T.C. Memo. 2002-22
UNITED STATES TAX COURT
MONTY BISCEGLIA AND PATRICIA BISCEGLIA, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11328-99. Filed January 22, 2002.
Charles M. Torres, for petitioners.
Rebecca Dance Harris, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
THORNTON, Judge: Respondent determined the following
deficiencies and penalties with respect to petitioners’ Federal
income taxes:1
1
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.
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Penalties1
Year Deficiency sec. 6663(a)
1993 $40,980 $29,677
1994 452 –-
1995 46,543 34,824
1
The notice of deficiency states that in the
event it is held that all or part of the underpayment
in tax required to be shown on the 1993 and 1995
returns is not due to fraud, the sec. 6662(a) accuracy-
related penalty applies.
In his Answer to Amended Petition, respondent asserts that,
pursuant to section 6214(a), the proposed deficiency for 1993
should be increased to $42,836 and the penalty for that year
should be increased to $32,127. Respondent also concedes that
the deficiencies for 1995 should be reduced to $45,784 and that
the penalties for that year should be reduced to $34,338. On
brief, respondent concedes that petitioner Patricia Bisceglia
(Patricia), who filed joint Federal income tax returns with her
husband for the years in issue, is not liable for the section
6663(a) fraud penalty for taxable years 1993 and 1995 but
contends that she is liable for section 6662(a) accuracy-related
penalties for those years.
After concessions, the issues for decision are: (1) Whether
petitioners realized net income for taxable years 1993 and 1995
in excess of amounts reported on their returns; (2) whether
petitioner Monty Bisceglia (petitioner) is liable for the fraud
penalty under section 6663 for taxable years 1993 and 1995; and
(3) whether (in the alternative to the fraud penalty for
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petitioner) petitioners are liable for section 6662(a) accuracy-
related penalties for taxable years 1993 and 1995.2
FINDINGS OF FACT
The parties have stipulated some of the facts, which we
incorporate in our findings by this reference. When petitioners
filed their petition, they resided in Kingsport, Tennessee.
During 1992 and 1993, petitioner was a deputy sheriff in the
Sullivan County, Tennessee Sheriff’s Department. Petitioner was
also in business with his father, James E. Bisceglia (Jack), who
controlled the finances of their business activities. Petitioner
had no role in maintaining the business records. Petitioner did
not finish high school, although he subsequently acquired a
graduate equivalent diploma. Jack completed high school and
attended college for 3 weeks. Patricia did not work outside the
home.
2
The 1994 deficiency results from respondent’s
determination that petitioners’ taxable income for 1994 should be
increased by $3,000, owing to an improper carryover from 1993 of
long-term capital losses previously deducted. Petitioners
presented no evidence with regard to this issue and have not
addressed the issue on brief. We treat petitioners’ failure to
argue as, in effect, a concession of this issue. See Rule
151(e)(4) and (5); Sundstrand Corp. & Subs., Inc. v.
Commissioner, 96 T.C. 226, 344 (1991). As discussed below,
however, respondent’s net worth analysis also indicates that
petitioners had a 1994 net loss (without considering the $3,000
adjustment), which would appear to be available to offset the
$3,000 increase in taxable income. The parties have not
addressed this computational matter, which we expect to be taken
into consideration in the Rule 155 computations.
- 4 -
In June 1992, petitioner and Patricia obtained a $135,000
mortgage loan from the Home Federal Bank (Home Federal), in
Kingsport, Tennessee. The mortgage was secured by their
residence at 1037 Parham Place, Kingsport, Tennessee. Late in
1992 or early in 1993, petitioner and Patricia borrowed
approximately $55,000 from NationsBank.
In December 1992, petitioner purchased the sole ownership
interest in Murphy’s Auto Sales (Murphy’s) for $10,000.
Petitioner and Jack operated Murphy’s throughout 1993, 1994, and
1995 at its location on 330 Lynn Garden, in Kingsport. Murphy’s
was a "buy here, pay here" operation. Its clientele consisted
principally of customers who could not obtain financing for their
automobile purchases elsewhere. Typically, a Murphy’s customer
would sign a sales agreement which indicated the sales price and
any unpaid balance, net of any trade-in and cash deposit. The
sales agreement also indicated an amount which exceeded the
unpaid balance, identified as a "time differential amount which
is amount owing if not paid by cash." This "time differential
amount" represented the total of the unpaid purchase price
balance and the finance charges that would be paid over the
scheduled term of the payments. Each month, Jack recorded the
car sales on manila envelopes. The sales income recorded
included the time differential amount. Once a customer paid off
his account, the records of that account were destroyed.
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During 1992 and 1993, petitioner and Jack operated a body
shop on property located at Netherland Inn Road in Kingsport,
Tennessee. The body shop purchased wrecked autos which it would
repair and resell through Murphy’s.
During the years in issue, petitioner and Jack also built
and sold condominiums.
On May 3, 1995, petitioner signed and gave a "Personal
Financial Statement" to NationsBank representing as "true and
complete" that he had a salary of $144,000 and a net worth of
$1,321,650.
Petitioners’ returns were prepared by an old school friend
of Jack’s who was an accountant in Florida. To prepare the tax
returns, the accountant used information from a one-page summary
that Jack supplied.
On their 1993, 1994, and 1995 returns, petitioners reported
adjusted gross income (loss) of ($11,652), $16,270, and $18,635,
respectively. Petitioners’ returns indicate that Murphy’s was on
a cash basis for 1993 and 1994 but on an accrual basis for 1995.
Respondent’s examination of petitioners’ 1993, 1994, and
1995 returns began in May 1996. Following an initial examination
of petitioners’ books, respondent’s agent reconstructed
petitioners’ income using the net worth method. To that end,
respondent’s agent identified petitioners’ assets, liabilities,
and expenses. Respondent’s agent then reconstructed petitioners’
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income by comparing changes in their net worth from 1 year to the
next for the 3 years in issue. Respondent’s net worth analysis
is as follows:3
Net Worth Expenditures Computation
Assets 12/31/92 12/31/93 12/31/94 12/31/95
Cash on hand $2,500 $2,500 $2,500 $2,500
Cash in banks 220 2,639 7,277 21,877
Notes receivable – 115,000 111,359 107,357
Inventory 20,477 18,514 12,000 18,221
Investments 821,000 654,000 889,621 762,000
Net accounts receivable 9,000 171,000 105,200 99,000
Total assets 853,197 963,653 1,127,957 1,010,955
Liabilities & Accum Depr
Notes & loans payable $409,938 $406,899 $653,369 $402,947
Accumulated depreciation –- – 1,873 3,746
Total liabilities & 409,938 406,899 655,242 406,693
Accum depr
Net worth 443,259 556,754 472,715 604,262
Less beginning net worth 443,259 556,754 472,715
Increase in net worth 113,495 (84,039) 131,547
Add: Personal expenses 29,148 58,972 26,628
Adjustments (capital loss (1,800) –- –
not deducted)
Corrected adjusted gross
income 140,843 (25,067) 158,175
Adjusted gross income (11,652) 16,270 18,635
reported
1
Unreported income 152,495 41,337 139,540
1
It appears that $41,337 should be a negative figure, rather than
positive unreported income as indicated on respondent’s net worth analysis.
Consistent with this conclusion, respondent has determined no 1994 deficiency
arising from any unreported income indicated by the net worth analysis.
Petitioners have not raised, and we do not reach, any issue as to whether any
part of any 1994 net loss should be deductible in 1993 or 1995 as a net
operating loss carryback or carryover. See sec. 172.
The following table, as set forth in respondent’s Answer to
Amended Petition, shows the particular assets and
3
This table, as set forth in respondent’s Answer to Amended
Petition, reflects certain adjustments to the net worth analysis
upon which the notice of deficiency was predicated, as discussed
in more detail, infra.
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liabilities that were used in computing petitioners’ asserted
unreported income.
Cash in Bank
Institution 12/31/92 12/31/93 12/31/94 12/31/95
Nations Bank 5140020-576-9 $220 $2,639 $7,277 $21,877
Total 220 2,639 7,277 21,877
Notes Receivable
Description 12/31/92 12/31/93 12/31/94 12/31/95
Blake Carter – $115,000 $111,359 $107,357
Total –- 115,000 111,359 107,357
Investments
Property 12/31/92 12/31/93 12/31/94 12/31/95
1008 Page Place $140,000 $140,000 – --
1148 Independence 58,000 –- –- --
2002 Netherland Inn Road 109,000 –- –- --
Porsche – –- $4,954 --
330 Lynn Garden 59,000 59,000 59,000 59,000
1011 Parham Place 265,000 265,000 265,000 265,000
1037 Parham Place 160,000 160,000 160,000 160,000
1
Lot 29 Rotherwood 20,000 20,000 20,000 410,000
2 Acres Rotherwood 10,000 10,000 10,000 10,000
Condo’s –- –- 310,667 248,000
2
Total 821,000 654,000 889,621 762,000
1
On the basis of the parties’ stipulations, it appears that this figure
should be $20,000, which is consistent with the $762,000 total indicated for
Dec. 31, 1995.
2
The sum should be $829,621. The discrepancy is not explained in the
record. Because respondent determined a decrease in petitioners’ net worth
for 1994, the apparent error does not operate to petitioners’ detriment.
OPINION
I. Unreported Income
A. The Net Worth Method
Respondent determined deficiencies in petitioners’ 1993 and
1995 income taxes by using the net worth method to reconstruct
their income. Petitioners bear the burden of overcoming the
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presumptive correctness of respondent’s determination. Rule
142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933); Conti v.
Commissioner, 39 F.3d 658, 663 (6th Cir. 1994), affg. and
remanding T.C. Memo. 1992-616; United States v. Walton, 909 F.2d
915, 918 (6th Cir. 1990).4 On the other hand, respondent has the
burden with respect to the $1,856 increase in the 1993 deficiency
as sought in his Answer to Amended Petition. Rule 142(a).
Because petitioners have not contested the items giving rise to
the asserted increase in deficiency, we conclude and hold that
respondent has met his burden of proof as to those items.5
4
In certain circumstances, if a taxpayer introduces
credible evidence with respect to any factual issue relevant to
ascertaining the taxpayer's liability for tax, sec. 7491 places
the burden of proof on the Commissioner. See sec. 7491(a)(1);
Rule 142(a)(2). Sec. 7491 is effective with respect to court
proceedings arising from examinations commenced after July 22,
1998. See Internal Revenue Service Restructuring and Reform Act
of 1998, Pub. L. 105-206, sec. 3001(c)(2), 112 Stat. 685, 726.
The parties have stipulated that respondent’s examination began
in May 1996. Accordingly, sec. 7491 is inapplicable.
5
The asserted increase in the 1993 deficiency arises from
two adjustments respondent made after issuing the notice of
deficiency. The first adjustment corrects the amount of cash in
banks utilized in petitioners’ 1993 opening net worth. The other
adjustment corrects the amount of the adjustment for capital
losses not deducted in that year (with correlative adjustments
being made for 1994 and 1995). Petitioners have stipulated the
corrected figures for cash in banks, and petitioners’ tax
returns, admitted as exhibits herein, show that the correction to
the capital loss amount is appropriate. Petitioners do not
contest these corrections.
Respondent’s Answer to Amended Petition also identifies two
other adjustments to the net worth computation that were made
(continued...)
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It is well settled that the Commissioner may use the net
worth method to reconstruct income, if only as a means of testing
the accuracy and trustworthiness of the taxpayer’s books and
records. See Holland v. United States, 348 U.S. 121, 131 (1954);
Conti v. Commissioner, supra; Foster v. Commissioner, 487 F.2d
902, 903 (6th Cir. 1973), affg. T.C. Memo. 1972-188; Gleis v.
Commissioner, 24 T.C. 941, 949 (1955), affd. 245 F.2d 237 (6th
Cir. 1957); Hurley v. Commissioner, 22 T.C. 1256, 1261 (1954),
affd. 233 F.2d 177 (6th Cir. 1956).
Petitioners contend that respondent was not entitled to use
the net worth method to reconstruct their income, because
respondent’s examining agent failed to review their business
records for 1994 and 1995. Citing Holland v. United States,
supra at 132, petitioners argue that the failure of respondent’s
agent to review and examine these records makes the net worth
analysis “arbitrary and without merit.” We disagree.
Respondent’s examining agent testified that she initially
reviewed petitioners’ 1993 records and found that the information
therein was fairly consistent with net income reported on
5
(...continued)
after the issuance of the notice of deficiency: (1) A reduction
of notes receivable for the period ending Dec. 31, 1995; and (2)
a reduction of petitioners’ personal living expenses for each
year in issue. The effect of these two adjustments is to
decrease petitioners’ indicated taxable incomes and thus the
deficiencies determined by respondent.
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petitioners’ tax returns. Respondent’s agent determined,
however, based on a review that ultimately entailed use of a net
worth analysis, that petitioners had understated their 1993 net
income by overstating cost of goods sold. Having determined that
the 1993 records were untrustworthy, respondent’s agent concluded
that there was no point in going through petitioners’ 1994 and
1995 records, because they were the same as the 1993 records.
Rather, the examining agent reconstructed petitioners’ 1994 and
1995 income using the net worth analysis.
Petitioners placed their financial records into evidence in
an incomprehensible state. The records consist, in the main, of
some 28 manila envelopes bearing handwritten notations on the
outside and stuffed with invoices, computer printouts, and such.
The records include a large and unsorted wad of receipts
(introduced as a single exhibit) and an undifferentiated stack of
more than 80 file folders (also introduced as a single exhibit)
putatively documenting bad debts and repossessions of used cars.
There appears to be no general ledger. After attempting,
unsuccessfully, to relate petitioners’ exhibits to the amounts
shown on their tax returns for the years in issue, we appreciate
the task faced by respondent’s agent in examining these records.
Even if we were to assume–-consistent with the conclusion of
respondent’s agent with respect to the 1993 taxable year--that
petitioners’ books and records are more or less consistent with
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the figures reported on their tax returns (a matter that we have
been unable independently to verify), such a circumstance would
not establish the accuracy of the business records or foreclose
respondent from using the net worth method to test their
trustworthiness. See Holland v. United States, supra at 132
(even if no false entries are detected, the taxpayer’s books may
be “more consistent than truthful”); Foster v. Commissioner,
supra at 903.
Petitioners rely on Talley v. Commissioner, 20 T.C. 715
(1953), for the proposition that, before utilizing the net worth
method, respondent must demonstrate that a taxpayer’s books and
records do not accurately reflect the taxpayer’s income.
Petitioners’ reliance on Talley is misplaced. Talley predates
Holland v. United States, supra, which rejected such a rule. See
Shelhorse v. Commissioner, T.C. Memo. 1980-98.
B. Petitioners’ Alleged “Leads” as to Nontaxable Sources
Petitioners contend that under Holland and its progeny,
respondent was required, in using the net worth method, to
exhaust all leads negating possible sources of nontaxable income.
Petitioners contend that they furnished respondent certain leads
that respondent failed to pursue, thus rendering his
determinations arbitrary.
In some cases, such as fraud and criminal cases, the
Commissioner may be expected to investigate leads of nontaxable
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sources of income that are reasonably susceptible of being
checked. We have held, however, that the Commissioner is not
required to investigate leads where the taxpayer bears the burden
of proof. See Tunnell v. Commissioner, 74 T.C. 44, 57-58 (1980),
affd. 663 F.2d 527 (5th Cir. 1981). As previously discussed,
petitioners bear the burden of proving that the amounts of
deficiencies determined by respondent were incorrect.
Even if we were to assume that the lead-check rule were
applicable here in determining the validity of respondent’s use
of the net worth method for purposes of determining petitioners’
deficiencies, the existence of likely sources of taxable income--
namely, petitioners’ automotive and construction-related
businesses–-would temper the need for respondent to pursue leads
as to other potential nontaxable sources of income. See King v.
Commissioner, T.C. Memo. 1978-351. In any event, as described
below, the quality of the “leads” that petitioners allegedly
offered respondent is insufficient to convince us that
respondent’s use of the net worth method was arbitrary or
invalid, or that respondent erroneously determined that
petitioners’ unreported income was from taxable sources.
1. The 1994 and 1995 Records “Lead”
On brief, petitioners contend that respondent improperly
failed to investigate the “lead” represented by their 1994 and
1995 business records. This contention is in essence a
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restatement of petitioners’ argument, previously considered and
rejected, that respondent was required to examine their 1994 and
1995 records before using the net worth method to reconstruct
their income. Petitioners do not identify exactly what items in
their 1994 and 1995 books and records might constitute a lead as
to potential nontaxable sources of income, and we have discovered
none.
2. The Private Expenditures “Lead”
On brief, petitioners contend that “the Government also
failed to make any investigation as to whether Petitioners 1994
and 1995 private expenditures exceeded available declared
resources.” It is not apparent how this contention is relevant
to establishing any potential nontaxable sources of income or
otherwise refuting the results of respondent’s net worth
analysis. Petitioners do not argue, for instance, that the
amounts of personal living expenses reflected in the net worth
analysis are incorrect. Rather, petitioners’ contention seems
directed more toward questioning respondent’s reasons for
undertaking a net worth analysis. Even if we were to assume, for
sake of argument, that petitioners’ “private expenditures” (by
which we understand petitioners to mean personal living expenses)
did not exceed their “available declared resources” (by which we
understand petitioners to mean the amounts of income they
reported on their tax returns), this circumstance would not tend
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to show error in respondent’s determination that unexplained
increases in petitioners’ net worth are attributable to
unreported taxable income. That is to say, respondent’s net
worth analysis is wholly compatible with (and partly predicated
on) an assumption that petitioners might have realized more
income than they consumed through “private expenditures.”
3. The Cash Hoard “Lead”
Finally, petitioners contend that respondent failed to make
a reasonable investigation of the “lead” that their 1993
beginning net worth, as reflected in respondent’s net worth
analysis, incorrectly omitted $125,000 in cash, which petitioners
allege they had in Jack’s safe as of January 1, 1993. There is
no evidence as to when petitioners may have provided respondent
this “lead”, which is predicated almost entirely on petitioner’s
and Jack’s testimony at trial. Hence, there is no basis to
conclude that respondent would have had reason to investigate
such a “lead” in the course of his examination.
In any event, petitioners have failed to show that the cash
hoard existed after 1992, or that, if it did exist, it was a
source of nontaxable income during the years in issue. On direct
examination, Jack testified that after petitioners obtained the
$135,000 Home Federal mortgage loan in June 1992, Monty signed
the check over to him, and that he (Jack) then cashed the check,
although he could not recall where he cashed it. Inconsistently,
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Jack testified on cross-examination that petitioner “cashed the
check and gave it to me.” Jack testified that he could not
recall what type of bills he received, although he “usually” got
$100 bills. He testified that he put the $135,000 cash in a safe
in his house and that to the best of his knowledge, $10,000 of
this cash was “used up” when petitioner purchased Murphy’s at the
end of 1992. Jack testified that he had been keeping cash in his
safe for 40 years and that he always paid cash for everything.
Petitioner’s testimony about these events was vague and
inconsistent. He initially testified that he did not recall the
amount of the check but in response to leading questions
testified that it was in the “range” of $130,000 to $135,000. He
initially testified that he was uncertain whether he had cashed
the check or not, but then testified that he knew that he had
signed the check and given it to Jack. On cross-examination, he
testified that “I suppose” that Jack cashed the check.
Petitioner testified that he did not remember whether he was
present when Jack cashed the check or whether he went with Jack
to put the money in Jack’s safe. He testified that as far as he
knew, the money was still in Jack’s safe as of the time of the
trial.6
6
On cross-examination, petitioner testified as follows:
Q. * * * you’re testifying that in December of ‘93-–
(continued...)
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Consistent with this testimony, petitioners’ arguments on
brief seem premised on an assumption that a $125,000 cash hoard
remained in Jack’s safe throughout the years in issue. If the
premise is valid, then the existence of a cash hoard is
immaterial: Respondent’s omission of such a cash hoard from
petitioners’ opening and closing net worth for each year in issue
would have no effect on the amount of unreported income
determined for each year and hence would not disturb the
presumption of the validity of respondent’s determination. See
Harp v. Commissioner, 263 F.2d 139, 142 (6th Cir. 1959), revg. on
other grounds T.C. Memo. 1957-105.
Petitioners have stipulated, however, that as of the end of
6
(...continued)
or December of ‘92-–excuse me-–he [Jack] had
$125,000 in cash that belonged to you in his safe.
A. Correct.
Q. Would he have had $125,000 in December of ‘94
-–or, excuse me-–December of ‘93?
A. I don’t know.
Q. Could he have?
A. Probably.
Q. What about December of ‘94?
A. Probably he could have.
Q. December of ‘95?
A. He still could up to today. I don’t know.
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each year in issue, they had cash on hand of $2,500. Assuming
that the stipulation is correct, any cash hoard in excess of this
amount obviously must have been depleted before December 31,
1993, in which case the omission of a cash hoard from the 1993
opening net worth could affect the results of the net worth
analysis, as 1993 expenditures from such a cash hoard would
represent a nontaxable source. Petitioners do not contend,
however, and the evidence does not show, that they expended the
$125,000 (or any specific amount thereof) during 1993.
Petitioners argue that since respondent’s analysis reflects
petitioners’ liability on the Home Federal mortgage loan (as a
liability owed to Home Federal’s successor in interest, First
Tennessee Bank), the net worth analysis must be adjusted to also
include the $125,000 cash proceeds. The fallacy of this argument
is that there is no proof that petitioners retained any cash
proceeds from the mortgage loan after 1992. Even if we were to
assume, for sake of argument, that petitioners at some point in
1992 had $125,000 cash on hand from the mortgage loan, the
evidence does not foreclose the possibility, among others, that
petitioners spent the $125,000 in 1992 on their residential
property at 1037 Parham Place, which was collateral for the
mortgage loan, or on one of their other properties which are
included in the net worth analysis.7
7
The 1037 Parham Place property is included in respondent’s
net worth analysis with a $160,000 value in the opening and
(continued...)
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Petitioners increased their borrowings by $55,000 in late
1992 or early 1993, when they claim to have had a cash hoard in
Jack’s safe. We believe that this circumstance also undermines
their contention of a cash hoard; absent any explanation to the
contrary, we find it unlikely that petitioners would incur an
additional $55,000 in debt if they had $125,000 cash in Jack’s
safe. Furthermore, we doubt that petitioner, being liable for a
$135,000 mortgage note, would have turned the proceeds over to
his father and yet have so little recollection of the
circumstances and so little regard for the ultimate disposition
of the funds. We also find it unlikely that Jack would be unable
to remember where he found a bank willing to accommodate his
desire to be paid $135,000 in $100 bills on a third-party check.
C. Other Attacks on Respondent’s Net Worth Analysis
1. Accounts Receivable
Petitioners argue alternatively that even if (as we have
held) respondent permissibly used the net worth method, its
component parts are, in a number of respects, incorrect. On
reply brief, petitioners argue that “Respondent’s net worth
[analysis] should not have included accounts receivables for
Petitioner’s car business since Petitioners are on a cash basis
accounting method as shown on all three tax returns in question.”
7
(...continued)
closing net worth balances for each year in issue. Thus, even if
the value of the 1037 Parham Place property were understated in
the net worth analysis, there would be no effect on the amount of
unreported income determined for each year.
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Contrary to this assertion, however, the Schedule C, Profit or
Loss From Business, attached to petitioners’ 1995 income tax
return indicates that their used car business was on an accrual
basis of accounting. Moreover, petitioners’ accountant explained
that petitioners’ accounting method was not, in fact, a cash
method but rather “a kind of a hybrid”. From the accountant’s
testimony, it appears that for all years in issue, petitioners
effectively reported income on an accrual basis, maintaining
accounts receivable. Such receivables properly represent assets
in a net worth analysis of a taxpayer who uses an accrual method
of accounting. Cf. United States v. Vardine, 305 F.2d 60, 64 (2d
Cir. 1962).
Petitioners contend that the accounts receivable figures
used in respondent’s net worth analysis are incorrect.
Petitioners have failed, however, to offer credible evidence as
to what the correct amount of their accounts receivable should
be. In light of Jack’s testimony that he discarded any documents
regarding accounts receivable once they were paid off, the dearth
of evidence is unsurprising. Jack testified in conclusory
fashion that petitioners’ net accounts receivable for 1993, 1994,
and 1995 were $100,578, $77,999, and $47,880, respectively. Jack
testified, without further explication, that these most recent
figures “were taken directly from the sales contracts.”
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Jack’s conclusory testimony does not credibly establish the
amount of petitioners’ accounts receivables. His credibility in
this regard is undermined by petitioners’ admission that Jack
gave respondent’s agent different accounts receivable figures
during the examination and only came up with the new figures
shortly before trial. Petitioners seem to invite us to rummage
through their boxes of records, calculator in hand, and replicate
Jack’s calculations. This we decline to attempt.
Even if we were to assume, for sake of argument, that Jack
has correctly tallied gross accounts receivable figures reflected
in petitioners’ records, we still would be unconvinced that his
figures accurately reflect petitioners’ net accounts receivable.
Petitioners contend, based solely on Jack’s testimony, that the
receivables should have been discounted by 60 percent to reflect
bad debts and repossessions. Apparently, Jack’s figures reflect
such a 60-percent discount. Petitioners have not substantiated
the reasonableness or appropriateness of such a discount.8
Although the record is unclear on this point, it appears
that the net accounts receivable figures used in respondent’s net
worth analysis were derived from information that Jack conveyed
8
We do not quite comprehend petitioners’ argument that
these accounts receivable should be reduced both for bad debts
and for repossessions. We understand the theoretical reduction
of those accounts to represent bad debts, and as petitioners
acknowledge, respondent has in fact made a minor reduction in the
figures used to reflect some uncollectibility. We do not
understand, however, why accounts receivable should be reduced
for repossessions without making a corresponding increase to
inventory.
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to the examining agent. Although their clouded paternity does
not inspire confidence that they are correct to the penny, the
figures do not seem unreasonable. Petitioners propose as a
finding of fact that respondent gave them a 10-percent discount
on accounts receivable for 1993, 1994, and 1995. If we accept
petitioners’ proposed finding, and if (as it appears) Jack’s
figures reflect a 60-percent discount, then for each year in
issue respondent’s implied gross receivables figures were less
than Jack’s implied gross receivables figures.9 Moreover, our
examination of Murphy’s records indicates that many, if not most,
of its autos were sold for a modest downpayment (and often a
trade-in), with most of the sales price being financed over a
period of several months. It follows that, at the end of any
given year, accounts receivable should represent a substantial
part of petitioners’ gross sales. On the Schedules C attached to
their tax returns for the years in issue, petitioners reported
that Murphy’s had gross receipts of $448,870 for 1993, $371,278
for 1994, and $286,532 for 1995. The yearend accounts receivable
figures used by respondent were $171,000, $105,200, and $99,000
9
Specifically, if respondent’s net accounts receivable
figures reflect a 10-percent discount, the implied gross
receivables figures for yearend 1993, 1994, and 1995 are $190,000
($171,000/.9), $116,889 ($105,200/.9), and $110,000 ($99,000/.9),
respectively. Similarly, if Jack’s net receivables figures
reflect a 60-percent discount, the implied gross receivables
figures for these same periods are $251,445 ($100,578/.4),
$194,998 ($77,999/.4), and $119,700 ($47,880/.4), respectively.
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for the corresponding years. These numbers indicate that
accounts receivable were 38 percent of gross sales at the end of
1993, 28 percent of gross sales at the end of 1994, and 35
percent of gross sales at the end of 1995. In the absence of
more convincing evidence, we believe that respondent’s accounts
receivable figures are reasonable.
Petitioners contend that respondent never asked Jack about
1992 accounts receivable and that respondent’s inclusion of
$9,000 accounts receivable in their 1993 opening net worth is
therefore arbitrary and without basis, thereby rendering the net
worth analysis invalid. Respondent’s inclusion of accounts
receivable in petitioners’ 1993 opening net worth operates to
their detriment only insofar as respondent has understated the
amount. Petitioners do not argue, and the evidence does not
indicate, that petitioners had any amount of accounts receivable
at the end of 1992. Hence, petitioners have not established that
the $9,000 accounts receivable that respondent has included in
their 1993 opening net worth is understated. Indeed, given that
petitioner acquired Murphy’s in December 1992, it seems likely
that accounts receivable as of December 31, 1992, would be small
in amount.
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2. Accounts Payable
Petitioners contend that if their net worth is increased by
accounts receivable, it should also be reduced by accounts
payable. Petitioners contend that total liabilities as of year-
end 1995 should be increased by a number of accounts payable that
were outstanding on December 31, 1995. Petitioners offered
documentary evidence of construction costs incurred in 1995 but
not paid until 1996. On brief, respondent does not dispute that
his net worth analysis omits these amounts from accounts payable
but attacks the probative value of petitioners’ evidence. On the
basis of our detailed review of the evidence, we conclude and
hold that $30,786.54 of such accounts payable should be included
in petitioners’ net liabilities as of year-end 1995 for purposes
of the net worth analysis.
3. Value of Netherland Inn Road Property
In his net worth analysis, respondent included in
petitioners’ 1993 opening net worth $109,000 as the value of
petitioners’ property on Netherland Inn Road. Petitioners
contend that the value should be increased to $127,000, based on
Jack’s testimony that petitioner added an improvement to the
property “at a cost of approximately $18,000.” The only other
evidence on this point consists of the hearsay testimony of
petitioner’s out-of-State accountant. On the Schedule D, Capital
Gains and Losses, attached to their 1993 return, petitioners
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reported that they had acquired the Netherland Inn Road property
in March 1991, that they had a “Cost or other basis” in the
property of $109,000, and that they sold it in December 1993 for
$115,000. From the evidence in the record, it is unclear that
the $109,000 does not include the cost of the alleged improvement
on the property. Petitioners have not explained why, if the
property were worth $127,000 on January 1, 1993, as they allege,
it would have been sold in December 1993 for $115,000, as they
have reported. In sum, petitioners have failed to show that the
$109,000 value used by respondent should be increased.
4. Alleged Undeposited Check
Petitioners also argue that a check to petitioner for
$5,800, which was received in 1992 but not deposited until
January 1993, should have been included in petitioners’ 1993
opening net worth. In support of this contention, petitioners
rely upon an exhibit incorporating the uncashed check.
Petitioners failed, however, to offer this exhibit into evidence,
and we lack an evidentiary basis for making the finding
petitioners seek.
II. Fraud
Section 6663(a) imposes a 75-percent penalty on any part of
a tax underpayment due to fraud. The two elements of civil fraud
under section 6663 are the existence of an underpayment and
fraudulent intent. Conti v. Commissioner, 39 F.3d 658, 664-665
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(6th Cir. 1994), affg. T.C. Memo. 1992-616. Section 7454(a)
provides that, in any case involving the issue of fraud with
intent to evade tax, the burden of proof in respect of that issue
is on respondent. Respondent’s burden of proof with respect to
the issue of fraud is to be carried by clear and convincing
evidence. Rule 142(b). Fraud is not to be presumed or based
upon circumstantial evidence which creates merely a suspicion of
fraud. Wainwright v. Commissioner, T.C. Memo. 1993-302 (citing
Carter v. Campbell, 264 F.2d 930, 935 (5th Cir. 1959)).
To support a finding of tax fraud, respondent must show that
the taxpayer engaged in conduct with the intent to evade taxes
that he knew or believed to be owing. United States v. Walton,
909 F.2d 915, 926 (6th Cir. 1990). Direct evidence of intent is
often unavailable and unnecessary; the courts may infer
fraudulent intent from strong circumstantial evidence. Id.
In fraud cases, it may happen that, although the taxpayer
fails to overcome the presumption of correctness as to the
asserted deficiencies in tax, the Commissioner will also fail to
establish that the same deficiencies were the result of fraud.
"Both parties to a proceeding may fail through inadequate proof
on the several issues." Kashat v. Commissioner, 229 F.2d 282,
285 (6th Cir. 1956), affg. in part and revg. in part a Memorandum
Opinion of this Court dated March 29, 1954. "That this differing
burden of proof in the Tax Court can have an important
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dispositive effect has been pointed out by this court * * *. As
was made clear * * *, the taxpayer’s failure to overcome the
presumptive correctness of deficiencies in reported income even
over a period of consecutive years does not of itself create a
presumption of fraud." Hawkins v. Commissioner, 234 F.2d 359,
360 (6th Cir. 1956), affg. in part, revg. in part, and remanding
T.C. Memo. 1955-110.
Respondent asserts that the fraud penalty is properly
imposed on petitioner based upon circumstantial evidence in the
form of several generally accepted indices, or "badges", of
fraud. Respondent first urges that the asserted understatements
of income of $152,495 in 1993 and $139,540 in 1995 justify an
inference of fraud.10 Although systematic understatements of
income over an extended time can be persuasive evidence of fraud,
see, e.g., Solomon v. Commissioner, 732 F.2d 1459, 1461 (6th Cir.
1984), affg. T.C. Memo. 1982-603, such understatements may also
be consistent with negligence or a even a mistaken view of the
law. See Carr v. Commissioner, T.C. Memo. 1978-408.
Respondent urges that petitioner’s bookkeeping practices are
evidence of fraudulent intent. We strongly suspect that
petitioner’s hybrid-pooling method of tracking income falls short
of generally accepted accounting principles. Petitioner,
10
According to respondent’s analysis, petitioners actually
overstated their 1994 income-–a circumstance inconsistent with
fraud.
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however, did not finish high school, and Jack attended only 3
weeks of college. Neither has any training in business record
keeping. Respondent has failed to show clearly that petitioners’
unsatisfactory bookkeeping practices were the result of
fraudulent intent.
Respondent also criticizes petitioner’s practice of
submitting a one-page summary of receipts and expenditures to
Jack’s accountant, an old friend from Florida, as a basis for
preparing petitioners’ tax returns. The accountant testified
credibly, however, that after respondent’s examination commenced,
he reviewed certain of petitioners’ records and was able to tie
business expenses reported on petitioners’ returns to invoices
contained in the records. We also have taken into account
testimony of respondent’s agent that the 1993 used-car dealership
records she examined closely substantiated the income reported on
petitioners’ 1993 return and that the construction business
yielded little income. We further note that respondent’s agent
did not examine the records for 1994 and 1995.
Respondent contends that petitioner’s records do not
necessarily reflect off-the-books income that is reflected in the
net worth analysis. Respondent, however, has not demonstrated
any specific instances wherein any such income was omitted or
wherein the records were otherwise falsified. Respondent’s
examining agent testified that she believed the unreported income
indicated by the net worth analysis was attributable to
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petitioners’ overstatement of cost of goods sold. Respondent has
not demonstrated that any such overstatements were fraudulent,
rather than the result of negligence or a misunderstanding of the
law.
Respondent also accuses petitioner of concealing one of his
bank accounts from respondent’s agent, thus indicating a
fraudulent intent to conceal income. This bank account,
NationsBank Account No. 5500026-201-8, was excluded from the net
worth analysis attached to respondent’s Answer to Amended
Petition but was included on the net worth analysis attached to
respondent’s brief. There is no direct evidence that petitioner
attempted to conceal this account. Respondent’s agent conceded
at trial that petitioner signed a release permitting her to
examine his records at NationsBank. The agent also testified
that she did not review petitioner’s records for 1994 and 1995.
The evidence shows that Account No. 55000026-201-8 was not opened
until 1994. We conclude that the evidence does not support a
finding that petitioner deliberately failed to disclose this
account.
Nor has respondent convinced us that petitioner’s extensive
use of cash is evidence of fraud. We believe it likely that the
clientele of Murphy’s, most of whom were expected to make
payments on their own paydays, themselves dealt extensively in
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cash. We also find credible Jack’s explanation that many of his
contractors, who worked until after the banks had closed,
preferred that he pay them in cash.
Accordingly, while we have suspicions that petitioner’s
activities may have been fraudulent, we conclude that respondent
has failed to adduce evidence to prove fraud clearly and
convincingly. Because respondent has not proved fraud, we turn
to his alternative argument as to imposing accuracy-related
penalties.
III. Accuracy-Related Penalties
Respondent has proposed the section 6662(a) accuracy-related
penalty against petitioners for each of the years in issue.
Section 6662(a) authorizes respondent to impose a penalty in an
amount equal to 20 percent of the portion of the underpayments
that is attributable to the items set forth in section 6662(b).
Section 6662(b)(1) includes any underpayment attributable to
negligence or disregard of rules or regulations. Negligence is
defined as "any failure to make a reasonable attempt to comply
with the provisions of * * * [the Internal Revenue Code]". Sec.
6662(c); see also Neely v. Commissioner, 85 T.C. 934, 947 (1985)
(negligence is lack of due care or failure to do what a
reasonable and prudent person would do under the circumstances).
Negligence also includes any failure by the taxpayer to keep
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adequate books and records or to substantiate items properly.
See sec. 1.6662-3(b)(1), Income Tax Regs.
Petitioners bear the burden of proving that respondent's
determinations of these accuracy-related penalties are erroneous.
See Rule 142(a); ASAT, Inc. v. Commissioner, 108 T.C. 147, 175
(1997).11 Taxpayers are not liable for accuracy-related
penalties if they show that they had reasonable cause for the
underpayment and that they acted in good faith. See sec.
6664(c).
Petitioners failed to maintain adequate records to
substantiate the deductions claimed on their tax returns for the
years in issue. See sec. 6001; sec. 1.6001-1(a), Income Tax
Regs. Petitioners’ records were substandard and, when presented
to the Court, chaotic. Petitioners’ claims that they accurately
reported their income for the years in issue are not aided by
their submitting obviously indecipherable records into evidence.
Petitioners blame respondent’s agents for the jumbled nature of
the records, but they must also concede that they, or Jack, or
their representatives, had some hand in presenting the records as
they now exist. Having examined the records closely, we believe
11
Sec. 7491(c) places the burden of production on the
Commissioner with respect to the liability of any individual for
any penalty, addition to tax, or additional amount, in court
proceedings arising in connection with examinations commencing
after July 22, 1998. The petition in the instant case was filed
in 1996. Accordingly, sec. 7491(c) is inapplicable.
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that, with some assiduous efforts, petitioners could have re-
sorted the records at least into their original state.
We are unmoved by petitioner’s explanation that he trusted
his father and signed anything that Jack put in front of him.
Although petitioner lacks higher education, we believe that he
was aware of his responsibility to report his income accurately.
He did not do so.
Accordingly, we conclude that petitioners’ underpayments are
attributable to negligence or disregard of rules or regulations.
Thus, we hold that petitioners are liable for accuracy-related
penalties under section 6662(a) for 1993 and 1995, based on the
amount of their underpayments for those years, to be determined
in the Rule 155 computations.
To reflect the foregoing and the parties’ concessions,
Decision will be entered
under Rule 155.