DocketNumber： Docket Nos. 14143-82, 14145-82.
Citation Numbers： 51 T.C.M. 1109, 1986 Tax Ct. Memo LEXIS 385, 1986 T.C. Memo. 223
Filed Date： 6/3/1986
Status： Non-Precedential
Modified Date： 11/21/2020
J filed Forms 1040 for 1975, 1976 and 1977 which contained no information as to his income, deductions or credits for those years. J claimed on these forms that only dollars of gold and silver are taxable. In 1976, J transferred his one-half interest in two parcels of real estate to H, his wife, for inadequate consideration.
MEMORANDUM FINDINGS OF FACT AND OPINION
NIMS,
| Additions to Tax | |||
| Year | Deficiency | Sec. 6653(b) Sec. 6654 | |
| 1975 | $35,665 | $17,833 | $1,497 |
| 1976 | 62,837 | 31,419 | 2,340 |
| 1977 | 73,019 | 36,510 | 2,601 |
In a separate notice of deficiency issued to Joe's wife, Harriet Edelson (Harriet), respondent determined that Harriet was liable for these deficiencies and additions to tax to the extent of $169,800 as a transferee of Joe's assets. *386 On brief, respondent concedes that the amount of Harriet's transferee liability should be reduced to $74,550.
The issues for decision in these consolidated cases
FINDINGS OF FACT
Petitioners Joseph Edelson and Harriet Edelson, husband and wife, resided in California at the time their respective petitions were filed.
During the years in issue, Joe, a self-employed real estate salesman and real estate broker, owned and operated Joe Edelson Realty, a real estate business located at 62 Washington Avenue, Dumont, New Jersey. The real estate business was located *387 in a four-family building which Joe and Harriet jointly purchased in 1973. From 1973 through 1977, Joe realized substantial income from his real estate business in the form of real estate commissions. During this period, Harriet was employed as a secretary.
Petitioners filed joint income tax returns for their taxable years 1973 and 1974 on which they reported the real estate commissions and wage income they received during those years. *388 of the front page of this form, Joe explained that "[t]his figure is expressed in Constitutional dollars of silver and/or gold. Constitutional dollar is here used with the statutory definition of 412.5 grains of standard silver, or the relative equivalent in pure silver or gold." Joe provided no additional information in the remaining spaces on the Form 1040. In the right margin of the front page of the form, Joe wrote "specific objection is taken to the specific question[s] on the grounds of the
By letter dated June 7, 1976, respondent informed petitioner that his 1975 Form 1040 did not constitute a valid Federal income tax return and that he should file another Form 1040 with the appropriate information. Petitioner responded by letter dated June 17, 1976, as follows:
I received *389 your enclosed letter and I am shocked. I prepared my returns, answered every question complete and accurately, explained why I answered every question complete and accurately in a 49 page return, and you send back one page -- photo copied -- with omissions, and inform me that my returns are unacceptable.
Sir, I worked very hard preparing my returns. I did an awful lot of research - checked your code and thought I did an excellent job. In accordance with your letter my returns are not acceptable, but you fail to say what it is that is unacceptable. Please refer back to my return in its entirety, and I will be happy to consider any reasonable constitutional recommendations.
Joe subsequently filed an amended 1975 Form 1040 which contained the same constitutional objections as the original form. Joe also failed to include on this amended form any additional information concerning his income, deductions or credits for 1975.
Joe also failed to include any information concerning his income, deductions and credits of 1976 and 1977 on the Forms 1040 he filed for those years. These forms contained the same constitutional objections as appeared on Joe's 1975 Form 1040.
On March 22, 1976, *390 prior to the filing of his original 1975 Form 1040, Joe transferred to Harriet by deed his one-half interest in the four-family building he and Harriet jointly owned. On this date, Joe also transferred to Harriet by deed his one-half interest in their personal residence located at 33 Eastbrook Drive, River Edge, New Jersey. Joe received consideration of $200 from Harriet for his one-half interest in these properties, which had a net fair market value of $149,500 on the date of the transfers. *391 to answer any questions concerning 1975 until the special agent responded to a questionnaire prepared by Joe containing numerous personal questions. Because the special agent refused to answer the questionnaire, the interview was terminated.
The special agent met with Joe again on April 26, 1977, to discuss potential criminal tax violations. Joe, however, claimed his
Respondent expanded his investigation to include Joe's 1976 taxable year. As a result of Joe's lack of cooperation, the special agent contacted third party sources for information concerning Joe's income for both 1975 and 1976. The special agent first presented a summons to First National State Bank in Tenafly, New Jersey, requesting information concerning personal and business accounts maintained by Joe with the bank. The bank, after informing Joe of respondent's request, received a mailgram from Joe informing the bank that he would hold the bank liable for damages if it complied with the summons. The bank consequently refused to disclose the requested information in the absence of a court order enforcing the summons. *392
During the course of his investigation, the special agent also inspected the mortgage files of Valley Savings and Loan Association in Closter, New Jersey, which disclosed that Joe Edelson Realty had received commissions of $31,797 and $43,112 on real estate transactions which occurred during 1975 and 1976, respectively. These files also revealed that two attorneys, Felix Angelillis and Allan Horowitz, had closed most of these real estate transactions. The special agent subsequently contacted Felix and Allan and requested that they disclose any closing documents in which Joe was listed as the real estate broker. Both men, however, refused to turn over the requested documents, explaining that Joe had threatened to sue them if they turned over the requested records. The special agent thereafter served subpoenas duces tecum on both individuals to obtain the documents.
The special agent also asked Donald Zackim, President of Mercury, Inc., a mortgage brokerage company which conducted substantial business with Joe, to disclose any records the company possessed concerning real estate commissions earned by Joe on real estate transactions which occurred during 1975 and 1976. Although Mr. *393 Zackim initially agreed to the request, he subsequently refused to disclose the records after Joe threatened to sue him if he disclosed the requested information.
Respondent eventually expanded the criminal investigation of petitioner's income taxes to include his 1977 taxable year. Petitioner also refused to cooperate in this investigation.
On January 22, 1979, the United States District Court for the District of New Jersey found Joe guilty under section 7203 of willful failure to file tax returns for taxable years 1975, 1976 and 1977. This conviction was subsequently affirmed by the Third Circuit in
In a notice of deficiency addressed to Joe dated April 2, 1982, respondent, relying on cancelled commission checks payable to Joe Edelson and Joe Edelson Realty, records of closing escrows and bank deposit records, determined that Joe failed to report the following amounts of commission income he received during the years in issue:
| Year | Income |
| 1975 | $75,441 |
| 1976 | 109,818 |
| 1977 | 115,578 |
Respondent further determined that Joe failed to report a short term capital gain of $10,000 which he realized on the 1977 sale of certain real property located at 626 *394 Glenwood Avenue, Teaneck, New Jersey. Respondent also determined additions to tax for fraud under
In a separate notice of deficiency addressed to Harriet, respondent determined that she was liable for Joe's income tax deficiencies and additions to tax to the extent of $169,800 as a transferee of his assets. On brief, respondent concedes that the property interests Harriet received from Joe had a value of only $74,750 and, therefore, that her transferee liability does not exceed $74,550, the value of the property interests less the consideration she paid for such interests.
On June 21, 1982, both Joe and Harriet filed petitions with this Court in which they contested respondent's determinations. Each petition listed petitioners' address as P.O. Box 29 and Drobish Road, Bangor, California, and LaPorte Star Route, Marysville, California. Also on this date, we granted petitioners' requests that the trial of these cases be held in San Francisco, California.
On November 15, 1982, petitioners filed motions requesting that the trial of these cases be moved from San Francisco, California to *395 San Diego, California. Petitioners represented in their motions that they had recently moved to San Diego. We granted Joe's motion on November 17, 1982, and Harriet's motion on November 19, 1982. On August 5, 1983, this Court mailed to Joseph and Harriet notice that their cases were set for trial on October 24, 1983, at San Diego, California.
On August 23, 1983, petitioners filed motions for continuance requesting that their cases be removed from the October 24, 1983, San Diego calendar and placed on a later San Diego calendar. Petitioners explained that they were presently living in New Jersey but anticipated that they would return to San Diego sometime in 1984. We granted Joe's motion by order dated August 24, 1983, and stamped Harriet's motion granted on August 25, 1983. On July 24, 1984, this Court served petitioners with notice that their cases were set for trial on October 15, 1984, at San Diego, California. On August 14, 1984, we served petitioners with notice that the San Diego session would begin on October 16, 1984, rather than on October 15, 1984.
On August 7, 1984, petitioners filed a motion for continuance requesting that their cases be removed from the October *396 16, 1894, San Diego session. Petitioners explained that they were still living in New Jersey and did not anticipate returning to San Diego until after 1984. We denied this motion on August 14, 1984.
On October 1, 1984, petitioners filed a motion requesting that the trial of their cases be moved to Newark, New Jersey, on the ground that "[c]ircumstances have brought Petitioners to New Jersey and Petitioners' attempts to return to California have been unavoidably detained." We granted petitioners' motion by order dated October 10, 1984. On February 28, 1985, we served petitioners with notice that their cases had been set for trial on May 28, 1985, at Newark, New Jersey.
On April 18, 1985, petitioners filed a motion in which they requested that the trial of their case be moved from Newark, New Jersey, to San Diego, California. In the motion, petitioners, claiming that San Diego County had been their permanent residence since October, 1982, maintained that "[t]he unnecessary cost and inconvenience for Petitioners to travel across the country to appear in Tax Court would cause Petitioners a great hardship." We denied this motion on May 16, 1985.
On May 22, 1985, respondent served a *397 subpoena duces tecum on Harriet commanding her to 1) appear before the United States Tax Court at 10:00 a.m. on May 28, 1985, at Room 300, Military Park Building, 60 Park Place, Newark, New Jersey and 2) bring "deeds, closing statements and related documents indicating an interest that you held in real property from 1974 through 1978." On May 24, 1985, respondent served a subpoena duces tecum on Joe commanding him also to appear at the Court's May 28, 1985, Newark session and to bring with him copies of Forms 1040 that he filed for the taxable years 1974 through 1983.
When these cases were called for trial from the trial calendar of this Court in Newark, New Jersey, on May 28, 1985, no appearance was made by or on behalf of petitioners.
The trial of this case was held on June 6, 1985. Neither petitioners nor a representative of petitioners appeared at the trial. Respondent appeared and orally moved the Court to consolidate petitioners' cases for trial, briefing and opinion. We granted respondent's motion. Respondent then moved the Court to dismiss Joe's case for lack of prosecution insofar as the income tax deficiencies are concerned and to enter a decision for respondent in the *398 amount of the deficiencies determined in the notice of deficiency mailed to Joe. We granted respondent's motion at trial, and decision will be entered for respondent that there are deficiencies in Joe's income taxes for 1975, 1976 and 1977 and follows:
| Year | Deficiency |
| 1975 | $35,665 |
| 1976 | 62,837 |
| 1977 | 73,019 |
We then received evidence consisting of oral testimony and exhibits concerning the issues of fraud and transferee liability.
OPINION
The first issue for decision is whether Joe is liable for additions to tax for fraud under
On the record before us, we find that respondent has satisfied his burden of proving an underpayment of tax for each of the years in issue and that some part of each underpayment was due to fraud.
To establish that Joe underpaid his taxes for each of the years in issue, respondent presented cancelled checks payable to Joe Edelson or Joe Edelson Realty totalling $31,023.40, $58,277.00 and $42,258.40 for 1975, 1976 and 1977, respectively. Although the record does not contain all of the records relied on by respondent to reconstruct Joe's taxable income for the years in issue, these cancelled checks, alone, represent a substantial underpayment of tax in each of the years 1975, 1976 and 1977. Joe's written statement on his Forms 1040 that these amounts are not taxable because they do not represent *400 dollars of gold and silver is frivolous. This Court has repeatedly held that the statutory gold content of the dollar is irrelevant for purposes of determining taxable income.
We also find that respondent has established by clear and convincing evidence that at least part of Joe's tax underpayment for each of the years in issue was due to fraud and not the result of an inadvertent omission or an honest mistake. During the years in issue, Joe earned substantial amounts of commission income from his real estate business which he failed to report on income tax returns for those years. This Court has held that "consistent understatements of income in substantial amounts over a number of years by knowledgeable taxpayers, standing alone, are persuasive evidence of fraudulent intent to evade taxes."
Because the Forms 1040 individually filed by Joe for the years in issue did not contain sufficient data from which respondent could compute and assess Joe's tax liability for the years in issue, such forms did not constitute income tax returns. See
Further, the IRS special agent assigned to investigate potential criminal tax violations regarding Joe's 1975, 1976 and 1977 taxable years testified at trial that Joe had repeatedly refused to answer any questions or provide any documents during the course of his investigation.Joe's failure to cooperate in respondent's investigation of the taxable years in issue is additional *402 evidence of fraud.
We also find Joe's transfer of his one-half interest in two parcels of real estate valued at $149,500 to his wife for consideration of $200 to be persuasive evidence of fraud. These transfers occurred on March 22, 1976, approximately three weeks before Joe executed his 1975 Form 1040. We also point out that prior to 1975 Joe and Harriet had filed joint income tax returns. During the years in issue, however, Harriet separately filed her income tax returns on which she reported and paid tax on her income for those years.
In conclusion, after a careful review of all the facts before us, we find that respondent has satisfied his burden of proof. Petitioner's attempt to divest himself of substantially all of his assets shortly before he filed his incomplete 1975 Form 1040, his failure to file valid income tax returns for the years in issue and his lack of cooperation all support a finding that he fraudulently underpaid his taxes during 1975, 1976 and 1977. Accordingly, respondent's additions to tax for fraud are sustained.
The next issue for decision is whether Joe is liable for additions to tax under
The final issue for decision is whether Harriet is liable for Joe's income tax deficiencies and additions to tax to the extent of $74,550 as a transferee of Joe's one-half interest in two parcels of real estate jointly owned by them. Section 6901(a)(1)(A) authorizes the assessment and collection of transferee liability, at law or in equity, in the same manner as the liability for income taxes.
To support his claim against Harriet, respondent relies upon
Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors is fraudulent as to both present and future creditors.
Respondent maintains that the record *405 is replete with evidence that Joe actually intended to defraud the United States government when he transferred to Harriet for inadequate consideration his one-half interest in two parcels of real estate jointly owned by them. Respondent further maintains that the United States was a present as well as future creditor of Joe on March 22, 1976, when the transfers in issue occurred. Respondent therefore concludes that Harriet is a transferee within the meaning of New Jersey state law and, as such, is liable for Joe's income tax deficiencies and additions to tax to the extent the value of the property interests she received from Joe exceeded the consideration she paid Joe for such interests. We agree.
Initially, we note that the Federal government was a "present or future creditor" of Joe within the meaning of New Jersey state law at the time the property transfers occurred.
On the record before us, we are also satisfied that petitioner actually intended to hinder, delay or defraud the Federal government of its lawful taxes when he transferred his one-half interest in the River Edge and Dumont properties valued at $149,500 to Harriet, his wife, for consideration of $200. Our finding is based on the following facts: 1) petitioner transferred his interest in the properties to Harriet only three weeks before he filed a 1975 Form 1040 on which he failed to report any income or income tax liability and Harriet separately filed a 1975 income tax return on which she fully reported her wage income for that year; and 2) although petitioners had filed joint income tax returns prior to 1975, they filed individual income tax returns for 1975, 1976 and 1977. We think that these facts are persuasive evidence that the transfers in issue were part of a plan "to hinder, delay or defraud" the Federal government within the meaning of
To reflect the foregoing,
1. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954 in effect for the years in question. All rule references are to the Tax Court Rules of Practice and Procedure.↩
2. At trial, we granted respondent's oral motion to consolidate these cases for trial, briefing and opinion.↩
3. Petitioners' 1973 and 1974 taxable years were the subject of a prior Tax Court case,
4. At the time of the transfers, the properties had a combined fair market value of $170.000. However, on March 22, 1976, petitioners' personal residence was subject to a mortgage of $20,500.↩
5. Section 6901(a)(1)(A) provides, in pertinent part, as follows:
SEC. 6901. TRANSFERRED ASSETS.
(a) METHOD OF COLLECTION.--The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, paid and collected in the same manner and subject to the same provisions and limitations as in the case of the taxes with respect to which the liabilities were incurred:
(1) INCOME, ESTATE, AND GIFT TAXES.--
(A) TRANSFEREES.--The liability, at law or in equity, of a transferee of property--
(i) of a taxpayer in the case of a tax imposed by subtitle A (relating to income taxes),
* * * ↩
6. Both petitioners were residents of New Jersey on March 22, 1976, the date on which the real estate transfers occurred, and therefore subject to the jurisdiction of that state.↩
United States v. Edelson, Joseph , 604 F.2d 232 ( 1979 )
Susan J. Mayors v. Commissioner of Internal Revenue , 785 F.2d 757 ( 1986 )
John L. Stephenson v. Commissioner of Internal Revenue , 748 F.2d 331 ( 1984 )
Chris D. Stoltzfus and Irma H. Stoltzfus v. United States , 398 F.2d 1002 ( 1968 )