T.C. Memo. 2000-110
UNITED STATES TAX COURT
RICHARD AND REBECCA ADAIR, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 12103-97, 20465-97. Filed March 30, 2000.
Rebecca Adair, pro se.
Linda K. West, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
SWIFT, Judge: In these consolidated cases, respondent
determined deficiencies in petitioners’ Federal income taxes and
fraud penalties as follows:
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Fraud Penalty
Year Deficiency Sec. 6663
1993 $192,142 $144,107
1994 185,261 138,946
1995 123,633 92,725
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 for decision involve the amount of unreported
income that should be charged to petitioners and petitioners’
liability under section 6663 for the fraud penalty. Hereinafter
all references to petitioner are to Rebecca Adair.
FINDINGS OF FACT
Because petitioners failed to respond to respondent's
requests for admission, factual matters set forth in respondent's
requests for admission are deemed admitted. See Rule 90(c).
When the petition was filed, petitioners resided in Clinton,
Louisiana. Petitioners and Delwin Houser, Rebecca Adair’s step-
father, operate a roofing business known as H & H Sheet Metal
(the roofing business). The evidence does not establish how
ownership of the roofing business is divided between petitioners
and Delwin Houser.
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Payments were received by the roofing business for roofing
services rendered for various general contractors, including Roof
Technologies and Vaughn Roofing.
In 1993, 1994, and 1995, Roof Technologies and Vaughn
Roofing were billed by the roofing business the following total
amounts for roofing services rendered to them:
Year Amount
1993 $490,009
1994 426,843
1995 197,965
Roof Technologies and Vaughn Roofing issued checks in favor
of Delwin Houser that cumulatively total the above amounts billed
to them by the roofing business. The checks were received and
deposited into a checking account (the checking account) on which
Delwin and Carol Houser and Rebecca Adair were signatories.
For 1993, 1994, and 1995, the following schedule reflects
monthly and annual total deposits into the above checking
account:
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Month Total Deposits Into Checking Account
1993 1994 1995
January -0- $ 21,346 $ 10,533
February $ 28,154 34,950 19,056
March 25,824 12,150 23,104
April 37,400 53,022 18,000
May 20,131 44,211 21,372
June 48,870 55,007 61,050
July 34,149 37,700 49,146
August 33,038 17,577 670
September 52,000 53,619 24,465
October 91,020 51,291 51,946
November 72,000 56,580 17,492
December 65,150 40,450 34,500
Total $507,736 $477,903 $331,334
On November 16, 1993, for a stated purchase price of
$73,000, petitioners purchased a residence in Clinton, Louisiana.
In their purchase of the residence, petitioners paid $49,205 in
cash and obtained a mortgage of $25,000.
On a loan application dated July 2, 1994, Richard Adair
indicated that his monthly salary from the roofing business was
$3,200. On a loan application dated March 15, 1995, Richard
Adair indicated that his weekly salary from the roofing business
was $800.
For 1993, 1994, and 1995, petitioners filed joint Federal
income tax returns on which they reported the following amounts:
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Schedule C for the
Wages, Roofing Business
Salaries, Business Reported
Year and Tips Gross Receipts Expenses Income
1993 $10,905 – – $10,905
1994* 1,400 $21,729 $22,707 10,422
1995 1,535 52,359 26,763 10,193**
* For 1994, on a Schedule C-EZ relating to a separate
contracting business, Richard Adair reported $10,000 as
construction gross receipts with no expenses reported.
** For 1995, total reported income includes $19 of
interest income.
On petitioners’ Schedule C, for the roofing business for
1994, petitioners listed Rebecca Adair as owner of the roofing
business. On petitioners’ Schedule C for the roofing business
for 1995, petitioners listed Richard Adair as owner of the
roofing business.
During respondent’s audit, petitioners did not cooperate
with respondent’s agents, and petitioners did not provide to
respondent’s agents the books and records relating to the roofing
business. Also, petitioners mailed to respondent letters
reflecting frivolous tax protester arguments.
On audit and in the notices of deficiency for the years in
issue, using the bank deposits method of proof and the specific
item method of proof for interest income earned on the checking
account balance, respondent determined that petitioners received
unreported taxable income in the following total amounts:
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Year Amount
1993 $517,236
1994 477,903
1995 333,780
Respondent allowed petitioners’ business deductions for the
roofing business that were claimed on petitioners’ joint Federal
income tax returns.
Respondent also determined, for each year, that petitioners
were liable for the fraud penalty under section 6663. In the
alternative, for each year, respondent determined that
petitioners were liable for the accuracy-related penalty under
section 6662.
As a protective measure, on audit of Delwin Houser for 1993,
1994, and 1995, respondent charged to Delwin Houser the same
total amounts of unreported income relating to the bank deposits
that were charged to petitioners.
OPINION
Under section 61, gross income includes all income from
whatever source derived. See Commissioner v. Glenshaw Glass Co.,
348 U.S. 426, 431 (1955). Taxpayers are required to maintain
sufficient records to allow respondent to determine their correct
Federal income tax liability. See sec. 6001.
Generally, respondent’s determinations are presumed correct,
and taxpayers have the burden of proving that respondent’s
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determinations are erroneous. See Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933).
Generally, bank deposits are treated as prima facie evidence
of taxable income. See Woodall v. Commissioner, 964 F.2d 361,
364 (5th Cir. 1992), affg. T.C. Memo. 1991-15; Parks v.
Commissioner, 94 T.C. 654, 658 (1990); Tokarski v. Commissioner,
87 T.C. 74, 77 (1986).
Where taxpayers fail to present evidence regarding the
proper division between them of income received from a jointly
operated business, respondent and the courts may approximate the
amount of income to be charged to each taxpayer. See Arouth v.
Commissioner, T.C. Memo. 1992-679. An equal division of income
may be appropriate where taxpayers fail to provide any evidence
of a more appropriate division of the income. See Cannon v.
Commissioner, 533 F.2d 959, 960 (5th Cir. 1976), affg. Ash v.
Commissioner, T.C. Memo. 1974-219; Puppe v. Commissioner, T.C.
Memo. 1988-311.
Where evidence exists that taxpayers incurred expenses
relating to their business, it may be appropriate to allow an
estimate of the business expenses. See Cohan v. Commissioner, 39
F.2d 540, 543-544 (2d Cir. 1930); Vanicek v. Commissioner, 85
T.C. 731, 743 (1985); Sherrer v. Commissioner, T.C. Memo. 1999-
122.
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For 1993, 1994, and 1995, IRS Publication 1136, Statistics
of Income Bulletin, reflected the following average net profit
margins for roofing contractors:
Average
Net Profit
Year Margins
1993 20%
1994 25%
1995 18%
As indicated, respondent’s tax deficiencies determined
against petitioners are based on deposits to the checking account
with no allowance for labor and material costs which obviously
were incurred in the roofing business. We conclude that for each
year it is appropriate to apply to the checking account deposits
that are specifically identifiable as gross receipts of the
roofing business (namely, those deposits that represent the
checks received from Roof Technologies and Vaughn Roofing) the
average net profit margin established by respondent for roofing
contractors and to allow estimated business expense deductions
for the business expenses so calculated.
Petitioners have presented no evidence as to how the income
from the roofing business should be divided between them and
Delwin Houser.
At trial, Rebecca Adair was asked several times her opinion
on how income relating to the roofing business and to the
checking account deposits should be divided between herself, her
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husband, and Delwin Houser. Rebecca Adair was uncooperative and
answered as follows: “I would not”. “No, sir”. “It’s up to
you, sir”, and “–-for me, I’m just-–I won’t offer any
suggestions. I leave it completely up to you, so--.” On the
little evidence before us, we conclude that one-half of the
taxable income from the roofing business is taxable to
petitioners.
For each year, petitioners’ income that was reported on
their joint Federal income tax returns and business expenses that
were allowed that relate to the roofing business are to be
credited against the above income and expense figures in
computing petitioners’ tax liability. In the related case of
Houser v. Commissioner, T.C. Memo. 2000-111, docket Nos. 13202-97
and 20120-97, also filed this date, we charge Delwin Houser with
the other half of the income relating to deposits into the
checking account.
For each year in issue, our calculations of petitioners’
taxable income are set forth below. The bank deposits that are
identified as gross receipts of the roofing business are
multiplied by the average net profit margin for roofing
contractors, producing a partial taxable income figure for the
roofing business. Added to this partial net income figure are
the unidentified bank deposits to calculate total taxable income
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relating to the deposits to the checking account, one-half of
which is then charged to petitioners.
Bank Deposits Net Income
Identified as of Roofing
Gross Receipts Average Business on Unidentified One-half
of Roofing Net Profit Identified Bank Taxable Charged to
Year Business Margin Bank Deposits Deposits Income* Petitioners
1993 $490,009 20% $ 98,002 $ 17,727 $115,875 $57,938
1994 426,843 25% 106,711 51,061 157,939 78,970
1995 197,965 18% 35,634 133,369 169,032 84,516
* As indicated, also included in the taxable income for each year is interest
income relating to the checking account in the respective amounts of $146,
$167, and $29.
For the years in issue, under section 6663(a), a penalty of 75
percent applies to the portion of an understatement of tax that is
attributable to fraud. To establish fraud, respondent is required
to prove that the understatement is due to fraudulent intent. See
sec. 7454(a); Rule 142(b); DiLeo v. Commissioner, 959 F.2d 16 (2d
Cir. 1992), affg. 96 T.C. 858, 873 (1991). Respondent has the
burden of proving fraud by clear and convincing evidence. See sec.
7454(a); Rule 142(b); Bagby v. Commissioner, 102 T.C. 596, 607
(1994).
Where allegations of fraud are intertwined with unreported and
indirectly reconstructed income, respondent is required to
establish a likely taxable source for alleged unreported income or
to disprove nontaxable sources alleged by the taxpayer. See DiLeo
v. Commissioner, 96 T.C. at 873; Parks v. Commissioner, supra
at 661.
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Indicia of fraud include: (1) Understatements of income;
(2) inadequate books and records; (3) implausible or inconsistent
explanations of behavior; and (4) lack of cooperation with tax
authorities. See Bradford v. Commissioner, 796 F.2d 303, 307-308
(9th Cir. 1986), affg. T.C. Memo. 1984-601; Clayton v.
Commissioner, 102 T.C. 632, 647 (1994); Petzoldt v. Commissioner,
92 T.C. 661, 699-700 (1989); Recklitis v. Commissioner, 91 T.C.
874, 910 (1988).
Petitioners have not alleged any nontaxable sources of income,
and the roofing business constitutes the likely taxable source of
the deposits into the checking account.
With regard to fraudulent intent, the evidence establishes for
each year in issue that petitioners realized significant income
that they failed to report, that petitioners failed to provide to
respondent’s agents books and records relating to the roofing
business, that petitioners failed to pay significant tax
liabilities that they owed, that petitioners did not cooperate with
respondent, and that petitioners made erroneous tax protester
objections to the tax laws. Respondent has proven by clear and
convincing evidence petitioners’ fraud in regard to their Federal
income taxes. We conclude that all of the taxable income charged
to petitioners herein is attributable to fraud.
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To reflect the foregoing,
Decisions will be entered
under Rule 155.