T.C. Summary Opinion 2004-13
UNITED STATES TAX COURT
JAMES J. McCARRON III AND MICHELLE McCARRON, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8383-00S. Filed February 9, 2004.
James J. McCarron III, pro se.
Richard A. Stone, for respondent.
DEAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect at the time that the petition was filed. Unless otherwise
indicated, subsequent 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 decision to be entered is not reviewable by any other court,
and this opinion should not be cited as authority.
- 2 -
Respondent determined deficiencies in petitioners' Federal
income taxes, additions to tax for failure to file, and accuracy-
related penalties as follows:
Addition to Tax Penalty
Year Deficiency Sec. 6651(a)(1) Sec. 6662(a)
1993 $16,305 $3,668.63 $3,261.00
1994 13,875 3,492.30 2,775.00
1995 11,689 -0- 2,337.80
The issues for decision are:1 (l) Whether petitioners
received unreported income during 1993, 1994, and 1995; (2)
whether petitioners are entitled to deductions on Schedule A,
Itemized Deductions, and deductions on Schedule C, Profit or Loss
From Business, for 1993, 1994, and 1995 in excess of those
allowed by respondent; (3) whether petitioners are entitled to
earned income credits for 1993, 1994, and 1995; (4) whether
petitioners are liable for additions to tax for 1993 and 1994 for
failure to file timely returns; and (5) whether petitioners are
liable for accuracy-related penalties for 1993, 1994, and 1995.
Background
The stipulation of facts and the exhibits received into
evidence are incorporated herein by reference. Petitioners
resided in Silver Spring, Maryland, at the time the petition was
filed.
1
The amounts of any liabilities for and deductions of self-
employment taxes depend on the resolution of the other issues in
this case.
- 3 -
At trial, respondent moved to dismiss the case as to
petitioner Michelle McCarron for failure to prosecute. Mrs.
McCarron did not sign the stipulation of facts or appear at the
trial on her own behalf. The Court will grant respondent's
motion to dismiss Mrs. McCarron for lack of prosecution. The
Court will enter a decision in this case in an amount that will
apply to both Mr. and Mrs. McCarron. See Estate of Mason v.
Commissioner, 64 T.C. 651, 652 (1975), affd. 566 F.2d 2 (6th Cir.
1977).
Mr. McCarron was a tax return preparer and stockbroker
during the years in issue. Mrs. McCarron did temporary work
during 1993 through 1995 and was a horse riding instructor during
1995.
Petitioners failed to file timely their tax returns for
1990, 1991, and 1992. As a result, those tax years were selected
for examination as part of the Nonfiler Initiative pertaining to
tax return preparers.
The examination revealed petitioners had unreported income
of $620 in 1990, $8,124 in 1991, and $10,073 in 1992. In those
years petitioners also had unexplained bank deposits of $14,214,
$7,988, and $9,676, respectively. The examination of the returns
at issue here, for 1993, 1994, and 1995, commenced as a
continuation of the earlier examination.
- 4 -
Petitioners filed delinquent income tax returns for 1993 and
1994. The 1993 return was filed on December 19, 1996, and the
1994 return was filed on June 10, 1996. Petitioners' 1995 return
was timely filed. Attached to each return was a Schedule A and
Schedules C. Petitioners reported adjusted gross income of
$18,731, $16,756, and $17,353 for 1993, 1994, and 1995,
respectively.
A. Examination of Petitioners' Tax Returns
In a letter dated November 1, 1996,2 petitioners were
informed that respondent was proceeding with the examination of
their 1993 tax year, for which a return had not yet been filed.
Additionally, the examination had been expanded to include the
Forms 1040, Individual Income Tax Return, they filed for 1994 and
1995. Forms 4564, Information Document Request (IDRs), were
enclosed with the letter. Because of the audit results of
petitioners' prior years, unreported income and the lack of
substantiation of business deductions were significant areas of
inquiry.
Mr. McCarron (petitioner) met with respondent on December
19, 1996, and presented an original delinquent return for 1993
for filing. Petitioner did not have any documentation used in
2
Sec. 7491, which shifts the burden of proof to the
Secretary in certain circumstances, is inapplicable to this case.
See Warbelow's Air Ventures, Inc. v. Commissioner, 118 T.C. 579,
582 n.8 (2002) (sec. 7491 is effective for court proceedings
arising in connection with examinations commencing after July 22,
1998), affd. 80 Fed. Appx. 16 (9th Cir. 2003).
- 5 -
calculating the income and deductions shown on the return or any
of the information requested in the IDRs. Petitioners also
failed to provide information for their 1994 or 1995 return.
Respondent issued a notice of deficiency for 1993, 1994, and
1995 in which various adjustments were made to petitioners'
income and deductions and additions to tax and penalties were
determined.
B. Petitioners' Income
Petitioners held bank accounts at Sandy Spring National Bank
(Sandy Spring) during 1993 through 1995 and at John Hanson
Savings Bank (John Hanson) during 1993 and 1994. Respondent
conducted a bank deposits analysis to determine: (1) The amount
of fees petitioner received in connection with his Schedule C
business as a tax return preparer; (2) which checks petitioner
received in connection with his Schedule C business activities as
a stockbroker; and (3) the identity of other unexplained
deposits.
Using the Internal Revenue Service's (IRS) Return Preparer
Listing Information Database, respondent compiled a report of the
individual income tax returns bearing petitioner's Social
Security number and identifying him as the paid return preparer
during the years in issue. The database revealed that petitioner
prepared individual returns in each year as follows:
- 6 -
1993 143 returns
1994 139 returns
1995 236 returns
Petitioner gave respondent information indicating that he
had prepared returns as follows:
1993 82 returns
1994 76 returns
1995 66 returns
Respondent compared the IRS database listing to the
corresponding deposits of fees into petitioners' bank accounts
and identified an additional 69 returns prepared by petitioner in
1995 alone. Ten of those returns were business returns which
would not have appeared in the IRS database. For tax year 1995,
at least 111 returns and their related preparation fees were not
identified as having been deposited, in whole or in part.
Respondent determined petitioners had omitted gross receipts
received from petitioner's Schedule C tax return preparation
business of $10,885 for 1993, $12,247 for 1994, and $14,135 for
1995.
After reducing total unexplained bank deposits by unreported
fees identified by respondent as well as income reported on Forms
W-2, Wage and Tax Statement, and Forms 1099-MISC, Miscellaneous
Income, respondent's analysis determined petitioners had
remaining unexplained bank deposits as follows:
1993 $24,508
1994 26,300
1995 12,095
- 7 -
Petitioner failed to provide any documentation proving that these
deposits were from nontaxable sources.
During 1993 and 1994, petitioner also worked for Mr. Ragnar
Sundstrom preparing tax returns. Mr. Sundstrom filed Forms 1099-
MISC for payments he made to petitioner for services rendered.
During 1993, petitioner received two additional checks from
Mr. Sundstrom totaling $7,772.03: Check No. 4307 for $3,000 and
check No. 4315 for $4,772.03 (the Sundstrom payments). The
notation on check No. 4307 states "friendship". The notation on
check No. 4315 states "Bal of friendship payment".
Petitioner contends the Sundstrom payments were loans, but
he never gave respondent any evidence or documentation to support
his claim. Further, petitioner did not take any action to
produce Mr. Sundstrom to testify about the nature of the
payments.
C. Petitioners' Deductions and Credits
Petitioners claimed itemized deductions as follows:
1993 1994 1995
Real estate taxes $1,715 $1,687 $1,734
Home mortgage interest 5,237 4,866 4,337
Cash charitable contributions 190 310 215
Noncash charitable contributions -0- -0- 500
Total 7,142 6,863 6,786
- 8 -
Respondent limited petitioners deductions for cash
charitable contributions to those amounts evidenced by canceled
checks as follows:
1993 $75
1994 10
1995 60
For the $500 noncash charitable contribution claimed on
their 1995 return, petitioners submitted documentation consisting
of a Salvation Army receipt for one refrigerator and four bags of
clothes. Petitioners attributed a value of $500 to the total
contribution. Respondent reduced the value of the contribution
to $350: $150 for the refrigerator and $50 for each bag of
clothes.
The reduction of the charitable contribution deduction for
1995 reduced petitioners' total itemized deductions to $6,481.
The standard deduction for joint filers in 1995 was $6,550.
Respondent applied the higher amount of the standard deduction in
calculating the tax due for 1995.
Additionally, petitioners claimed various deductions on
their 1993, 1994, and 1995 Schedules C for their tax preparation,
stock brokerage, and horse riding instruction activities.
Respondent allowed deductions for the business expenses that were
sufficiently documented by canceled checks. Respondent
disallowed many of the deductions, including a $287 deduction for
self-employment health insurance, because petitioners failed to
- 9 -
substantiate them and failed to establish that the amounts were
expended for a business purpose.
Petitioners knew respondent had questioned their
documentation of expenses in prior years. Here, petitioners
failed to respond to documentation requests via the IDRs and did
not present any evidence at trial to demonstrate their
entitlement to additional deductions on their returns.
For each of the years in issue, petitioners also claimed
earned income credits for their two children of $602 in 1993;
$1,506 in 1994; and $1,860 in 1995. Respondent determined
petitioners were not eligible to claim these credits, and
petitioners knew respondent had denied their claimed earned
income credits in prior years.
D. Additions to Tax and Penalties
Respondent determined that petitioners are liable for
additions to tax under section 6651(a)(1) for failure to file
timely their tax returns for 1993 and 1994. For each of the
years in issue, respondent also determined that petitioners are
liable for an accuracy-related penalty under section 6662(a).
Discussion
Respondent's determinations in the notice of deficiency are
presumed correct, and generally, petitioners bear the burden of
proving that respondent's determination of income tax
- 10 -
deficiencies is incorrect. See Welch v. Helvering, 290 U.S. 111,
115 (1933).
A. Petitioners' Income
It is a taxpayer's responsibility to maintain adequate books
and records sufficient to establish his or her income. See sec.
6001; DiLeo v. Commissioner, 96 T.C. 858, 867 (1991), affd. 959
F.2d 16 (2d Cir. 1992). When a taxpayer fails to maintain
adequate records, the Commissioner may determine income under the
bank deposits method. DiLeo v. Commissioner, supra at 867.
A bank deposit is prima facie evidence of income. Id. at
868; Tokarski v. Commissioner, 87 T.C. 74, 77 (1986); Estate of
Mason v. Commissioner, 64 T.C. at 656; see also Hague Estate v.
Commissioner, 132 F.2d 775, 777-778 (2d Cir. 1943), affg. 45
B.T.A. 104 (1941). The bank deposits method of reconstruction
assumes that all money deposited into a taxpayer's account is
taxable as income unless the taxpayer can show a nontaxable
source for the income. See Price v. United States, 335 F.2d 671,
677 (5th Cir. 1964); DiLeo v. Commissioner, supra at 868. The
use of the bank deposits method for computing income has long
been sanctioned by the courts. DiLeo v. Commissioner, supra at
867; Estate of Mason v. Commissioner, supra at 656.
The fact that the Commissioner was not completely correct
does not invalidate the method employed. Marcello v.
Commissioner, 380 F.2d 494 (5th Cir. 1967), affg. in part and
- 11 -
revg. in part T.C. Memo. 1964-302; Halle v. Commissioner, 175
F.2d 500, 503 (2d Cir. 1949), affg. 7 T.C. 245 (1946). Thus,
petitioners, not respondent, bear the burden of proving that
respondent's determination of underreported income, computed
using the bank deposits method of reconstructing income, is
incorrect. Parks v. Commissioner, 94 T.C. 654, 658 (1990);
Nicholas v. Commissioner, 70 T.C. 1057, 1064 (1978).
Petitioner gave respondent incomplete information regarding
his return preparation income and failed to deposit all the fees
he received. Petitioner also failed to call Mr. Sundstrom, a
witness he claimed could corroborate that certain deposits were
loan proceeds. Given the importance of Mr. Sundstrom in
substantiating this purported loan, the Court assumes from his
absence that his testimony would not have corroborated
petitioner's testimony. Frierdich v. Commissioner, 925 F.2d 180,
185 (7th Cir. 1991), affg. T.C. Memo. 1989-393; see also Wichita
Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946)
(holding that if a party having the burden of proof fails to call
a witness who is available to testify, and that witness could
corroborate the taxpayer's testimony, the taxpayer's failure to
do so creates a presumption that the witness's testimony would
have been unfavorable), affd. 162 F.2d 513 (10th Cir. 1947).
- 12 -
The Court holds that respondent’s determination of
additional income in the amounts set forth in the notice of
deficiency is sustained.
B. Petitioners' Deductions
1. Schedule C and Schedule A Deductions
Section 162(a) allows a taxpayer deductions for ordinary and
necessary business expenses incurred during the taxable year in
carrying on a trade or business. Deductions, however, are a
matter of legislative grace, and the taxpayer bears the burden of
proving the entitlement to any deductions claimed. See INDOPCO,
Inc. v. Commissioner, 503 U.S. 79, 84 (1992); Rockwell v.
Commissioner, 512 F.2d 882 (9th Cir. 1975), affg. T.C. Memo.
1972-133.
Generally, a taxpayer must establish that deductions taken
pursuant to section 162 are ordinary and necessary business
expenses and must maintain records sufficient to substantiate the
amounts of the deductions claimed. Sec. 1.6001-1(a), Income Tax
Regs. Under section 6001, petitioner bears the sole
responsibility for maintaining his business records.
If a claimed business expense is deductible, but the
taxpayer is unable to substantiate it, the Court is permitted to
make as close an approximation as it can, bearing heavily against
the taxpayer whose inexactitude is of his or her own making.
Cohan v. Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930). The
- 13 -
estimate, however, must have a reasonable evidentiary basis.
Vanicek v. Commissioner, 85 T.C. 731, 743 (1985). With respect
to certain business expenses, section 274 supersedes the Cohan
doctrine. See sec. 1.274-5T(a), Temporary Income Tax Regs., 50
Fed. Reg. 46014 (Nov. 6, 1985).
Applying more stringent substantiation requirements, section
274(d) disallows deductions for traveling expenses, gifts, and
meals and entertainment, as well as for "listed property", unless
the taxpayer substantiates by adequate records or by sufficient
evidence corroborating the taxpayer's own statement: (1) The
amount of the expense; (2) the time and place of the expense; (3)
the business purpose of the expense; and (4) the business
relationship to the taxpayer of the persons involved in the
expense.
Petitioners' charitable contribution deductions are governed
by section 170. Section 170(a) allows a deduction for any
charitable contribution to or for the use of an organization
described in section 170(c), payment of which is made during the
taxable year and verified under regulations prescribed by the
Secretary. In general, the amount of a charitable contribution
made in property other than money is the fair market value of the
donated property at the time of the contribution. Hewitt v.
Commissioner, 109 T.C. 258, 261 (1997), affd. without published
- 14 -
opinion 166 F.3d 332 (4th Cir. 1998); sec. 1.170A-1(c)(1), Income
Tax Regs.
To be eligible for a charitable contribution deduction for
property, petitioners must, among other requirements, establish
the fair market value of the property at the time of the
contribution and show the method they used to estimate the value.
See Jennings v. Commissioner, T.C. Memo. 2000-366, affd. 19 Fed.
Appx. 351 (6th Cir. 2001); sec. 1.170A-13(b)(2)(ii), Income Tax
Regs. Petitioners attached a form provided by the Salvation Army
upon which petitioners had written the amount of $500. They
presented no detailed information regarding the property, its
cost, or the manner in which the $500 amount claimed as a
deduction was determined.
Respondent disallowed all or part of petitioners' Schedule C
and Schedule A deductions, as well as their "above-the-line"
deduction for self-employment health insurance, because of lack
of substantiation. Petitioners did not keep books and records
which would support an allowance of deductions in excess of the
amounts respondent has already allowed, and they did not produce
any documentary evidence at trial. The only available evidence
as to any of petitioners' expenses in excess of those documented
by canceled checks is petitioner's own self-serving testimony,
which we are not required to accept, and which we do not, in
- 15 -
fact, find to be credible. See Niedringhaus v. Commissioner, 99
T.C. 202, 219 (1992).
In view of their failure to substantiate, the Court holds
that petitioners are not entitled to deductions in excess of the
amounts allowed by respondent in the notice of deficiency.
Respondent's determinations are sustained.
Since the remaining itemized deductions respondent allowed
for tax year 1995 were less than the standard deduction for that
year, respondent allowed petitioners the higher amount of the
standard deduction. See Wilkinson v. Commissioner, 71 T.C. 633,
635 (1979). Respondent's determination is sustained.
2. Earned Income Credit
Section 32(a)(1) allows an eligible individual an earned
income credit against the individual’s income tax liability.
However, section 32(a)(2) limits the amount of credit allowable.
Section 32(a)(2) specifies the amounts of adjusted gross
income at which the earned income credit is phased out and the
taxpayer is no longer eligible for the credit. In the case of an
eligible individual with two qualifying children, the phaseout
amounts are: $12,200 for 1993, Rev. Proc. 92-102, 1992-2 C.B.
579; $11,000 for 1994, sec. 32(b)(2)(B); and $11,290 for 1995,
Rev. Proc. 94-72, 1994-2 C.B. 811.
The Court has sustained respondent's determinations that
petitioners had additional income in the amounts set forth in the
- 16 -
notice of deficiency. The result is that petitioners' adjusted
gross income for 1993, 1994, and 1995 increased by $43,165,
$38,547, and $26,230, respectively. These adjusted gross income
amounts exceed the earned income credit phaseout amounts. The
Court holds, therefore, that petitioners are not entitled to
earned income credits for 1993, 1994, and 1995.
C. Additions to Tax and Penalties
1. Addition to Tax Under Section 6651(a)(1)
Section 6651(a)(1) imposes an addition to tax for failure to
file a timely tax return. The addition to tax is equal to 5
percent of the amount of the tax required to be shown on the
return if the failure to file is not for more than 1 month. Id.
An additional 5 percent is imposed for each month or fraction
thereof in which the failure to file continues, to a maximum of
25 percent of the tax. Id. The addition to tax is imposed on
the net amount due. Sec. 6651(b).
The addition to tax is applicable unless a taxpayer
establishes that the failure to file was due to reasonable cause
and not willful neglect. Sec. 6651(a). If a taxpayer exercised
ordinary business care and prudence and was nonetheless unable to
file the return by the date prescribed by law, then reasonable
cause exists. Sec. 301.6651-1(c)(1), Proced. & Admin. Regs. To
prove reasonable cause, a taxpayer must show that he exercised
ordinary business care and prudence but nevertheless could not
- 17 -
file the return when it was due. See Crocker v. Commissioner, 92
T.C. 899, 913 (1989); sec. 301.6651-1(c)(1), Proced. & Admin.
Regs. "Willful neglect" means a "conscious, intentional failure
to file or reckless indifference." United States v. Boyle, 469
U.S. 241, 245 (1985).
Petitioners failed to offer any evidence that their failure
to timely file their 1993 and 1994 tax returns was due to
reasonable cause and not willful neglect. In fact, petitioners
offered no explanation at all. This is particularly troubling
given that petitioner is a tax return preparer. The Court
sustains respondent's determination that petitioners are liable
for the additions to tax under section 6651(a)(1).
2. Accuracy-Related Penalty Under Section 6662(a)
Respondent also determined petitioners are liable for an
accuracy-related penalty pursuant to section 6662(a) for each of
the years in issue. Section 6662(a) imposes a penalty of 20
percent of the portion of the underpayment which is attributable
to, inter alia, negligence or disregard of rules or regulations.
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 circumstances.'" Neely v. Commissioner, 85 T.C. 934,
947 (1985) (quoting Marcello v. Commissioner, 380 F.2d at 506).
It includes any failure by the taxpayer to keep adequate books
and records or to substantiate items properly. Sec.
- 18 -
1.6662-3(b)(1), Income Tax Regs. The term "disregard" includes
any careless, reckless, or intentional disregard. Sec. 6662(c).
No penalty shall be imposed if it is shown that there was
reasonable cause for the underpayment and the taxpayer acted in
good faith with respect to the underpayment. Sec. 6664(c). The
determination of whether a taxpayer acted with reasonable cause
and in good faith is made on a case-by-case basis, taking into
account all pertinent facts and circumstances. The most
important factor is the extent of the taxpayer's effort to assess
the taxpayer's proper tax liability. "Circumstances that may
indicate reasonable cause and good faith include an honest
misunderstanding of fact or law that is reasonable in light of
* * * the experience, knowledge and education of the taxpayer."
Sec. 1.6664-4(b)(1), Income Tax Regs. (emphasis added); see
Reynolds v. Commissioner, 618 296 F.3d 607, 618 (7th Cir. 2002),
affg. T.C. Memo. 2000-20. This subjective analysis operates, in
effect, to hold knowledgeable tax professionals to a higher
standard of care than a regular taxpayer. See Reynolds v.
Commissioner, supra at 618 ("experience, knowledge and education"
proviso was fatal to taxpayer who was attorney, C.P.A., and IRS
audit supervisor); Knoll v. Commissioner, T.C. Memo. 2003-277
(lawyer experienced in tax-advantaged financing liable for
accuracy-related penalty for negotiating and structuring
settlement agreement to secure tax advantages valid in form but
- 19 -
lacking substance); Mitchell v. Commissioner, T.C. Memo. 2001-269
(lawyer-accountant held liable for accuracy-related penalty for
deducting farm losses with no credible plan to make profit);
Emerson v. Commissioner, T.C. Memo. 2001-186 (lawyer liable for
accuracy-related penalty for failing to keep adequate records
required by section 6001).
Petitioner has been a tax return preparer since at least
1990. Between 1993 and 1995, he prepared at least 500 tax
returns and was paid for his services. Given petitioner's
experience in preparing tax returns and his knowledge that
petitioners were previously held liable for omitting income and
failing to substantiate expenses, this Court concludes that he
failed to act with reasonable cause and in good faith in
determining his tax liability. See Wilkerson v. Commissioner,
T.C. Memo. 1998-68 (C.P.A. and wife, experienced return preparers
who failed to report fees and other income, were held liable for
negligence penalty). The Court holds that petitioners are liable
for the accuracy-related penalties under section 6662(a).
Reviewed and adopted as the report of the Small Tax Case
Division.
- 20 -
To reflect the foregoing,
An order of dismissal will be
entered as to petitioner Michelle
McCarron, and decision will be
entered under Rule 155.