DocketNumber: Docket No. 3054-89
Citation Numbers: 63 T.C.M. 2785, 1992 Tax Ct. Memo LEXIS 268, 1992 T.C. Memo. 227
Judges: PARR
Filed Date: 4/16/1992
Status: Non-Precedential
Modified Date: 11/21/2020
*268 Decision will be entered under Rule 155.
MEMORANDUM FINDINGS OF FACT AND OPINION
PARR,
Additions to Tax | ||||||
Sec. | Sec. | Sec. | Sec. | Sec. | ||
Year | Deficiency | 6653(b) | 6653 | 6653 | 6654 | 6661 2 |
(b)(1) | (b)(2) | |||||
1981 | $ 148,628 | $ 74,314 | N/A | $ 11,385 | N/A | |
1982 | 243,826 | $ 121,913 | 1 | 23,736 | $ 60,956 | |
1983 | 405,402 | 202,701 | 24,834 | 101,351 | ||
1984 | 188,601 | 94,301 | 11,843 | 47,150 | ||
1985 | 159,229 | 79,615 | 9,122 | 39,807 |
Sec. | Sec. | ||||
6653(b) | 6653(b) | ||||
(1)(A) | (1)(B) | ||||
1986 | 107,579 | 80,684 | n1 | 5,203 | 26,895 |
1987 | 56,110 | 42,643 | n1 | 3,398 | 14,029 |
The issues for decision are: (1) Whether petitioner received unreported taxable income in each of the years at issue; (2) whether respondent proved by clear and convincing evidence that petitioner is liable for the additions to tax for fraud *269 pursuant to
FINDINGS OF FACT
Some of the facts have been stipulated and are so found. The stipulation of facts, together with the attached exhibits, is incorporated herein by this reference.
Petitioner resided in Glendora, California, at the time he filed his petition. During the years in issue, petitioner's due dates for filing his 1982 through 1987 tax returns were extended. No extension was filed for tax year 1981. The return for tax year 1982 was timely filed; yet no returns were filed for tax years *270 1981 and 1983 through 1987 until around February 1989.
On January 14, 1981, petitioner received a charter from the Universal Life Church, Inc., Modesto, California (ULC-Modesto).
Petitioner was the sole proprietor of EAC, a Schedule C business. Petitioner controlled all the records of EAC and personally prepared all returns and financial statements. *271 Petitioner offered as his books and records copies of his Form 1040 and attached Schedules C for each year at issue, and bank statements available for 1981, 1982, and 1983 only. He also offered balance sheets, income statements, and other financial records whose validity are in dispute. Respondent offered as evidence of petitioner's net worth EAC's financial statements which petitioner had given to the Department of Justice as evidence of his cash flow. These statements, i.e., balance sheets, income statement, etc., are referred to in this case as financial statements. This term is not meant as a determination of the truth or correctness of the statements, but is used solely for discussion purposes.
During 1981, 1982, and 1983, petitioner had aggregate net bank deposits to the ULC accounts of $ 2,794,441 3 which exceeded the aggregate net profits reported in his financial statements by $ 1,752,305. Of these amounts, deposits from EAC to ULC totaled $ 22,000 in 1981, $ 257,623 in 1982, and $ 112,050 in 1983. Many of petitioner's deposits were made in large amounts of cash; however, they generally would not exceed $ 10,000 a deposit per bank. In 1982, petitioner deposited *272 into the various ULC accounts $ 104,230 of cash and $ 113,534 in cashier's checks which were purchased with cash.
In the notes to EAC's financial statements, petitioner disclosed:
the financial statements reflect only the operations of Electronic Applications Co. and are not meant to disclose the entire net worth of Walter M. Podolece. Because the company is a sole proprietorship, the accompanying financial statements do not necessarily reflect all of the income and deductions of Walter M. Podolece and therefore do not include a provision for Federal and state taxes on income.
On his tax returns, petitioner did not report any income from any source other than EAC and net operating losses carried forward. Petitioner also failed to report interest and dividend income for all the years in issue, save 1987.
Major discrepancies exist between what petitioner reported on Form 1040 relative to EAC and what *273 was reported in the EAC financial statements for sales, expenses, and profits.
Year | Net Sales | Net Sales per | Difference |
per Return | Statement | ||
1981 | $ 2,214,932 | $ 2,724,137 | ($ 509,205) |
1982 | 2,351,620 | 2,427,394 | (75,774) |
1983 | 2,970,322 | 3,048,869 | (78,547) |
1984 | 2,541,488 | 2,625,742 | (84,254) |
1985 | 2,725,389 | 2,747,445 | (22,056) |
1986 | 2,334,579 | 2,307,299 | 27,280 |
1987 | 2,470,009 | 2,437,491 | 32,518 |
Year | Expenses per | Expenses per | Difference |
Return | Statement | ||
1981 | $ 2,205,912 | $ 2,220,516 | $ (14,604) |
1982 | 2,461,856 | 1,983,761 | 478,095 |
1983 | 2,920,269 | 2,243,813 | 676,456 |
1984 | 2,781,819 | 2,231,951 | 549,868 |
1985 | 2,857,926 | 2,412,180 | 445,746 |
1986 | 2,577,168 | 2,075,353 | 501,815 |
1987 | 2,663,481 | 2,285,623 | 377,858 |
Year | Net Profit | Net Profit per | Difference |
per Return | Statement | ||
1981 | $ 9,020 | $ 503,620 | ($ 494,600) |
1982 | (110,236) | 443,631 | (553,867) |
1983 | 50,053 | 805,054 | (755,001) |
1984 | (240,332) | 393,790 | (634,122) |
1985 | (132,538) | 335,264 | (467,802) |
1986 | (242,589) | 231,944 | (474,533) |
1987 | (193,473) | 151,867 | (345,340) |
The aggregate difference between the returns and the financial statements is an understatement of $ 710,038 in sales, an overstatement*274 of $ 3,015,234 in expenses, and understatement of $ 3,725,265 in net profits.
Petitioner did not report any income received as a salary or wages during the audit period; yet he received drawings from EAC in the following amounts:
Year | Amount of Drawing |
1981 | $ 66,469 |
1982 | 51,000 |
1983 | 151,000 |
1984 | 64,896 |
1985 | 51,960 |
1986 | 30,842 |
1987 | 16,877 |
In addition to the drawings, petitioner withdrew money from ULC and used the proceeds for his own benefit. 4
The ULC accounts also served as a "custodian" for petitioner's friends and associates. Petitioner held large amounts of cash for these "friends", and upon their request, returned the money. A few such friends were Joe Kolek and Karl Masarek. In 1983, Kolek was investigated and later found guilty of drug and money laundering and other drug-related offenses. Also in 1983, petitioner was indicted on racketeering charges for laundering drug money for himself *275 and Kolek under the guise of ULC.
Kolek introduced petitioner to several persons, one of whom was Karl Masarek. Masarek, a Czechoslovakian national, entrusted $ 184,000 in cash to petitioner. Within a few weeks Masarek had withdrawn all the money from petitioner's entrustment. However, petitioner was later asked by Valadmir Vesley, Masarek's son-in-law, to reinvest this money on behalf of Masarek in silver coins. Petitioner had an account at the stock exchange and purchased the coins on margin; Vesley repaid him in cash. Petitioner converted the money he received into cashier's checks each for an amount less than $ 10,000.
In another instance, petitioner purchased a helicopter for $ 200,000 from Transcoast International. The owner of Transcoast International, Cecil Stoffer, was indicted with petitioner and Mr. Kolek. Petitioner received from Transcoast International both title to the helicopter and the return of his $ 200,000 payment. Yet another use of the ULC bank accounts involves the purchase of a house in Huntington Beach for $ 760,000. Petitioner secured a $ 500,000 loan for some friends who were foreign nationals. Petitioner gave one of the friends, Isara Zagamacho, *276 $ 160,000 and title was transferred into petitioner's name. However, petitioner never paid the remaining $ 600,000 to the owners. Zagamacho returned the $ 160,000 and it was redeposited into petitioner's account. Yet, the house remained in petitioner's name.
When petitioner and the others were indicted, the Government filed a complaint for forfeiture, a civil action, and seized $ 704,949 from several of the ULC accounts. Shortly after the indictment, petitioner suffered an incapacitating injury in a crash in an Ultra-Lite aircraft. Thus, in February 1986, Judge Keep of the Southern District of California, declared petitioner permanently mentally incompetent to stand trial against the criminal allegations. Petitioner settled the forfeiture action with the U.S. Attorney's Office for $ 309,949, including accumulated interest. 5
*277 In her notice of deficiency, respondent claimed petitioner received unreported taxable income from laundering narcotics money. Based upon all available information and by the application of indirect methods, respondent increased petitioner's taxable income as follows:
1981 | $ 239,062 |
1982 | 442,632 |
1983 | 805,054 |
1984 | 393,790 |
1985 | 335,264 |
1986 | 231,994 |
1987 | 151,867 |
Petitioner contends that no additional outside sources of income exist, and respondent's sources were unsupported and unwarranted by the established and uncontroverted evidence presented.
OPINION
Initially, we will address two motions before the Court. 6 Petitioner moved for motion to dismiss based upon prior settlement in civil action No. 86-03055S (IEG) Stipulation, Settlement and Consent Decree (hereinafter settlement) in the United States District Court for the Southern District of California. It is petitioner's contention that the settlement "speaks for itself and resolves all matters between Petitioner and the United States Government which may be involved in the present civil proceedings to assess additional taxes against petitioner."
*278 Under
Upon review of the settlement, we find that tax deficiencies were not included in the civil action settlement agreement in connection with the seizure.
The settlement agreement reads, in pertinent part:
That on or about 13 February 1986 the
Petitioner contends that the payment of the $ 309,949 was in settlement of all the claims which the United States may have had against him, including Federal tax issues. A settlement stipulation is in all essential characteristics a mutual*279 contract by which each party grants to the other a concession of some rights as a consideration for those secured, and the settlement stipulation is entitled to all of the sanctity of any contract.
The settlement is clearly related only to petitioner's alleged drug-related activities. The settlement stipulation does not relinquish any civil income tax liability between petitioner and respondent. For a settlement to include the issue of tax, it must explicitly say so. See, e.g.,
Second, respondent moved to conform the pleadings to the proof pursuant to
Respondent contends that petitioner has additional unreported income of $ 264,558 based upon information received at trial and corroborated by petitioner's financial statements.
In
In the present case, the issue of the validity of the "financial statements" given to the U.S. Attorney's Office by petitioner was expressly raised at trial. Petitioner consistently asserted that the "financial statements" were for internal purposes only. He asserts that such documents were given to the U.S. Attorney's Office merely to establish that moneys he received were in fact from his business, i.e., EAC, not from the laundering of drug proceeds. To that effect, he asserts, the correctness of the numbers was not as important as his attempt to show that such drug-related activity was not conducted.
This Court notes petitioner's caveat in his financial statements as to the correctness of the documents. See
In the final motion, respondent contends that in 1982 a computational error was made in the notice of deficiency which would increase the deficiency from $ 498,990 in that year to $ 609,226.
The adjustments to income in the notice of deficiency inadvertently failed*283 to take into account the disallowance of the EAC loss reported on petitioner's 1982 tax return. The adjustment to income in the notice of deficiency read as follows:
Adjustments To Income | |
EAC schedule "C" income | $ 442,632 |
Dividends | 29,967 |
Interest | 136,627 |
Total adjustments | $ 609,226 |
Taxable income per return | (110,236) |
Taxable income as revised | $ 498,990 |
However, the adjustment for EAC should have also included a $ 110,236 increase in petitioner's taxable income due to the disallowance of the EAC loss. Therefore, taxable income should have been:
Adjustments To Income | ||
EAC schedule "C" income | $ 442,632 | |
EAC loss | 110,236 | |
Total EAC adjustment | $ 552,868 | |
Dividends | 29,967 | |
Interest | 136,627 | |
Total adjustment | $ 719,462 | |
Taxable income per return | (110,236) | |
Taxable income as corrected | $ 609,226 |
Thus, the amendment merely corrects a mathematical error resulting from a claimed loss that the statutory notice of deficiency clearly disallowed. Petitioner knew of the disallowance of the loss; thus, the correction of the mathematical error will not result in surprise or substantial detriment/prejudice.
Accordingly, so much of respondent's motion*284 as seeks to amend for a computational error in tax year 1982 under
Respondent claimed that petitioner had substantial unreported income and unsubstantiated deductions from drug-laundering activities. Although the settlement related to the seizure does not constitute any admission of wrongdoing on the part of petitioner, it is clearly related to petitioner's alleged drug-related criminal involvement. Respondent has shown a likely source of unreported income.
Respondent reconstructed petitioner's income and expenses from petitioner's admissions on the record, bank statements outlining deposits and withdrawals of the ULC accounts, and EAC's financial statements. Respondent contends that the other financial documents, which were prepared for and presented at trial, are fictitious.
Where a taxpayer fails to keep the required books and records, respondent is authorized under
At the outset, we note, based on the reasons discussed
Transactions between controlled taxpayers (EAC and ULC) will be subject to special scrutiny to ascertain whether common control is being used to reduce, avoid, or escape taxes.
Respondent *287 determined from the bank statements that in 1982 petitioner earned $ 136,627 in interest income and $ 30,067 in dividend income. In 1983, petitioner earned $ 11,786 in interest income and $ 9,442 in dividend income. 8 Petitioner failed to include dividend and interest income items on his Form 1040 during the entire audit period, save 1987. Petitioner contends that the ULC's interest expense from silver contract loans exceeded interest received from ULC bank accounts and money markets; thus, since he did not take deductions for the interest expense, the interest income is likewise not includable. We disagree.
Dividends and interest are*288 excluded from self-employment earnings unless such dividends or interest are received by an individual in the trade or business as a dealer in securities.
Further, respondent determined that petitioner reported Schedule C expenses aggregating in excess of $ 3 million over expenses listed in the financial statements. Since petitioner admitted in the notes to financial statements that his net worth consisted of more than EAC's activities, it is conceivable that petitioner had income and expenses from other sources. However, petitioner offered no rationale for this discrepancy nor presented any evidence to substantiate any additional business activity. Accordingly, we hold that the expenses as stated on the financial statements are correct.
Moreover, respondent determined petitioner overstated his depreciation expense thereby understanding income by *289 the same amount. Petitioner testified that out of $ 166,189 of depreciation expense reported in 1987, $ 113,551 represented depreciation on the Bell helicopter. At one point, petitioner claimed that the helicopter was an asset of ULC, not EAC. It is, however, apparent that petitioner was not the true owner of the helicopter, since the $ 200,000 he purportedly paid for it was returned. Accordingly, he had not basis to depreciate. Thus, no depreciation deduction is allowed EAC or petitioner regardless of their claimed use of the helicopter.
Finally, respondent determined petitioner overstated his beginning inventory in 1981 by $ 979,785, which resulted in an understatement of income in the same amount. It is well settled that the opening inventory of one year must coincide with the closing inventory of the preceding year, unless the prior year's closing inventory can be shown to be erroneous.
Respondent's determination of the inventory is deemed prima facie correct, and the taxpayer has the burden of proof to show not only that it is arbitrary and incorrect, but to prove the correct valuation.
In summation, we hold that petitioner had substantial unreported taxable income as stated on his financial statements, he overreported his expenses, he erroneously deducted depreciation on his Schedule C for the helicopter, *291 and he overreported his beginning inventory in 1982. He has consistently failed to meet his burden of proving that respondent's determinations were not correct. Accordingly, we hold that respondent's calculations as outlined in her notice of deficiency and amended by the motions granted herein are correct.
Respondent determined petitioner is liable for additions to tax for fraud under
Fraud is defined as an "intentional wrongdoing on the part of the taxpayer with the specific intent to avoid a tax known to be owing."
To meet her burden, respondent must show that (1) there was an underpayment and (2) petitioner intended to evade taxes known to be owing, by conduct intended to conceal, mislead, or otherwise prevent the collection*293 of taxes.
The existence of fraud is a question of fact to be resolved upon consideration of the entire record.
For the reasons stated below, we find that respondent has proved by clear and convincing evidence that petitioner fraudulently intended to evade the taxes which he knew to be owing, and that his actions were directed at concealing his tax liability.
Petitioner entered into a settlement agreement with the U.S. Attorney's Office for $ 309,949 on a *295 drug-laundering scheme. Although the agreement elicited no admission of guilt on petitioner's behalf, the Court is entitled to consider such evidence along with other evidence in determining the intent of the taxpayer in doing certain acts.
Petitioner used at least nine bank accounts under the name of ULC to hide his EAC income from respondent and to transact business for friends who were parties to the criminal investigation, at least one of whom was convicted. These transactions include the purchase of the house in Huntington Beach and the purchase of the helicopter. Petitioner had sole dominion over the accounts and used them for his personal expenses.
Petitioner purchased 20 cashier's checks in amounts just below $ 10,000; 13 were purchased on the same day. It is common knowledge that cash transactions made with banks in amounts over $ 10,000 are required to be reported to the Federal Government.
Petitioner failed to maintain adequate books and records to clearly ascertain his business activity. He received and transferred large amounts of taxable income from EAC to ULC. Yet, on his income tax returns, no taxable income was reported.
Petitioner did not file returns for 1981 through 1987, save 1982, until after he received the notice of deficiency from respondent. When he finally did file, he overstated his expenses by at least $ 3 million and overstated his 1981 inventory by nearly $ 1 million.
Thus, based on all the above factors, petitioner's actions clearly and convincingly show his intent to evade taxes owing and due. Respondent proved that there was a substantial underpayment based on her reconstruction of petitioner's books and records. Accordingly, we conclude from the record as a whole that respondent has carried her burden of proving fraud for each year under
Petitioner reported no tax liabilities for any of the years in issue, and failed to introduce any evidence indicating that respondent so erred in her notice of deficiency. Accordingly, we conclude that petitioner is liable for additions to tax under
To reflect the foregoing,
2. During the years 1980, 1981, and 1982, ULC-Modesto was listed by the Internal Revenue Service in Publication 78, Cumulative List of Organizations Described in
1. 50 percent of the interest due on the deficiency.
1. All section references are to the Internal Revenue Code for the taxable years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated.↩
3. Petitioner deposited $ 542,496 in 1981, $ 1,940,727 in 1982, and $ 311,218 in 1983 into the ULC accounts.↩
4. On Schedule C, EAC did not take any deductions or credits for the amounts transferred to ULC.↩
5. The amount initially seized and held by the U.S. Marshals Service was $ 704,949. Of that amount, $ 309,949.26 was paid to the United States in settlement of the civil action, $ 50,000 was paid as attorney fees, and $ 345,000 was returned to petitioner.↩
6. Petitioner and respondent each filed a motion. However, respondent's motion is twofold; it consists of a motion to conform the pleadings to the proof,
7. Respondent miscasts this motion as a request to amend the pleadings to conform to the evidence pursuant to
8. Dividend and interest income information was available for 1982 and 1983 only, presumably because bank records for the later years were destroyed. The 1982 and 1983 records were obtained from the Department of Justice. Petitioner failed to report income from these sources for all the years in issue, except 1987, which he filed after receiving respondent's notice of deficiency.↩
American Can Co. v. Bowers , 35 F.2d 832 ( 1929 )
Chris D. Stoltzfus and Irma H. Stoltzfus v. United States , 398 F.2d 1002 ( 1968 )
Joseph Solomon v. Commissioner of Internal Revenue , 732 F.2d 1459 ( 1984 )
American Textile MacHine Corp. v. United States , 220 F.2d 584 ( 1955 )
George C. McGee v. Commissioner of Internal Revenue , 519 F.2d 1121 ( 1975 )
Valmore H. Monette and Nannie B. Monette v. Commissioner of ... , 374 F.2d 116 ( 1967 )
Consolidated Data Terminals, a California Corporation, and ... , 708 F.2d 385 ( 1983 )
Olaf C. Akland, and Bertha A. Akland v. Commissioner of ... , 767 F.2d 618 ( 1985 )
Robert P. Lord, Appellee-Cross-Appellant v. Commissioner of ... , 525 F.2d 741 ( 1975 )
Sally Conforte v. Commissioner of Internal Revenue, Joseph ... , 692 F.2d 587 ( 1982 )
Mil-Spec Contractors, Inc. v. The United States , 835 F.2d 865 ( 1987 )
Robert W. Bradford v. Commissioner of Internal Revenue , 796 F.2d 303 ( 1986 )
Grace M. Powell, of the Estate of O. E. Powell, Deceased v. ... , 252 F.2d 56 ( 1958 )
david-p-campbell-v-the-board-of-trustees-of-the-leland-stanford-junior , 817 F.2d 499 ( 1987 )
Spies v. United States , 63 S. Ct. 364 ( 1943 )
Welch v. Helvering , 54 S. Ct. 8 ( 1933 )