DocketNumber: Docket No. 4797-76.
Citation Numbers: 42 T.C.M. 778, 1981 Tax Ct. Memo LEXIS 304, 1981 T.C. Memo. 439
Filed Date: 8/18/1981
Status: Non-Precedential
Modified Date: 11/20/2020
MEMORANDUM FINDINGS OF FACT AND OPINION
DAWSON,
*305 OPINION OF SPECIAL TRIAL JUDGE
CALDWELL,
Respondent determined deficiencies in petitioners' 1972 and 1973 Federal income taxes in the amounts of $ 1,599.59 and $ 3,533.94, respectively, together with additions to tax for fraud under
FINDINGS OF FACT
Petitionrs resided in the State of California at the time they filed the petition in this case. The following facts are based upon the matters in the request for admissions, which have been deemed to be admitted.
During the taxable year 1973, petitioner David Syas (hereinafter "petitioner") operated a trucking business known as "D.L.&S. Trucking Co."
During the taxable year 1973, petitioner derived unreported taxable income from the aforementioned business.
During the taxable year 1973, petitioner failed to maintain complete and accurate books of account and records of his income-producing activities as required by the applicable provisions of the Internal Revenue Code of 1954 and the regulations promulgated thereunder.
The taxable income of petitioners for the taxable year 1973, as determined by the source and application of funds method is as follows:
SOURCE: | |||
Gross Wages (Mary L. Syas) | $ 9,748.60 | ||
Less: Income tax withheld | |||
Federal | $ 1,481.36 | ||
State | 163.11 | ||
Retirement (8%) | 779.92 | 2,424.39 | |
New Wages | $ 7,324.21 | ||
Schedule C - Gross | |||
Receipts | 8,051.73 | ||
Schedule E - Gross | |||
Rents | 2,200.00 | ||
Dividends - L.A.T.C.U. | 387.34 | ||
Loans - L.A.T.C.U. | 705.00 | ||
1972 Federal Income | |||
Tax Refund | 1,746.00 | ||
Decrease in Savings | |||
L.A.T.C.U. - Share | |||
Account | |||
Balance 1/1/73 | $ 6,720.00 | ||
12/31/73 | 3,985.00 | ||
Decrease | [2,735.00] | 2,735.00 | |
Decrease in Checking | |||
Accounts | |||
Balance 12/28/72 | $ 140.21 | ||
Closed 4/6/73 | |||
Decrease | [140.21] | 140.21 | |
Total Funds Available | $ 23,289.49 |
APPLICATION: | |||
Itemized Deductions | |||
Medical - Per Return | |||
Add: 3% Limitation | |||
1% Limitation | |||
Taxes | $ 1,459.20 | ||
Contributions | 1,186.00 | ||
Interest | 3,100.07 | ||
Miscellaneous | 1,106.81 | ||
Total Itemized | |||
deductions | $ 6,852.08 | ||
Sch. C. Expenses-Per | |||
Return | $ 12,332.21 | ||
Less: Depreciation | 832.30 | ||
Sch. C. Expenses | |||
Involving Funds | 11,499.91 | ||
Sch. E. Expenses | |||
- Per Return | $ 4,303.18 | ||
Less: Depreciation | 1,200.00 | ||
Sch. E. Expenses-Involving | |||
Funds | 3,103.18 | ||
Personal Living | |||
Expenses (Estimated) | 3,360.00 | ||
Loan Payments to | |||
Principal | |||
L.A.T.C.U. | $ 6,754.00 | ||
Great Western S. & L. | 1,423.00 | ||
World Savings | 719.00 | 8,896.00 | |
Purchase of Assets | |||
1962 Peterbilt | |||
(Per Return) | $ 1,623.00 | ||
Organ (Musical | |||
Instrument) | 4,400.00 | ||
Machinery | |||
(Per Return) | 1,217.30 | ||
Total Funds Applied | $ 40,951.47 | ||
Difference Between | |||
Source & | $ 40,951.47 | ||
Application of Funds | [23,289.49] | $ 17,661.98 | |
Adjustments: | 17,661.98 | ||
Medical | |||
Sales Tax | [117.00] | 117.00 | |
Total Adjustments | 17,544.98 | ||
Taxable Income | |||
Corrected | $ 23,182.80 | ||
Taxable Income | |||
Taxable Income Reported on Return | [5,638.08] | ||
Understatement of | |||
Taxable Income | 1 $ 17,544.72 |
Petitioners, during the taxable year 1973, did not receive any gifts, inheritances, legacies, or devises.
Petitioners, during the taxable year 1973, did not receive any nontaxable or excludible income, receipts, cash, or other assets, other than those set out in the foregoing source and application of funds computation.
Petitioner's failure to maintain complete and accurate records of his income-producing activities, and his failure to produce complete and accurate business records to the respondent in connection with the examination of his income tax return for the taxable year 1973 was fraudulent, with the intent to evade tax.
Petitioners understated their taxable income on their income tax return for the taxable year 1973 in the amount of $ 17,544.82.
Petitioners fraudulently, and with intent to evade tax, omitted from their income tax return for the*309 taxable year 1973 taxable income in the amount of $ 17,544.82.
OPINION
Rule 121(a) of this Court's Rules of Practice and Procedure provides that either party may move for a summary adjudication upon all or any part of the legal issues in controversy. In Rule 121(b) it is provided that "A decision shall thereafter [i.e., after the filing of the motion and the response thereto] be rendered if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law."
In the notice of deficiency, as it relates to the year 1973, there were two adjustments and the imposition of the addition to tax for fraud under
1.
Paragraph (8) of respondent's request for admissions, which has been deemed to be admitted, states: "The petitioners understated their taxable income on their income tax return for the taxable year 1973 in the amount of $ 17,544.82."
In the light of that admission, respondent must be held to be entitled to prevail as to a deficiency for 1973 in an amount appropriately reduced to reflect the lesser amount of unreported income.
2.
FRAUD. -- If any part of any underpayment (as defined in subsection (c)) of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 50 percent of the underpayment. In the case of income taxes and gift taxes, this amount shall be in lieu of any amount determined under subsection (a). In the case of a joint return under section 6013, this subsection shall not apply with respect to the tax of a spouse unless some part of the underpayment is due to the fraud of such spouse.
Respondent has the burden of proving by clear and convincing evidence that the underpayment was due to fraud with intent to evade tax. Section 7454(a); Rule 142(b).
Paragraphs (7) and (9) of respondent's request for admissions, which have been deemed admitted, state:
(7) The petitioners' failure to maintain complete and accurate records of his income-producing activities, and his failure to produce complete and accurate business records to the respondent in connection with the examination of his income tax return for the taxable year 1973 was fraudulent, with the intent to evade tax.
(9) The petitioners fraudulently,*312 and with the intent to evade tax, omitted from their income tax return for the taxable year 1973 taxable income in the amount of $ 17,544.82.
In the light of those admissions as well as the other admissions and our findings of fact, it must be concluded that respondent has sustained his burden of proof. Cf.
Respondent's motion for partial summary judgment should be granted.
1. Pursuant to the order of assignment, on the authority of the "otherwise provided" language of
2. Section references are to the Internal Revenue Code of 1954, as amended, unless otherwise indicated.↩
1. Respondent states in paragraph 6 of his motion for partial summary judgment: "Respondent concedes that the petitioners did not understate income in an amount greater than $ 17,544.72 for the taxable year 1973." In the notice of deficiency the unreported income for that year had been determined to be $ 19,407.82.↩