Bacon v. Commissioner , 80 T.C.M. 219 ( 2000 )

ROBERT G. BACON AND BARBARA BACON, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Bacon v. Commissioner

No. 2993-97

United States Tax Court

T.C. Memo 2000-257; 2000 Tax Ct. Memo LEXIS 302; 80 T.C.M. (CCH) 219; T.C.M. (RIA) 54003;

August 15, 2000, Filed

---

John R. Crayton, for petitioners.

Richard H. Gannon and Linda Love Vines, for respondent.

Ruwe, Robert P.

---

RUWE

MEMORANDUM FINDINGS OF FACT AND OPINION

RUWE, JUDGE: Respondent determined deficiencies in petitioners' Federal income taxes, an addition to tax, and penalties as follows:

               Addition to Tax     Penalties

               _______________     ____________

   Year    Deficiency    Sec. 6653(b)(1)  ¹   Sec. 6663(a)

   ____    __________    _______________     ____________

   1988    $ 107,589      $ 83,609        ---

   1989      70,297        ---        $ 52,723

   1990     147,326        ---        110,495

   1991      77,606        ---         58,205

   1992      13,927        ---         10,445

After concessions, ¹ the issues for decision are: (1) Whether petitioners underreported their income for each year in issue; (2) whether any part of an underpayment for each year in issue is due to fraud; and (3) whether assessment of the alleged deficiencies is barred by the statute of limitations.

Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. Throughout this opinion, all amounts have been rounded to the nearest dollar.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. The stipulation of facts and the attached exhibits are incorporated herein by this reference. The petitioners, Robert G. Bacon (Mr. Bacon), and Barbara Bacon (Mrs. Bacon), are husband and wife. At the time they filed their petition in this case, they resided in Cinnaminson, New Jersey.

Mr. Bacon is a high school graduate. He briefly attended college as a part-time student where he completed courses in Accounting I and II. Mrs. Bacon is a college graduate.

In 1980, Mr. Bacon purchased a bar/restaurant called the Jug Handle Inn under the name of Radtam, Inc., a corporation (Radtam). Mr. Bacon was the sole shareholder of Radtam during the years in issue. The primary source of income for the Jug Handle Inn during this time period was from the sale of food, beer, and liquor. The Jug Handle Inn also derived revenue from lottery sales.

Petitioners timely filed joint Federal income tax returns for each of the years in issue. Petitioners reported adjusted gross income on their Federal income tax returns for the years in issue as follows: ²

               Adjusted

        Year      Gross Income

        ____      ____________

        1988      $ 44,221

        1989       90,840

        1990       97,478

        1991        99,117

               _______

         Total     331,656

During the years in issue, petitioner made deposits into their personal bank accounts in the following amounts: ³

                Gross

        Year      Deposits

        ____      __________

        1988      $ 843,032

        1989       530,188

        1990      1,285,386

        1991      1,149,802

              _________

        Total     3,808,408

Some of these deposits were made in the form of cash. Some of these deposits came from two of Radtam's bank accounts. ⁴ Cash deposits and deposits from the Radtam accounts that were made into petitioners' personal bank accounts for the years in issue were as follows:

           Cash       Deposits from

          Deposits     Radtam Accounts

          ________     _______________

   1988      $ 64,372       $ 503,855

   1989       41,202        293,313

   1990       90,804        453,688

   1991       394,311        227,543

          ________       _________

    Total     590,689       1,478,399

During the years in issue, petitioners purchased seven parcels of real property in Mrs. Bacon's name as follows: ⁵

		Balance Paid
		at Closing	Cash Paid
Purchase Date	Purchase Price	Net of Loans	at Closing 1
1. 02/23/88	2 $ 412,000	$ 3,167	$ 3,167
2. 03/04/88	3 585,000	285,000	---
3. 03/31/89	(195,000)	197,017	74,285
4. 06/18/90	(425,000)	25,000	---
5. 06/29/90	() 530,000	152,285	---
6. 07/02/90	(134,000)	4 131,592	5 30,591
7. 10/18/90	250,000)	35,528	5,528
Total	(2,531,000)	829,589	113,571

On or about October 19, 1989, petitioners paid Collective Federal Savings Bank $ 10,657 to modify the terms of their loan agreement on property located at 218 E. 18th Street, North Beach Haven, New Jersey. Petitioners paid with a cashier's check, which was paid for with a check drawn on the Radtam lottery account at Security Savings & Loan. ⁶

During the taxable years in issue, petitioners made the following expenditures:

     Year      Item       Purchase Price

     ____      ____       ______________

     1990    Boston Whaler      ¹ $ 15,850

     1990    Chrysler Voyager     2   6,500

     1991    U.S. Savings Bonds    3  15,000

                       ________

      Total               (37,350)

On June 15, 1989, Mr. Bacon's cousin, Tadeusz Ras, purchased a residence. Of the total purchase price, $ 50,220 was paid in cash. A check in the amount of $ 16,600 was also part of the purchase money used to acquire the property. On June 15, 1989, $ 16,600 was withdrawn from Radtam's savings account at Chemical Bank. ⁷ On June 27, 1989, Tadeusz Ras executed a mortgage on his residence in favor of Mrs. Bacon for $ 64,000.

Beginning on or before July 1989, petitioners prepared monthly summary sheets on behalf of Radtam, which purportedly listed total deposits into its bank accounts for the month, breaking down the total by category such as food, sales tax, beer, liquor, etc. These monthly summary sheets were furnished to petitioners' accountant who prepared Radtam's corporate tax returns. ⁸

In addition to the monthly summary sheets, each month petitioners provided their accountant with corporate bank statements and a schedule of corporate disbursements. The bank statements furnished to the accountant reflected two of Radtam's accounts at Security Savings & Loan. However, Radtam also maintained a savings account at Chemical Bank ⁹ from July 1, 1988, through June 30, 1992. Before 1991, petitioners' accountant was not made aware that Radtam had a bank account with Chemical Bank. Sometime after 1991, and after the Internal Revenue Service (IRS) began its investigation, petitioners started providing their accountant with monthly summary sheets listing deposits into the Chemical Bank account.

Radtam reported gross receipts and taxable income on its corporate income tax returns as follows:

           FYE     FYE     FYE     FYE     FYE

          6/30/88   6/30/89   6/30/90   6/30/91   6/30/92

          _______   _______   _______   _______   _______

Gross Receipts   $ 453,734 $ 684,395  $ 868,601 $ 901,615  $ 803,517

Taxable Income   ¹ 18,657    (616)   12,308    (242)    7,331

For purposes of preparing petitioners' Federal income tax returns, Mrs. Bacon prepared annual summaries of personal income sources and expenses relating to petitioners' real properties, which she gave to their accountant. Mrs. Bacon also provided the accountant with Forms 1099 and settlement sheets from each real estate purchase.

In 1991, Mr. Bacon purchased a bar/restaurant called the Whistler's Inn under the name Bradam, Inc. (Bradam). Mr. Bacon was the sole shareholder of Bradam in 1991. The primary source of income for Whistler's Inn was from the sale of food, beer, and liquor.

On or about April 17, 1991, Bradam entered into an agreement to purchase a liquor license, restrictive covenant, and equipment relating to the Whistler's Inn. At settlement, Bradam applied a $ 50,000 cashier's check toward the purchase. The cashier's check was purchased with amounts withdrawn from Radtam's savings account. ¹⁰

On or about January 6, 1992, Mr. Bacon filed an application for a VISA card listing his occupation as tavern owner of Radtam Inc. t/a Jug Handle Inn and stating that his annual salary was $ 299,000. Mr. Bacon reported no salary, wages, or dividends from Radtam on his income tax returns for the years in issue.

On July 14, 1992, both petitioners met with and were interviewed by two special agents from the IRS. During this interview, Mr. Bacon told the agents that petitioners and their children had received extensive cash gifts from Mr. Bacon's grandfather in $ 10,000 cash increments. According to Mr. Bacon, he received a $ 10,000 cash gift each year since his 18th birthday, his wife received an annual $ 10,000 cash gift since they have been married, and their children each received an annual $ 10,000 cash gift since their birth. Mr. Bacon told respondent's agents that the gifts were from his grandfather and were received through a brother-in-law and that neither petitioners nor their children had ever met their grandfather. Mr. Bacon told the agents that he was told never to tell anyone about the gifts and never to put the money in a bank. Mr. Bacon told the special agents that he may have had as much as $ 650,000 cash on hand at the beginning of 1988. At trial, petitioners stipulated that at the beginning of 1988, they had approximately $ 35,000 cash on hand. During the years in issue, petitioners did not receive any gifts, inheritances, legacies, or devises.

OPINION

I. UNREPORTED INCOME

Respondent determined deficiencies for the years in issue by using the bank deposit method. Bank deposits are prima facie evidence of income. See DiLeo v. Commissioner, 96 T.C. 858">96 T.C. 858, 869 (1991), affd. 959 F.2d 16">959 F.2d 16 (2d Cir. 1992). Of course, when utilizing this method, all nontaxable sources of deposits must be taken into account. See id. Under the bank deposits method: (1) Bank deposits are totaled; (2) nonincome deposits, redeposits, or transfers are eliminated; (3) an excess of deposits, as adjusted, over reported income is considered to be unreported income; (4) cash expenditures that did not come from deposited funds or nontaxable sources are added to the amount of underreported income; and (5) deductible expenses not accounted for in the taxpayer's return are allowed. ¹¹

Using the bank deposit method, respondent determined in the notice of deficiency that petitioners understated their income for the years 1988 through 1991 in the following amounts:

   ¹ 1988     2 1989     3 1990     4 1991

     ____       ____       ____       ____

   $ 362,461    $ 226,693    $ 500,851    $ 236,417

The parties have stipulated that if a bank deposit analysis is to be used, then the following adjustments must be made to respondent's bank deposit analysis in the notice of deficiency: ¹²

             1988      1989      1990     1991

             ____      ____      ____     ____

Mathematical errors:    ---     $ 71,907   $ 78,361   $ 368,032

Less reductions for

 nontaxable items &

 credits:  ¹      (284,603)   (150,922)   (268,424)   (434,422)

Plus cash expendi-

 tures  2 and

 debits:  3       32,467    173,989     49,962     75,387

            _________   _______    _________    ________

Net adjustments to

 statutory notice:   (252,136)    94,974    (140,101)     8,997

Respondent has submitted schedules with his brief that show petitioners' unreported income for the years in issue is as follows:

	1 1988	2 1989	3 1990	4 1991
Total gross deposits:	$ 843,032	$ 530,188	$ 1,285,386	$ 1,149,802
Less reductions for
nontaxable items,
credits, 5
& reported income:	(740,724)	(560,045)	(1,067,222)	(1,070,042)
Plus cash expendi-
tures 6 and
debits: 7	5,447	351,378	161,451	165,568
Adjustments to taxable
income:	8 107,755	9 321,521	10 379,615	11 245,328

With the exceptions noted below (see infra notes 13, 14, and 15), respondent's final bank deposits analysis, as adjusted pursuant to the parties' stipulations, is supported by the facts. On the basis of stipulated facts and evidence admitted at trial, we find that petitioners had unreported income of $ 102,748 ¹³ in 1988, $ 320,661 14 in 1989, $ 358,215 15 in 1990, and $ 245,328 in 1991.

Petitioners argue that respondent's bank deposit method is fundamentally flawed. Admittedly, there have been a significant number of adjustments to respondent's bank deposit analysis, and the computations involve considerable detail. Nevertheless, the facts in the record, most of which were stipulated, support respondent's final computations as adjusted. Indeed, on brief, petitioners focus their factual dispute on only four specific matters in the bank deposit analysis. We address each of the specific factual matters that petitioners dispute.

A. CASH ON HAND

Petitioners assert that respondent should reduce their 1988 unreported taxable income under the bank deposit analysis by $ 35,000. According to petitioners, the adjustment is necessary because they had $ 35,000 cash on hand at the beginning of the year.

An adjustment to respondent's bank deposit analysis would be appropriate if petitioners had less than $ 35,000 at the end of the year. If petitioners started with $ 35,000 cash at the beginning of the year but had less than $ 35,000 at the end of the year, then the difference could have been nontaxable source of deposits to petitioners' bank accounts or a nontaxable source of cash expenditures by petitioners. However, Mr. Bacon testified that he kept substantial amounts of cash on hand at all times during the years in issue. Indeed, petitioners prepared a loan application dated March 8, 1990, which reflected $ 35,000 cash on hand. There is no credible evidence that petitioners' cash on hand was less than $ 35,000 at the end of any of the years in issue. On the basis of the record, we cannot conclude that an adjustment to respondent's bank deposit analysis is justified for cash on hand.

B. LOAN TO TADEUSZ RAS

Respondent increased petitioners' 1989 unreported income under the bank deposit analysis by $ 64,000 due to an alleged transfer from Mrs. Bacon to Tadeusz Ras (Mr. Ras). Petitioners argue that the alleged transfer should be eliminated from the bank deposit analysis, since no transfer ever took place.

Mr. Ras is Mr. Bacon's cousin and has been continuously employed by Radtam since 1991. When Mr. Ras started working for Mr. Bacon in 1991, he was paid approximately $ 5 to $ 6 per hour. Mr. Ras cared for Mr. Bacon's grandmother before he was employed by Radtam.

On June 15, 1989, Mr. Ras purchased a house. According to the settlement statement, Mr. Ras owed the seller $ 108,213 and satisfied this obligation with $ 50,220 in cash and paid the remainder with a number of checks. One of the checks used to purchase the house was in the amount of $ 16,600. On the day of Mr. Ras' purchase, the sum of $ 16,600 was withdrawn from Radtam's savings account at Chemical Bank. ¹⁶ On June 27, 1989, Mr. Ras executed a mortgage on his residence in favor of Mrs. Bacon in the amount of $ 64,000.

Mr. Ras testified that his grandmother, not Mrs. Bacon, provided him with the money to purchase the house. When he was asked how his grandmother managed to accumulate $ 50,220 in cash, Mr. Ras was unable to provide an answer. When he was asked who issued the checks for the remainder of the purchase price, Mr. Ras could not provide a definite answer, nor could he deny that Mr. Bacon provided him with some of the checks. When he was asked why he signed a $ 64,000 mortgage in favor of Mrs. Bacon if she had not lent him the money, Mr. Ras said that Mr. Bacon told him to sign and that he would sign anything that Mr. Bacon gave him.

We do not find Mr. Ras' explanation to be credible. On the basis of the facts, we find that petitioners provided Mr. Ras with $ 64,000 and that he in turn executed a mortgage on the house in the amount of $ 64,000.

C. REAL ESTATE DEPOSITS

Petitioners argue that respondent should reduce their unreported taxable income under the bank deposit analysis by $ 9,000 for 1988 and $ 4,000 for 1990. According to petitioners, they issued checks totaling $ 13,000 to make deposits on unconsummated real estate transactions. This resulted, according to petitioners, in the return of $ 13,000 of nontaxable funds that were either redeposited or cashed.

Petitioners have not established that these transactions ever took place or that the amounts in question were returned to them. No adjustment to respondent's bank deposit analysis is necessary for this item.

D. LOANS PAYABLE TO MRS. BACON

Petitioners argue that respondent should reduce their unreported taxable income under the bank deposit analysis by $ 319,109. Petitioners allege that such an adjustment is necessary because in 1989 Radtam owed Mrs. Bacon $ 319,109. Petitioners argue that, to the extent that the bank deposit analysis indicates the underreporting of income from Radtam, petitioners should be given credit for $ 319,109 as being for the repayment of previous loans from Mrs. Bacon. Respondent argues that petitioners have not substantiated that Radtam owed Mrs. Bacon $ 319,109 in 1989.

To support petitioners' contention, petitioners rely on Radtam's Federal income tax return for the fiscal year ended June 30, 1989. Page four of the income tax return included a balance sheet which listed "Mortgages, notes, bonds payable in less than 1 year" (notes payable) of $ 319,109. The income tax return does not identify the persons or entities to whom Radtam owed $ 319,109. Petitioners' C.P.A., Jerome Collins, prepared the June 30, 1989, Federal income tax return. ¹⁷ The income tax return was filed in March of 1991.

Mr. Collins testified that he did not ask either Mr. Bacon or Mrs. Bacon whether the $ 319,109 entry on the June 30, 1989, balance sheet was a loan payable to Mrs. Bacon. Furthermore, Mr. Collins testified that he did not see any documents that would indicate that the corporation owed Mrs. Bacon $ 319,109. ¹⁸ Petitioners did not provide corporate minutes, loan documents, promissory notes, mortgage documents, or other documents that would substantiate their assertion.

Mr. O'Malley, petitioners' new C.P.A., testified that he does not know how Mr. Collins arrived at the loan payable figures that appeared on Radtam's Federal income tax return for the fiscal year ending June 30, 1989. Mr. O'Malley also testified that he could not obtain any information about the loans payable account.

Radtam's Federal income tax returns for the fiscal years ending 1990, 1991, and 1992, were all filed in June of 1996. ¹⁹ None of those income tax returns contained any balance sheet information. 20 The lack of balance sheet information on subsequent Radtam Federal income tax returns suggests that Mr. Collins did not have sufficient detail to prepare the balance sheets and that a note payable to Mrs. Bacon never existed.

The evidence does not support petitioners' assertion that Radtam owed Mrs. Bacon $ 319,109 in 1989, and we do not believe petitioners' assertion in this regard. Thus, we find that the bank deposit analysis does not have to be adjusted for this item.

II. FRAUD

The next issue is whether any part of the underpayment of income tax for each year in issue is due to fraud. Respondent's notice of deficiency determined that petitioners are liable for the addition to tax for fraud imposed under section 6653(b)(1) ²¹ for the taxable year 1988 and penalties under section 6663(a) 22 for the taxable years 1989, 1990, and 1991. Each section imposes an addition to tax or penalty equal to 75 percent of the portion of an underpayment that is attributable to fraud. Additionally, each section provides that if any portion of an underpayment is attributable to fraud, the entire underpayment is treated as attributable to fraud, unless the taxpayer proves that some portion of the underpayment is not due to fraud. Finally, in the case of a joint return, the fraud penalty does not apply with respect to a spouse unless some part of the underpayment is due to fraud of such spouse. See secs. 6653(b)(3) for 1988 and 6663(c) for the years 1989, 1990, and 1991.

Respondent has the burden of proving by clear and convincing evidence that an underpayment exists for the years in issue and that some portion of the underpayment is due to fraud. See sec. 7454(a); Rule 142(b); Niedringhaus v. Commissioner, 99 T.C. 202">99 T.C. 202, 210 (1992). Consequently, respondent must establish: (1) Petitioners have underpaid their taxes for each year, and (2) some part of the underpayment is due to fraud. See DiLeo v. Commissioner, 96 T.C. 858">96 T.C. 858, 873 (1991), affd. 959 F.2d 16">959 F.2d 16 (2d Cir. 1992).

Respondent need not prove the precise amount of the underpayment resulting from fraud but only that some portion of the underpayment of tax for each year is due to fraud. See Niedringhaus v. Commissioner, supra at 210.

A. UNDERSTATEMENT OF INCOME

Where allegations of fraud are intertwined with unreported and indirectly reconstructed income, respondent is required to establish a likely taxable source for alleged unreported income or to disprove nontaxable sources alleged by the taxpayer. See DiLeo v. Commissioner, supra 96 T.C. at 873.

The evidence clearly establishes that the Jug Handle Inn was a likely source of unreported income. The evidence also establishes that petitioners had no nontaxable sources that could account for the unreported income. Mr. Bacon originally claimed to have had $ 650,000 in nontaxable cash gifts on hand at the beginning of 1988, which would have been a potential nontaxable source. However, at trial petitioners stipulated that they only had $ 35,000 cash on hand at the beginning of 1988. Petitioners stipulated that they did not receive any gifts, inheritances, legacies, or devises.

Respondent's final bank deposit analysis is based primarily on stipulated facts. The record contains clear and convincing affirmative evidence that petitioners underpaid their 1988, 1989, 1990, and 1991 Federal income taxes.

B. FRAUDULENT INTENT

Respondent must prove that a portion of the underpayment is attributable to the fraudulent intent of petitioners. Fraud is the intentional wrongdoing motivated by a specific purpose to evade a tax known or believed to be owing. See Stoltzfus v. United States, 398 F.2d 1002">398 F.2d 1002, 1004 (3d Cir. 1968). The existence of fraud is a question of fact to be resolved upon consideration of the entire record. See Gajewski v. Commissioner, 67 T.C. 181">67 T.C. 181, 199 (1976), affd. without published opinion 578 F.2d 1383">578 F.2d 1383 (8th Cir. 1978).

Fraudulent intent can seldom be established by a single act or by direct proof of the taxpayer's intention. It is usually found by surveying the taxpayer's whole course of conduct and is to be proven as any other fact from all the evidence of record and reasonable inferences properly to be drawn therefrom. See Otsuki v. Commissioner, 53 T.C. 96">53 T.C. 96, 106 (1969). Any conduct, the likely effect of which would be to mislead or to conceal may establish an affirmative act of evasion. See Spies v. United States, 317 U.S. 492">317 U.S. 492, 499, 87 L. Ed. 418">87 L. Ed. 418, 63 S. Ct. 364">63 S. Ct. 364 (1943).

The courts have relied upon a number of indicia of fraud in deciding whether an underpayment of tax is due to fraud. While no single factor is necessarily sufficient to establish fraud, the existence of several indicia is persuasive circumstantial evidence of fraud. See Petzoldt v. Commissioner, 92 T.C. 661">92 T.C. 661, 700 (1989).

Respondent argues that the following factors or "badges" of fraud are present in this case: (1) A substantial and consistent understatement of income; (2) false statements made by petitioners during their interview with respondent's agents; (3) extensive dealings in cash; (4) failure to maintain adequate records; and (5) failure to furnish their return preparer with accurate information.

1. SUBSTANTIAL AND CONSISTENT UNDERSTATEMENT OF INCOME

The consistent failure to report substantial amounts of income over a number of years, standing alone, is effective evidence of fraudulent intent. See Schwarzkopf v. Commissioner, 246 F.2d 731">246 F.2d 731, 734 (3d Cir. 1957), affg. and remanding on another issue T.C. Memo 1956-155">T.C. Memo 1956-155. In this case, there is a substantial underpayment of tax for each of the years in issue. Over the 4-year period in issue, petitioners failed to report approximately $ 1 million dollars of income.

2. FALSE STATEMENTS

Respondent argues that false statements made at the time petitioners were interviewed by respondent's agents are evidence of fraudulent intent. The Supreme Court has stated that an "affirmative willful attempt may be inferred from * * * any conduct, the likely effect of which would be to mislead or to conceal." Spies v. United States, supra at 499. Making false statements to a revenue agent is evidence of fraud. See United States v. Beacon Brass Co., 344 U.S. 43">344 U.S. 43, 45, 97 L. Ed. 61">97 L. Ed. 61, 73 S. Ct. 77">73 S. Ct. 77 (1952).

When petitioners first met with respondent's special agents regarding the years in question, Mr. Bacon told them that petitioners and their children had received extensive cash gifts from Mr. Bacon's grandfather in $ 10,000 cash increments. According to Mr. Bacon, he received a $ 10,000 cash gift each year since his 18th birthday, his wife received an annual $ 10,000 cash gift since they have been married, and their children each received an annual $ 10,000 cash gift since their birth. Mr. Bacon told respondent's agents that he received the cash gifts through a brother-in-law, that neither petitioners nor their children had ever met their grandfather, that they were told never to tell anyone about the gifts, and that they were never to put the money in the bank. Mr. Bacon told the agents that petitioners had as much as $ 650,000 cash on hand at the beginning of 1988. Mr. Bacon's statement about cash on hand was false. Petitioners stipulated that at the beginning of 1988, they had approximately $ 35,000 cash on hand. Had Mr. Bacon's statements about cash on hand at the beginning of 1988 been true, petitioners would have had a nontaxable source from which to make deposits during the years in issue. We can conceive of no reason for such a false statement other than to mislead the agents.

We find that Mr. Bacon's statements about cash on hand during this interview were intended to mislead the agents.

3. EXTENSIVE DEALINGS IN CASH

Dealing in cash to avoid scrutiny of one's finances is a badge of fraud. See Bradford v. Commissioner, 796 F.2d 303">796 F.2d 303, 307-308 (9th Cir. 1986), affg. T.C. Memo 1984-601">T.C. Memo 1984-601. Petitioners made numerous and substantial cash transactions during the 4 years in issue. During this period, $ 590,689 in cash was deposited into petitioners' personal bank accounts and $ 113,571 in cash was used in the purchase of real estate. ²³ All real estate purchases were in Mrs. Bacon's name, and she attended some, if not most, of the property settlements. A boat and a personal van were also purchased for $ 22,350 in cash.

Petitioners' extensive use of cash supports a reasonable inference that petitioners were knowingly and willfully attempting to understate their taxable income.

4. FAILURE TO MAINTAIN ADEQUATE RECORDS

Taxpayers are required to keep such records as are necessary for the determination of tax. See sec. 6001. The failure to keep adequate records is a badge of fraud. See Bradford v. Commissioner, supra at 307.

During the years in issue, petitioners transferred $ 1,478,399 from two Radtam accounts into their personal bank accounts. Despite the significant transfers between Radtam's accounts and personal accounts, petitioners appear to have maintained no records of these transactions. Rather, they argue that they were unaware of the accounting problems being created and that they lacked the technical ability to keep corporate books or prepare tax returns.

Petitioners also deposited $ 590,689 in cash into their personal bank accounts. At trial, Mr. Bacon testified he did not know the source of these significant cash deposits.

While Mr. Bacon testified that he was unaware of the problems created by commingling funds, his testimony is self-serving, and we do not find him to be credible. Mr. Bacon appears to us to be an astute businessman and investor. It would have required relatively little, if any, technical ability to maintain, or hire a bookkeeper to maintain, a record of transfers between corporate and individual accounts or records of the source of petitioners' substantial cash deposits to their personal accounts.

Mrs. Bacon also had a working knowledge of Radtam's books and records. Mrs. Bacon testified about the "settling" of daily cash register receipts and the recording of Radtam's income during the years in issue. Mrs. Bacon prepared disbursement summaries from Radtam's account at Security Savings & Loan, which were furnished to petitioners' accountant. While Mr. Bacon handled most of the deposits, Mrs. Bacon handled some deposits and testified that she may have handled some large cash deposits.

     5. FAILURE TO FURNISH THEIR TAX RETURN PREPARER WITH

       ACCURATE INFORMATION

The duty of filing accurate returns cannot be avoided by placing responsibility upon an agent. See American Properties, Inc. v. Commissioner, 28 T.C. 1100">28 T.C. 1100, 1116 (1957), affd. 262 F.2d 150">262 F.2d 150 (9th Cir. 1958).

Beginning on or before July 1989, petitioners prepared a monthly summary sheet on behalf of Radtam, which purportedly listed total deposits into its bank accounts for that month. These monthly summary sheets were furnished to petitioners' accountant who prepared Radtam's corporate tax returns. ²⁴ In addition to the monthly summary sheets, each month petitioners provided their accountant with corporate bank statements and a schedule of corporate disbursements.

The bank statements provided to petitioners' accountant were primarily for two accounts at Security Savings & Loan. Yet Radtam maintained a savings account at Chemical Bank ²⁵ from July 1, 1988, through June 30, 1992. It was not until after the commencement of the examination by respondent that petitioners' accountant learned that Radtam had a savings account with Chemical Bank.

Mrs. Bacon prepared annual summaries of personal income sources and expenses relating to petitioners' real estate, which she gave to their accountant. Mrs. Bacon also provided the accountant with Forms 1099 and settlement sheets from each real estate purchase.

During the years in issue, petitioners transferred $ 1,478,399 from two Radtam accounts and deposited $ 590,689 in cash into their personal accounts. Despite the significant deposits into petitioners' personal accounts, Mrs. Bacon did not disclose these deposits or provide personal bank statements to their accountant.

On or about January 6, 1992, Mr. Bacon filed an application for a VISA card listing his occupation as tavern owner of Radtam Inc. t/a Jug Handle Inn and listed his annual salary as $ 299,000. However, Mr. Bacon never reported receiving any salary or dividends from Radtam on his individual Federal income tax returns. ²⁶

After considering the entire record, we hold that respondent has met his burden of proving that some portion of petitioners' underpayment for each year in issue is attributable to fraud on the part of both Mr. and Mrs. Bacon. III. Statute of Limitations

Section 6501(a) provides, generally, for a 3-year period of limitations. However, in the case of a false or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time. See sec. 6501(c)(1). Where a joint Federal income tax return was filed, a finding that fraud was committed by either spouse keeps the period of limitations on assessment open with respect to both spouses. See Vannaman v. Commissioner, 54 T.C. 1011">54 T.C. 1011, 1018 (1970).

Since we have already found that the returns for the years in issue were fraudulent, it follows that the exception found in section 6501(c)(1) applies, and the assessment of taxes for the years in issue is not barred.

After concessions by respondent,

Decision will be entered under Rule 155.

               APPENDIX A

        INCOME REPORTED ON TAX RETURNS BY YEAR

             1988     1989     1990      1991

             ______    ______    ______     ______

Wage/salary  ¹      $ 3,196    $ 3,008    $ 2,840    $ 3,003

Interest income       3,286     4,631     9,426     21,522

Dividend income       1,357     1,123     1,170     1,202

Sch. D income        1,088     -0-      -0-      -0-

Pension/annuities      4,060     4,263     4,263     4,263

Social Security       5,094     4,710     5,544     5,850

Rents          2 28,140   3 75,105   4 76,485   5 65,277

IRA deduction       (2,000)    (2,000)    (2,250)    (2,000)

Adjusted gross income   44,221    90,840    97,478     99,117

               APPENDIX B

        DEPOSITS MADE TO PERSONAL BANK ACCOUNTS

   Bank Account            1988   1989   1990   1991

   ____________            ____   ____   ____   ____

Energy People Federal Credit

 Union               ¹ $ 5,000   ---    ---     ---

Savings account No. XXXX5-004

Barnett Bank

Checking account No. XXXXXX4397    16,316 $ 27,523 $ 125,640  $ 59,702

Horizon Bank  n

Security Savings & Loan

Checking account No. XX-XXXX019-1   182,947 142,400  219,001   343,915

Security Savings & Loan

Passbook account No. XX-XXX6720    89,748   ---    15,575    6,400

First Fidelity Bank

Money Market account No.

 XXXXXX6161             278,347  32,867  176,807   63,395

Chemical Bank

Savings account No. XXX-XX3-349     ---   76,051   57,137   13,802

Collective Federal Bank

Savings account No. XX-X-XX0909     ---     512   18,922    7,119

Barnett Bank

Money Market account No. XXXXXX7650   ---     ---   277,265   24,719

Barnett Bank

Certificates of Deposit

account No. XXXXXX6406        ---    ---    ---    97,000

Barnett Bank

Certificates of Deposit

account No. XXXXXX0714         ---    ---    ---    96,000

Barnett Bank

Certificates of Deposit

account No.XXXXXX0659         ---    ---    ---    97,000

                 ________  _______ _________ _________

Total Gross Deposits:        843,032  530,188 1,285,386 1,149,802

               APPENDIX C

Property          Payments Terms and Payments Made

________          ________________________________

1. 211 E. 17th Street,   The contract sales price was $ 412,000

Long Beach Township,    and the gross amount due from Mrs.

New Jersey --       Bacon was $ 415,167. To finance the

Purchased 2/23/88     purchase, Mrs. Bacon paid $ 3,167 in

             cash, assumed a $ 287,069  ¹ first mortgage

             on the property, and secured a $ 124,931

             second mortgage on the property. During

             1988, petitioners paid down the $ 287,070

             first mortgage by $ 283,310. The

             payments were made over an 8-month

             period of time, consisted of five

             payments,  2 all drawn on petitioners'

             personal bank accounts. The $ 124,931

             second mortgage required a single

             payment of $ 124,931 in 1 year.  n

2. Lots 7, 8, 13, and   Mrs. Bacon put down 10 percent or

14, Block 304, Marco   $ 58,500 as a deposit, executed a

Beach Unit 9 located   $ 300,000 promissory note secured by a

in Collier County,     mortgage on the property, and paid the

Florida. --        balance on or before the closing.  n

3. 212 West Broad St.,   The contract sale price was $ 195,000.

and Palmyra, New Jersey, At closing, $ 197,017, consisting of

Purchased 3/31/89     $ 74,285 in cash and three checks

             totaling $ 122,732, was deposited with

             the settlement agent. The individual

             check amounts are: $ 82,000, $ 21,000,

             and $ 19,732.

             The source of funds, in part, for the

            $ 82,000 check was obtained in the form

             of cash withdrawals from Radtam's

             general and lottery accounts at the

             Security Savings & Loan. Additionally,

            $ 21,000 was withdrawn from Radtam's

             savings account at Chemical Bank  5 and

             used to purchase a cashier's check,

             which was used to pay a portion of the

             purchase price.

4. Lot 26, Block 388,   The property was purchased with $ 25,000

Unit 12, located in    in personal funds and a $ 400,000

Collier County,      purchase money mortgage was incurred.

Florida --

Purchased 6/18/90

5. Lot 4, Block 304,    The purchase price was $ 530,000 and the

Unit 9, located in     total amount due from buyer was

Collier County,      $ 533,896. At closing, Mrs. Bacon

Florida --         provided $ 152,285, and the principal

Purchased 6/29/90     amount of the new loan was $ 380,000.

6. 610 South Reed St.,   The property was paid for with $ 10,000

Cinnaminson, New Jersey, in cash, $ 1,592 in coin, and five

Purchased 7/2/90      checks totaling $ 120,000. Mr. Bacon, as

             president of Radtam, Inc., was the

             source of the $ 11,592 in cash and coin.

             The source of the five checks are as

             follows: First, a check for $ 55,000 was

             purchased with $ 17,000 in funds

             withdrawn from the Radtam 600 account,

            $ 28,000 in funds withdrawn from

             petitioners' personal savings account

             maintained at the same institution,  ⁶ and

             a $ 10,000 check drawn on petitioners'

             personal checking account at the same

             institution. Second, $ 35,000 of the

             purchase price was paid by check drawn

             on petitioners' personal checking

             account at Barnett Bank. Third, $ 5,000

             of the purchase price was paid by check

             drawn on petitioners' personal checking

              account at First Fidelity Bank. Fourth,

             a $ 20,000 check purchased from Security

             Savings & Loan, in part with $ 19,000 in

             cash tendered to the bank by petitioners

             on July 2, 1990, and a $ 5,000 check,

             drawn on the account of Thomas Begley,

             Jr., Esq., from funds deposited in the

             same account earlier in the year.

7. 407 North Canal St.,  Mrs. Bacon deposited $ 35,528 at

Cinnaminson, New Jersey, closing for the property. The deposit

Purchased 10/18/90     consisted of $ 5,528 in cash and a check

             for $ 30,000. The $ 30,000  ⁷ cashier's

             check was purchased with a check drawn

             on petitioners' Chemical Bank account. ⁸

               APPENDIX D

                1988

Bank deposits to personal accounts:

   Bank           Account Number          Deposit

   ____           ______________          _______

Energy People

 Federal Credit Union       XXXX5-004           $ 5,000

Barnett Bank           XXXXXX4397           16,316

Chemical Bank           XXXXX140-3           239,218

Security Savings

 & Loan            XX-XXXX019-1           182,947

Security Savings

 & Loan             XX-XXX6720           89,748

First Fidelity          XXXXXX6161           278,347

                              _________

 Total gross deposits                     811,576

Less:

 a. Redeposited items, transfers, checks

   to cash                          (221,947)

 b. Nontaxable items                      (5,094)

 c. Repayment to corporation                 (73,000)

                              _________

Equals: Net deposits                      511,535

Less:

 a. Wages/salary per return                  (3,196)

 b. Interest income per return                 (3,286)

 c. Dividend income per return                 (1,357)

 d. Schedule D per return                   (1,088)

 e. Pension/annuities                     (4,060)

 f. Social Security (tax)                   (5,094)

 g. Rents (gross)                      (136,000)

                              _________

Equals: Total deposits in excess of reported          357,454

    income

Plus:

 a. Corporate checks written for personal

   benefit of taxpayers                    5,007

                              _________

Equals: Unreported income for 1988               362,461

               APPENDIX E

                1989

Bank deposits to personal accounts:

   Bank            Account Number         Deposit

   ____            ______________         _______

Energy People

 Federal Credit Union       XXXX5-004            ---

Barnett Bank           XXXXXX4397          $ 27,523

Chemical Bank           XXXXX140-3           250,835

Security Savings

 & Loan            XX-XXXX019-1           142,400

Security Savings

 & Loan             XX-XXX6720            72,000

First Fidelity          XXXXXX6161           27,867

Chemical Bank          XXX-XX3-349           76,051

Collective Federal        XX-X-XX0909             512

                              ________

 Total bank deposits - 1989                  597,188

Cash expenditures:

 a. Note receivable (Ras)                   64,000

 b. Purchase 212 W. Broad Street (3/31/89)           74,285

Rental income checks paid by Radtam, Inc. to

taxpayer and not deposited into taxpayer's

bank accounts used in above analysis.              41,000

Rental income checks paid to taxpayer by

managing agent(s) of taxpayer's Marco Island,

FL rental properties and not deposited into

taxpayers' bank accounts used in above analysis.

Agent:  Horizon by Sea                      3,250

                               ________

 Total gross income - 1989                  779,723

Less nontaxable deposits/items:

 a. Paybacks to corp. from personal account          (55,925)

 b. Social Security benefits (nontaxable)           (4,710)

 c. Transfer between accounts                (173,000)

Receipts per return:

 a. Wages/salary per return                  (4,631)

 b. Interest income per return                 (3,008)

 c. Dividend income per return                 (1,123)

 d. Pension/annuities                     (4,263)

 e. Social Security (tax)                   (4,710)

 f. Rents (gross)                      (232,000)

                              _________

Equals: Total nontaxable deposits/items            (483,370)

Total gross income unreported                  296,353

Taxable income per return                   (71,907)

Total income unreported                    224,446

Personal items paid by corporation                2,247

Total unreported income - 1989                 226,693

               APPENDIX F

                1990

Bank deposits to personal accounts:

    Bank          Account Number         Deposit

    ____          ______________         _______

Energy People

 Federal Credit Union      XXXX5-004            ---

Barnett Bank           XXXXXX4397          $ 125,640

Chemical Bank           XXXXX140-3           395,039

Security Savings

 & Loan            XX-XXXX019-1           219,001

Security Savings

 & Loan             XX-XXX6720            15,575

First Fidelity          XXXXXX6161           176,807

Chemical Bank          XXX-XX3-349           57,137

Collective Federal       XX-X-XX0909           18,922

Barnett Bank           XXXXXX7650           277,265

                              _________

 Total bank deposits - 1990                 1,285,386

Cash expenditures:

 a. Purchase 10/18/90 - 407 Canal Street            5,258

 b. Purchase 7/2/90 - 610 Reed Street             11,592

 c. Purchase 6/18/90 - Lot 26 B 388 Unit 12          25,000

 d. 1990 Plymouth Voyager 1

Rental income checks paid by Radtam, Inc., to

taxpayer and not deposited into taxpayer's bank

accounts used in above analysis.                44,000

Rental income checks paid to taxpayer by managing

agent of taxpayer's Marco Island, FL rental

properties and not deposited into taxpayer's bank

accounts used in above analysi.

 Agents:  Harborview Realty, Inc.                1,000

      Horizon by Sea Realty                 8,809

Rental income checks paid to taxpayer by managing

agent of taxpayer's New Jersey rental properties

and not deposited into taxpayer's bank accounts

used in analysis.

 Agents:  Van Dyk Group, Inc.                  3,080

      Newbern Realty                    9,774

Rental income checks paid to taxpayer directly

by tenants for rental of Marco Island or New

Jersey properties and not deposited into

taxpayer's bank accounts used in above analysis.        16,761

                              _________

 Total gross income 1990                  1,433,010

Less nontaxable deposits/items:

 a. Transfer between accounts                (487,811)

 b. Social Security benefits (nontaxable)           (5,544)

 c. Check to cash 611 account 00506140            (30,000)

Receipts Per Return:

 a. Wages/salary per return                  (2,840)

 b. Interest income per return                 (9,426)

 c. Dividend income per return                 (1,170)

 d. Social Security (tax)                   (5,544)

 e. Rents (Gross)                      (311,700)

 f. Pension/annuities                     (4,263)

                              _________

Equals: Total nontaxable deposit/items            (858,298)

Total gross income unreported                 574,712

Taxable income per return                   (73,861)

Total income unreported - 1990                 500,851

               APPENDIX G

                1991

Bank deposits to personal accounts:

    Bank          Account Number         Deposit

    ____          ______________         _______

Energy People

 Federal Credit Union      XXXX5-004

Barnett Bank           XXXXXX4397          $ 59,702

Chemical Bank           XXXXX140-3           340,750

Security Savings

 & Loan            XX-XXXX019-1           343,915

Security Savings

 & Loan             XX-XXX6720            6,400

First Fidelity          XXXXXX6161           63,395

Chemical Bank          XXX-XX3-349           13,802

Collective Federal        XX-X-XX0909           7,119

Barnett Bank           XXXXXX7650           24,719

Barnett Bank C.D.         0031756406           97,000

Barnett Bank C.D.         0031760714           96,000

Barnett Bank C.D.          XXXXXX0659           97,000

                              _________

 Total bank deposit - 1991                 1,149,802

Cash expenditures:

 a. Purchase 3 Savings Bonds at face

   value of $ 10,000                      15,000

Rental income checks paid by Radtam, Inc., to

taxpayer and not deposited into taxpayer's bank

accounts used in above analysis.                56,000

Rental income checks paid to taxpayer by managing

agent(s) of taxpayer's Marco Island, FL rental

properties and not deposited into taxpayer's bank

accounts used in above analysis.

Agent(s):  Horizon By Sea Inc.                  9,951

Rental income checks paid to taxpayer by managing

agent of taxpayer's New Jersey rental properties

and not deposited into taxpayer's bank accounts

used in above analysis.

Agent(s):  Bayshore Realty                    3,816

      Newbern Realty                     13,710

Rental income checks paid to taxpayer directly

by tenants for rental of Marco Island or New

Jersey properties and not deposited into

taxpayer's bank accounts used in above analysis.        31,790

                              _________

 Total gross income                     1,280,069

Less nontaxable deposits/items:

 a. Paybacks to corp. from personal account         (87,500)

 b. Social Security benefits (nontaxable)           (5,850)

 c. Transfer between accounts                (177,500)

Receipts per return:

 a. Wages/salary per return                  (3,003)

 b. Interest income per return                21,522)

 c. Dividend income per return                (1,202)

 d. Pension/annuities                     (4,263)

 e. Social Security (tax)                   (5,850)

 f. Rents (gross)                       (368,930)

 g. Barnett CD (3)                     (290,000)

                              _________

Equals: Total nontaxable deposit/items            (965,620)

Total gross income unreported                 314,449

Taxable income per return                   (78,032)

Total income unreported - 1991                236,417

               APPENDIX H

                 1988    1989    1990    1991

                 ____    ____    ____    ____

Mathematical errors:

 Reported taxable income

  allowed twice          ---   71,907   73,861   78,032

 CD purchases deducted as

  reported receipts        ---     ---     ---   290,000

 Transfer  ¹ included as

  $ 5,000.10. Should be

  $ 500.10             ---     ---    4,500     ---

Distributive share Radtam "S"

 Corp. income reported and

 included in deposits from

 corp.             (38,341)    ---     ---     ---

Salary withholding - gross

 is taxable but only

 net was deposited         440     326     292     301

Transfers used to purchase

 CD's not in statutory

 notice              ---     ---     ---  (214,500)

Transfers between accounts -

 not in statutory

 notice of deficiency:

  To First Fidelity  ² Bank   ---     ---   (25,000)    ---

  To Barnett  ³ Bank       ---     ---   (85,000)    ---

  To Barnett  ⁴ Bank       ---     ---   (50,000)    ---

  To Chemical  ⁵ Bank      ---     ---     ---   (22,000)

  To Chemical  ⁶ Bank from

   Commerce Bank         ---     ---     ---   (17,000)

  To Chemical  ⁷ Bank      ---     ---     ---   (26,000)

  To Chemical  ⁸ Bank      ---     ---     ---   (8,255)

Refund of advance to Radtam     ---    (5,425)    ---     ---

Corp. funds used to purchase

 610 S. Reed            ---     ---   17,000     ---

Radtam funds  ⁹ used to

 pay King Mortgage on

 personal real estate       ---    64,000    ---     ---

Cash expenditure/Lot 26 B 388

 Unit 12              ---     ---  (25,000)    ---

Specific rental income checks

 deposited to corporate bank

 accounts - added separately

 in statutory notice of

 deficiency            ---   (44,250) (83,424) (115,267)

Additional identified paybacks

 to corporations:

 Chemical  ¹⁰ Bank      (10,000)     ---    ---     ---

 Chemical  ¹¹ Bank      (10,000)     ---    ---     ---

 Barnett  ¹² Bank        (100)     ---    ---     ---

 Barnett  ¹³ Bank        (100)     ---    ---     ---

 Barnett  14 Bank         ---   (11,000)    ---     ---

 Chemical  15 Bank        ---   (16,000)    ---     ---

 Barnett  ¹⁶ Bank         ---     ---    ---   (2,400)

Deposits from bank

statements originally

missing:

 Chemical¹⁷

2/17/88 deposit 20,000 --- --- ---

2/22/88 deposit 339 --- --- ---

Radtam withdrawals 11,118 --- --- ---

First Fidelity¹⁸ Bank --- 5,000 --- ---

Insurance claim - nondeposit refund - 4/29/92 property settlement refund 9/30/91 Cinnaminson Sewer Authority --- --- --- (14,000)

Corporate withdrawal 2/1/91 used to purchase $68,000 cashier’s check.¹⁹ (Cashier’s check from personal account included as transfer in statutory notice) --- --- --- 25,000

Corporate funds - purchase for Bradtam --- --- --- 50,000

Check No. 611 to cash - to Boatworks for purchase 407 Canal Street given as cash withdrawal in statutory notice. --- --- 30,000 ---

Savings bond purchases not with cash. --- --- --- (15,000)

Radtam check - points to refinance personal mortgage. --- 10,657 --- ---

Interest income Commerce Bank - not in deposits --- --- 135 86

Interest income, Security Savings & Loan20 not included in deposits 435 146 --- ---

Interest income, Energy People Federal Credit Union 135 --- --- ---

Deposits to Security Savings & Loan --- (72,000) --- ---

Corporate checks used to purchase cashier’s check at Security Savings & Loan²¹ for purchase of 212 W. Broad Street Property --- 72,000 --- ---

Proceeds mortgage refinance - deposit to Radtam savings account (2/29/88) (179,722) --- --- ---

Personal funds deposited to corporate bank account on 2/1/88 (46,340) --- --- ---

Corporate funds used to purchase 212 W. Broad (3/31/89) --- 21,000 --- ---

Personal items paid by corporation: Per statutory notice --- (2,247) --- ---

Corrections to statutory notice --- 86022 2,535²³ ---

Net adjustments to statutory notice (252,136) 94,974 (140,101) 8,997

               APPENDIX I

                1988

Bank deposits to personal accounts:

   Bank           Account Number          Deposit

   ____           _____________          _______

Energy People Federal

 Credit Union          XXXX5-004           $ 5,000

Barnett Bank           XXXXXX4397           16,316

Chemical Bank           XXXXX140-3           270,674

Security Savings

 & Loan            XX-XXXX019-1           182,947

Security Savings

 & Loan             XX-XXX6720           89,748

First Fidelity           XXXXXX6161           278,347

                              _________

 Total gross deposits                     843,032

Less:

Per statutory notice

 a. Redeposited items, transfers, checks

   to cash                         (221,947)

 b. Nontaxable items                      (5,094)

 c. Repayment to corporation                 (73,000)

Additional repayments to corporation              (22,200)

Proceeds of personal mortgage deposited in

 corporate account                      (179,722)

Repayment of loan to petitioners deposited

 in corporate account                     (46,339)

Reduction to income - Subchapter S income           (38,341)

Equals: Net deposits                      256,389

Less:

 a. Wages/salary per return                   (3,196)

 b. Interest income per return                 (3,286)

 c. Dividend income per return                 (1,357)

 d. Schedule D per return                   (1,088)

 e. Pension/annuities                     (4,060)

 f. Social Security (tax)                   (5,094)

 g. Rents (gross)                      (136,000)

                              __________

Equals: Gross income per tax return              (154,081)

Difference between gross salary and

 actual salary deposited                     440

Plus corporate expenditures on petitioners'

 behalf                             5,007

 Total unreported income from bank deposits          107,755

               APPENDIX J

                 1989

Bank deposits to personal accounts:

    Bank           Account Number          Deposit

    ____           ______________          _______

Energy People Federal

 Credit Union           XXXX5-004

Barnett Bank           XXXXXX4397         $ 27,523

Chemical Bank           XXXXX140-3          250,835

Security Savings

 & Loan            23-8351019-1         ¹ 142,400

Security Savings

 & Loan             XX-XXX6720

First Fidelity          XXXXXX6161           32,867

Chemical Bank          XXX-XX3-349           76,051

Collective Federal       XX-X-XX0909             512

                              ________

 Total bank deposits                     530,188

Cash expenditures:

 a. Notes receivable (Ras)                    64,000

 b. Purchase 212 W. Broad Street (3/31/89)           74,285

 c. Radtam check - Points paid to refinance

    personal mortgage                    10,657

 d. Corporate funds  ² used to purchase 212

    West Broad Street                    93,000

 e. Corporate funds used to pay mortgage on

    211 East 17th                      64,000

                              ________

                             ³ 305,942

Rental income checks paid by Radtam, Inc., to

 taxpayer and not deposited into taxpayer's

 bank accounts used in above analysis.             41,000

Rental income checks paid to taxpayer by

 managing agent(s) of taxpayer's Marco Island,

 Fl., rental properties and not deposited into

 taxpayers' bank accounts used in above analysis.

  Agent: Horizon by Sea                     3,250

                               _______

 Total gross income                      880,380

Less nontaxable deposits/items per statutory notice:

 a. Paybacks to corp. from personal account         (55,925)

 b. Social Security benefits (nontaxable)           (4,710)

 c. Transfer between accounts                (173,000)

Additional repayments and transfers:

 a. Refund of advance to Radtam                (5,425)

 b. Personal rental income deposited to

    corporate accounts                   (44,250)

 c. Additional paybacks to corporation            (27,000)

                             ___________

 Total reductions to bank deposits             (310,310)

Receipts per return:

 a. Wages/salary per return                  (4,631)

 b. Interest income per return                 (3,008)

 c. Dividend income per return                (1,123)

 d. Pension/annuities                     (4,263)

 e. Social Security (tax)                   (4,710)

 f. Rents (gross)                      (232,000)

                             _________

 Equals: Gross receipts per return             (249,735)

Difference between gross salary and

 actual salary deposited                     326

Plus personal items paid by corporation              860

 Total unreported income from bank deposits:       ⁴ 321,521

               APPENDIX K

                1990

Bank deposits to personal accounts:

    Bank           Account Number          Deposit

    ____           ______________          _______

Energy People

 Federal Credit Union       XXXX5-004           ---

Barnett Bank           XXXXXX4397          $ 125,640

Chemical Bank           XXXXX140-3           395,039

Security Savings

 & Loan            XX-XXXX019-1           219,001

Security Savings

 & Loan             XX-XXX6720           15,575

First Fidelity          XXXXXX6161           176,807

Chemical Bank          XXX-XX3-349           57,137

Collective Federal        XX-X-XX0909           18,922

Barnett Bank           1679177650           277,265

                               _________

Total bank deposits - 1990                  1,285,386

Cash expenditures:

 a. Purchase 10/18/90 407 Canal Street             5,258

 b. Purchase 7/2/90 610 Reed Street              47,592

 c. 1990 Plymouth Voyager 10/9 6,500

d. Boston Whaler boat 7/26 15,850¹

Gross income deposited to corporate account:

Personal rental income treated as income in Statutory

 Notice of Deficiency                     83,424

Difference between gross salary and actual salary

 deposited                            292

Personal items paid by corporation                2,535

                              _________

 Total increase in bank deposits:               161,451

Less nontaxable deposits/items:

 a. Transfer between accounts                (487,811)

 b. Social Security benefits (nontaxable)            (5,544)

 c. Check to cash 611 account XXXX6140            (30,000)

Additional repayments and transfers:

 a. Corrections to statutory notice of deficiency

   for check to cash                     30,000

 b. Correction of transfer listed in statutory notice of

   deficiency                         4,500

 c. Personal rental income deposited to corporate accounts  (83,424)

 d. Additional transfers not listed in statutory notice of

   deficiency                        (160,000)

Receipts Per Return:

 a. Wages/salary per return                  (2,840)

 b. Interest income per return                 (9,426)

 c. Dividend income per return                 (1,170)

 d. Social Security (tax)                   (5,544)

 e. Rents (gross)                      (311,700)

 f. Pension/annuities                      (4,263)

                             ____________

 Total reductions:                     (1,067,222)

 Total gross income unreported:                379,615

               APPENDIX L

                1991

Bank deposits to personal accounts:

    Bank           Account Number          Deposit

    ____           ______________          _______

Energy People

 Federal Credit Union       XXXX5-004

Barnett Bank           XXXXXX4397          $ 59,702

Chemical Bank            XXXXX140-3           340,750

Security Savings

 & Loan            XX-XXXX019-1           343,915

Security Savings

 & Loan             XX-XXX6720            6,400

First Fidelity          XXXXXX6161           63,395

Chemical Bank          XXX-XX3-349           13,802

Collective Federal       XX-X-XX0909            7,119

Barnett Bank           XXXXXX7650           24,719

Barnett Bank C.D.         0031756406           97,000

Barnett Bank C.D.         0031760714           96,000

Barnett Bank C.D.         0031760659           97,000

                              _________

 Total bank deposit - 1991                 1,149,802

Cash expenditures:

 a. Purchase 3 savings bonds at face

   value of $ 10,000                       15,000

 b. Less: Correction - $ 15,000 paid by check         (15,000)

 c. Use of Radtam funds to purchase assets for Bratam     50,000

Gross income deposited to corporate account:

Personal rental income treated as income in statutory

 notice of deficiency                   ¹ 115,267

Difference between gross salary and actual salary

 deposited                            301

                             __________

 Total increase in bank deposits:               165,568

Less nontaxable deposits/items:

 a. Paybacks to corp. from personal account          (87,500)

 b. Social Security benefits (nontaxable)           (5,850)

 c. Transfer between accounts                (177,500)

Additional repayments, transfers and nontaxable items:

 a. Transfers from personal accounts used to purchase

   Barnett

   Bank certificates of deposit               (214,500)

 b. Personal rental income deposited to corporate

   accounts                        (115,267)

 c. Additional transfers not listed in statutory notice of

   deficiency                       (73,255)

 d. Additional payback to corporation            (2,400)

 e. Nontaxable refund from sewer authority         (14,000)

 f. Withdrawal from corporate account treated as a

   transfer in statutory notice of deficiency        25,000

Receipts per return:

 a. Wages/salary per return                 (3,003)

 b. Interest income per return               (21,522)

 c. Dividend income per return               (1,202)

 d. Pension/annuities                    (4,263)

 e. Social Security (tax)                  (5,850)

 f. Rents (gross)                     (368,930)

                            ____________

  Total reductions:                  (1,070,042)

  Total gross income unreported:             245,328

---

Footnotes

• 1. In the notice of deficiency, respondent also determined an

  addition to tax for 1988 based on 50 percent of the interest due on

  the underpayment. However, that addition to tax was improperly

  determined since the Technical and Miscellaneous Revenue Act of 1988,

  Pub. L. 100-647, sec. 1015(b)(2)(B), 102 Stat. 3568-3569, eliminated

  that addition to tax.↩

• 1. Respondent has conceded the deficiency for the year 1992.↩

• 2. See appendix A for details of reported income.↩

• 3. See appendix B for details of deposits to personal accounts.↩

• 4. Account Nos.XXX-XX1255Account Nos.XXX-XX1255 and XX XXXX21 3. and XX XXXX21 3.↩

• 5. See appendix C for details.↩

• 1. Cash amounts are included in the balance paid at closing

  amounts.↩

• 2. During 1988, petitioners paid down a $ 287,069 first mortgage

  on this property by $ 283,310. See appendix C.

• 3. Mrs. Bacon executed a $ 300,000 promissory note secured by a

  mortgage on the property. The $ 300,000 purchase money note and

  mortgage required 36 monthly payments of $ 2,518 and a balloon payment

  of $ 288,988 at the end of the 36 months. Monthly payments of $ 2,518

  were made by Mrs. Bacon, or on her behalf, for 36 months and the

  balloon payment of $ 288,988 was also paid by Mrs. Bacon, or on her

  behalf, at the end of 36 months. See appendix C.↩

• 4. Part of the purchase price was paid with a check in the

  amount of $ 55,000 purchased with $ 17,000 in funds withdrawn from

  Radtam's savings account at Chemical Bank, account No. XXX-XX1255,Radtam's savings account at Chemical Bank, account No. XXX-XX1255,

  $ 28,000 in funds withdrawn from petitioners' personal savings account

  maintained at Chemical Bank, account No. XXXXX3349, and a check inmaintained at Chemical Bank, account No. XXXXX3349, and a check in

  the amount of $ 10,000 drawn on petitioners' personal checking account

  at the same institution. Additionally, $ 35,000 of the purchase price

  was paid by a check drawn on petitioners' personal checking account

  at Barnett Bank, $ 5,000 by a check drawn on petitioners' personal

  checking account at First Fidelity Bank, $ 20,000 by a check purchased

  from Security Savings & Loan, in part with $ 19,000 in cash tendered

  to the bank by petitioners on July 2, 1990, and a check in the amount

  of $ 5,000, drawn on the account of Thomas Begley, Jr. Esq., from

  funds deposited in the same account earlier in 1990.↩

• 5. Includes $ 10,000 in cash and $ 1,591 in coin deposited in the

  account of Burlington County Abstract Co. at closing and $ 19,000 in

  cash tendered to Security Savings & Loan by petitioners on July 2,

  1990, in part, to purchase a $ 20,000 check. ($ 10,000 + $ 1,591 +

  $ 19,000 = $ 30,591.)↩

• 6. Account No. XX XXXX21 3.Account No. XX XXXX21 3.↩

• 1. Paid in cash.

  See appendix J for details.

  ² Paid in cash.

  See appendix K for details.

  ³ These purchases were made with a personal check written on

  one of petitioners' personal accounts payable to "cash".↩

• 7. Account No. XXX-XX1255.Account No. XXX-XX1255.↩

• 8. The same accountant prepared petitioners' individual Federal income tax returns and the corporate Federal income tax return for another entity owned by petitioners called Bradam.↩

• 9. Account No.XXX-XX1255.Account No.XXX-XX1255.↩

• 1. Radtam was an S corporation in 1988 that reported this

  amount as ordinary income.↩

• 10. Account No. XXX-XX1255.Account No. XXX-XX1255.↩

• 11. Petitioners have not claimed deductions in addition to what respondent has allowed.↩

• 1. See appendix D for details of computations.

  2 See appendix E for details of computations.

  3 See appendix F for details of computations.

  See appendix L for details.

  ^4↩ See appendix G for details of computations.

• 12. See appendix H for details of these adjustments.↩

• 1. Items that reduce petitioners' taxable income. The parties

  have stipulated that these adjustments to respondent's bank deposit

  analysis are proper.

  2 Including personal items paid by corporation.

  3 Items that increase petitioners' taxable income. The parties

  have stipulated that these adjustments to respondent's bank deposit

  analysis are proper.↩

• 1. See appendix I for details.↩

• 5. Items that reduce petitioners' taxable income. The parties

  have stipulated that these adjustments to respondent's bank deposit

  analysis are proper.↩

• 6. Including personal items paid by corporation.↩

• 7. In the bank deposit analysis incorporated in the statutory

  notice, respondent included net salary deposits of amounts earned by

  Mrs. Bacon. The same analysis credits petitioners with the gross

  amount of her salary rather than the net salary included in

  petitioners' bank deposits. Accordingly, respondent increased

  petitioners' income from bank deposits by the difference between Mrs.

  Bacon's gross salary and her net salary (salary deposited).↩

• 8. We note that respondent's proposed adjustment to

  petitioners' 1988 taxable income is $ 2,570 less than what we arrive

  at when subtracting the agreed upon adjustments to the bank deposit

  analysis from respondent's initial computations under the bank

  deposit analysis. ($ 362,461 - $ 252,136 - $ 107,755 = $ 2,570)↩

• 9. We note that respondent's proposed adjustment to

  petitioners' 1989 taxable income is $ 146 less than what we arrive at

  when subtracting the agreed upon adjustments to the bank deposit

  analysis from respondent's initial computations under the bank

  deposit analysis. ($ 226,693 + $ 94,974 - $ 321,521 = $ 146)↩

• 10. We note that respondent's proposed adjustment to

  petitioners' 1990 taxable income is $ 18,865 more than what we arrive

  at when subtracting the agreed upon adjustments to the bank deposit

  analysis from respondent's initial computations under the bank

  deposit analysis. ($ 500,851 - $ 140,101 - $ 379,615 = $ 18,865)↩

• 11. We note that respondent's proposed adjustment to

  petitioners' 1991 taxable income is $ 86 less than what we arrive at

  when subtracting the agreed upon adjustments to the bank deposit

  analysis from respondent's initial computations under the bank

  deposit analysis. ($ 236,417 + $ 8,997 - $ 245,328 = $ 86)↩

• 13. We eliminated a $ 5,007 item in respondent's bank deposit analysis for corporate expenditures on petitioners' behalf because the proposed adjustment was not supported by the record. The omission has the effect of reducing petitioners' unreported income by $ 5,007.

  Account No. XXX4-397 (2/27/89), Check No. 118.Account No. XXX4-397 (2/27/89), Check No. 118.

  ¹⁴ We eliminated an $ 860 item in respondent's bank deposit analysis for corporate expenditures on petitioners' behalf because the proposed adjustment was not supported by the record. The omission has the effect of reducing petitioners' unreported income by $ 860.

  Account No. XXX140-3 (2/27/89), Check No. 278.Account No. XXX140-3 (2/27/89), Check No. 278.

  ¹⁵ We eliminated a $ 2,535 item in respondent's bank deposit analysis for corporate expenditures on petitioners' behalf because the proposed adjustment was not supported by the record. The omission has the effect of reducing petitioners' unreported income by $ 2,535. We also reduced respondent's final computation of unreported income by $ 18,865. This is the amount by which respondent's final unreported income determination exceeds the amount arrived at pursuant to the stipulated adjustments to the notice of deficiency. (See supra p.11, table note 10.)

• 16. Account No.XXX-XX1255.Account No.XXX-XX1255.↩

• 17. Mr. Collins also prepared petitioners' individual Federal income tax returns for the years 1988, 1989, 1990, and 1991.↩

• 18. Although he never asked petitioners about this, Mr. Collins testified that he thought the $ 319,109 was rent that Radtam owed Mrs. Bacon. If that were true, payments of rental amounts due from prior years would appear to be income to Mrs. Bacon in the year received.↩

• 19. Mr. Collins testified that Radtam's Federal income tax returns were not prepared or filed timely because details regarding cash disbursements were not available. Each of these income tax returns contained a Form 8275, Disclosure Statement. The instructions to Form 8275 provide:

     Form 8275 is used by taxpayers and income tax return preparers

     to disclose items or positions, except those taken contrary to a

     regulation, that are not otherwise adequately disclosed on a tax

     return for purposes of avoiding certain penalties. The form is

     filed to avoid the portions of the accuracy-related penalty due

     to disregard of rules or to a substantial underpayment of income

     tax if the return position has a reasonable basis. It can also

     be used for disclosures relating to the preparer penalties for

     understatements due to unrealistic positions or disregard of

     rules.

  The description of the items disclosed in Part I, General Information, of the form was the same for each year. The description provided was as follows: Gross receipts, Cost of Sales, Payroll and other Expenses.

  The instructions for completing Part II of the form, Detailed Explanation, provide that a taxpayer's disclosure must include:

     (1) A description of the relevant facts and the nature of the

     controversy affecting the tax treatment of the item, or

     (2) A concise description of the legal issues presented by these

     facts.

  The detailed explanation provided on Radtam's Federal income tax returns for its fiscal years ending 1990, 1991, and 1992 was the same for each year. The explanation provided was as follows: "Payroll, Sales and some expenses were established by other estimates and means. Due to certain records which could not be reconstructed or documented."

  Account No. XX-XX0672.Account No. XX-XX0672.

  ^20↩ The Federal income tax returns for the fiscal years ending June 30, 1993 and 1994, also did not contain any balance sheet information.

• 21. Sec. 6653(b) provides, in part:

       SEC. 6653(b). Fraud. --

       (1) In general. -- If any part of any underpayment

     * * * of tax required to be shown on a return is due to fraud,

     there shall be added to the tax an amount equal to 75 percent of

     the portion of the underpayment which is attributable to fraud.

  The record is unclear on how the parties arrived at this

  number.

  ²² Sec. 6663(a) provides:

       SEC. 6663(a). Imposition of Penalty. -- If any part of any

     underpayment of tax required to be shown on a return is due to

     fraud, there shall be added to the tax an amount equal to 75

     percent of the portion of the underpayment which is attributable

     to fraud.↩

• 23. See appendix C.↩

• 24. The same accountant prepared petitioners' individual Federal income tax returns and Bradam's corporate Federal income tax returns.↩

• 25. Account No. XXX-XX1255.Account No. XXX-XX1255.↩

• 26. Mr. Bacon testified that he did not want to confuse the credit card company with the fact that he did not draw a salary but instead had substantial rental income. On their 1991 income tax return, petitioners reported $ 135,000 gross rents from property located at Route 73, Cinnaminson, N.J. (the property rented to Radtam on which the Jug Handle Inn is located). Petitioners' total net rental income reported for 1991 was $ 65,277. Petitioners reported gross rental receipts of $ 368,930, rental expenses, other than depreciation of $ 221,217, and depreciation of $ 82,435 on their Schedule E, Supplemental Income and Loss Schedule.↩

• 1. During the years in issue, the only wage or salary income

  from Bradam and Radtam reported by petitioners on their Federal

  income tax returns consisted of wages reported by Mrs. Bacon.

  From petitioners' First Fidelity account, No. XXX6161, aFrom petitioners' First Fidelity account, No. XXX6161, a

  payment of $ 76,509 was made on Apr. 1, 1988; a $ 94,950 payment on May

  1, 1988; and a $ 40,035 payment on June 1, 1988. From petitioners'

  Security Savings & Loan account, No. XXXXX1019, a payment of $ 64,311Security Savings & Loan account, No. XXXXX1019, a payment of $ 64,311

  was made on Nov. 27, 1988, and a $ 7,504 payment was made on Nov. 30,

  1988.

  ² Petitioners reported on Schedule E gross rental income of

  $ 136,000, rental expenses of $ 93,600, depreciation or depletion

  expenses of $ 32,917, and Radtam S earnings of $ 18,657. ($ 136,000 -

  $ 93,600 - $ 32,917 + $ 18,657 = $ 28,140)

  The payment was satisfied on Feb. 21, 1989, in part by a

  $ 60,931 cashier's check drawn on petitioners' First Fidelity account

  and $ 64,000 in funds withdrawn from Radtam's savings account at

  Chemical bank, account No. XXX-XX1255.Chemical bank, account No. XXX-XX1255.

  ³ Petitioners reported on Schedule E gross rental income of

  $ 232,000, rental expenses of $ 115,388, and depreciation or depletion

  expenses of $ 41,507. ($ 232,000 - $ 115,388 - $ 41,507 = $ 75,105).

  A portion of the payments, $ 158,375, was financed from

  $ 338,097 in loan proceeds secured by property located at Block D-32,

  Lot 8, 216 E. 18th Street, North Beach Haven, NJ. The remaining

  $ 179,722 of the loan proceeds was deposited in Radtam's account No.

  XX-XXX065-6.XX-XXX065-6.

  ⁴ Petitioners reported on Schedule E gross rental income of

  $ 311,700, rental expenses of $ 172,150, and depreciation or depletion

  expenses of $ 63,065. ($ 311,700 - $ 172,150 - $ 63,065 = $ 76,485)

  Account No. XXX-XX1255.Account No. XXX-XX1255.

  ⁵ Petitioners reported on Schedule E gross rental income of

  $ 368,930, rental expenses of $ 221,217, and depreciation or depletion

  expenses of $ 82,436. ($ 368,930 - $ 221,217 - $ 82,436 = 65,277)↩

• 1. A single cash deposit made on Dec. 28, 1988.

  2 Subsequent to the years in question, Horizon was acquired by

  Chemical Bank. Thus, the terms "Horizon" and "Chemical" refer to the

  same institution.

  3 The notice of deficiency incorrectly shows 1988 deposits in

  this account as $ 239,218.↩

• 1. The settlement statement indicates that the existing loan

  assumed is $ 287,069, while the stipulation indicates that the

  existing loan assumed was $ 287.070 (after rounding). We assume that

  the stipulation contained a typographical error.↩

• 6. Account No. XXXXX3349.Account No. XXXXX3349.↩

• 7. The stipulation incorrectly refers to property located at

  417 North Canal Avenue when, in fact, the property is located at 407

  North Canal Avenue.↩

• 8. Account No. XXXXX140-3.Account No. XXXXX140-3.↩

• 1. Check No. 622, Chemical Bank.

• 2. Account No.XXXX (2/12/90)Account No.XXXX (2/12/90)↩

• 3. Account No. XXX4-397 (6/18/90)Account No. XXX4-397 (6/18/90)↩

• 4. Account No. XX7650 (6/25/90)Account No. XX7650 (6/25/90)↩

• 5. Account No. XXX-140-3 (1/31/91)Account No. XXX-140-3 (1/31/91)↩

• 6. Account No. XXX-140-3 (1/31/91)Account No. XXX-140-3 (1/31/91)↩

• 7. Account No. XXX-140-3 (1/31/91)Account No. XXX-140-3 (1/31/91)↩

• 8. Account No. XXX-140-3 (2/04/91)Account No. XXX-140-3 (2/04/91)↩

• 9. Account No. XXX-XX1255 (2/21/89)Account No. XXX-XX1255 (2/21/89)↩

• 10. Account No. XXX140-3 (2/16/88), Check No. 157.Account No. XXX140-3 (2/16/88), Check No. 157.↩

• 11. Account No. XXX140-3 (2/16/88), Check No. 158.Account No. XXX140-3 (2/16/88), Check No. 158.↩

• 12. Account No. XXX4-397 (6/22/88), Check No. 114.Account No. XXX4-397 (6/22/88), Check No. 114.↩

• 13. Account No. XXX4-397 (10/4/88), Check No. 115.Account No. XXX4-397 (10/4/88), Check No. 115.↩

• 16. Account No. X4397 (2/26/91), Check No. 157.Account No. X4397 (2/26/91), Check No. 157.↩

• 17. Account No. XXX140-3.Account No. XXX140-3.↩

• 18. Account No. XXXX6161.Account No. XXXX6161.↩

• 19. On Feb. 1, 1991, Mr. Bacon purchased a cashier's check in

  the amount of $ 68,000 from Chemical Bank made payable to himself. Mr.

  Bacon obtained $ 25,000 of the cost of the cashier's check with a

  $ 25,000 withdrawal from Radtam's savings account at Chemical Bank,

  account No. XXX-X71255, and the remaining $ 43,000 from petitioners'account No. XXX-X71255, and the remaining $ 43,000 from petitioners'

  savings account at Chemical Bank, account No. XXX XXX 349. Thesavings account at Chemical Bank, account No. XXX XXX 349. The

  $ 68,000 was included as a nontaxable transfer in the bank deposits

  listed in respondent's bank deposit analysis, as incorporated in the

  statutory notice.↩

• 21. Account No. XX-XX0672.No. XX-XX0672.

• 23. The record is unclear on how the parties arrived at this

  number.↩

• 1. Because of a typographical error, respondent incorrectly

  reflected gross deposits of "$ 142,000". The correct figure is

  "$ 142,400".↩

• 2. Corporate funds were drawn from two accounts: $ 72,000 from

  the Security Savings account and $ 21,000 from Radtam's savings

  account at Chemical Bank (account No.XXX-XX1255).account at Chemical Bank (account No.XXX-XX1255).↩

• 3. Because of a computational error, respondent incorrectly

  reflected total cash expenditures of "$ 306,482". The correct figure

  is "$ 305,942".↩

• 4. The net effect of respondent's typographical and

  computational errors is a $ 140 reduction in petitioners' unreported

  income.↩

• 1. Because of a typographical error in respondent's bank deposit analysis, "$ 15,580" should be "$ 15,850". As a result, petitioners' total unreported gross income is increased by $ 270.↩

• 1. Because of a typographical error in respondent's bank

  deposit analysis, "$ 115,627" should be "$ 115,267". As a result,

  petitioners' total unreported gross income is decreased by $ 360.↩