T.C. Memo. 2008-223
UNITED STATES TAX COURT
BHARAT I. PATEL AND VIBHA B. PATEL, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15491-06. Filed October 1, 2008.
Jon J. Jensen, for petitioners.
Melissa J. Hedtke, Trent Usitalo, and Blaine Holiday, for
respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
HAINES, Judge: Bharat I. Patel (Mr. Patel) and Vibha B.
Patel (Mrs. Patel) petitioned the Court for redetermination of
the following deficiencies in Federal income tax and penalties:
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Penalties
Year Deficiency Sec. 6663 Sec. 6662(a)
1995 $51,575 $26,149 $3,342
1996 106,621 66,389 3,620
1997 161,204 104,574 4,354
The issues for decision after concessions are: (1) Whether
the statute of limitations under section 6501(a) bars the
issuance of the notice of deficiency; (2) whether petitioners
failed to report gross receipts of $71,414 in 1995 and $173,292
in 1996; (3) whether petitioners failed to report on their 1997
Schedule E, Supplemental Income and Loss, income of $55,408; (4)
whether petitioners overstated their expenses in 1995, 1996, and
1997; (5) whether petitioners are entitled to deductions for
self-employed health insurance greater than $343, $543, and $743
for 1995, 1996, and 1997, respectively; (6) whether petitioners
are liable for fraud penalties under section 6663; and (7)
whether petitioners are liable for accuracy-related penalties
under section 6662(a).1 For all purposes hereafter, the years at
issue shall refer to 1995, 1996, and 1997.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulation of facts and the supplemental stipulation of
facts, together with the attached exhibits, are incorporated
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure. Amounts
are rounded to the nearest dollar.
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herein by this reference. At the time petitioners filed their
petition, they resided in North Dakota.
Petitioners are husband and wife. Mr. Patel moved to the
United States from India in 1980 at the age of 20. Mrs. Patel
moved from India to join him in 1985. Petitioners have owned and
managed hotels or motels in the United States since 1985.
Petitioners filed joint Federal income tax returns for the years
at issue.
In 1998 a civil audit of petitioners’ 1996 return was
initiated and later expanded to include their 1995 and 1997
returns. In 1999 petitioners’ returns for the years at issue
were referred for criminal investigation. On July 6, 2004, Mr.
Patel was convicted of income tax fraud under section 7206(1) for
1997.
On May 26, 2006, respondent sent petitioners a notice of
deficiency for the years at issue. Petitioners filed a timely
petition with this Court, and a trial was held on September 28,
2007, in St. Paul, Minnesota. On March 6, 2008, as a result of
evidence presented at trial, the Court granted respondent’s
motion for leave to amend his answer to increase the 1996
deficiency by $34,029 for a total deficiency of $140,650, and to
increase the fraud penalty under section 6663 by $25,522 for a
total fraud penalty of $91,911.
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I. Petitioners’ Motel Business
A. Motel Business
Petitioners owned three motels during the years at issue:
(1) Budget Inn in Dickinson, North Dakota (Budget Inn); (2) Super
8 Motel in Glendive, Montana (S8 Glendive); and (3) Super 8 Motel
in Dickinson, North Dakota (S8 Dickinson). S8 Glendive and S8
Dickinson (S8 Motels) were operated as sole proprietorships, and
petitioners reported income and expenses related to the S8 Motels
on their Schedules C, Profit or Loss From Business. Budget Inn
was operated as an S corporation.
Petitioners also held a partnership interest in BISK & BK
Partnership, L.L.P., and BI & SK Partnership, L.L.P. (the
partnerships) during the years at issue. BISK & BK Partnership,
L.L.P., owned and operated Super 8 Motel in Willmar, Minnesota,
while BI & SK Partnership, L.L.P., owned and operated Super 8
Motel in Winona, Minnesota (the partnership motels). The
partnerships were owned by petitioners and Mr. Patel’s relatives,
Dr. B.K. Patel and Dr. S.K. Patel.
B. Record Keeping
Petitioners performed the bookkeeping for the S8 Motels and
Budget Inn themselves during the years at issue. Petitioners
were also in charge of accounting, record keeping, and
management, including the hiring and firing of motel personnel,
at the S8 Motels and Budget Inn. Mr. Patel instructed the
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manager of S8 Glendive on how to run a motel. The manager of S8
Glendive, who had previous experience managing other hotels,
believed Mr. Patel was a competent and knowledgeable manager.
Petitioners received the business bank account statements
for the S8 Motels, Budget Inn, and the partnership motels during
the years at issue. Bank statements, checks, and deposit tickets
for S8 Glendive were mailed directly to petitioners in Dickinson,
North Dakota.
Each day during the years at issue petitioners received the
daily reports for the S8 Motels, Budget Inn, and the partnership
motels. The daily reports for each of the S8 Motels showed which
rooms were rented out, the amount received for each room, the
type of payment received, the amount of tax charged, daily video
income, and miscellaneous charges such as telephone and fax fees.
Petitioners reconciled the daily reports for each of their five
motels to the corresponding business bank statements during the
years at issue. Mr. Patel discussed the daily reports with
petitioners’ night auditor on several occasions. Mr. Patel
explained to the night auditor how to calculate the room tax.
Petitioners paid the bills for each of the S8 Motels, Budget
Inn, and each of the partnership motels during the years at
issue. Petitioners maintained a separate check register or check
listing for each of the S8 Motels, Budget Inn, and each of the
partnership motels during the years at issue.
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C. Video Rental Business
Petitioners operated a video rental business out of S8
Glendive called “Movies to Go”. During the years at issue
petitioners kept roughly 1,000 videos to rent or sell to hotel
guests and the general public. Customers desiring to rent videos
from Movies to Go would fill out a rental agreement, set up an
account, and pay a rental fee. Video rental fees were not
included in the S8 Glendive room rental bill, and guests paid for
video rentals separately.
Video rental and sale information was entered into a
separate computer at S8 Glendive that was used only for video
rentals. Petitioners used this computer to compile daily and
monthly video rental summaries showing daily and monthly video
sales and rentals at S8 Glendive. The S8 Glendive video rental
agreements were cross-checked each day with the computer-
generated daily video rental summaries.
The night auditor for S8 Glendive added up the income from
video rentals and video sales and recorded that amount on the
bottom of each S8 Glendive daily video rental summary for the
years at issue. At the end of each month during the years at
issue, the daily video rental summaries were attached to the
monthly video rental summaries and given to petitioners. A copy
of the S8 Glendive daily report was also faxed to petitioners
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each day, and the original daily reports were mailed to
petitioners each month.
D. Vending Income
Petitioners received income from vending machines at S8
Glendive during the years at issue. Income from vending machines
was not recorded on the S8 Glendive Daily Reports during the
years at issue. However, the daily reports for S8 Glendive show
income from the sale of coffee, which was not sold from a vending
machine.
E. Bank Accounts and Bank Records
Petitioners owned and maintained a personal checking account
as well as a personal savings account during the years at issue.
Petitioners paid some of their personal expenses from their
personal checking account.
Petitioners had a separate business bank account for each of
the five motels that they owned or in which they had an interest.
Petitioners maintained a business checking account at the
American State Bank & Trust in Dickinson, North Dakota, in the
name Super 8 Motel c/o Budget Inn of Dickinson (S8 Dickinson
account) during the years at issue. Petitioners maintained a
business checking account at the FirstWest Bank, now Stockman
Bank, in the name Super 8 Motel of Glendive (S8 Glendive
account), during the years at issue. Petitioners maintained a
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checking account at American State Bank & Trust in the name
Budget Inn of Dickinson, Inc. (Budget Inn Account), in 1997.
II. Petitioners’ Returns and Recalculation
A. Personal Returns
Larry Robinson, C.P.A. (Mr. Robinson), prepared petitioners’
individual income tax returns and the Forms 1120S, U.S. Income
Tax Return for an S Corporation, for Budget Inn for the years at
issue. When petitioners hired Mr. Robinson, they told him that
all of their business income was deposited into their business
accounts and that all business expenses were paid by check.
Mr. Patel prepared yearend income expense summary sheets
(summary sheets) for Budget Inn and the S8 Motels. Mr. Patel
prepared the summary sheets from bank statements and check
registers. However, he would also insert personal expenses, such
as the purchase of cars or gold bullion, on the summary sheets
under business expenses related to the operation of the S8
Motels.
Petitioners provided Mr. Robinson with summary sheets for
the S8 Motels and Budget Inn to use in the preparation of
petitioners’ personal income tax returns for the years at issue.
Mr. Patel told Mr. Robinson that the summary sheets for the S8
Motels and Budget Inn for the years at issue were a recap of his
bank statements and check listings. He did not inform Mr.
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Robinson that he had inserted personal expenses on the summary
sheets.
Mr. Robinson transferred all of the totals set forth on the
summary sheets for the S8 Motels and Budget Inn for the years at
issue to petitioners’ returns, either as single figures or as
combinations of figures. With the exception of payroll
information and a record of interest paid on bank notes, the only
information provided to Mr. Robinson regarding Schedule C income
and expenses during the years at issue was listed on the summary
sheets. Petitioners did not provide Mr. Robinson with the daily
reports for their S8 Motels or for Budget Inn.
Mr. Robinson did not recalculate the amounts listed on the
1997 summary sheet for the S8 Motels when he prepared
petitioners’ 1997 Form 1040, U.S. Individual Income Tax Return.
Mr. Robinson did not prepare balance sheets, transaction
details, or profit and loss statements for the S8 Motels or for
Budget Inn until he recalculated petitioners’ tax liability in
2000.
For each of the years at issue petitioners reported a loss
on their S8 Dickinson Schedule C. For 1995 and 1997 petitioners
reported losses on their S8 Glendive Schedules C.
B. The Partnership Returns
Petitioners were responsible for having the tax returns for
the partnerships prepared during the years at issue. These tax
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returns were prepared by Mr. Robinson. For preparation of these
tax returns, petitioners provided Mr. Robinson with bank
statements and check registers listing disbursements for each of
the partnership motels. Mr. Robinson reconciled the bank
statements and prepared yearend summaries, yearend balance
sheets, and yearend profit and loss statements for the
partnerships during the years at issue. Petitioners did not
provide Mr. Robinson with summary sheets for the partnership
motels to use in the preparation of the returns.
Petitioners reported a profit from each of their partnership
motels on their Schedule E for each of the years at issue.
C. Petitioners’ Recalculation of Their Tax Liabilities
In 1999, in response to the criminal investigation,
petitioners requested that Mr. Robinson recalculate their income
tax liabilities for the years at issue. For each of the years at
issue profit or loss was reported by petitioners on their
Schedules C and recalculated by Mr. Robinson as follows:
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Year S8 Glendive S8 Dickinson
1995
Reported ($18,366) ($1,174)
Recalculated 94,005 6,043
1996
Reported $15,111 ($46,198)
Recalculated 158,743 73,008
1997
Reported ($8,254) ($59,979)
Recalculated 137,167 14,496
Mr. Robinson determined that petitioners failed to report 75
percent, 90 percent, and 96 percent of their taxable income in
1995, 1996, and 1997, respectively. Mr. Robinson recalculated
petitioners’ income tax liabilities by obtaining the bank
statements, the check registers, and the reconciliation (check
listings) for each S8 Motel and entered the information into
Quick Books software. Mr. Robinson then reviewed the recap with
petitioners and removed any items from the check listings that
were questionable. Mr. Robinson also removed items from business
expenses that were confirmed to be personal. Mr. Robinson
estimated all credit card processing fees in his recalculation
and did not require petitioners to substantiate any of their
expenses.
After Mr. Robinson recalculated their income tax
liabilities, petitioners sent payments to the Internal Revenue
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Service (IRS) for 1995, 1996, and 1997 in the amounts of $62,400,
$120,800, and $91,800, respectively.
III. Unreported Income
Petitioners understated their adjusted gross income in 1995,
1996, and 1997 by 210 percent, 532 percent, and 1,417 percent,
respectively. For the years at issue Schedule C gross receipts
for the S8 Motels reported on petitioners’ returns, the corrected
amounts of gross receipts as determined by petitioners, the
corrected amounts of gross receipts as determined by respondent,
and respondent’s adjustments to originally reported gross
receipts are set out below:
Super 8 of Glendive, Schedule C Gross Receipts
Corrected Per Corrected Per Respondent’s
Year Per Return Petitioners Respondent Adjustment
1995 $466,043 $524,536 $531,330 $65,288
1996 471,846 563,627 645,138 173,292
1997 445,187 590,608 590,608 145,421
Super 8 of Dickinson, Schedule C Gross Receipts
Corrected Per Corrected Per Respondent’s
Year Per Return Petitioners Respondent Adjustment
1995 $67,818 $59,837 $73,944 $6,126
1996 458,252 515,956 515,956 57,704
1997 357,676 432,151 432,151 74,475
The following gross receipts were reported on petitioners’
Schedules C, recorded on the daily reports for petitioners’ S8
Motels, and recalculated by petitioners for each of the years at
issue.
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1995 S8 Glendive S8 Dickinson
Total gross receipts per return $466,043 $67,818
Gross receipts per daily reports
Room Rental 443,831 67,283
Tax 17,844 5,803
Telephone ---- 746
Miscellaneous 6,649 254
Videos 55,589 -0-
Total gross receipts per
daily reports 523,913 74,086
Total gross receipts per
petitioners’ recalculation 524,536 59,837
1996 S8 Glendive S8 Dickinson
Total gross receipts per return $471,846 $458,252
Gross receipts per daily reports
Room Rental 471,846 457,286
Tax 18,534 40,778
Telephone ---- 4,683
Miscellaneous 10,782 3,167
Videos 50,636 -0-
Total gross receipts per
daily reports 551,798 505,913
Total gross receipts per
petitioners’ recalculation 563,627 515,956
1997 S8 Glendive S8 Dickinson
Total gross receipts per return $445,187 $357,676
Gross receipts per daily reports
Room Rental 464,344 377,970
Tax 18,511 33,833
Telephone ---- 888
Miscellaneous 6,386 3,840
Videos 39,455 -0-
Total gross receipts per
daily reports 528,696 416,531
Total gross receipts per
petitioners’ recalculation 590,608 432,151
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A. 1995 Schedule C Income From S8 Glendive
Respondent calculated petitioners’ unreported gross receipts
from S8 Glendive in 1995 by taking the total gross receipts shown
on the S8 Glendive daily reports, adding unreported income from
vending machines in the motel, and adding a small amount of room
tax. Respondent estimated 1995 income from vending machines at
S8 Glendive by using a 100-percent markup on vending items for
total vending income of $9,072 in 1995. Respondent then
subtracted $1,662 in vending income already reported and
estimated that petitioners failed to report vending income in
1995 of $7,416.
B. 1996 Schedule C Income From S8 Glendive
Petitioners made total deposits into their S8 Dickinson
account in 1996 of $558,288, consisting of $588 of nontaxable
deposits and $557,700 of taxable deposits.
During 1996 Western Geco, f.k.a. Geco-Prakla or STC Geco-
Prakla, paid petitioners $160,351 by check for crew
accommodations at S8 Glendive. Western Geco was an oil and gas
exploration firm with a crew of 40-45 based at S8 Glendive during
1996. Petitioners deposited $72,913 in payments from Western
Geco into their S8 Glendive Account in 1996. However,
petitioners failed to deposit $87,438 in income from Western Geco
into their S8 Glendive Account in 1996.
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C. 1997 Schedule E Income From Budget Inn
Petitioners reported gross receipts on their 1997 Budget Inn
Schedule E of $164,389. Petitioners made total deposits into
their Budget Inn Account in 1997 of $200,882, consisting of
$7,000 of nontaxable deposits and taxable deposits of $193,882.
Petitioners failed to report gross receipts of $29,493 from
Budget Inn on their 1997 Schedule E. Petitioners also failed to
substantiate $25,915 in expenses claimed on their 1997 Form 1120S
for Budget Inn.
IV. Overstated Schedule C Expenses
Petitioners concede that they overstated their Schedule C
expenses for each of the years at issue in the following amounts:
Schedule C Overstated Schedule C Expenses
1995 1996 1997
S8 Glendive $53,878 $57,190 $85,939
S8 Dickinson 15,198 61,502 37,968
Total 69,076 118,692 123,907
Respondent determined that petitioners overstated their
Schedule C expenses for each of the years at issue in the
following amounts:
Schedule C Overstated Schedule C Expenses
1995 1996 1997
S8 Glendive $59,582 $73,556 $95,727
S8 Dickinson 16,775 75,689 42,153
Total 76,357 149,245 137,880
For each of the years at issue petitioners concede they
improperly deducted personal expenses as Schedule C business
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expenses. Neither petitioners nor their partners deducted
personal expenses as business expenses on their partnership
returns for the years at issue.
A. 1995 Expenses
Petitioners improperly deducted the following personal
expenses as business expenses under the following categories on
their 1995 S8 Motels Schedules C:
Expense Amount Deducted As Schedule C
Personal home
mortgage payments $6,134 ¹ S8 Glendive
Personal medical
expenses 3,014 ¹ S8 Glendive
Medical insurance
premiums 691 ¹ S8 Glendive
Family trip
to India 7,075 ¹ S8 Glendive
Car lease payments 7,714 Rent S8 Glendive
Personal health
insurance premiums 452 Insurance S8 Dickinson
Family trip
to India 762 ¹ S8 Dickinson
Auto & personal
homeowner’s
insurance premiums 1,120 ¹ S8 Dickinson
¹The Schedule C category under which this personal
expense was deducted is undetermined.
On June 30, 1995, petitioners took out a $134,400 home
mortgage loan on their personal residence located at 114 15th
Ave. West, Dickinson, North Dakota 58601, with Liberty Bank and
Trust. In 1995 and 1996 automatic monthly debits of $1,227 were
taken out of the S8 Glendive account and applied to petitioners’
home mortgage loan. On October 4, 1996, petitioners paid their
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home mortgage loan in full by making a payment of $127,957 out of
their S8 Glendive account. Petitioners did not deduct the
$127,957 home mortgage payment as a business expense on their
1996 S8 Glendive Schedule C. However, petitioners deducted all
of the other personal home mortgage payments that they made
during 1995 and 1996 as business expenses on their S8 Glendive
Schedules C.
Petitioners’ personal health insurance was provided by
Golden Rule Insurance Co. (Golden Rule). On March 7, 1995, Mr.
Patel signed a Personal Health Insurance Certification with
Golden Rule stating that he understood that the Golden Rule
coverage for which he was applying was personal health insurance
and could not be used by any employer to provide for any
employee. Mr. Patel also certified that he would not treat the
policy as part of any employer-provided health insurance plan for
any purpose, including tax purposes. Nevertheless, Mr. Patel
paid the Golden Rule premiums with business checks out of the S8
Dickinson account. Petitioners then deducted the premiums as a
business expense in each of the years at issue.
B. 1996 Expenses
Petitioners improperly deducted the following personal
expenses as business expenses under the following categories on
their 1996 S8 Motels Schedules C:
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Expense Amount Deducted As Schedule C
Personal home
mortgage payments $12,269 Rent S8 Glendive
Home mortgage
interest payments 7,926 Rent S8 Glendive
Family trip
to India 5,720 Travel S8 Glendive
Gold bullion
purchase 2,372 Utilities S8 Glendive
Personal health
insurance premiums 1,356 Insurance S8 Dickinson
Personal auto
insurance &
home owner’s
insurance on
personal residence 2,225 Insurance S8 Dickinson
Life insurance 19,429 Insurance S8 Dickinson
Family trip
to India 5,775 Travel S8 Dickinson
Car lease payments 8,760 Car expense S8 Dickinson
Petitioners deducted the home mortgage interest payment on
their personal 1996 return Schedule A, Itemized Deductions, as
well as on their 1996 S8 Glendive Schedule C under rent.
Petitioners subclassified the gold bullion purchase as a
garbage expense on the 1996 S8 Glendive summary sheet they
provided to Mr. Robinson.
Petitioners also overstated their insurance expenses by
$22,244 and their Super 8 Motels royalty payments by $4,718 on
their S8 Dickinson summary sheet.
C. 1997 Expenses
Petitioners overstated the following expense categories on
the summary sheets that they prepared and provided to Mr.
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Robinson for use in the preparation of their 1997 S8 Glendive
Schedule C:
Expense Amount per Total Set Forth Overstated
Addition of on Summary Sheet Amount
Figures on & Per Return
Summary Sheet
Credit card $530 $11,530 $11,000
Office
supplies 2,181 7,181 5,000
Electric/water 18,149 33,149 15,000
Breakfast
supplies 3,427 5,427 2,000
Super 8 Motel
royalties 27,707 32,707 5,000
Petitioners improperly deducted personal expenses as
business expenses under the following categories on their 1997 S8
Motels Schedules C:
Expense Amount Deducted As Schedule C
Diamond jewelry $13,500 Travel expense S8 Glendive
Life insurance 18,887 Insurance S8 Glendive
Personal medical
expenses 1,155 Guest supplies S8 Glendive
Jewelry 2,587 Guest supplies S8 Glendive
Payment to relatives 3,000 Laundry supplies S8 Dickinson
Orthodontic expenses 2,755 Insurance S8 Dickinson
Personal health,
auto & homeowner’s
insurance 3,766 Insurance S8 Dickinson
Jewelry 1,540 Office Supplies S8 Dickinson
V. Matters Pertaining to Fraud
A. Vehicles
On April 24, 1996, petitioners purchased a 1996 Dodge Grand
Caravan for $26,525. Mr. Patel received a trade-in allowance of
$12,400 for a 1990 Mazda and paid the remainder of the purchase
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price in full with a cashier’s check from his personal savings
account at Norwest Bank in the amount of $14,943. On June 8,
1996, petitioners purchased a 1996 Mercedes Benz S420 for
$68,250. Mr. Patel made a $2,000 downpayment on the Mercedes
through his Discover credit card and received a trade-in
allowance of $15,500 on a 1993 Mazda. Petitioners paid the
remainder of the purchase price in full with a check in the
amount of $54,220. Neither the check register for S8 Glendive
nor the check register for S8 Dickinson reflects a payment for
$14,943 in April 1996 or a payment for $54,220 in June 1996. On
October 31, 1996, petitioners also purchased a 1977 Ford Pickup
Truck for $500.
B. False Statements
On September 30, 1998, Mr. Patel and Mr. Robinson met with
Revenue Agent Karen Dassinger (Ms. Dassinger). At that meeting,
Mr. Patel falsely told Ms. Dassinger that he had never visited
the local IRS office in Dickinson, North Dakota. Mr. Patel was
familiar with the IRS agents who worked in the IRS office in
Dickinson, North Dakota, because he had been to the office
several times to get answers to tax questions. Mr. Patel later
admitted in private to Ms. Dassinger that he had been to the
local IRS office but had not wanted Mr. Robinson to know. Mr.
Patel also falsely told Ms. Dassinger in private that he supplied
videos for guests of S8 Glendive because there was no cable at S8
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Glendive. Cable was available to guests at S8 Glendive during
the years at issue, and petitioners deducted cable expenses on
their S8 Glendive Schedule C in 1995, 1996, and 1997.
In a meeting with Ms. Dassinger on November 5, 1998, Mr.
Patel stated that the only vehicles he owned in 1996 were a Dodge
Caravan and a Mazda.
During a meeting with Special Agent Andrew Smith on December
9, 1999, Mr. Patel stated that he did not use cash or cashier’s
checks to purchase goods for personal use.
C. Criminal Case
Mr. Patel admitted that for the taxable year 1997 he
willfully made and submitted a false tax return, made under
penalty of perjury and filed with the IRS, knowing it to be
false, in violation of section 7206(1). In his plea agreement
Mr. Patel admitted that he overstated business expenses on this
1997 Form 1040 by classifying personal expenditures such as
diamond jewelry, gold bullion, medical expenses, orthodontic
work, and house payments as business expenses.
OPINION
I. Burden of Proof
Respondent’s revenue agent first met with petitioners in
1998 after the start of his examination of their 1995, 1996, and
1997 returns. Because respondent’s examination of petitioners’
returns began before July 22, 1998, section 7491 does not apply.
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See Internal Revenue Service Restructuring and Reform Act of
1998, Pub. L. 105-206, sec. 3001, 112 Stat. 726. Respondent’s
determinations in the notice of deficiency are presumed correct,
and petitioners bear the burden of proving that respondent’s
determinations are incorrect. See Rule 142(a)(1). Respondent
has the burden of proof by clear and convincing evidence with
respect to his determination of fraud. See Rule 142(b).
Respondent also has the burden of proof with respect to the
increased deficiency for the year 1996. See Rule 142(a)(1).
II. Period of Limitations on Assessment
Petitioners contend that the 3-year period of limitations on
assessment in section 6501(a) expired before respondent issued
the notice of deficiency and respondent’s assessment is barred.
Respondent argues that the period of limitations in section
6501(a) does not apply because petitioners filed false or
fraudulent returns with the intent to evade taxes for the years
at issue. Sec. 6501(c)(1). Accordingly, our determination of
whether the period of limitations expired before the notice of
deficiency was issued depends on whether petitioners committed
fraud in the filing of their 1995, 1996, and 1997 returns. The
determination of fraud for purposes of section 6501(c)(1) is the
same as the determination of fraud for purposes of the penalty
under section 6663. Neely v. Commissioner, 116 T.C. 79, 85
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(2001); Rhone-Poulenc Surfactants & Specialties, L.P. v.
Commissioner, 114 T.C. 533, 548 (2000).
Mr. Patel’s guilty plea under section 7206(1) for
intentionally filing a false return does not in itself prove that
section 6501(c) applies; respondent must show that petitioners
intended to evade tax for each of the years at issue. See Wright
v. Commissioner, 84 T.C. 636, 643 (1985). For Federal tax
purposes, fraud entails intentional wrongdoing with the purpose
of evading a tax believed to be owing. See Neely v.
Commissioner, supra at 86. In order to show fraud, respondent
must prove: (1) An underpayment exists; and (2) petitioners
intended to evade taxes known to be owing by conduct intended to
conceal, mislead, or otherwise prevent the collection of taxes.
See Parks v. Commissioner, 94 T.C. 654, 660-661 (1990).
A. Underpayment of Tax
Respondent must first show by clear and convincing evidence
that petitioners made an underpayment of tax in each of the years
at issue. For 1995, 1996, and 1997, petitioners have conceded
that they made underpayments of tax of at least $62,400,
$120,800, and $91,800, respectively. Therefore, respondent has
satisfied his burden of proof for this issue.
B. Fraudulent Intent
Because direct evidence of fraud is rarely available, fraud
may be proved by circumstantial evidence and reasonable
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inferences from the facts. Petzoldt v. Commissioner, 92 T.C.
661, 699 (1989). Courts have developed a nonexclusive list of
factors, or “badges of fraud”, that demonstrate fraudulent
intent. Niedringhaus v. Commissioner, 99 T.C. 202, 211 (1992).
These badges of fraud include: (1) Understating income, (2)
maintaining inadequate records, (3) implausible or inconsistent
explanations of behavior, (4) concealment of income or assets,
(5) failing to cooperate with tax authorities, (6) engaging in
illegal activities, (7) an intent to mislead which may be
inferred from a pattern of conduct, (8) lack of credibility of
the taxpayer’s testimony, (9) filing false documents, (10)
failing to file tax returns, and (11) dealing in cash. Id.; see
also Spies v. United States, 317 U.S. 492, 499 (1943); Morse v.
Commissioner, 419 F.3d 829, 832 (8th Cir. 2005), affg. T.C. Memo.
2003-332; Recklitis v. Commissioner, 91 T.C. 874, 910 (1988).
Although no single factor is necessarily sufficient to establish
fraud, the combination of a number of factors constitutes
persuasive evidence. Niedringhaus v. Commissioner, supra at 211.
Respondent must prove fraud for each year at issue. See id. at
210; Ferguson v. Commissioner, T.C. Memo. 2004-90.
Petitioners’ behavior with respect to their income shows 8
of the 11 badges of fraud, as follows.
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(1) Petitioners understated their adjusted gross income by
210 percent, 532 percent, and 1,417 percent in 1995, 1996, and
1997, respectively.
(2) Petitioners maintained inadequate records by failing to
substantiate a large portion of their Schedule C business
expenses.
(3) Petitioners concealed the true nature of their income
and expenses from their return preparer by providing inaccurate
summary sheets for their Super 8 Motels and not providing source
documentation. Petitioners completely omitted their income from
video sales and rentals.
(4) Petitioners engaged in a pattern of conduct that
indicates an intent to mislead. Critically, petitioners
disguised clearly personal items such as medical insurance
premiums, the purchase of gold bullion, and gifts to relatives as
business expenses under categories such as “utilities” and
“laundry supplies” on their summary sheets.
(5) Petitioners’ explanation for their behavior is
implausible and inconsistent. Mr. Patel testified that he
believed all personal expenses were deductible. However,
petitioners did not deduct major personal items, such as Mr.
Patel’s purchases of a Mercedes and a Dodge Grand Caravan in
1996. Petitioners also did not deduct personal items as business
expenses on their partnership returns.
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(6) Petitioners have failed to fully cooperate with tax
authorities. Mr. Patel twice lied to respondent’s revenue agent
regarding his income and assets.
(7) Petitioners’ testimony regarding their level of
sophistication and ability to comply with the tax laws is not
credible. Petitioners claim that they did not have any
significant sophistication with regard to tax matters and
attempted to voluntarily comply with the tax law when they
learned that they had made errors on their returns. We are
unconvinced by petitioners’ explanations. Petitioners kept
systematic (if incomplete) records of their finances and
personally compiled the summary sheets which they provided to
their return preparer. Mr. Patel’s experienced manager believed
him to be highly competent with regard to business matters, and
Mr. Patel visited the local IRS office in Dickinson on several
occasions to receive answers to tax questions. Petitioners’
assertion of ignorance is not credible.
(8) Petitioners filed a false tax return for 1997. Mr.
Patel pleaded guilty under section 7206(1) to willfully filing a
false tax return for 1997. As a result, Mr. Patel is estopped
from arguing that he did not willfully file a false return for
1997. See Wright v. Commissioner, supra at 639. Although the
estoppel is not extended to petitioners’ fraudulent intent to
evade tax, the factor militates toward a finding of fraud.
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As a result of the number of badges of fraud in this case,
we find that respondent has shown by clear and convincing
evidence that petitioners filed their 1995, 1996, and 1997
returns with the intent to evade tax. Therefore, the 3-year
period of limitations under section 6501(a) does not apply to
petitioners’ 1995, 1996, and 1997 years, and respondent is not
barred from assessing any deficiencies in petitioners’ tax for
those years.
III. Unreported Income
If a taxpayer has not maintained business records or its
business records are inadequate, the Commissioner is authorized
to reconstruct the taxpayer’s income by any method that, in the
Commissioner’s opinion, clearly reflects that taxpayer’s income.
Sec. 446(b); Parks v. Commissioner, 94 T.C. at 658; A.J. Concrete
Pumping, Inc. v. Commissioner, T.C. Memo. 2001-42. The
Commissioner’s reconstruction need not be exact, but it must be
reasonable in the light of all the surrounding facts and
circumstances. A.J. Concrete Pumping, Inc. v. Commissioner,
supra. Petitioners bear the burden of proving that respondent’s
determinations are erroneous. See Rule 142(a).
A. 1995 Gross Receipts
Respondent determined that petitioners failed to report 1995
gross receipts from S8 Dickinson and S8 Glendive of $6,126 and
$65,288, respectively. Respondent made his determination by
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totaling the income recorded on petitioners’ 1995 Daily Reports
and, in the case of S8 Glendive, combining the income recorded on
the Daily Reports with vending income. Petitioners argue that
respondent erred in using the Daily Reports to determine gross
receipts because the Daily Reports do not take into account
credit card processing fees that may be deducted by credit card
companies before making payment to petitioners. Petitioners also
argue that respondent miscalculated the S8 Glendive gross
receipts because income from vending machines was already
reflected on the 1995 S8 Glendive Daily Reports. For the reasons
discussed below, we disagree with petitioners.
The amount of a credit card processing fee is not relevant
to a determination of petitioners’ Schedule C gross receipts.
Gross income includes all income from whatever source derived.
Sec. 61. It is not necessary that the income be deposited or
received so long as the taxpayer has an unfettered right to
receive it. See Corliss v. Bowers, 281 U.S. 376 (1930).
Petitioners had an unfettered right to income at the time one of
their motel rooms was rented. Although deductible credit card
processing fees would reduce the amount of petitioners’ net
Schedule C profit or loss, they would not affect their gross
receipts.
Petitioners’ proposition that income from vending machines
is already reflected on the 1995 S8 Glendive Daily Reports is not
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supported by the record. Petitioners’ night auditor who prepared
the Daily Reports testified that income from vending machines in
the motel was not recorded in the 1995 Daily Reports, and we find
the auditor’s testimony credible. Additionally, petitioners did
not produce a single 1995 S8 Glendive Daily Report on which
income from vending machines was reported. Thus, petitioners
have failed to show that respondent’s calculation of 1995 gross
receipts is erroneous or unreasonable under the circumstances.
B. 1996 Gross Receipts
Respondent has the burden of proof with regard to the tax
increase resulting from his amended answer. See Rule 142(a). We
find that respondent’s burden has been met through trial
testimony and petitioners’ stipulations. The burden now shifts
to petitioners to show that respondent’s determination is
erroneous. Jones v. Commissioner, 29 T.C. 601, 614 (1957).
Respondent determined that petitioners failed to report 1996
S8 Glendive gross receipts of $173,292. Respondent made his
determination by using a bank deposits analysis supplemented by
an analysis of specific items not deposited. Petitioners argue
that respondent double counted Western Geco payments when
calculating unreported gross receipts from S8 Glendive in 1996
because undeposited payments from Western Geco were already
included in the 1996 S8 Glendive Daily Reports. Petitioners also
argue that respondent erroneously included undeposited Western
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Geco payments in gross receipts from S8 Glendive in 1996, because
all Western Geco income was deposited into the S8 Glendive
Account and reported on petitioners’ 1996 return. Petitioners’
position is not supported by the record.
Petitioners stipulated that they received $160,350 from
Western Geco in 1996. Respondent determined that petitioners
deposited only $72,913 of Western Geco payments into their 1996
S8 Glendive Account. The record indicates that this
determination is reasonable. None of the evidence presented at
trial shows that: (1) Any of the deposits determined by
respondent to be taxable were duplications or somehow tax exempt,
(2) the undeposited Western Geco income identified by respondent
had in fact never been received by petitioners, (3) the
unreported Western Geco income identified by respondent had in
fact been reported or deposited, or (4) the undeposited Western
Geco income identified by respondent was somehow tax exempt. As
a result, petitioners have failed to show that respondent’s
findings are erroneous, and we sustain respondent’s
determination.
C. 1997 Schedule E Income
Respondent determined that petitioners failed to report 1997
Budget Inn Schedule E income of $55,408. Respondent made his
determination by conducting a bank deposits analysis and
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disallowing $25,915 of business expenses that petitioners
conceded were unsubstantiated.
Nothing in the record indicates that respondent’s method of
calculating the unreported Schedule E income from Budget Inn was
erroneous or unreasonable. The bank deposits method is an
acceptable method of income reconstruction. Clayton v.
Commissioner, 102 T.C. 632, 645 (1994); DiLeo v. Commissioner, 96
T.C. 858, 867 (1991), affd. 959 F.2d 16 (2d. Cir. 1992).
Petitioners have failed to show that respondent’s method is
unreasonable, and thus respondent’s determination is sustained.
IV. Expenses
Respondent determined that petitioners overstated their S8
Dickinson Schedule C business expenses on their 1995, 1996, and
1997 returns by $16,775, $75,689, and $42,153, respectively, and
their S8 Glendive expenses by $59,582, $73,556, and $95,727,
respectively. Petitioners maintain that they overstated their S8
Dickinson Schedule C business expenses on their 1995, 1996, and
1997 returns by $15,198, $61,502, and $37,968, respectively, and
their S8 Glendive business expenses by $53,878, $57,190, and
$85,939, respectively. We sustain respondent’s determination.
Deductions are a matter of legislative grace, and the
taxpayer must prove he is entitled to the deductions claimed.
Rule 142(a); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440
(1934). Section 162(a) allows a taxpayer to deduct all ordinary
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and necessary expenses paid or incurred in carrying on a trade or
business. However, petitioners have failed to produce any
evidence showing that they are entitled to a deduction for
Schedule C business expenses greater than the amounts allowed by
respondent.
If a factual basis exists to do so, the Court may in another
context approximate an allowable expense, bearing heavily against
the taxpayer who failed to maintain adequate records. Cohan v.
Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930); sec. 1.274-
5T(a), Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov. 6,
1985). However, in order for the Court to estimate the amount of
an expense, the Court must have some basis upon which an estimate
may be made. Vanicek v. Commissioner, 85 T.C. 731, 742-743
(1985). Without such a basis, any allowance would amount to
unguided largesse. Williams v. United States, 245 F.2d 559, 560-
561 (5th Cir. 1957).
The record provides no satisfactory basis for estimating
petitioners’ business expenses. Although petitioners’ accountant
recalculated petitioners’ tax liabilities, petitioners did not
produce at trial all of the source documents necessary to
ascertain the accuracy of their determinations at trial.
Additionally, petitioners’ accountant testified that he did not
require petitioners to substantiate the payment and purpose of
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each claimed expense. Accordingly, respondent’s determination
regarding petitioners’ business expenses shall be sustained.
V. Self-Employed Health Insurance Deductions
Petitioners failed to offer any evidence that they are
entitled to a deduction for self-employed health insurance
greater than the amounts already allowed by respondent.
Accordingly, respondent’s determination is sustained.
VI. Fraud Penalty Under Section 6663
If the Commissioner shows that any portion of an
underpayment is due to fraud, the entire underpayment will be
treated as attributable to fraud for purposes of the penalty
under section 6663(a), except any portion of the underpayment
that the taxpayer establishes by a preponderance of the evidence
is not attributable to fraud. See sec. 6663(b); Knauss v.
Commissioner, T.C. Memo 2005-6. As stated above, respondent has
shown that petitioners committed fraud in filing their 1995, 1996
and 1997 returns. Petitioners have not shown that any portion of
the deficiencies should not be subject to fraud penalties.
Therefore, with the exception of the overstatements of S8 Motel
expenses that respondent determined relate to negligence, the
deficiencies for the years at issue are subject to fraud
penalties.
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VII. Accuracy-Related Penalty Under Section 6662(a)
Respondent determined that petitioners are liable for
accuracy-related penalties under section 6662(a) for
underpayments related to the overstatement of S8 Motel expenses
by $16,710, $18,102, and $21,772 for the years at issue,
respectively. The penalty applies to any underpayment of tax
required to be shown on a return that is attributable to
negligence or disregard of rules or regulations under section
6662(b)(1).
Negligence is defined as any failure to make a reasonable
attempt to comply with the provisions of the Internal Revenue
Code. Sec. 6662(c). However, section 6664(c)(1) provides that a
penalty under section 6662 will not be imposed on any portion of
an underpayment if the taxpayer shows reasonable cause for such
portion of the underpayment and that the taxpayer acted in good
faith with respect to such portion. Reliance on the advice of a
professional, such as a certified public accountant, may
constitute a showing of reasonable cause if, under all the facts
and circumstances, such reliance is reasonable and the taxpayer
acted in good faith. Henry v. Commissioner, 170 F.3d 1217, 1219-
1223 (9th Cir. 1999), revg. T.C. Memo. 1997-29; Betson v.
Commissioner, 802 F.2d 365, 372 (9th Cir. 1986), affg. in part
and revg. in part T.C. Memo. 1984-264; sec. 1.6664-4(b)(1), (c),
Income Tax Regs. To prove reasonable cause based on the receipt
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of professional advice, a taxpayer must show that he reasonably
relied in good faith upon a qualified adviser after full
disclosure of all necessary and relevant facts. Collins v.
Commissioner, 857 F.2d 1383, 1386 (9th Cir. 1988), affg. Dister
v. Commissioner, T.C. Memo. 1987-217; sec. 1.6664-4(b)(1), Income
Tax Regs. The burden of proof rests with petitioners. See Rule
142(a).2
Applying these principles to the case before us, we conclude
that petitioners have failed to prove that respondent’s
determination is incorrect. Petitioners are unable to
substantiate the Schedule C expenses underlying the accuracy-
related penalty. Despite relying on Mr. Robinson to file their
returns, petitioners are also unable to show reasonable cause for
their errors based on the receipt of advice from a tax
professional. Although petitioners relied on their accountant,
Mr. Robinson, to prepare their returns, petitioners have conceded
that they provided Mr. Robinson with incomplete and false
information regarding their expenses.
Petitioners, having failed to show reasonable cause,
substantial authority, or any other basis for reducing the
2
As this case deals with examinations commencing before July
22, 1998, sec. 7491(c) does not apply to place the burden of
production on respondent. However, even if sec. 7491(c) did
apply, respondent has clearly met his burden by demonstrating
that petitioners overstated their Schedule C expenses for each of
the years at issue.
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underpayments, are liable for the section 6662 penalties for the
years at issue as determined by respondent.
In reaching our holdings herein, we have considered all
arguments made, and, to the extent not mentioned above, we
conclude they are moot, irrelevant, or without merit.
To reflect the foregoing,
Decision will be entered
under Rule 155.