T.C. Summary Opinion 2004-19
UNITED STATES TAX COURT
RENE D. AND ROSEMARY S. VALDES, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2357-00S. Filed February 25, 2004.
Rene D. Valdes, pro se.
Lorianne D. Masano, for respondent.
POWELL, Special Trial Judge: This case was heard pursuant
to the provisions of section 74631 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.
1
Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code in effect for the years in
issue, and Rule references are to the Tax Court Rules of Practice
and Procedure.
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Respondent determined deficiencies in petitioners’ Federal
income taxes and accuracy-related penalties as follows:
Penalty
Year Deficiency Sec. 6662(a)
1996 $10,950 $2,190.00
1997 10,007 2,001.40
1998 11,643 2,328.60
After a concession by respondent,2 the issues are (1)
whether petitioners3 are liable for taxes on unreported income in
the amounts of $32,810, $33,071, and $36,392 for the taxable
years 1996, 1997, and 1998, respectively, and (2) whether
petitioners are liable for accuracy-related penalties under
section 6662(a) for the years in issue. Petitioners resided in
Tampa, Florida, at the time the petition was filed.
Background
During the examination of petitioners’ 1996, 1997, and 1998
Federal income tax returns, petitioner provided to respondent
unorganized boxes of receipts for his business and personal
expenses. Respondent calculated petitioner’s business expenses
using petitioners’ 1996, 1997, and 1998 returns. Respondent
2
Respondent conceded that petitioners are entitled to a
dependency exemption for their daughter, Robyn M. Valdes, in the
1997 taxable year.
3
Petitioner Rosemary S. Valdes did not appear at the
trial and did not sign the stipulation of facts. With respect to
her, we dismiss this case for failure to prosecute. Rule 123(b).
The decision, when entered, will be in the same amount as
ultimately determined against petitioner Rene D. Valdes. In the
opinion, references to petitioner are to Rene D. Valdes.
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calculated petitioner’s personal expenses for his 1996 and 1997
expenditures using petitioner’s receipts. Petitioner did not
provide receipts for his 1998 personal expenses, and respondent
calculated the 1998 expenditures by averaging the 1996 and 1997
expenditures. Using the cash expenditures method, respondent
reconstructed petitioner’s business income as follows:
Year Reported Income Reported Expenses Unreported Income
1996 $83,353 $116,163 $32,810
1997 37,804 70,875 33,071
1998 39,064 75,456 36,392
Petitioner contends that the unreported income represents
nontaxable loans or gifts he received from his mother and his
aunt.
This case, upon petitioner’s requests, was continued twice.
The second continuance was granted on petitioner’s
representations that he could obtain from Merrill Lynch and Dean
Witter “cashier’s checks that were handed to me from my mother to
pay * * * [my] bills.” He alleged that he had the account
numbers of his mother’s accounts at both firms, and that he could
track the funds from those accounts into his hands. According to
petitioner, the withdrawals were “in cashier’s checks at the time
of withdrawal made out to * * * [petitioner’s mortgage company]”.
At trial 16 months later, petitioner testified that he
“didn’t have her [his mother’s] account numbers * * * until after
she’s [sic] passed away”. His mother died approximately 5 months
prior to the trial, and well after his earlier representations
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that he had her account numbers. He further testified that his
mother would sell her stocks and bonds and that “she would always
go to the bank and draw it out in cash.” There was no mention of
the alleged amounts paid to petitioner’s mortgage company by
cashier’s checks drawn on his mother’s accounts.
Discussion
Unreported Income
A taxpayer is required to maintain records sufficient to
establish the amount of his or her income and deductions. Sec.
6001; sec. 1.6001-1(a), (e), Income Tax Regs. If the taxpayer
does not, the Commissioner is authorized by section 446 to
reconstruct the taxpayer’s income. Petzoldt v. Commissioner, 92
T.C. 661, 693 (1989). The source and application of funds method
(also referred to as the cash expenditures method) is an accepted
method to reconstruct income. United States v. Johnson, 319 U.S.
503, 517-518 (1943).
The cash expenditures method is based on the assumption that
the amount by which a taxpayer’s expenditures during a taxable
period exceed his reported income has taxable origins, absent
some explanation by the taxpayer. Burgo v. Commissioner, 69 T.C.
729, 742 (1978). To prevail, petitioner must establish that
either someone else made the expenditures or that the funds used
for the expenditures were obtained from nontaxable sources, such
as loans, gifts, inheritances, or assets available at the
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beginning of the tax year. Petzoldt v. Commissioner, supra at
695; Burgo v. Commissioner, supra at 743.
At one time, petitioner asserted that the unreported income
represents nontaxable loans or gifts from his mother in the
approximate amounts of $7,000 and $49,000 for the 1996 and 1997
taxable years, respectively, and $4,000 from his aunt.4 At
trial, however, he did not testify as to any specific amounts
that he received. As discussed, according to petitioner, his
mother and aunt sold capital assets and gave the proceeds to him
in the form of either cash or cashier’s checks, and he used these
funds to pay his personal expenses. Petitioner, however, did not
provide any documentation to substantiate these purported loans
or gifts. The record is devoid of any loan agreements; Form
1099-B, Proceeds from Broker and Barter Exchange Transactions,
relating to his mother’s or aunt’s sale of capital assets; or the
alleged cashier’s checks. See Wynn v. Commissioner, T.C. Memo.
1996-415. Additionally, upon examination of respondent’s
financial information concerning petitioner’s mother and aunt for
1995, 1996, and 1997, it does not appear that either had the
financial capability to make such large loans or gifts to
petitioner.5 See Holland v. United States, 348 U.S. 121, 135-137
4
We note that except for 1997, even if these amounts are
correct, there still are substantial understatements of income.
5
From respondent’s summary of records, it appears that
(continued...)
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(1954). Finally, we are struck by petitioner’s inability to tell
the same story twice. All of these considerations lead us to
conclude that petitioner’s allegations have more mendacity than
truthfulness.6 We sustain respondent’s determinations as to the
unreported income.
Accuracy-Related Penalties
Section 6662 imposes an accuracy-related penalty “equal to
20 percent of the portion of the underpayment” of tax
attributable to “Any substantial understatement of income tax”.
Sec. 6662(a) and (b)(2). A substantial understatement of income
tax exists if the amount of the understatement for the taxable
year exceeds the greater of 10 percent of the tax required to be
shown on the return for the taxable year or $5,000. Sec.
6662(d)(1)(A).
However, “No penalty shall be imposed * * * if it is shown
that there was a reasonable cause * * * and that the taxpayer
acted in good faith”. Sec. 6664(c). Petitioner failed to
address the accuracy-related penalties at trial and offered no
5
(...continued)
petitioner’s mother received $4,881 from two sales of stock in
1997. There is no evidence to indicate that petitioner received
these proceeds. His aunt did not file tax returns for 1995 and
1996, and respondent’s summary of records indicates that she
received total income of $13,075 in 1995 and $10,635 for 1996.
6
Given the lack of records and the lack of credibility in
petitioner’s testimony, sec. 7491(a), pertaining to shifting the
burden of proof, has no application here.
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evidence that he had reasonable cause for the understatements or
that he acted in good faith. Accordingly, we sustain
respondent’s determinations.7
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect respondent’s concession,
Decision will be entered
under Rule 155.
7
Considering the amount of unreported income, respondent
has satisfied the burden of production with regard to the
penalties. See sec. 7491(c).