Richard Showalter ( 2022 )

United States Tax Court
T.C. Memo. 2022-114RICHARD SHOWALTER,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent
—————
Docket No. 13116-18. Filed November 30, 2022.
—————
Richard Showalter, pro se.
William J. Gregg and Bartholomew Cirenza, for respondent.
MEMORANDUM OPINION
LAUBER, Judge: Currently before the Court is respondent’s Mo-
tion for Partial Summary Judgment. That Motion is addressed to the
sole remaining issue in the case—whether petitioner has additional un-
reported income for 2013 of $102,885, calculated on the basis of a bank
deposits analysis. We resolve this issue in respondent’s favor.
Background
There is no dispute as to the following facts, which are drawn from
the parties’ Joint Stipulation of Facts, the attached Exhibits, and the
Stipulations of Settled Issues. Petitioner resided in Virginia when he
timely petitioned this Court.
Petitioner is the founder and sole member of Real Estate Consult-
ing Services (RECS), a single-member limited liability company that he
operated during 2013 as a sole proprietorship. RECS had only one bank
account, which it maintained at Wells Fargo Bank, N.A. (Wells Fargo).
Served 11/30/22
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[*2] Petitioner did not file a Federal income tax return for 2013. The
Internal Revenue Service (IRS or respondent) accordingly prepared a
substitute for return (SFR) as authorized by section 6020(b). 1 On the
basis of information submitted by third-party payors, the IRS deter-
mined that petitioner during 2013 received gross income of $367,977,
consisting of business income of $367,103, gambling winnings of $833,
and interest of $41. Petitioner made no estimated tax payments for 2013
and had no Federal income tax withheld by the payors of this income.
On April 9, 2018, the IRS timely issued petitioner a notice of de-
ficiency for 2013 on the basis of the SFR. Allowing petitioner the stand-
ard deduction and the personal exemption to which he was entitled, the
notice determined a deficiency of $122,857, plus additions to tax under
sections 6651(a)(1) and (2) and 6654.
Petitioner timely petitioned this Court for redetermination. Pro-
ceeding pro se, he contended that the IRS overstated his taxable income
because it had allowed him no deductions for his business expenses. On
April 10, 2019, the parties filed a Stipulation of Settled Issues, agreeing
that petitioner had received the items of unreported income listed in the
notice of deficiency. The parties further stipulated that the business
income of $367,103, properly reportable on Schedule C, Profit or Loss
From Business, consisted of two payments to RECS shown on Forms
1099–MISC, Miscellaneous Income, supplied by the payors.
The case was called from the calendar at the Court’s April 15,
2019, Washington, D.C., trial session. Petitioner expressed a desire to
subpoena RECS’ bank records with a view to substantiating his alleged
Schedule C expenses. Respondent did not object, and the Court contin-
ued the case and retained jurisdiction.
On June 7, 2019, respondent filed a status report representing
that he had subpoenaed RECS’ bank records from Wells Fargo. On the
basis of those records and other documentation petitioner supplied, the
parties filed on November 14, 2019, a Supplemental Stipulation of Set-
tled Issues. The parties thereby agreed that petitioner for 2013 was en-
titled to Schedule C deductions totaling $199,958 and itemized deduc-
tions (before any applicable limitation) of $50,652. Petitioner conceded
1 Unless otherwise indicated, all statutory references are to the Internal Reve-
nue Code, Title 26 U.S.C., in effect at all relevant times, and all Rule references are to
the Tax Court Rules of Practice and Procedure.
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[*3] liability for applicable self-employment tax and for additions to tax
set forth in the notice of deficiency, in amounts to be recalculated.
Upon review of the bank records respondent also determined that
RECS during 2013 had received income exceeding the $367,103 reported
on the two Forms 1099–MISC. Employing a bank deposits analysis re-
spondent determined total taxable deposits of $469,988, indicating ad-
ditional unreported income of $102,885 ($469,988 minus $367,103). The
parties agreed that the correct amount of RECS’ gross income for 2013
was the sole remaining issue in the case.
Petitioner believed that one or more bank deposits, allegedly re-
lating to a real estate transaction, might be nontaxable. On April 20,
2021, we set the case for a document subpoena hearing to enable re-
spondent to issue a subpoena to the settlement agent who closed the real
estate sale. The subpoenaed party supplied the documents and the
hearing was canceled.
On September 2, 2021, the parties filed a Stipulation of Facts to
which were attached, among other things: (1) copies of the 2013 bank
statements for the Wells Fargo account, (2) copies of the 2013 deposit
slips for that account, (3) a business records certificate from Wells
Fargo’s custodian of records, and (4) a copy of the settlement statement
for the real estate transaction to which petitioner had referred. The set-
tlement statement related to an August 6, 2013, sale of real estate
owned by petitioner, and it showed cash due to seller of $95,002.
On May 27, 2022, respondent filed a Motion for Partial Summary
Judgment, seeking a ruling on the unreported income issue. We di-
rected petitioner to respond to that Motion by July 8, 2022, and subse-
quently gave him an additional 90 days to respond. He did not respond,
by the due date or subsequently, to the Motion or the Court’s order.
Discussion
A. Summary Judgment Standard
The purpose of summary judgment is to expedite litigation and
avoid costly, unnecessary, and time-consuming trials. See FPL Grp.,
Inc. & Subs. v. Commissioner, 116 T.C. 73, 74 (2001). We may grant
partial summary judgment regarding an issue as to which there is no
genuine dispute of material fact and a decision may be rendered as a
matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C.
518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). In deciding whether
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[*4] to grant summary judgment, we construe factual materials and in-
ferences drawn from them in the light most favorable to the nonmoving
party. Sundstrand Corp., 98 T.C. at 520. However, the nonmoving
party may not rest upon mere allegations or denials of his pleading but
instead must set forth specific facts showing that there is a genuine dis-
pute for trial. Rule 121(d); see Sundstrand Corp., 98 T.C. at 520.
Because petitioner did not respond to the Motion for Partial Sum-
mary Judgment, we could enter a decision against him for that reason
alone. See Rule 121(d). We will nevertheless consider the Motion on its
merits.
B. Burden of Proof
The IRS’s determinations in a notice of deficiency are generally
presumed correct. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115
(1933). However, the burden of proof shifts to the Commissioner with
respect to any “new matter” or “increase[] in deficiency.” Rule 142(a);
see Turner v. Commissioner, 68 T.C. 48, 50 (1977). Respondent’s allega-
tion of unreported Schedule C income, in addition to the $367,103 re-
flected on the two Forms 1099–MISC, is a “new matter” and may gener-
ate an increased deficiency. See Porter v. Commissioner, T.C. Memo.
2015-122, 110 T.C.M. (CCH) 1, 5. Respondent thus bears the burdens
of production and persuasion with respect to the unreported income is-
sue remaining for decision. 2
In unreported income cases the Commissioner must first estab-
lish a “minimal evidentiary showing” connecting the taxpayer to the
income-producing activity, see Blohm v. Commissioner, 994 F.2d 1542,
1548–49 (11th Cir. 1993), aff’g T.C. Memo. 1991-636, or demonstrate
that the taxpayer actually received unreported income, see Edwards v.
2 Section 6214(a) permits the Tax Court to redetermine an increased deficiency
“if claim therefor is asserted by the Secretary at or before the hearing or a rehearing.”
See Henningsen v. Commissioner, 243 F.2d 954, 959 (4th Cir. 1957) (according “hear-
ing” a broad meaning to “include the whole proceeding down to the final decision”),
aff’g 26 T.C. 528 (1956). Respondent did not file an amended answer setting forth the
results of his bank deposits analysis. But petitioner was timely apprised of this anal-
ysis: He informed respondent of deposits he thought might be nontaxable and stipu-
lated that the unreported income question was the sole issue remaining for decision.
We will therefore treat respondent as having timely asserted this new matter and any
increased deficiency that may be shown in the parties’ Rule 155 computations. See
Rule 41(b)(1) (“When issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had been raised
in the pleadings.”)
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[*5] Commissioner, 680 F.2d 1268, 1270 (9th Cir. 1982); see also Wil-
liams v. Commissioner, 999 F.2d 760, 763–64 (4th Cir. 1993), aff’g T.C.
Memo. 1992-153. Respondent satisfied his burden of production by in-
troducing records from the Wells Fargo account, the sole bank account
for petitioner’s Schedule C business, establishing that RECS had unex-
plained deposits in addition to the those corresponding to amounts
shown on the Forms 1099–MISC.
Once the Commissioner makes the required threshold showing,
the burden normally shifts to the taxpayer to prove by a preponderance
of the evidence that the Commissioner’s determinations are arbitrary or
erroneous. See Williams v. Commissioner, 999 F.2d at 763; Catlett v.
Commissioner, T.C. Memo. 2021-102, 122 T.C.M. (CCH) 147, 149. In
this case, because the item of unreported income is a “new matter,” the
burden of proof rests on the Commissioner.
C. Analysis
Section 61(a) defines gross income as “all income from whatever
source derived,” including income derived from business. A taxpayer
must maintain books and records establishing the amount of his gross
income. See § 6001. When a taxpayer does not keep accurate books of
account, the IRS may determine his income “under such method as, in
the opinion of the Secretary, does clearly reflect income.” § 446(b); see
Petzoldt v. Commissioner, 92 T.C. 661, 693 (1989). And where the tax-
payer has unexplained bank deposits, the IRS may employ the bank de-
posits method to estimate his income. Estate of Hague v. Commissioner,
132 F.2d 775 (2d Cir. 1943), aff’g 45 B.T.A. 104 (1941); Estate of Mason
v. Commissioner, 64 T.C. 651, 657 (1975), aff’d, 566 F.2d 2 (6th Cir.
1977). The IRS has great latitude in reconstructing a taxpayer’s income,
and the reconstruction “need only be reasonable in light of all surround-
ing facts and circumstances.” Petzoldt, 92 T.C. at 687.
Bank deposits are prima facie evidence of income. The bank de-
posits method starts with the presumption that all money deposited in
a taxpayer’s bank account during a given period constitutes taxable in-
come. Price v. United States, 335 F.2d 671, 677 (5th Cir. 1964). This
presumption is rebutted to the extent the deposits are shown to include
nontaxable amounts, and “the Government must take into account any
non-taxable source . . . of which it has knowledge.” Ibid.; DiLeo v. Com-
missioner, 96 T.C. 858, 868 (1991), aff’d, 959 F.2d 16 (2d Cir. 1992). Non-
taxable sources include funds attributable to interaccount bank trans-
fers and returned checks, as well as “loans, gifts, inheritances, or assets
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[*6] on hand at the beginning of the taxable period.” Burgo v. Commis-
sioner, 69 T.C. 729, 743 n.14 (1978) (quoting Troncelliti v. Commissioner,
T.C. Memo. 1971-72, 30 T.C.M. (CCH) 297, 301).
Respondent employed the bank deposits method to reconstruct
petitioner’s income. After obtaining copies of RECS’ bank statements,
respondent used the statements (which are a part of the record) to pre-
pare schedules listing all deposits during 2013. The bank records show
total deposits of $594,190. From that sum respondent subtracted non-
taxable items in the aggregate amount of $124,202. These consisted of
$27,500 in loan proceeds, $1,700 of proceeds from a line of credit, and
$95,002 of proceeds from the sale of real estate. This yielded taxable
deposits of $469,988 ($594,190 minus $124,202). From the taxable de-
posits respondent subtracted the $367,103 of Schedule C income deter-
mined in the notice of deficiency, yielding unreported income of $102,885
($469,988 minus $367,103).
The only flaw that petitioner discerned in respondent’s bank de-
posits analysis was the alleged failure to exclude nontaxable real estate
proceeds. Respondent subpoenaed the closing documents from the Au-
gust 6, 2013, sale in order to investigate that claim. The closing docu-
ments showed cash due to petitioner of $95,002. That sum corresponds
precisely to the $95,002 deposit made to RECS’ account on August 7,
2013. Respondent properly subtracted that deposit as a nontaxable
item.
Petitioner has alleged no other error in respondent’s bank depos-
its analysis. We conclude that respondent has carried his burden of
proving that his implementation of the bank deposits method was “rea-
sonable in light of all surrounding facts and circumstances.” Petzoldt,
92 T.C. at 687. We will therefore grant his Motion for Partial Summary
Judgment and sustain his determination of $102,885 of additional un-
reported income for 2013.
To implement the foregoing,
An appropriate order will be issued, and decision will be entered
under Rule 155.