T.C. Summary Opinion 2001-9
UNITED STATES TAX COURT
JOHN R. HERNANDEZ, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 18151-98S. Filed February 6, 2001.
John R. Hernandez, pro se.
Ross Greenberg, for respondent.
WOLFE, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect at the time the petition was filed. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority. Unless otherwise indicated,
subsequent section references are to the Internal Revenue Code in
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effect for the year in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
Respondent determined a deficiency in petitioner’s 1994
Federal income tax of $4,706 and an accuracy-related penalty
under section 6662(a) of $941. The issues for decision are:
(1) Whether interest income realized upon the redemption of tax
certificates is attributable to petitioner, and (2) whether
petitioner is liable for an accuracy-related penalty under
section 6662(a).1
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. Petitioner resided in
Saint Leo, Florida, when the petition in this case was filed.
Petitioner has been in this Court before in a case involving
substantially the same facts as those presented here, Hernandez
v. Commissioner, T.C. Memo. 1998-46 (Hernandez I). In Hernandez
I, we held that interest paid on the redemption of tax
certificates sold by Pasco County, Florida, for delinquent taxes
owed on real property is not excluded from gross income under
section 103 because the tax certificates are not obligations of a
1
In the notice of deficiency, respondent determined that
petitioner was not entitled to the itemized deductions he claimed
on his 1994 Federal income tax return. In lieu of the itemized
deductions, respondent allowed petitioner a standard deduction.
This adjustment is a computational adjustment that is dependent
upon our determination whether petitioner failed to report
taxable interest income.
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State or political subdivision. See id. In Hernandez I, because
of petitioner’s failure to present evidence in support of his
claims, we also rejected his argument that amounts there in issue
were income to his grandson or his brother Vincent, or his
brother’s wife Mildred, among others, rather than to him.
Subsequently, petitioner made a motion requesting that we
reconsider our holding in Hernandez I with respect to that
portion of interest paid on redemption of tax certificates that
was attributable to special assessments. In Hernandez v.
Commissioner, T.C. Memo. 1998-329 (Hernandez II), we declined to
alter the result we reached in Hernandez I.
Petitioner is a certified public accountant. For several
years, petitioner purchased at public auctions tax certificates
sold by Pasco County, Florida, pursuant to Fla. Stat. Ann. sec.
197.432 (West 1989 & Supp. 1997). Pasco County and other
counties in Florida sell the certificates for amounts equal to
delinquent property taxes, interest accrued thereon, and other
costs and charges owed by property owners to the county. See
Hernandez I. The certificates provide a means for Florida
counties to fund current government expenditures by transferring
the indebtedness incurred by property owners for their property
tax delinquencies to the purchasers of the tax certificates. See
id. The certificates also provide a mechanism for eventual
collection of the delinquent taxes out of the property against
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which the assessment is made, either through redemption of the
certificates or eventual sale of the property. See id.
At the public auctions, potential purchasers bid to purchase
tax certificates in terms of the rate of interest payable on the
face amount up to a statutory maximum of 18 percent. The tax
certificates were sold to the party bidding the lowest rate. The
tax certificates have a term of 7 years and cannot be collected
after the expiration of that term.
When a tax certificate was redeemed, the Pasco County tax
collector (tax collector) paid an amount that included both the
principal and interest accrued at the rate bid for the purchase
of the certificate. For the years in issue, the tax collector
issued Forms 1099 showing the amount of interest paid on the
redeemed certificates and the names of the payees.
Petitioner and Oneta Hernandez (Mrs. Hernandez) filed a
joint Federal income tax return for 1994. Mrs. Hernandez died
prior to respondent’s issuance of the statutory notice of
deficiency. For 1994, the tax collector issued Forms 1099
listing either petitioner or Mrs. Hernandez as a payee. Many of
the Forms 1099 also listed a copayee. In many of these
instances, the Forms 1099 listed the copayee’s Social Security
number rather than petitioner’s or Mrs. Hernandez’s Social
Security numbers.
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On the 1994 joint Federal income tax return that he and his
late wife filed, petitioner reported taxable interest income of
$6,085 and tax-exempt interest income of $28,635.2 Respondent
determined that the interest income petitioner received from the
redemption of tax certificates was not tax exempt. Respondent
further determined that petitioner failed to report interest
income of $7,482. This amount represents interest reported on
Forms 1099, which listed copayees’ Social Security numbers.
Respondent also determined that petitioner failed to report
interest income from First Union National Bank of $99 and
interest income from Bankers Trust of $6. Accordingly,
respondent determined that petitioner failed to report taxable
interest income of $36,221.
In the present case, petitioner concedes $28,739 of the
$36,221 interest income adjustment contained in the notice of
deficiency. The interest income from First Union National Bank
and Bankers Trust is not disputed by petitioner. Petitioner also
does not argue that the interest income reported on the Forms
1099 issued by the tax collector is tax exempt. Instead,
petitioner contends that the interest income represented by Forms
1099 listing copayees’ Social Security numbers should not be
2
In the deficiency notice respondent determined that the
amount should have been $28,634, apparently because of an
arithmetic error.
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attributed to him because he received the interest income as a
nominee. To prevail, petitioner must carry the burden of proving
that such income is not attributable to him or to Mrs. Hernandez.
See Rule 142(a). As in Hernandez I, petitioner has failed to
present such proof.
There is no nominee agreement or other written documentation
that petitioner held the income in question as nominee or agent
for others. The money that petitioner received from the
redemption of tax certificates was deposited in petitioner’s bank
accounts.3 Petitioner has failed to provide any credible
evidence that demonstrates that such money was transferred to any
of the copayees. Petitioner has also failed to provide any
evidence that the copayees reported such interest income on their
Federal income tax returns. None of the copayees testified at
trial. Moreover, petitioner conceded that the interest income
reported on at least one Form 1099, which stated a copayee’s
Social Security number, belonged to him. Petitioner also
testified that he purchased tax certificates intending to give
the interest income to his grandchildren.
3
Since petitioner mentioned at trial that he had books and
records that he had failed to bring with him or to show
respondent previously, we held the record open and permitted the
parties to stipulate the contents of those records. The
stipulation shows that petitioner probably intended to transfer
sums to various relatives. But those persons did not testify in
this case, and we do not have proof that they supplied any of the
funds that petitioner invested, that they actually received
interest income from these investments, or that they reported on
their tax returns any income from petitioner’s investments.
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In Hernandez I, this Court’s comments about similar
circumstances were as follows:
With respect to amounts of interest received from
the redemption of certificates held in his or Mrs.
Hernandez’ name and those of Vincent or Mildred
Hernandez, respectively, petitioner produced no
evidence that such amounts were not his income other
than a document signed in 1984 by Vincent and Mildred
Hernandez purporting to give petitioner a power of
attorney. Neither Vincent nor Mildred Hernandez
testified at trial. With respect to the remaining
persons whose names appeared on the tax certificates as
alternate payees, petitioner produced no evidence at
all.
Unlike the taxpayer in the “Mexican Lottery Case”,
Diaz v. Commissioner, 58 T.C. 560, 565 (1972), whose
grandmother, “face-to-face with her priest in the
courtroom”, corroborated every word of his testimony
that the lottery tickets in question belonged to his
uncle, petitioner failed to bring a single witness,
neither brother, daughter, nor friend, to the courtroom
to corroborate his story that he was holding these
funds for them. In failing to do so, petitioner did
not carry his burden of proving that these funds
belonged to other taxpayers. * * *
Here the record does not include any purported power of attorney.
Instead, petitioner presented a letter from Vincent Hernandez,
his brother, claiming that the certificates purchased in
Vincent’s name after 1985 were purchased for him. As in
Hernandez I, Vincent Hernandez did not appear to testify about
the letter, and there is no evidence that any of the income in
issue was reported on a tax return by Vincent Hernandez or any of
the other copayees.
There is no question that the income here in issue is
interest income and therefore is includable in gross income under
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section 61(a)(4). Also, it has long been established that income
includes “undeniable accessions to wealth, clearly realized, and
over which the taxpayers have complete dominion.” Commissioner
v. Glenshaw Glass Co., 348 U.S. 426, 431 (1955).
As in Hernandez I, petitioner has failed to bring a single
witness to the courtroom to corroborate his story. Moreover,
petitioner has failed to demonstrate that the amounts received
from the redemption of the tax certificates were paid to the
copayees. Petitioner has also failed to introduce any evidence
that shows that the copayees included any of these amounts on
their Federal income tax returns. Furthermore, petitioner
deposited these amounts in his own bank account. Based upon
these facts, we conclude that petitioner exercised dominion and
control over the interest income he received from the redemption
of the tax certificates.
For the foregoing reasons, and following our recent opinion
in Hernandez I involving the same taxpayer and closely similar
circumstances, we sustain in its entirety respondent’s adjustment
to petitioner’s income for 1994.
Section 6662(a) imposes a penalty of 20 percent of the
portion of the underpayment that is attributable to negligence or
disregard of rules or regulations. See sec. 6662(b)(1).
Negligence is the lack of due care or failure to do what a
reasonable and ordinarily prudent person would do under the
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circumstances. See Neely v. Commissioner, 85 T.C. 934, 947
(1985). The term “disregard” includes any careless, reckless, or
intentional disregard. Sec. 6662(c). A disregard of rules or
regulations is “careless” if the taxpayer does not exercise
reasonable diligence to determine the correctness of a return
position that is contrary to the rule or regulation. Sec.
1.6662-3(b)(2), Income Tax Regs. A taxpayer is not liable for
the penalty if he shows that there was reasonable cause for the
underpayment and that he acted in good faith. See sec. 6664(c).
From the record before us here, we find that petitioner was
negligent with respect to whether petitioner was entitled to
exclude tax certificate interest under section 103. Petitioner
is a certified public accountant. In spite of his experience and
knowledge, petitioner took a position on his 1994 Federal income
tax return that was contrary to case law. Long before petitioner
filed his Federal income tax return for 1994, this Court had
issued an opinion directly on point, Barrow v. Commissioner, T.C.
Memo. 1983-123. In Barrow v. Commissioner, supra, we decided
that interest income from tax certificates identical to the tax
certificates purchased by petitioner was not tax exempt.
With regard to petitioner’s failure to report tax
certificate interest income, which he contends is allocable to
other individuals, we find that petitioner did not produce
credible evidence that such interest income was attributable to
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other taxpayers. Instead, petitioner completely failed to
demonstrate that the copayees reported the interest income on
their Federal income tax returns. Furthermore, the evidence in
the record leaves no doubt that petitioner exercised dominion and
control over such interest income when he deposited the amounts
received from the redemption of the tax certificates into his own
bank account. Items over which a taxpayer has dominion and
control are attributable to him and must therefore be included in
income. See Hernandez I. The petition in this case was filed on
November 16, 1998, after the opinions in Hernandez I and
Hernandez II had been issued. Because of his professional
training and business experience, petitioner either knew or
should have known that the income in dispute was includable in
gross income and plainly should not simply have been omitted from
petitioner’s tax return.
Accordingly, we hold that petitioner is liable for an
accuracy-related penalty pursuant to section 6662(a) as
determined by respondent.
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent.