*67 Decision will be entered under Rule 50.
1. Deficiencies determined by means of net worth and expenditures method, held, approved except for respondent's concessions.
2. Some part of deficiencies for each year, held, on the facts, due to fraud.
3. Additions to tax under sections 294 (d) (1) (A) and 294 (d) (2), held, properly imposed.
*35 Respondent determined deficiences in income tax and additions to tax for the years 1949 through 1951 as follows:
| Additions to tax -- I. R. C. 1939 | ||||
| Year | Deficiency | |||
| Sec. 293 (b) | Sec. 294 (d) (1) (A) | Sec. 294 (d) (2) | ||
| 1949 | $ 5,760.72 | $ 2,880.36 | ||
| 1950 | 9,136.00 | 4,568.00 | $ 1,101.87 | $ 734.58 |
| 1951 | 11,814.71 | 5,907.35 |
*68 The deficiencies were computed by the net worth method. The issues are:
(1) Whether respondent correctly determined petitioners' income by the net worth and expenditures method.
(2) Whether any part of any deficiency is due to fraud with intent to evade tax.
(3) Whether petitioners are liable for additions to tax under sections 294 (d) (1) (A) and 294 (d) (2).
FINDINGS OF FACT.
Some of the facts were stipulated and are hereby found.
Petitioners Nathan Bilsky and Sarah Bilsky are husband and wife residing in University City, Missouri. They filed joint income tax *36 returns for the years in controversy, including an amended return for 1950, with the collector of internal revenue for the first district of Missouri. Petitioners executed timely waivers extending the time for assessment of their income tax for the years 1949, 1950, and 1951 until June 30, 1956. Respondent mailed the deficiency notice on May 18, 1956.
Petitioner Nathan Bilsky, sometimes hereafter referred to as petitioner or as Nathan, was born on September 30, 1898, in Poland and emigrated to the United States in 1906. He became a naturalized citizen in 1943. He married Sarah in 1920. Beatrice and Lester, *69 their two children, were born in 1926 and 1935, respectively. Nathan graduated from the University of Missouri in 1922. In 1924 he received a degree of M. D. at the University of Oklahoma, and thereafter served his internship in Louisiana. From 1924 to 1943 he was a general practitioner in St. Louis, Missouri. During 1943 and 1944 he served as a captain in the United States Army Medical Corps. He was discharged in 1944 due to a dislocated disc and heart condition. After a 6 months' rehabilitation period he resumed his medical practice specializing in diseases of metabolism and endocrinology. He taught at St. Louis University, completed postgraduate work in endocrinology at Northwestern University, and attended numerous medical conventions and clinical conferences. During the years involved he was engaged in writing a book. He is a member of numerous professional, fraternal, and other organizations.
Nathan operated a one-doctor obesity clinic with approximately 80 per cent of his patients being obesity cases. He conducted about 99 per cent of his practice in the office and on some days had 100 or more patients. His office hours were from 9 a. m. to 6 p. m., 4 days per week.
*70 Petitioners filed no income tax returns for any year prior to 1938 nor for the years 1941 and 1943. For 1939 petitioners filed a return showing no tax due. Their returns for 1940, 1942, and 1944 through 1948, together with audit adjustments thereto, indicate that petitioners' aggregate net income did not exceed $ 130,000.
In 1949 respondent examined petitioners' returns for the years 1946 through 1948 and found understatements of adjusted gross income in the amounts of $ 7,673.21, $ 11,382.24, and $ 20,238.96, respectively. On July 1, 1949, petitioners agreed to a $ 13,606.47 assessment for these years consisting of deficiencies, negligence penalties, and interest, and paid this amount on July 27, 1949, $ 13,307.75 coming from the redemption of United States Series E bonds.
Prior to August 1949 Nathan maintained no books of account or patient record cards. Respondent's agents, on July 1, 1949, advised Nathan that his records were inadequate and his bank deposits exceeded *37 income reported on the returns. As a result he hired one Spilker, a former deputy collector of internal revenue, who set up his first formal system of bookkeeping.
The procedure created by Spilker, and*71 in force from August 1949 through 1951, consisted of maintaining patient record cards and a cash receipts book for recording the name of the patient, fee charged, and fee collected. From August 1, 1949, through August 1950, he maintained a duplicate cash receipts book. Having no accounts receivable ledger, unpaid accounts were recorded on the patient's record card with a metal clip attached thereto. His customary fee for services from 1949 through 1951 was $ 3. Some patients paid more if they received drugs or extra treatment and a few were charged only $ 2. Ninety per cent of the fees was paid in currency and kept in a cash box in his private office. He personally collected all fees and opened all mail. He sometimes entered the fee charged or collected on the patient record card which the receptionist filed. Absent such an entry the receptionist assumed a $ 3 fee and marked it accordingly. The receptionist posted in the cash receipts book the amounts reflected on the patient record cards. During the receptionist's absences, Nathan made postings in the cash receipts book.
Upon Spilker's death in August 1950, Nathan employed one Hollenbach, Spilker's son-in-law. Hollenbach, *72 who was 23 years old, was inexperienced. Both accountants totaled the medical receipts as recorded in the cash receipts book, and entered the amount thereof for each day in the book. They also recorded his disbursements by cash and check for medical items. Spilker went weekly to his office. Hollenbach at first went weekly but later reduced his visits to once a month. Spilker prepared petitioners' return for 1949. Hollenbach prepared original and amended returns for 1950. These returns were prepared from the cash receipts book and information orally supplied by Nathan. Petitioners did not give complete information to the accountants. Both Spilker and Hollenbach received $ 25 per month for their services.
Hollenbach did not reconcile actual cash received by Nathan against the medical receipts book. He suggested to Nathan the possibility that his bank account contained receipts not reflected on the cash receipts book and that his income was not being reported correctly. He questioned the 1950 sale of securities without a gain or loss, but did not check Nathan's statement with his broker. He did not know that Sarah received dividend checks. Nathan kept his own investment *73 records. Hollenbach used Spilker's $ 7,000 office equipment figure in 1949 for depreciation purposes. Due to an arithmetical error by Hollenbach and Nathan's claim for additional deductions, Hollenbach prepared an amended return for 1950. Hollenbach did not go into *38 details with Nathan as to the additional deductions, although he disagreed with a deduction for prepaid insurance premiums. The amended return resulted in a greater tax liability because of the original arithmetical error. Hollenbach was discharged in February 1951.
In 1951 Nathan himself performed all bookkeeping duties and prepared the 1951 return. From 1949 through 1951 he never made, or caused to be made, any reconciliation of bank deposits with book receipts nor actual cash received with book receipts. He did reconcile his checking account against his own checkbooks. Under the bookkeeping system used by Nathan there were no checks and balances which would insure correct reporting of medical receipts.
Petitioners reported income on their returns for 1949 through 1951 as follows:
| Professional | ||||
| Year | income | Dividends | Rent | Interest |
| 1949 | $ 17,039.97 | $ 424.00 | 0 | 0 |
| 1950 | 18,703.56 | 96.97 | $ 779.22 | 0 |
| 1950 1 | 18,467.08 | 96.97 | 442.61 | 0 |
| 1951 | 19,592.22 | 122.10 | 616.74 | 0 |
| Capital | Adjusted | Net income | |
| Year | gain | gross income | |
| 1949 | 0 | $ 17,463.97 | $ 16,463.97 |
| 1950 | 0 | 19,579.75 | 16,811.34 |
| 1950 1 | 0 | 19,006.66 | 16,231.55 |
| 1951 | $ 14.75 | 20,345.81 | 18,431.83 |
On Schedule C for 1949 through 1951 gross receipts from medical practice were reported as $ 34,117.82, $ 31,567.50, and $ 35,309.75. During the same years petitioners deposited in their joint checking account at First National Bank of Clayton, Missouri, $ 46,200.54, $ 67,024.85, and $ 53,513.27, respectively.
During the period from April 4, 1952, to May 18, 1956, Internal Revenue Agent Julius G. Taake investigated petitioners' returns for 1949 through 1951. Respondent determined petitioners' unreported income to be $ 16,624.29, $ 23,623.19, and $ 25,535.90, respectively. This was based upon Taake's investigation, statements of Nathan at various conferences, and a net worth chart computed by respondent, of which the following is a summary:
| December 31 | ||
| Dr. Nathan Bilsky | ||
| 1948 | 1949 | |
| Assets: | ||
| 1. Cash in bank -- checking and savings | $ 769.68 | ($ 1,522.79) |
| 2. Securities: | ||
| (a) Miscellaneous stocks | 8,302.87 | 16,565.28 |
| Boatman's National Bank stock | ||
| (b) Bonds: | ||
| (1) State of Israel | ||
| (2) U. S. Series "E" | 19,931.25 | 11,100.00 |
| (c) First deed of trust | 7,000.00 | |
| (d) Annuity | 5,408.28 | 6,357.62 |
| 3. Insurance: | ||
| (a) Surrender value of life policies | 23,859.78 | 31,585.04 |
| (b) Prepaid insurance | ||
| 4. Real estate | 30,992.61 | 34,530.42 |
| (includes building, 2 lots, filling station, | ||
| personal residence, and improvements). | ||
| 5. Office equipment and supplies: | ||
| (a) Inventories | 5,000.00 | 1,834.00 |
| (b) Typewriter | 132.48 | |
| (c) Air conditioning | 2,196.00 | |
| (d) Acme Visible Records | 460.10 | |
| (e) Cabinet | ||
| (f) Adding machine | ||
| (g) Physician's bad and contents | ||
| (h) Microscope | ||
| (g) Physician's bag and contents | ||
| 6. Other personal property: | ||
| (a) Furniture for personal residence | ||
| (b) Silverware | ||
| (c) Automobiles: | ||
| (1) Buick-1942 | 1,598.02 | |
| (2) Lincoln-1949 | 3,878.80 | |
| Total assets | 102,862.49 | 107,116.95 |
| Liabilities: | ||
| 7. Reserve for depreciation | 239.81 | |
| 8. Mortgages | ||
| 9. Account payable -- Acme Visible Records, Inc | ||
| Total liabilities | 239.81 | |
| Net worth | 102,862.49 | 106,877.14 |
| 10. Amount of increase in net worth | 4,014.65 | |
| 11. Plus: | ||
| (a) Federal income taxes | 14,018.46 | |
| (b) Personal living expenses: | ||
| (1) By check | 4,753.11 | |
| (2) Estimated | 4,800.00 | |
| (c) Gift to daughter and son-in-law -- Mr. & Mrs. | ||
| Allan Garber | ||
| (d) Excess of life insurance premiums paid over | ||
| increase in cash surrender values | 3,243.35 | |
| (e) Mink coat -- October 5, 1949 | 2,433.00 | |
| (f) Mink coat -- October 22, 1951 | ||
| (g) Unallowable loss on personal automobile | ||
| traded | 98.02 | |
| 12. Total of lines 10 and 11 | 1 33,088.26 | |
| 13. Minus: | ||
| (a) Capital gain | 3.21 | |
| (b) Excess of increase in value of certificates | ||
| of Investors Diversified Services, Inc., | ||
| overpayment made | 264.34 | |
| (c) Cash dividends received on life insurance | 4.78 | |
| (d) Lester's postal savings | ||
| (e) Funds received from the sale of personal | ||
| furniture | ||
| Net income | 33,088.26 |
| December 31 | ||
| Dr. Nathan Bilsky | ||
| 1950 | 1951 | |
| Assets: | ||
| 1. Cash in bank -- checking and savings | $ 90.27 | ($ 533.57) |
| 2. Securities: | ||
| (a) Miscellaneous stocks | 1,681.93 | 7,724.93 |
| Boatman's National Bank stock | 5,875.00 | |
| (b) Bonds: | ||
| (1) State of Israel | 102.00 | |
| (2) U. S. Series "E" | 1,125.00 | 375.00 |
| (c) First deed of trust | ||
| (d) Annuity | 7,413,74 | 8,613.05 |
| 3. Insurance: | ||
| (a) Surrender value of life policies | 39,957.76 | 48,391.60 |
| (b) Prepaid insurance | 1,707.62 | 1,854.71 |
| 4. Real estate | 107,038.62 | 107,038.62 |
| (includes building, 2 lots, filling station, | ||
| personal residence, and improvements). | ||
| 5. Office equipment and supplies: | ||
| (a) Inventories | 1,756.00 | 1,628.30 |
| (b) Typewriter | 132.48 | 132.48 |
| (c) Air conditioning | 2,196.00 | 2,196.00 |
| (d) Acme Visible Records | 870.85 | 1,635.10 |
| (e) Cabinet | 173.00 | |
| (f) Adding machine | 166.42 | |
| (g) Physician's bag and contents | 250.00 | 250.00 |
| (h) Microscope | 1,171.03 | |
| (i) Physician's bag and contents | 250.00 | |
| 6. Other personal property: | ||
| (a) Furniture for personal residence | 6,870.71 | |
| (b) Silverware | 1,500.00 | 1,500.00 |
| (c) Automobiles: | ||
| (1) Buick-1942 | ||
| (2) Lincoln-1949 | 3,878.80 | 3,878.80 |
| Total assets | 169,599.07 | 199,293.18 |
| Liabilities: | ||
| 7. Reserve for depreciation | 1,306.38 | 2,914.75 |
| 8. Mortgages | 41,420.49 | 38,183.13 |
| 9. Account payable -- Acme Visible Records, Inc | 764.25 | |
| Total liabilities | 42,726.87 | 41,862.13 |
| Net worth | 126,872.20 | 157,431.05 |
| 10. Amount of increase in net worth | 19,995.06 | 30,558.85 |
| 11. Plus: | ||
| (a) Federal income taxes | 1,856.90 | 5,696.74 |
| (b) Personal living expenses: | ||
| (1) By check | 4,999.49 | 5,699.14 |
| (2) Estimated | 4,000.00 | 4,500.00 |
| (c) Gift to daughter and son-in-law -- Mr. & | ||
| Mrs. Allan Garber | 7,500.00 | |
| (d) Excess of life insurance premiums paid over | ||
| increase in cash surrender values | 1,978.03 | 2,281.08 |
| (e) Mink coat -- October 5, 1949 | ||
| (f) Mink coat -- October 22, 1951 | 2,000.00 | |
| (g) Unallowable loss on personal automobile | ||
| traded | ||
| 12. Total of lines 10 and 11 | 1 39,854.74 | 1 43,967.73 |
| 13. Minus: | ||
| (a) Capital gain | 98.54 | 28.35 |
| (b) Excess of increase in value of certificates | ||
| of Investors Diversified Services, Inc., | ||
| overpayment made | 371.12 | 514.31 |
| (c) Cash dividends received on life insurance | 5.08 | 125.42 |
| (d) Lester's postal savings | 2,500.00 | |
| (e) Funds received from the sale of personal | ||
| furniture | 3,600.00 | |
| Net income | 39,854.74 | 43,967.73 |
*39 In a conference held October 8, 1952, Taake and another agent explained to Nathan the net worth method and that it was being used by respondent for the computation of the correct tax liabilities for 1949 through 1951. They showed and explained to him a net worth statement which did not contain items numbered 5 (g), 5 (h), 5 (i), 6 (b), 11 (e), and 11 (f). Nathan stated at the conference that he thought all his assets and liabilities were represented thereon and that he had not received during 1949 to 1951 any funds from inheritances, loans, or insurance policies. Nathan fully cooperated with the agents.
In 1943 petitioners received approximately $ 5,000 from two endowment policies, under which his daughter, Beatrice, was the insured. *40 Sarah received $ 5,000 in the same year as an inheritance from her father whose estate was never probated. Nathan used this $ 10,000 for resumption of medical practice upon discharge from the Army.
As of December 31, 1948, petitioners owned capital stock as follows: *77
| Number of shares | Name of corporation | Cost |
| 130 | Massachusetts Investors Trust | $ 3,570.40 |
| 10 | United States Steel Corp | 734.95 |
| 129 | Broad Street Investing Corp | 2,294.82 |
| 160 | United Funds, Inc | 1,702.70 |
Except for United Funds these securities were purchased during 1947 and 1948 with petitioners' checks. During 1949 petitioners purchased by check more securities. As of December 31, 1949, petitioners owned capital stock as follows:
| Number of shares | Name of corporation | Cost |
| 150 | Massachusetts Investors Trust | $ 4,104.13 |
| 30 | United States Steel Corp | 734.95 |
| 199 | Broad Street Investing Corp | 3,417.22 |
| 100 | Capital Administration Co., Ltd | 5,432.05 |
| 100 | Southern Company | 1,195.00 |
| 160 | United Funds, Inc | 1,681.93 |
All above stock certificates were issued in the name of Mrs. Sarah Bilsky.
Petitioners reported on their return for 1950 sales of stock during the year as follows:
| Number of shares | Name of corporation | Cost | Sales price |
| 199 | Broad Street Investing Corp | $ 3,357.50 | $ 3,357.50 |
| 100 | Capital Administration Co., Ltd | 5,432.05 | 5,432.05 |
| 10 | United States Steel Corp | 734.95 | 734.95 |
| 150 | Massachusetts Investors Trust | 4,106.80 | 4,106.80 |
The actual sales, cost, *78 sales price, and gain or loss were:
| Name of corporation | Cost | Sales price | Gain (or loss) |
| Broad Street Investing Corp | $ 3,417.22 | $ 3,354.14 | ($ 63.08) |
| Capital Administration Co., Ltd | 5,432.05 | 5,533.05 | 101.00 |
| United States Steel Corp | 734.95 | 866.60 | 131.65 |
| Massachusetts Investors Trust | 4,104.13 | 4,196.88 | 92.75 |
| Southern Company | 1,195.00 | 1,267.73 | 72.73 |
Petitioners understated on both their original and amended returns for 1950 their net gains from the sale of securities.
In 1951 petitioners purchased $ 6,043 of stock in joint names. They paid $ 1,078 in cash for stock in Mercantile Trust Co. In addition Nathan purchased in the name of his son, Lester, 140 7/8 shares of Boatman's National Bank. The stock cost $ 5,875, part of which was paid *41 by Nathan in cash, and $ 2,500 was paid by Lester from his own postal savings account.
Petitioners reported dividends for 1949 through 1951 in the amounts of $ 424, $ 96.97, and $ 122.10, respectively. Omitted from the respective tax returns were $ 88.46, $ 114.03, and $ 157.74. The 1949 and 1950 dividend checks were payable to Sarah with the exception of Capital Administration which was in both names. The*79 1951 dividend checks were payable to both petitioners except United Funds which was payable to Sarah.
As of December 31, 1948, petitioners owned 82 United States Series E bonds totaling $ 19,931.25. The majority of these bonds was owned either by Nathan, individually, or petitioners, jointly. Twenty-two were owned by "Lester Bilsky or Mrs. Sarah Bilsky." One was owned by "Miss Beatrice Bilsky or Mrs. Sarah Bilsky." Petitioners redeemed several bonds in 1949 and 1950 receiving $ 13,307.75 and $ 15,318.25, respectively. They failed to report $ 201.50 and $ 843.25 which constituted interest income. Petitioners endorsed bonds that were redeemed. Bonds in the name of the children and Sarah were endorsed by Sarah. At the close of 1949, 1950, and 1951 petitioners' bondholdings were $ 11,100, $ 1,125, and $ 375, respectively.
Nathan owned during the calendar years over 100 life insurance policies, 87 of which he had in his safety-deposit box. He paid insurance premiums in the following amounts:
| Year | Amount of premiums paid |
| 1949 | $ 10,968.61 |
| 1950 | 10,350.75 |
| 1951 | 10,714.92 |
Respondent conceded to be incorrect items 5 (h), 11 (e), and 11 (f) on his net worth statement which represented*80 purchases of a microscope in 1951, a mink coat in 1949, and a second mink coat in 1951, respectively.
Petitioners paid certain household and living expenses during the controversial years by check. In addition, Nathan gave Sarah weekly amounts in cash for living expenses from 1949 through 1951.
In 1950 Nathan gave Beatrice a $ 7,500 gift and paid for her music lessons. From 1949 through 1951 he supported Lester who attended Taylor and Phillips-Andover preparatory schools. Petitioners owned a personal residence and operated a Lincoln automobile. They took 1 to 2 weeks' annual vacation, usually in Florida, with the best in hotel accommodations.
On October 11, 1948, petitioners sold four lots. The consideration was a first deed of trust of $ 7,000 secured by a $ 7,000 promissory note and two $ 210 promissory notes representing interest. On April 25, 1949, Sarah received $ 210 in payment of the first interest note. The second interest note was released and canceled upon its payment on *42 September 12, 1949. Petitioners failed to report as income for 1949 the $ 420 interest received.
Petitioners rented part of a building to Herder Book Company under a lease agreement which*81 prohibited subleasing without petitioners' consent. Eisenstadt Manufacturing Co. desired to sublease certain space. Nathan granted Eisenstadt the necessary permission and received from the latter $ 500. Eisenstadt was not a tenant of petitioners'. Nathan entered the word "gift" on both his deposit slip and check stub and did not report the payment as income.
During 1949, 1950, and 1951, various attorneys paid fees to Nathan for medical bills in personal injury cases paid at the time the cases were finally settled and closed in the respective amounts of $ 127, $ 375, and $ 300. He failed to report such fees on his returns. At a conference on January 27, 1954, with Agent Taake and Special Agent John W. Dale, Nathan stated he could not recall the receipt of large fees, that he had done no work with lawyers and that he did not have any idea what the checks represented.
On or about October 10, 1955, Dale submited to the Intelligence Division a net worth analysis for 1949 through 1951. The net income for the 3 years was less than that computed in the chart prepared by Taake. Dale's analysis was revised between October 10, 1955, and February 23, 1956, and the revision was the basis*82 of a criminal information filed against petitioner. On February 23, 1956, in the United States District Court for the Eastern District of Missouri, Nathan was convicted, upon his plea of nolo contendere, of the offenses of willfully and knowingly attempting to evade income tax from 1949 through 1951. The court imposed fines totaling $ 15,000, and placed petitioner on probation for 18 months.
A part of the deficiency for each year is due to fraud with intent to evade tax.
In 1950 petitioners without reasonable cause failed to file a declaration of estimated tax and substantially underestimated their estimated tax.
OPINION.
Petitioners virtually concede understatements of income in the 3 years before us averaging more than $ 10,000 a year. 1*83 *43 In addition, they had underreported their net income for the 3 preceding years. These amounts are of sufficient size to demonstrate that they could not have been unintentionally omitted, and the repetition demonstrates a pattern which in itself indicates that their omission was intentional. 2 Without more, that would support an inference of willfully fraudulent conduct.
As the United States District Court said in United States v. Florida, 165 F. Supp. 328">165 F. Supp. 328 (E. D. Ark.):
The defendant's chief contention is that the mere failure to return income and*84 pay tax on it is insufficient to constitute a violation of 26 U. S. C., § 145 (b), and relies principally upon the cases of Spies v. United States, 317 U.S. 492">317 U.S. 492, 87 L. Ed. 418">87 L. Ed. 418, 63 S. C. 364; Holland v. United States, 348 U.S. 121">348 U.S. 121, 99 L. Ed. 150">99 L. Ed. 150, 75 S. C. 127; and Blackwell v. United States, 8 Cir., 244 Fed. (2d), 423. He quotes from page 139 of 348 U.S. (Holland case) as follows:
"A final element necessary for conviction is willfulness. The Petitioners contend that willfulness 'involves a specific intent which must be proven by independent evidence and which cannot be inferred from the mere understatement of income.' This is a fair statement of the rule."
However, the Court in the next sentence said:
"Here, however, there was evidence of a consistent pattern of underreporting large amounts of income, and of the failure on Petitioners' part to include all of their income in their books and records. Since, on proper submission the jury could have found that these acts*85 supported an inference of willfulness, their verdict must stand. Spies v. United States, supra."
In Blackwell v. United States, supra, at page 429 of 244 Fed. (2d), the Court said:
"Defendant next urges that there is no proof of willfulness. 'Willfulness "involves a specific intent which must be proven by independent evidence and which cannot be inferred from the mere understatement of income."' Hollandv.United States, supra, 348 U.S. at page 139, 75 S. Ct. at page 137, 99 L. Ed. 150. The test of willfulness is quite fully discussed in Spies v. United States, 317 U.S. 492">317 U.S. 492, 499, 63 S. Ct. 364">63 S. Ct. 364, 87 L. Ed. 418">87 L. Ed. 418. Willfulness involves a state of mind. Direct proof of willfulness is seldom available. A consistent pattern of underreporting large amounts of income or over-claiming deductions and not recording such items on the taxpayer's records is evidence from which willfulness may be inferred. Holland v. United States, supra;*86 Zacher v. United States, 8 Cir. 227 Fed. (2d) 219, 224; Canton v. United States, 8 Cir., 226 Fed. (2d) 313, 321."
*44 But this record shows that there is more than the repeated substantial understatements. Specific items of income were regularly omitted. Petitioner's books were totally inadequate to constitute a true record of his receipts, and petitioner, an outstandingly successful physician, must have known it. The bulk of his fees was received in cash, and on occasion he expended in cash what would normally be paid by check. He made material misstatements to the revenue agent. And unlike the physician in Wiseley v. Commissioner, (C. A. 6) 185 F. 2d 263, his own testimony shows that he was not so busy with his medical practice as to have been unable to consider his income tax liability or take the necessary steps to insure the proper reporting of his receipts. On the whole record we have concluded that respondent has adequately sustained his burden of proving that some part of the deficiencies for each of the years in issue was the result of the willful and fraudulent*87 action of petitioner with intent to evade the taxes properly payable.
Petitioners contend that the first system of accounts established for the medical practice was set up by a former revenue agent named Spilker. Petitioner testified that Spilker was recommended to him by employees of respondent. In this connection a revenue agent named Kinsella was mentioned. He was called by respondent and denied petitioner's statement. In the course of his cross-examination, petitioner's counsel demanded the production of a statement given by Kinsella during an investigation conducted by the Internal Revenue Service. Upon respondent's failure to produce the statement referred to, petitioner's counsel orally moved to strike Kinsella's testimony in reliance upon Jencks v. United States, 353 U.S. 657">353 U.S. 657. See 18 U. S. C., sec. 3500. This motion was taken under advisement.
We find it unnecessary to pass upon the motion because in our view the testimony of Kinsella is totally immaterial. As respondent himself points out, "the testimony of witness Kinsella in and of itself is not decisive." The only evidence of any involvement *88 of Kinsella is petitioner's own statement. As we shall subsequently have occasion to point out, we view petitioner's testimony as unworthy of belief. Spilker, the bookkeeper in question, had died prior to the hearing and no statement from him appears in the record. Under the circumstances, it was wholly unnecessary for respondent to produce any rebuttal testimony in this respect, and it can do him no harm if Kinsella's testimony is disregarded. For these reasons we find it unnecessary to pass upon the legal question involved or to determine whether under different circumstances the Jencks rule would require rejection of Kinsella's testimony.
The record as a whole makes it clear that the employment of Spilker and his successor forms no ground for excusing petitioner's conduct. *45 Spilker was able to act for only a part of each of 2 years before he died. His successor chosen by petitioner was obviously inexperienced. The system, if it can be called such, of accounts could not possibly be effective without petitioner's complete cooperation and information which he alone could furnish. This was not given to either bookkeeper. When the second one suggested a possible *89 extension of his bookkeeping services, he was dismissed, and for most of the final year petitioner himself kept whatever records existed and prepared and filed his own return. Petitioner admittedly withheld from the bookkeepers information with respect to certain specific items, and since he collected almost all of his fees in cash, there was no way by which they could obtain correct figures for these items except from petitioner himself. We find nothing with respect to petitioner's supposed bookkeeping assistance or the method of keeping his accounts which is other than entirely consistent with a fraudulent purpose to evade taxation.
Petitioner's contention that the deficiencies must be disapproved because respondent has not effectively demonstrated the correctness of the net worth computation and nondeductible expenses, cf. Phillips' Estate v. Commissioner, (C. A. 5) 246 F.2d 209">246 F. 2d 209, must be rejected. The prima facie correctness of respondent's determination as to the deficiencies must be overcome by some kind of admissible and credible evidence. Leonard B. Willits, 36 B. T. A. 294, 300; John Kehoe, 34 B. T. A. 59, 70,*90 affd. 309 U.S. 277">309 U.S. 277. In this case, except for the items now conceded by respondent, only the acceptance of petitioner's testimony 3 could accomplish that purpose. But we are unable to place any reliance upon the petitioner as a witness, partly because of his statements and demeanor on the stand and also because of his previous conviction of a felony. Lillian Kilpatrick, 22 T. C. 446, affd. (C. A. 5) 227 F. 2d 240. Without resorting to petitioner's testimony there is nothing to cast any real doubt upon the amount of the deficiencies determined. They must accordingly, except for respondent's concessions, be sustained.
Finally, for the year 1950 respondent has determined*91 deficiencies in additions to tax under sections 294 (d) (1) (A) and 294 (d) (2) for failure to file declaration of estimated tax and for substantial underestimation. Petitioners have offered no independent evidence on this point, and no discussion of it is contained in their brief. We regard it as having been abandoned. Imposition of both additions is permissible even though they derive from the same act of omission. Patchen v. Commissioner, (C. A. 5) 258 F.2d 544">258 F. 2d 544, affirming 27 T. C. 592; Walter H. Kaltreider, 28 T.C. 121">28 T. C. 121, affd. (C. A. 3) 255 F. 2d 833; G. E. Fuller, 20 T. C. 308, affirmed on other grounds (C. A. 10) *46 213 F.2d 102">213 F. 2d 102. But cf. Acker v. Commissioner, (C. A. 6) 258 F.2d 568">258 F. 2d 568, reversing a Memorandum Opinion of this Court on that ground; Erwin v. Granquist, (D. Ore., May 10, 1957) F. Supp. , affirmed on other grounds (C. A. 9) 253 F. 2d 26; Barnwell v. United States, (E. D. S. C.) 164 F. Supp. 430">164 F. Supp. 430;*92 Owen v. United States, (D. Neb.) 134 F. Supp. 31">134 F. Supp. 31; Stenzel v. United States, (N. D. Cal.) 150 F. Supp. 364">150 F. Supp. 364; Jones v. Wood, (D. Ariz.) 151 F. Supp. 678">151 F. Supp. 678.
In order to take into account certain concessions by respondent.
Decision will be entered under Rule 50.
Footnotes
1. Amended return.↩
1. Respondent made a typographical error on line 12. The corrected figures for 1949 through 1951 should be $ 33,360.59, $ 40,329.48, and $ 50,735.81, respectively.↩
1. "Petitioner contends that upon the entire record of this case a finding of any additional taxes must be based upon * * * at the most * * * a net worth analysis * * * which * * * concluded that at most Petitioner's unreported net income amounted to the following:
1949 $ 8,035.78 1950 15,056.78 1951 8,857.66 Total unreported net income $ 31,950.22 Upon which additional taxes in the amount of $ 10,901.20 are owing." (Petitioner's main brief.)
"Petitioner here has gone farther perhaps than necessary in demonstrating that under a reasonably correct net worth determination he would owe some $ 10,901.20 in additional taxes * * *" (Petitioners' reply brief).↩
2. "As the Tax Court very well puts it in its opinion, 'as evidenced by the amounts of income which petitioner earned, he was a man of considerable business acumen and one of more than average intelligence. He offered no plausible explanation which would tend to excuse his failure to report the large sums of income which he in fact received. The amounts by which he understated his income are too large and such understatements occurred consistently over too long a period of time for us on this record to believe that they were due to anything other than a deliberately fraudulent attempt to evade taxes. In addition to taxpayer's consistently large understatement of income, we believe that his method of reporting income was a deliberate attempt to conceal the true amount thereof. * * *" Woodham v. Commissioner, (C. A. 5, June 5, 1958) 256 F. 2d 201↩.
3. Petitioner's wife and son were not called by him as corroborating witnesses although references to them appear in his testimony. See Wichita Terminal Elevator Co., 6 T. C. 1158, affd. (C. A. 10) 162 F. 2d 513↩.