bok Rye Kim testified at
trial. Petitioners did not explain the absence of the other six,
all of whom were relatives of petitioners.4 We cannot assume
that the testimony of absent witnesses would have been favorable
to petitioners. Indeed, we infer that it would have been
unfavorable. See McKay v. Commissioner, 886 F.2d 1237, 1238 (9th
Cir. 1989), affg. 89 T.C. 1063 (1987); Pollack v. Commissioner,
47 T.C. 92, 108 (1966), affd. 392 F.2d 409 (5th Cir. 1968);
Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165
(1946), affd. 162 F.2d 513 (10th Cir. 1947).
4
At least two of these purported lenders, Ki Soon Yun and
Mr. Moon, resided in San Francisco.
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Petitioners claim to have received loans from the six
nontestifying relatives of an aggregate $808,000. The only
evidence of these loans was documents signed by petitioner Chung
Kim purporting to be promissory notes. These “notes” had no
stated interest or repayment date, were not notarized, and were
not signed by the purported lenders. They evidence neither
genuine indebtedness nor actual receipt of any loan proceeds by
petitioners.
Petitioners presented no evidence as to the source of the
funds for such loans, or as to when, or by what means, the funds
were transferred. Petitioners also did not explain why they
never made any interest or principal payments on the loans.
Absent any testimony by the named individuals, or any supporting
documentary evidence, petitioners have failed to prove the
existence of any of the $808,000 in loans alleged to have been
made by the non-testifying lenders.
b. Bok Rye Kim’s Testimony
Bok Rye Kim (Bok Kim), who is Chung Kim’s niece, testified
that she transferred an inheritance of 350 million won
(approximately $440,000) to petitioners in incremental amounts
between the end of 1992 and the end of 1993. She testified
further that she lent petitioners 400 million won (approximately
$492,000) which she transferred to them incrementally between
early 1993 and 1994.
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Bok Kim testified that she had received an 800 million won
inheritance from her father in 1976. She said that her father
had designated 350 million won of this inheritance to be
delivered to petitioners’ son when he grew up. She claims that
she held on to these funds for 16 years until petitioners asked
that the money be transferred to them in 1992.
Bok Kim admitted that she did not have any written records
that could demonstrate that she ever had possession of the
inheritance money that she allegedly transferred to petitioners.
She explained that she never put the funds into a Korean
financial institution but rather used the funds to make private
loans and real estate investments. She claimed that as the
private loans were repaid, she kept the money in a “secret place”
at her house. She testified that she received interest on the
private loans, but she said that she neither transferred such
earned interest to Chung Kim’s son nor reported the interest to
tax authorities. She had no explanation for the lack of
documentary evidence of the alleged real estate investments.
Bok Kim could not recall the dates or total number of
occasions when she transferred either the 350 million won
inheritance or the 400 million won loan. Neither petitioners nor
Bok Kim had any records showing that she made any transfers of
the money to Chung Kim during 1993 and 1994. Petitioners and Bok
Kim explained that there were no records of the transfers because
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they had engaged in an elaborate scheme to transfer the funds
without the knowledge of the Korean and U.S. customs and tax
authorities.5 Bok Kim testified that she repeatedly delivered
small amounts of Korean currency to Sung Bae Kim, an airline
employee whom she identified as Ok Kim’s younger brother.6
According to Bok Kim, the airline employee would arrange for the
conversion of the won to U.S. currency and for Korean tourists,
unknown to either Bok Kim or petitioners, to deliver the funds to
petitioner Chung Kim at his store.7 Bok Kim could not recall the
precise amounts of money she transferred on each occasion but
believed the amounts to be in the range of 5 to 7 million Korean
won (approximately 5,000 to 9,000 U.S. dollars).8
We find that Bok Kim’s testimony lacks credibility, is
inconsistent with the record in this case, and does not credibly
establish a nontaxable source for the unexplained deposits.
Under the circumstances, we are not required to, and we do not,
5
Chung Kim testified that he did not request a bank wire
transfer because it is “illegal” to take out more than $10,000
from Korea. He also stated that he wanted to avoid any “tax
consequences” such a transfer would entail for either him or his
niece.
6
Chung Kim identified Sung Bae Kim as his wife’s nephew, not
her brother. Sung Bae Kim did not testify.
7
Neither Bok Kim nor petitioner identified the names of any
of the individuals who allegedly delivered the funds to Mr. Kim.
8
Despite allegedly transferring nearly all of her father’s
substantial estate with no true expectation of repayment, Bok Kim
also testified that she had come to Court to help her uncle
“because it’s not like I had done much for him before.”
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rely on Bok Kim’s testimony to support petitioners’ position
herein. See Ruark v. Commissioner, 449 F.2d 311, 312 (9th Cir.
1971), affg. T.C. Memo. 1969-48; Tokarski v. Commissioner, 87
T.C. at 77.
Furthermore, petitioners have failed to introduce any
evidence whatsoever relating to the existence of any nontaxable
sources for the $542,641 in unexplained funds deposited into
their banking accounts in 1995. Petitioners make no claim that
they held on to loan and inheritance proceeds received in 1993
and 1994 before depositing them in 1995.9 Additionally, given
the cost of goods sold as stipulated in this case, petitioners
would have had to have been selling their inventory at below cost
in 1993 and 1994 if TBJ’s gross receipts were as reported. Yet
Chung Kim testified that he marked up the merchandise by almost
25 percent.
Petitioners offer no credible evidence that any of the
unexplained deposits represent loan and inheritance proceeds.
Hence, petitioners have not disproved that the excess deposits
originate from a taxable source as respondent determined.
Accordingly, respondent’s determinations, after concessions, are
sustained.
9
Chung Kim testified that he never left the loan and
inheritance proceeds in his safe but rather deposited the funds
within 3 days of delivery. Additionally, TBJ’s balance sheet for
Dec. 31, 1994, reflects cash on hand and in the bank of only
$9,663.
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Issue 2: Fraud Penalty
Respondent has determined that petitioners are liable for
fraud penalties under section 6663(a) for 1993, 1994, and 1995.
A taxpayer is liable for a 75-percent penalty on the part of an
underpayment that is attributable to fraud. See secs. 6653(b),
6663(a).
Respondent must prove fraud by clear and convincing
evidence. See sec. 7454(a); Rule 142(b); Rowlee v. Commissioner,
80 T.C. 1111, 1123 (1983); Drabiuk v. Commissioner, T.C. Memo.
1995-260. In order to carry his burden as to fraud, respondent
must prove: (1) Petitioners underpaid their tax in each year,
and (2) some part of each underpayment was due to fraud. See
Laurins v. Commissioner, 889 F.2d 910, 913 (9th Cir. 1989), affg.
Norman v. Commissioner, T.C. Memo. 1987-265; Beddow v.
Commissioner, T.C. Memo. 1999-232; Roots v. Commissioner, T.C.
Memo. 1997-187; Lee v. Commissioner, T.C. Memo. 1995-597.
a. Underpayment of Tax
Respondent can satisfy his burden of proving the first prong
of the fraud test; i.e., an underpayment, when the allegations of
fraud are intertwined with unreported and reconstructed income in
one of two ways. Respondent may prove an underpayment by proving
a likely source of the unreported income. See Holland v. United
States, 348 U.S. 121 (1954); Parks v. Commissioner, 94 T.C. 654,
661 (1990). Alternatively, where the taxpayer alleges a
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nontaxable source, respondent may satisfy his burden by
disproving the nontaxable source so alleged. See United States
v. Massei, 355 U.S. 595 (1958); Parks v. Commissioner, supra.
We find that respondent has proven by clear and convincing
evidence a likely source of the underreported deposits; i.e.,
that they are income from TBJ’s sales. We also find that
respondent has disproven, by clear and convincing evidence, the
nontaxable source alleged by petitioners. Petitioners’
explanation of loans and inheritances from their relatives is
implausible and incredible. The first prong is satisfied.
b. Fraudulent Intent
Respondent must prove that some portion of the underpayment
was due to fraud. See Professional Servs. v. Commissioner, 79
T.C. 888, 930 (1982).
Fraud is an intentional wrongdoing designed to evade a tax
believed to be owing. See United States v. Walton, 909 F.2d 915,
926 (6th Cir. 1990); Miller v. Commissioner, 94 T.C. 316, 332
(1990). The existence of fraud is a question of fact. See
King’s Court Mobile Home Park v. Commissioner, 98 T.C. 511, 516
(1992). Fraud is never presumed or imputed; it must be
established by some independent evidence of fraudulent intent.
See Otsuki v. Commissioner, 53 T.C. 96, 106 (1969); Beddow v.
Commissioner, supra. Because direct proof of the taxpayer’s
intent is rarely available, fraud may be proven by circumstantial
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evidence and reasonable inferences drawn from the facts. See
Spies v. United States, 317 U.S. 492, 499 (1943); Stephenson v.
Commissioner, 79 T.C. 995 (1982), affd. per curiam 748 F.2d 331
(6th Cir. 1984); Collins v. Commissioner, T.C. Memo. 1994-409.
The taxpayer’s entire course of conduct may establish the
requisite fraudulent intent. See Otsuki v. Commissioner, supra
at 106.
Over the years, the courts have identified a number of
objective indicators or “badges” of fraud. See Recklitis v.
Commissioner, 91 T.C. 874, 910 (1988); Kish v. Commissioner, T.C.
Memo. 1998-16. Several badges of fraud are present in this case:
(1) Substantially understating income for 3 consecutive years;
(2) having inadequate books and records or destroying books and
records; (3) providing incomplete and erroneous information to a
tax return preparer; (4) providing implausible explanations of
behavior; (5) giving false, misleading, and inconsistent
testimony at trial, and (6) dealing in large amounts of cash.
See Bradford v. Commissioner, 796 F.2d 303, 307-308 (9th Cir.
1986), affg. T.C. Memo. 1984-601; Meier v. Commissioner, 91 T.C.
273, 297-298 (1988); Lee v. Commissioner, T.C. Memo. 1995-597.
Although no single factor is necessarily sufficient to
establish fraud, the combination of a number of factors
constitutes persuasive evidence. See Solomon v. Commissioner,
732 F.2d 1459, 1461 (6th Cir. 1984), affg. per curiam T.C. Memo.
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1982-603; Beddow v. Commissioner, supra.
Petitioners’ income was consistently underreported, and in
the aggregate petitioners failed to report over $2 million of
TBJ’s sales from 1993 through 1995. This is a substantial sum,
especially in light of the fact that petitioners reported
adjusted gross income for those 3 years in the amounts of only
$22,022, $38,357 and $46,388. Additionally, petitioners were
unable or unwilling to produce daily sales records for their
accountant, the IRS, or the Court. Neither petitioners’
accountant nor anyone else ever audited petitioners’ business,
and their accountant never reviewed any of TBJ’s daily cash
register tapes.10
Moreover, petitioners’ explanations of having received
substantial cash inheritances and loans from U.S. and Korean
relatives are highly implausible and wholly lacking in
credibility. Petitioners testified that they did not
fraudulently conceal TBJ’s sales proceeds from U.S. tax
authorities but instead colluded with their Korean relatives to
conceal the conversion and transfer of nearly 2 million dollars
worth of Korean currency from U.S. and Korean customs agents.
Yet petitioners could produce no single piece of documentary
evidence that their Korean relatives ever possessed these funds
10
Petitioners’ accountant testified that Chung Kim reported
TBJ’s cash receipts to him orally.
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or made any such conversions or transfers. Such testimony is
indicative of fraud on the part of petitioners.
Based on our review of the record, we conclude that
respondent has met his burden of proving fraud for each of the
relevant years. Petitioners’ clear pattern of underreporting
taxable income for 3 years, coupled with the lack of
recordkeeping and attempts to conceal a substantial amount of
cash transactions, leads to a particularly strong inference of
fraud. See Lee v. Commissioner, T.C. Memo. 1995-597.
Respondent has proven by clear and convincing evidence an
underpayment of tax for 1993, 1994, and 1995 and that some
portion of the underpayment was attributable to fraud.
Petitioners, on the other hand, have failed to show that any
portion of their underpayment was not due to fraud. Accordingly,
we sustain respondent’s determination that petitioners are liable
for the penalty for fraud under section 6663(a) for all the years
under consideration.
To reflect the foregoing and concessions,
Decision will be entered
under Rule 155.