T.C. Memo. 2000-371
UNITED STATES TAX COURT
SALIH M. ZAMZAM AND MARIAM ZAMZAM, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
SALIH M. ZAMZAM M.D., INC., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 2984-97, 3004-97. Filed December 7, 2000.
Salih M. Zamzam and Mariam Zamzam, pro sese in docket No.
2984-97.
Salih M. Zamzam (an officer), for petitioner in docket No.
3004-97.
Mary Ann Waters and John C. McDougal, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
FOLEY, Judge: By notice dated November 15, 1996, respondent
determined the following deficiencies and penalties relating to
petitioners’ Federal income taxes:
- 2 -
Salih M. Zamzam and Mariam Zamzam, docket No. 2984-97
Penalties
Year Deficiency Sec. 6663 Sec. 6662
1990 $74,453 $36,252 $4,496
1991 $74,390 $44,674 $2,475
1992 $49,635 $37,226 --
1993 $30,703 $23,027 --
1994 $26,707 $16,586 $1,278
Salih M. Zamzam, Inc. (ZMDI), docket No. 3004-97
Penalty
Year Deficiency Sec. 6663
1990 $58,210 $43,657
1991 $72,892 $48,230
1992 $57,117 $38,906
1993 $34,335 $25,379
1994 $24,788 $17,632
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. After concessions,
the issues for decision are whether: (1) Petitioners failed to
report income relating to 1990 through 1994; (2) Salih M. Zamzam
M.D., Inc. (ZMDI) paid constructive dividends to the Zamzams from
1990 through 1994; (3) ZMDI was entitled to certain deductions
relating to 1991 through 1994; and (4) petitioners are liable for
fraud penalties.
FINDINGS OF FACT
When their respective petitions were filed, Salih M. Zamzam
and Mariam Zamzam resided, and ZMDI had its principal place of
business, in Grundy, Virginia.
- 3 -
During 1990 through 1994, the Zamzams maintained personal
accounts, and ZMDI maintained its corporate account, at Grundy
National Bank. The Zamzams also maintained brokerage accounts
with Robert Thomas Securities and J.C. Bradford and Company.
During 1990 and 1991, the Zamzams transferred $1,900,000 from
their personal checking account to foreign banks, and, during
1995, $2,228,968 from their U.S. brokerage accounts to accounts
in Switzerland.
Dr. Zamzam was a licensed physician, and an employee,
president, sole director, and sole shareholder of ZMDI. Mrs.
Zamzam was ZMDI’s office manager. ZMDI paid salaries to Dr. and
Mrs. Zamzam. In 1990 through 1994, ZMDI did not authorize
payments in excess of Dr. Zamzam’s salary, and the Zamzams’ Forms
W-2, personal tax returns, and ZMDI’s corporate tax returns, did
not reflect any payments made by ZMDI in excess of the Zamzams’
salaries.
Mrs. Zamzam was primarily responsible for ZMDI’s daily
receipts journals and bank deposits. The accountant who prepared
ZMDI’s corporate tax returns advised the Zamzams to deposit all
corporate receipts into the corporate account to ensure that all
corporate income was properly reported. The Zamzams diverted to
their personal account, corporate receipts totaling $181,783,
$187,914, $148,260, $90,295, and $60,317 during 1990 through
1994, respectively. ZMDI did not report as income corporate
- 4 -
receipts that were not deposited into the corporate account, nor
did the Zamzams report as income the amounts diverted to their
personal use.
During the years in issue, ZMDI subleased to Tri-City
Opticians (Tri-City) part of the building it occupied for $6,600
per year. Tri-City paid both the rent and its portion of the
utility bill directly to ZMDI. ZMDI deducted all of the lease
and utility payments but did not report Tri-City’s payments as
income. In addition, ZMDI claimed deductions for a variety of
expenses in 1991 through 1994 that exceeded ZMDI’s payments.
In 1992, respondent began an examination of ZMDI’s returns.
In 1993, during an examination of the Zamzams’ personal returns,
respondent discovered the unreported personal income and
corporate receipts. The Zamzams’ failure to explain the deposits
to their personal account led to a criminal investigation.
During the course of respondent’s examinations and the
criminal investigation, the Zamzams made numerous false
statements to respondent’s agents, including statements that all
money in their personal account had been taxed; all corporate
receipts were deposited into the corporate account; and they did
not have foreign investments or bank accounts.
The Zamzams were indicted and convicted, pursuant to section
7201, of tax evasion relating to their 1990 through 1994 personal
returns. In addition, Mrs. Zamzam was indicted and convicted,
- 5 -
pursuant to section 7206(2), of aiding and assisting in the
preparation of false 1990 through 1994 corporate returns, and Dr.
Zamzam was indicted and convicted, pursuant to section 7206(1),
of signing the false 1991, 1992, and 1994 corporate returns.
Petitioners appealed their convictions. Dr. Zamzam’s convictions
were upheld by the Court of Appeals for the Fourth Circuit on
June 4, 1999, and Mrs. Zamzam’s appeal was dismissed by the
Fourth Circuit Court of Appeals on July 29, 1999.
OPINION
I. Unreported Income
Respondent determined that the Zamzams and ZMDI had
unreported income attributable to the Zamzams’ diversion, during
the years in issue, of corporate receipts to their personal use.
Respondent also determined that the Zamzams had not reported all
of their wage income in 1991.
Gross income includes all income from whatever source
derived. See sec. 61(a). Every taxpayer is required to maintain
adequate records of taxable income. See sec. 6001. If a
taxpayer fails to maintain such records, respondent may
reconstruct income in accordance with a method that clearly
reflects the full amount of income received. See sec. 446(b);
Meneguzzo v. Commissioner, 43 T.C. 824, 831 (1965). Respondent
used the bank deposits method to reconstruct petitioners’ income
for the years in issue. Petitioners have the burden of proving
- 6 -
that respondent’s bank deposits analysis is erroneous. See Parks
v. Commissioner, 94 T.C. 654, 658 (1990). Petitioners, however,
failed to present any credible evidence establishing that
respondent’s computation of unreported income is incorrect. See
Welch v. Helvering, 290 U.S. 111, 115 (1933). Therefore, we
sustain respondent’s determination of the amount of unreported
income for both the Zamzams and ZMDI.
II. Constructive Dividends
Respondent determined that the corporate receipts diverted
to the Zamzams’ personal use were constructive dividends from
ZMDI. A shareholder receives a constructive dividend when
payment from a corporation to or for the benefit of such
shareholder confers an economic benefit on the shareholder. See
Nobel v. Commissioner, 368 F.2d 439, 442-443 (9th Cir. 1966);
Truesdell v. Commissioner, 89 T.C. 1280, 1292 (1987).
Petitioners contend that the diverted funds were
compensation to Dr. Zamzam and deductible by ZMDI pursuant to
section 162(a)(1). Payments are deductible, however, only when
they are intended as compensation. See King’s Court Mobile Home
Park, Inc. v. Commissioner, 98 T.C. 511, 514 (1992). The
testimony and documentary evidence establish that ZMDI did not
intend that these payments be compensation and that the Zamzams
received an economic benefit from the funds they diverted from
- 7 -
ZMDI. Thus, we conclude the Zamzams received constructive
dividends, not compensation.
Petitioners further contend that respondent is collaterally
estopped from contending that the payments to the Zamzams were
not compensation. We disagree. On February 28, 1997, the U.S.
District Court for the Western District of Virginia at Abingdon,
Virginia, held, pursuant to section 7429 (i.e., relating to a
jeopardy assessment), that these payments could have been
deducted by the corporation as compensation. Collateral estoppel
precludes the relitigation of any issue of fact or law that is
actually litigated and necessarily determined by a valid and
final judgment. See Montana v. United States, 440 U.S. 147, 153
(1979); Wright v. Commissioner, 84 T.C. 636, 639 (1985). The
issue before us, however, is the ultimate tax liability, whereas
in the section 7429 jeopardy proceeding the issue was the
reasonableness of the provisional jeopardy assessment. Because
the issues in the deficiency case are not identical to those
litigated in the section 7429 proceeding, collateral estoppel is
not applicable. See Peck v. Commissioner, 90 T.C. 162, 166-167
(1988), affd. 904 F.2d 525 (9th Cir. 1990). Further, the
legislative history of section 7429 states that a trial court’s
decision in a section 7429 proceeding “will have no effect upon
the determination of the correct tax liability in a subsequent
- 8 -
proceeding.” S. Rept. 94-938, at 365 (1976), 1976-3 C.B. (Vol.
3) 57, 403.
III. Deductions
Respondent determined that ZMDI claimed deductions for
expenses in 1991 through 1994 that exceeded its payments.
Petitioners failed to present evidence establishing its
entitlement to these deductions. See Welch v. Helvering, supra
at 115. Accordingly, respondent’s determination is sustained.
IV. Fraud Penalty
Respondent determined that petitioners were liable, pursuant
to section 6663(a), for fraud penalties. Respondent must
establish by clear and convincing evidence that for each year in
issue an underpayment of tax exists and some portion of the
underpayment is due to fraud. See Petzoldt v. Commissioner, 92
T.C. 661, 699 (1989). After respondent has established that any
portion of the underpayment is due to fraud, the entire
underpayment is treated as attributable to fraud, unless
petitioner establishes that any portion is not attributable to
fraud. See sec. 6663(b).
Fraud is established by proof of intent to evade tax
believed to be owing. See Clayton v. Commissioner, 102 T.C. 632
(1994). Respondent may prove intent to evade tax by
circumstantial evidence, see Davis v. Commissioner, T.C. Memo.
1991-603, which may include substantial understatement of income,
- 9 -
inadequate books and records, failure to file returns,
concealment of assets, failure to cooperate with tax authorities,
and participation in or concealment of illegal activities. See
Niedringhaus v. Commissioner, 99 T.C. 202, 211 (1992).
A. Fraud Penalty Relating to the Zamzams
A taxpayer convicted under section 7201 is collaterally
estopped from denying liability for the civil fraud penalty
because the elements of criminal tax evasion and civil fraud are
identical. See Moore v. United States, 360 F.2d 353, 356 (4th
Cir. 1965). Thus, having been convicted of criminal tax evasion
pursuant to section 7201, the Zamzams are liable for the section
6663(a) fraud penalty. In addition, the Zamzams failed to
establish, pursuant to section 6663(b), that any portion of their
underpayment was not attributable to fraud. Accordingly, the
penalty applies to the entire underpayment of tax for 1990
through 1994.
B. Fraud Penalty Relating to ZMDI
Dr. Zamzam was the president and sole shareholder of ZMDI,
and the Zamzams fraudulently diverted corporate receipts into
personal accounts. As a result, his actions are imputed to ZMDI.
See Loftin & Woodward, Inc. v. United States, 577 F.2d 1206, 1244
(5th Cir. 1978)(holding that the court may impute the fraud of a
controlling shareholder or officer to the corporation). The
failure to report significant corporate income, false statements
- 10 -
to revenue agents, and transfer of funds to undisclosed foreign
accounts establish the corporation’s fraudulent intent.
Petitioners failed to establish, pursuant to section 6663(b),
that any portion of the underpayment was not due to fraud.
Accordingly, ZMDI is liable for the section 6663(a) fraud penalty
relating to the entire underpayment of tax in 1990 through 1994.
Contentions we have not addressed are moot, irrelevant, or
meritless.
To reflect the foregoing,
Decisions will be entered
under Rule 155.