T.C. Memo. 2009-235
UNITED STATES TAX COURT
DAVID WAYNE TAYLOR, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6632-08. Filed October 15, 2009.
David Wayne Taylor, pro se.
Caroline R. Krivacka, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
DAWSON, Judge: This deficiency case arises from a statutory
notice of deficiency respondent issued to petitioner on December
13, 2007, for the taxable years 2004 and 2005. Respondent
determined the following deficiencies in petitioner’s Federal
income taxes and additions to tax:
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Additions to Tax
Year Deficiency Sec. 6651(a)(1) Sec. 6651(a)(2) Sec. 6654
2004 $66,857 $14,631.53 $10,404.64 $1,881.67
2005 21,527 4,547.03 2,020.90 804.72
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years at issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
After concessions,1 the issues presented for decision are:
(1) Whether petitioner received, but failed to report,
income of $8,539.11 in 2004 and $19,428.25 in 2005, and if so,
whether the income constitutes self-employment income;
(2) whether petitioner received, but failed to report,
$268,189 in capital gains income in 2004 from a lawsuit
settlement;
(3) whether petitioner is entitled to claimed net operating
loss deductions in 2004 and 2005;
1
Petitioner conceded that he received, but failed to report,
(1) wage income of $17,800 in 2004 and $12,300 in 2005 and (2)
dividend income of $219 in 2004 and $245 in 2005. In the notice
of deficiency respondent determined that petitioner had
unreported gross receipts from self-employment of $37,678.11 in
2004 and $63,436.25 in 2005. In the stipulation of facts
respondent conceded $23,139 of petitioner’s self-employment gross
receipts for 2004 and $44,008 of self-employment gross receipts
for 2005, reducing the amount of omitted self-employment gross
receipts in dispute to $14,539.11 for 2004 and $19,428.25 for
2005. In respondent’s brief respondent conceded an additional
$6,000 of self-employment gross receipts for 2004, reducing the
contested amount for 2004 to $8,539. Respondent also conceded
that petitioner is not liable for the addition to tax for failure
to pay estimated tax under sec. 6654 for 2004.
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(4) whether petitioner is liable for the additions to tax
pursuant to section 6651(a)(1) and (2) for 2004 and 2005; and
(5) whether petitioner is liable for the estimated tax
addition imposed pursuant to section 6654 for 2005.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulations of facts, with the accompanying exhibits, are
incorporated by this reference. Petitioner resided in Tennessee
when he filed his petition.
Petitioner did not file his Federal income tax returns for
2004 and 2005, and respondent prepared substitutes for returns
for both years on December 10, 2007. Petitioner received wages
of $17,800 in 2004 and $11,100 in 2005 from Sunwest P.E.O. of
Florida VII, Inc. (Sunwest). He received wages of $1,200 from
TLR in Bonita, Inc. (TLR), in 2005. Petitioner made no payments
on his 2004 and 2005 income tax liabilities other than the tax
withheld from wages he received from Sunwest in 2004 and 2005 and
from TLR in 2005; this amounted to $1,828 in 2004 and $1,318 in
2005.
Petitioner owned and operated Common Place Management, Inc.
(CPM), his wholly owned S corporation, in 2004 and 2005. The
corporation did not file any tax returns for the 2004 and 2005
tax years. During 2004 and 2005 petitioner transferred funds
from CPM’s bank account to his personal accounts.
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Petitioner also held an unspecified interest in VIP, Inc.
The record does not disclose whether VIP, Inc., is an S
corporation or whether it filed tax returns for the years at
issue.
A. Reconstruction of Petitioner’s Gross Receipts
Petitioner did not keep adequate books and records, and
respondent reconstructed petitioner’s gross receipts using the
bank deposits method.
1. Bank Deposits 2004
Petitioner maintained checking account No. xxxx6225 and
savings account No. xxxx3713 at AmSouth Bank in 2004. The
AmSouth account No. xxxx6225 was exclusively petitioner’s account
until September 17, 2004, when his wife was added as a coowner of
the account. Petitioner deposited $167,493.79 into the AmSouth
account in 2004.
In the notice of deficiency respondent excluded the
following deposits to AmSouth account No. xxxx6225 from
petitioner’s gross receipts in 2004:
Deposit Amount
Return of capital from VIP, Inc. $41,500.00
Lawsuit proceeds 68,188.65
Transfers 24,087.76
Returned checks 10,851.30
Petitioner’s net wages 14,611.00
Interest 15.99
Total amount excluded in 2004 159,254.70
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In the notice of deficiency respondent determined that
petitioner deposited gross receipts totaling $8,239.09 into the
AmSouth account No. xxxx6225 in 2004.
Petitioner held account No. xxxx9851 at Jax Federal Credit
Union in 2004 after he married Elizabeth Taylor. He and his wife
deposited $37,490.35 into the Jax account in 2004. In the notice
of deficiency respondent excluded from petitioner’s gross
receipts $8,051.28 attributable to the direct deposit of Mrs.
Taylor’s wages and 5 cents attributable to interest. In the
notice of deficiency respondent determined that petitioner
deposited gross receipts of $29,439.02 into the Jax account in
2004.
In the stipulation of facts respondent conceded that an
additional $23,139 deposited in the Jax account is not included
in petitioner’s gross receipts in 2004. In respondent’s brief
respondent conceded that an additional $6,000 deposited into the
Jax account is not included in petitioner’s gross receipts in
2004. Thus respondent asserts petitioner deposited $300.02 of
gross receipts into the Jax account in 2004.
Respondent asserts petitioner had unreported gross receipts
totaling $8,539.11 that were deposited into the AmSouth and Jax
accounts in 2004.
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2. Bank Deposits 2005
Petitioner held account No. xxxx9851 at Jax Federal Credit
Union in 2005. He and his wife deposited $276,248.22 into the
Jax account in 2005.
In the notice of deficiency respondent excluded the
following deposits from the computation of petitioner’s gross
receipts in 2005:
Deposit Amount
Personal injury settlement $111,355.98
Transfers 68,700.00
Petitioner’s wife’s wages 22,689.33
Petitioner’s wages 10,043.00
Interest/dividends 23.66
Total amount excluded in 2005 212,811.97
In the stipulation of facts respondent conceded that an
additional $44,008 deposited into the Jax account in 2005 is
attributable to Mrs. Taylor and is not included in computing
petitioner’s gross receipts. Respondent asserts that petitioner
deposited gross receipts totaling $19,428.25 into the Jax account
in 2005.
B. Receipt of Lawsuit Settlement Proceeds
In 2004 petitioner received $268,189 pursuant to a
settlement agreement with Rose & Ken, Inc., a Florida corporation
owned by his brother, Kendall Taylor, and his sister-in-law, Rose
Taylor. The settlement proceeds were not paid to petitioner from
Rose & Ken, Inc., for personal injury or illness. They resulted
from a lawsuit that originated between his brother and his
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parents. Petitioner and two other siblings subsequently became
parties to the litigation.
The litigation began after petitioner’s brother purchased
the family’s marina business from their parents, who believed
that the business was being sold to all their children in equal
parts.
Petitioner was not responsible for any loans or financing
related to the purchase of the family business. His brother
Kendall entirely financed the purchase of the family business and
never transferred a share of the business to petitioner and his
other siblings.
Petitioner’s brother filed suit against petitioner’s parents
relating to the transfer of the real property. The parents
counterclaimed against the brother with allegations of fraud,
misrepresentation, and breach of the duty of fair dealing. The
parents alleged in the counterclaims that the brother improperly
failed to transfer portions of the business to petitioner and his
siblings as the parents had intended.
The settlement petitioner received was to resolve the
counterclaims brought in the lawsuit, and petitioner received the
funds as damages for never having received the share of the
business his parents intended for him to have.
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C. Claimed Net Operating Losses
Petitioner was involved in several businesses and
corporations before the years at issue. In his petition he
claimed net operating loss deductions for 2004 and 2005 but did
not identify the entity purportedly giving rise to the losses or
the amounts thereof. However, at trial petitioner stated that
the business which incurred the losses was Volusia Fertilizer &
Chemical, Inc. (Volusia), a Florida S corporation he had owned in
prior years. Petitioner bought Volusia in 1999 for $48,000.
Volusia filed Forms 1120S, U.S. Income Tax Return for an S
Corporation, for 2001, 2002, and 2003. The returns reported net
operating losses (NOLs) of $74,611 for 2001, $45,576 for 2002,
and $46,204 for 2003. Petitioner’s 2001 return reported an NOL
of $61,382 resulting from a “Prior Year NOL” of $69,440
offsetting income of $8,058. Petitioner’s 2002 return reported
an NOL of $126,135 resulting from current year losses of $56,705
and the “Prior Year NOL” of $69,440 offsetting income of $10.
His 2001 and 2002 returns contained a statement waiving the right
to carry back the losses. Volusia’s 2003 income tax return was
examined, and the Internal Revenue Service (IRS) allowed the
claimed loss of $46,204 by issuing a no-change letter.
Petitioner did not establish the amount of income in 2002 or
2003 that was offset by the Volusia NOL and did not establish his
basis in the stock and debt of Volusia in 2004 or 2005.
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OPINION
Generally, the Commissioner’s determinations set forth in
the notice of deficiency are presumed correct, and the taxpayer
bears the burden of showing the determinations are in error.
Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).
Section 7491(a), however, shifts the burden of proof to the
Commissioner with respect to a factual issue affecting the tax
liability of a taxpayer who meets certain conditions.
Petitioner has neither claimed nor shown that he satisfied
the requirements of section 7491(a) to shift the burden of proof
to respondent with respect to any factual issue affecting the
deficiencies in his taxes. Accordingly, petitioner bears the
burden of proof. See Rule 142(a).
Section 7491(c) provides that the Commissioner will bear the
burden of production with respect to the liability of any
individual for additions to tax. “The Commissioner’s burden of
production under section 7491(c) is to produce evidence that it
is appropriate to impose the relevant penalty, addition to tax,
or additional amount”. Swain v. Commissioner, 118 T.C. 358, 363
(2002); see also Higbee v. Commissioner, 116 T.C. 438, 446
(2001). The Commissioner, however, does not have the obligation
to introduce evidence regarding reasonable cause. Instead, the
taxpayer bears the burden of proof with regard to that issue.
Higbee v. Commissioner, supra at 446-447.
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A. Bank Deposits
Gross income means all income from whatever source derived,
including income derived from business. Sec. 61. Petitioner
conducted business through CPM, an S corporation the income of
which flowed through to petitioner, its sole shareholder. CPM
did not file a Federal income tax return in 2004 or 2005, and
petitioner failed to maintain records reflecting his business
income in 2004 and 2005.
Respondent reconstructed petitioner’s income using the bank
deposits method. Absent some explanation, petitioner’s bank
deposits represent income subject to tax, and the Commissioner’s
use of the bank deposits method of income reconstruction has long
been sanctioned by the courts. See DiLeo v. Commissioner, 96
T.C. 858, 868 (1991), affd. 959 F.2d 16 (2d Cir. 1992). The
Commissioner need not show a likely source of the income when
using the bank deposits method, but he must take into account any
nontaxable items or deductible expenses of which he had
knowledge. See Price v. United States, 335 F.2d 671, 677 (5th
Cir. 1964).
On the basis of deposits into petitioner’s bank accounts,
respondent contends that petitioner received, but failed to
report, certain gross receipts from self-employment of $8,539.11
in 2004 and $19,428.25 in 2005. In computing petitioner’s
unreported income using the bank deposits method, respondent
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excluded (1) petitioner’s wage income; (2) $41,500 in return of
capital from VIP, Inc.; (3) petitioner’s wife’s directly
deposited wage income; (4) personal injury settlement proceeds;
(5) nontaxable transfers; and (6) returned checks. Respondent
removed additional deposits attributable to petitioner’s wife.
Respondent asserts that the remaining deposits are income from
petitioner’s business activities conducted through CPM and are
therefore subject to income tax.
One of the two issues raised in the petition relates to the
amount of gross receipts determined by respondent. Specifically,
petitioner alleges that some of the funds deposited were the
return of capital. Respondent allowed $41,500 as the nontaxable
return of capital from petitioner’s business entities.
Petitioner has not stated how much additional income should be
excluded as return of capital. Furthermore, petitioner provided
no information or documentation to support allowing a larger
amount to be excluded as return of capital.
We hold that petitioner received income of $8,539 in 2004
and $19,428.25 in 2005 from conducting CPM’s business. However,
income from conducting the business of an S corporation is not
subject to self-employment tax. Ding v. Commissioner, 200 F.3d
587, 588 (9th Cir. 1999) (S corporation passthrough items are not
included in calculating self-employment tax liability under
section 1402(a)), affg. T.C. Memo. 1997-435; Veterinary Surgical
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Consultants, P.C. v. Commissioner, 117 T.C. 141, 145 (2001)
(“Section 1366 permits use of S corporation passthrough items
only in calculating tax liability under chapter 1, not tax
liability under chapters 21 and 23--in which the Federal
employment tax provisions for FICA and FUTA are located.”), affd.
sub nom. Yeagle Drywall Co. v. Commissioner, 54 Fed. Appx. 100
(3d Cir. 2002). Moreover, an officer who performs substantial
services for a corporation and who receives remuneration in any
form for those services is considered an employee. Veterinary
Surgical Consultants, P.C. v. Commissioner, supra at 144-145.
We hold that the deposits of the income from CPM into
petitioner’s bank accounts are wages paid to him.
B. Lawsuit Settlement Proceeds
Respondent’s position regarding this issue is that
petitioner received, but failed to report, $268,189 of taxable
lawsuit settlement proceeds in 2004.
Proceeds derived from litigation are subject to taxation
unless specifically awarded for personal physical injury or
physical sickness. Secs. 61(a), 104(a)(2). Petitioner received
$268,189 from Rose & Ken, Inc., in 2004. Respondent’s revenue
agent treated the income as the proceeds from the sale of
property in which the petitioner had no basis. The entire amount
was included in petitioner’s income, but long-term capital gain
treatment was allowed in the notice of deficiency.
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Petitioner did not raise in his petition any challenge to
the inclusion of this income, the taxation of the income at the
capital gains rate, or the determination that he had no basis to
reduce the amount of gain. However, petitioner argued for the
first time at trial that he had a sufficient basis in the
proceeds, which were received pursuant to the lawsuit settlement,
to result in a large loss rather than a capital gain.
Petitioner asserted that his brother bought the business
from his parents on behalf of himself and other siblings and that
his brother obtained the financing for the purchase. Petitioner
did not personally provide any funds for the purchase of the
business.
Petitioner’s parents apparently intended for petitioner and
his siblings to receive equal shares of their business. The
brother and his wife filed suit against petitioner’s parents in
an attempt to obtain title to realty that may or may not have
been included in the original sale of the business by the
parents. Petitioner’s parents then counterclaimed for the
failure to distribute ownership of the business to petitioner and
his siblings, who subsequently were added as parties to the suit.
Petitioner submitted two documents at trial to support his
contention that he had basis in his interest in the business.
The most telling document was an answer filed by his parents in
response to the complaint filed by petitioner’s brother. The
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answer includes counterclaims relating to petitioner and the
other siblings.
According to the factual allegations set forth in the answer
to the complaint and confirmed by petitioner, the cause of action
for the lawsuit was the failure to transfer interests in the
business to petitioner and his siblings. The net result of the
lawsuit was not an award of a portion of the company’s ownership.
The settlement was a payment of $268,189 in lieu of any interest
in the business. Petitioner was awarded the amount to compensate
for the fact that his brother failed to transfer to petitioner
his share of the business. Petitioner did not sell his share of
the business for $268,189 but essentially received damages for
never having received his share of the business. Petitioner did
not purchase a share of the business, nor did he receive it as a
gift from his brother or his parents. He has clearly not
established that he had any basis to reduce the amount of gain.
The lawsuit settlement proceeds did not constitute the proceeds
from the sale of the business interest but rather damages for an
interest never received. Accordingly, we conclude that the
entire amount is subject to tax, and we sustain respondent’s
determination that petitioner had long-term capital gain of
$268,189 in 2004.
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C. Claimed Net Operating Loss Deductions
Deductions are a matter of legislative grace, and the
taxpayer bears the burden of proving entitlement to any claimed
deduction. INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84
(1992). As a part of that burden, a taxpayer must substantiate
the amounts of his claimed deductions. A taxpayer is required to
maintain records sufficient to establish the amount of any
deduction claimed. Sec. 6001; sec. 1.6001-1(a), Income Tax Regs.
Respondent contends that petitioner failed to prove he is
entitled to his claimed net operating loss deductions for 2004
and 2005 because he has not established his basis in Volusia and
therefore the NOLs cannot be carried forward to 2004 and 2005
absent clear information showing that petitioner had a sufficient
basis remaining in those years. While petitioner testified that
he thought he had bought the Volusia business for about $48,000
and indicated he probably put another $10,000 into the business
property, he submitted no documentary evidence to support his
testimony.
The term “net operating loss” is defined in section 172(c)
to mean the excess of allowable deductions over gross income.
Section 172(a) allows a net operating loss deduction for the
aggregate of net operating loss carrybacks and carryovers to the
taxable year. Section 172(b)(1)(A) generally provides that the
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period for an NOL carryback is 2 years and that the period for an
NOL carryover is 20 years.
A taxpayer may not claim net operating losses from an S
corporation in excess of the sum of the shareholder’s bases in
stock and debt of the S corporation. Sec. 1366(d)(1). Before a
shareholder in an S corporation can claim an NOL, the shareholder
must determine his adjusted basis in the S corporation. To have
a basis in an S corporation, a shareholder must make an actual
economic outlay. See Miller v. Commissioner, T.C. Memo. 2006-125
(and cases cited therein).
While petitioner failed to identify in his petition the
entity purportedly giving rise to the NOL, he subsequently stated
that the business was Volusia, his Florida S corporation in prior
years. Volusia filed Forms 1120S for 2001, 2002, and 2003 and
reported losses for each year. Volusia’s 2003 return was
examined, and the IRS sustained the claimed loss in that year.
At no time during the examination or after the filing of the
petition did petitioner establish his basis in Volusia.
Volusia’s tax returns do not support the conclusion that
petitioner had a sufficient basis to claim net operating loss
deductions in the years at issue. Accordingly, even assuming
that Volusia’s returns are correct and it incurred losses each
year before the years in issue, petitioner cannot carry an NOL
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forward to 2004 or 2005 absent clear information showing that he
had a sufficient basis in the business.
Petitioner claimed the NOL deductions on his 2001 and 2002
income tax returns. A taxpayer claiming an NOL deduction for a
taxable year must file with the tax return for that year a
concise statement setting forth the amount of the NOL deduction
claimed and all material and pertinent facts, including a
detailed schedule showing the computation of the NOL deduction.
Sec. 1.172-1(c), Income Tax Regs. A taxpayer may elect to
relinquish the carryback period with respect to an NOL for any
taxable year, thereby using the loss to offset income only in
future years. Sec. 172(b)(3). To carry forward or carry back
net operating losses, the taxpayer must prove the amount of the
net operating loss carryforward or carryback and that his gross
income in other years did not offset that loss. Sec. 172(c);
Jones v. Commissioner, 25 T.C. 1100, 1104 (1956), revd. and
remanded on other grounds 259 F.2d 300 (5th Cir. 1958).
Petitioner did not allege any amount of the NOL deduction to
which he believes he was entitled in 2004 and 2005. He did not
provide a detailed schedule showing the computation of the NOL
during the examination, nor was such a schedule attached to his
2001 or 2002 income tax return. Petitioner asserts that because
Volusia’s 2003 return reported a loss, and because his own 2001
and 2002 returns claimed an NOL, he should be permitted to carry
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forward unspecified losses to 2004 and 2005, the years at issue
herein. Petitioner’s 2001 and 2002 returns did contain a
statement waiving the right to carry back the losses.
A tax return is not evidence of the truth of the facts
stated in it. Lawinger v. Commissioner, 103 T.C. 428, 438
(1994). Thus the Commissioner’s failure to disallow a loss
claimed on a return for one year does not estop the Commissioner
from disallowing an NOL carryover of that loss to a future year.
Rollert Residuary Trust v. Commissioner, 80 T.C. 619, 636 (1983),
affd. on another issue 752 F.2d 1128 (6th Cir. 1985). Each
taxable year stands alone, and the Commissioner may challenge in
a succeeding year what was condoned or agreed to in a former
year. Auto. Club of Mich. v. Commissioner, 353 U.S. 180 (1957);
Black v. Commissioner, T.C. Memo. 2007-364.
In summary, although respondent acknowledges that the
petitioner owned an S corporation that claimed losses, petitioner
on this record has not met his burden of proving that he is
entitled to claim a specific amount of net operating loss
deduction for 2004 or 2005.
D. Section 6651(a)(1) and (2) Additions to Tax
Petitioner did not assign error in his petition with respect
to respondent’s determinations of the additions to tax imposed
for petitioner’s failure to file his Federal income tax returns
and to pay the taxes due for 2004 and 2005. Apparently,
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petitioner has conceded them. See Swain v. Commissioner, 118
T.C. at 363-365. In any event, even if we assume that petitioner
is considered to have raised the issues in his brief testimony at
the trial, respondent has met his burden of production by showing
that petitioner was required to file his Federal income tax
returns for 2004 and 2005 and pay the taxes due, and he failed to
do so. Moreover, with respect to section 6651(a)(2), for each
year respondent prepared a substitute for return which meets the
requirements of section 6020(b). See Wheeler v. Commissioner,
127 T.C. 200, 208-210 (2006), affd. 521 F.3d 1289 (10th Cir.
2008).
Finally, on this record petitioner has neither alleged nor
shown that there was reasonable cause for not filing his income
tax returns and paying the taxes due for those years.
Accordingly, we hold that petitioner is liable for the additions
to tax under section 6651(a)(1) and (2) for 2004 and 2005.
E. Section 6654 Additions to Tax
Section 6654(a) imposes an addition to tax for a taxpayer’s
failure to make estimated tax payments calculated with reference
to four required installment payments of the taxpayer’s estimated
tax liability. Sec. 6654(c)(1). Each required installment of
estimated tax is equal to 25 percent of the required annual
payment. Sec. 6654(d)(1)(A). The required annual payment is the
lesser of (1) 90 percent of the tax shown on the individual’s
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return for that year (or, if no return is filed, 90 percent of
his or her tax for such year), or (2) if the individual filed a
return for the immediately preceding taxable year, 100 percent of
the tax shown on that return.2 Sec. 6654(d)(1)(B).
Petitioner had no Federal income tax liability for 2003. As
previously indicated, respondent conceded the estimated tax
addition for 2004. Petitioner made no estimated tax payments for
2005 but had $1,318 in taxes withheld from his wages during the
year. We hold that, if $1,318 is less than 100 percent of
petitioner’s tax for 2004 or 90 percent of his tax for 2005
computed under Rule 155, which appears unlikely, then petitioner
is liable for the addition to tax pursuant to section 6654 for
2005.
We have considered the arguments raised by both parties,
and, to the extent not discussed, we conclude that they are
irrelevant or without merit.
To reflect the parties’ concessions and our disposition of
the disputed issues,
Decision will be entered
under Rule 155.
2
If an individual’s adjusted gross income shown on the
previous year’s return exceeds $150,000, a higher percentage may
apply. See sec. 6654(d)(1)(C).