T.C. Memo. 2001-195
UNITED STATES TAX COURT
MARK SUNIK AND TAMARA SUNIK, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9941-99. Filed July 27, 2001.
Jay J. Freireich, Harvey R. Poe, and Michael J. Sullivan,
for petitioners.
Keith V. Doce and Diane R. Mirabito, for respondent.
MEMORANDUM OPINION
WELLS, Chief Judge: Respondent determined a deficiency in
petitioners' 1995 Federal income tax in the amount of $70,783 and
a section 6662 accuracy-related penalty of $14,157. Unless
otherwise indicated, all section references are to the Internal
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Revenue Code in effect for the year in issue, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
The issues we must decide in the instant case are: (1)
Whether the notice of deficiency is invalid on the ground that
respondent failed to make a proper determination of a deficiency;
(2) whether the respondent has the burden of going forward with
the evidence because the notice of deficiency lacks predicate
evidence or is arbitrary; and (3) whether the Court properly
excluded testimony of petitioners' witness.
Background
The parties submitted the instant case fully stipulated
pursuant to Rule 122. The stipulated facts are incorporated
herein by reference and are found as facts in the instant case.
Petitioners resided in Forest Hills Gardens, New York, when they
filed their petition.
On their timely filed Federal income tax return for taxable
year 1995, petitioners reported $13,072 of taxable interest
income, $58,566 of taxable dividend income, and $21,872 of
taxable Schedule C business income. Respondent issued an
examination report proposing an additional Federal income tax
liability of $3,195.70 for petitioners' 1995 taxable year based
upon the disallowances of various deductions that they reported
on Schedules C, Profit or Loss From Business, and E, Supplemental
Income and Loss. Petitioners consented to the
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assessment and collection of the additional tax liability
proposed by the report.
Subsequently, petitioners consented and agreed to the
finding of the State of New York Department of Taxation and
Finance that they owed an additional tax liability for their 1995
taxable year. The consent form prepared by the Department of
Taxation and Finance and signed by petitioners (New York consent
form) stated: "Net Adjustments to N.Y. State Income" of
$178,034. The document stated "Audit Increases to N.Y. State
Income" of $178,034 based on a "Difference in 'T' account". The
document further stated an amount of $0 for "Other Taxes or
Disallowed Credits".
Respondent timely issued a statutory notice of deficiency to
petitioners for their 1995 taxable year. Respondent determined
that petitioners failed to report Schedule C income in the amount
of $178,034. The notice of deficiency stated in pertinent part:
"Information on which we based our adjustment was derived from
your state's taxing agency."
Petitioners filed a timely petition contesting the notice of
deficiency. Subsequently, the Court issued a notice to the
parties setting the instant case for trial, along with a Standing
Pre-Trial Order which required the submission of Trial Memoranda
to the Court and opposing counsel at least 15 days before the
first day of the trial session. The Standing Pre-Trial Order
further required identification of witnesses in the Trial
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Memoranda and specified "that witnesses who are not identified
will not be permitted to testify at the trial without leave of
the Court upon sufficient showing of cause". Petitioners failed
to timely submit a Trial Memorandum to the Court.
When the instant case was called for trial, counsel for
petitioners appeared and requested leave to call as a witness
Harvey R. Poe, co-counsel for petitioners. Counsel for
respondent moved to exclude such testimony based upon
petitioners' failure to comply with the Court's Standing Pre-
Trial Order. The Court granted respondent's motion. Following
granting of the motion, the parties agreed to submit the case
fully stipulated.
Discussion
I. Validity of Notice of Deficiency
Petitioners contend that the notice of deficiency is invalid
on the grounds that respondent failed to make a valid
determination insofar as the notice of deficiency reveals that
the deficiency was based solely upon petitioners' consent to an
increased State income tax liability.
Petitioners' assertion that respondent failed to make a
valid determination within the meaning of section 6212(a)1 is
misplaced. Petitioners, citing Scar v. Commissioner, 814 F.2d
1363 (9th Cir. 1987), revg. 81 T.C. 855 (1983), contend that
1
Sec. 6212(a) provides in pertinent part: "If the
Secretary determines that there is a deficiency in respect of any
tax * * *, he is authorized to send notice of such deficiency to
the taxpayer."
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respondent did not give sufficient thought and consideration to
the notice, rendering it invalid as a "naked assessment".
The Court of Appeals for the Ninth Circuit and this Court
have limited the holding in Scar to the narrow circumstances
where the notice of deficiency reveals on its face that no
determination was made. See Kantor v. Commissioner, 998 F.2d
1514, 1521-1522 (9th Cir. 1993), affg. in part and revg. in part
on another ground T.C. Memo. 1990-380; Clapp v. Commissioner, 875
F.2d 1396, 1402 (9th Cir. 1989), affg. an unreported Order of
this Court; Campbell v. Commissioner, 90 T.C. 110 (1988). The
facts in the instant case are readily distinguishable from those
in Scar. The notice does not reveal on its face that respondent
failed to adequately determine a deficiency. In the instant
case, the notice indicated the information examined by respondent
was taxpayer specific because it stated: "Information on which
we based our adjustment was derived from your state's taxing
agency." Because the face of the notice does not reveal that the
Commissioner failed to make a determination, we hold that the
notice is valid.
II. Presumption of Correctness
Petitioners next contend that respondent should bear the
burden of proof in the instant case because respondent has failed
to produce predicate evidence linking petitioners to the
unreported income determined in the notice of deficiency. It is
well settled that taxpayers generally bear the burden of proving
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that the Commissioner's determination is incorrect.2 Rule
142(a); Welch v. Helvering, 290 U.S. 111 (1933).
Petitioners rely on Portillo v. Commissioner, 932 F.2d 1128
(5th Cir. 1991), affg. in part and revg. in part T.C. Memo. 1990-
68, which held that the Commissioner had a duty to investigate
the "bald assertion" contained in a Form 1099 received from a
third party to confirm whether it was supported by other
financial records, and the Commissioner's failure to do so
rendered the notice of deficiency arbitrary and erroneous. Id.
at 1134. The Court of Appeals for the Fifth Circuit, however,
has narrowed the holding in Portillo by declining to apply it
where the Commissioner does not rely on a statement of a third
party to determine that a deficiency exists. See Woodall v.
Commissioner, 964 F.2d 361, 363 (5th Cir. 1992), affg. T.C. Memo.
1991-15. In the instant case, respondent based the determination
in the notice of deficiency on petitioners' agreement in the New
York consent form to an increase in their New York State income
for 1995. See Sealy Power, Ltd. v. Commissioner, 46 F.3d 382,
386 (5th Cir. 1995), affg. in part, revg. in part on other
grounds, and remanding in part T.C. Memo. 1992-168.
2
Internal Revenue Service Restructuring & Reform Act of
1998 (RRA 1998), Pub. L. 105-206, sec. 3001, 112 Stat. 685, 726-
727, added sec. 7491, which places the burden of proof on the
Commissioner in certain circumstances. Sec. 7491 is applicable
to court proceedings arising in connection with examinations
commencing after July 22, 1998. See RRA 1998 sec. 3001(c), 112
Stat. 727; Higbee v. Commissioner, 116 T.C. 438, 440 (2001). The
examination in the instant case commenced on Nov. 12, 1997.
Accordingly, sec. 7491 is inapplicable.
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The Court of Appeals for the Second Circuit, the circuit to
which venue for appeal of the instant case, if any, would lie,
has recognized an exception to the presumption of correctness by
requiring the Commissioner in unreported income cases to provide
evidence linking the taxpayer with some tax-generating acts. See
Llorente v. Commissioner, 649 F.2d 152, 156 (2d Cir. 1981), affg.
in part, revg. in part and remanding 74 T.C. 260 (1980). The
exception to the presumption of correctness, however, applies
only where the Commissioner has failed to provide any evidentiary
foundation. Hardy v. Commissioner, 181 F.3d 1002, 1005 (9th Cir.
1999), affg. T.C. Memo. 1997-97.
The Commissioner may satisfy the predicate evidence
requirement in unreported income cases by introducing evidence
linking the taxpayer to tax-generating acts. See Llorente v.
Commissioner, supra at 156; Shriver v. Commissioner, 85 T.C. 1, 4
(1985). Courts have allowed the Commissioner to offer a variety
of forms of evidence linking the taxpayer to tax-generating acts.
See Hardy v. Commissioner, supra at 1005 (income statements from
taxpayer's spouse's employer and bank); Delaney v. Commissioner,
743 F.2d 670 (9th Cir. 1984) (taxpayer's admission of ownership
of more than $40,000 of Swiss gold coins), affg. T.C. Memo. 1982-
666; Johnston v. Commissioner, T.C. Memo. 2000-315 (income
received by a trust of which the taxpayer was an original capital
holder for services performed by the taxpayer); Smith v.
Commissioner, T.C. Memo. 2000-43 (taxpayer's employment
questionnaire identifying jobs for which IRS had no record).
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Assuming, as other courts have required,3 that the
Commissioner must provide an evidentiary foundation for the
determination that a taxpayer has received unreported income, we
are satisfied that the New York consent form reflecting an
increase to petitioners' State taxable income for 1995
constitutes predicate evidence in the instant case for
respondent's determination in the notice of deficiency.
Petitioners' admission to an additional State income tax
liability due to unreported income provides a sufficient link to
their income-generating acts. Petitioners argue that the New
York consent form is ambiguous and could stem from disallowed
deductions. To the contrary, we note that the language of the
New York consent form states that the State audit disclosed an
increase in petitioners' income and shows no disallowed
deductions. Such evidence is sufficient to satisfy any predicate
evidence requirement. Accordingly, we hold that the notice of
deficiency in the instant case is presumed correct and the burden
of proof is on petitioners.
III. Exclusion of Testimony of Petitioners' Witness
Before agreeing to submit the case to the Court as fully
stipulated, petitioners argued that they agreed to a settlement
with the State of New York Department of Taxation and Finance to
3
See Portillo v. Commissioner, 932 F.2d 1128, 1134 (5th
Cir. 1991), affg. in part and revg. in part T.C. Memo. 1990-68;
Anastasato v. Commissioner, 794 F.2d 884, 887 (3d Cir. 1986),
vacating and remanding T.C. Memo. 1985-101; Rapp v. Commissioner,
774 F.2d 932, 935 (9th Cir. 1985), affg. an unreported Order of
this Court.
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avoid the nuisance of further litigation. Petitioners proposed
calling their co-counsel, Harvey R. Poe, to testify regarding his
meeting with New York State auditors. Respondent moved to
exclude Mr. Poe's testimony, and the Court granted respondent's
motion.
Rule 131(b) specifies that a party may be subject to
sanctions for unexcused failure to comply with the Standing Pre-
Trial Order. The Court's Standing Pre-Trial Order is intended to
promote the orderly and fair presentation of evidence in Tax
Court trials. See Barkley Co. v. Commissioner, 89 T.C. 66, 70
(1987). The Standing Pre-Trial Order states in pertinent part:
Each party shall prepare a Trial Memorandum * * * and shall
submit it directly to the undersigned and to the opposing
party not less than 15 days before the first day of the
trial session.
* * * Witnesses who are not identified [in the Trial
Memorandum] will not permitted to testify at the trial
without leave of the Court upon sufficient showing of
cause.
Petitioners, after failing to comply with the Standing Pre-Trial
Order by failing to submit a Trial Memorandum to the Court 15
days before the trial session, failed to show cause why Mr. Poe
should be allowed to testify. Accordingly, the Court properly
granted respondent's motion to exclude his testimony, and we see
no need to further revisit the issue.
Conclusion
Petitioners offered no other evidence to rebut respondent's
determinations in the notice of deficiency. Consequently, we
sustain respondent's determinations that petitioners are liable
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for a deficiency in the amount of $70,783 and an accuracy-related
penalty in the amount of $14,157.
We have carefully considered all of the remaining arguments
that have been made by petitioners for a result contrary to that
expressed herein, and, to the extent not discussed above, we find
that such arguments are irrelevant or without merit.
To reflect the foregoing,
Decision will be entered for
respondent.