OPINION.
Eaum, Judge:
1. Petitioners Farah, Tobin, Coletto, and Delsante were partners in a gambling venture of considerable magnitude. The partnership operated a casino known as the Jungle, near Youngstown, Ohio, which provided its patrons with gambling facilities on an extensive scale. It continued to function during the taxable years until the casino was raided !by State authorities in the evening of August 12,1949.
Farah was plainly the dominant figure. The evidence shows that he furnished the physical facilities for the enterprise, that he controlled the bankroll, that he alone knew the combination of the safe in which the funds were kept, and that he had a 40 percent partnership interest. Tobin and Coletto, although playing important and active parts in the day-to-day conduct of the business, appear to have been subordinate to Farah. Initially, their interests were 25 per cent each, but later, when illness caused one of them to curtail his activities for a substantial period, they readjusted their interests to 20 and 30 per cent. The position of Delsanter, on this record, seems to be highly mysterious. The evidence does not show that he contributed any capital to the partnership or what, if any, services he rendered to it. His 10 per cent interest in the venture could give rise to teasing speculation, but since no question is presented with respect to his participation, we pass over the matter as being outside the issues raised in this litigation.
Seven separate and distinct gambling operations were conducted by the partnership at the Jungle; Dice games, poker games, roulette, bingo, chuck-a-luck, slot machines, and a horsebook. The Jungle was inaccessible except by automobile or taxi, but it had about 300 patrons a night during the first 4 days of the week, and attendance ranged from 500 to 700 during Fridays, Saturdays, and Sundays. The horse-book was operated 6 days a week, and the evidence shows that there may have been some “action” at the poker and dice tables in the afternoons; all forms of gambling except the horsebook were open to patrons and were actively indulged in 7 nights a week.
With the exception of the slot machines, profits from the various operations were determined daily. The net amount of the funds from each operation in excess of the bankroll assigned to such operation was treated as a profit, and any deficiency as a loss. Such profit or' loss for each operation was recorded on an adding machine tape. On 2 nights a week the collections from the slot machines were added. These nightly computations took place in Farah’s office. At least two partners were always present, in order to insure the integrity of the computations. The results of the day’s operations were added to the bankroll for the entire enterprise as of the close of the previous day. A copy of the tape was given to each partner, who thereupon destroyed his copy of the tape for the previous day. There was also recorded by pencil on a slip of paper the date and a single figure preceded by a single word, “win” or “lose,” and this slip was picked up by the bookkeeper for the venture, who entered it in a so-called ledger. There was one page in the ledger for each month and the total for each month accurately reflected the information made available to him by the slips. He prepared returns for the partnership and the individual partners, which were faithfully in accord with the ledger.
We have no doubt that the tapes prepared in Farah’s office each evening for the use of the partners contained reliable data as to the profits of the partnership. And if the penciled slips given to the bookkeeper accurately showed what was recorded on the tapes, there would be no deficiencies here. However, none of the tapes was available to the Government and none was produced in evidence. We have only the word of several of the partners that the bookkeeper was given the correct figure each day. In substance, petitioners have attempted to hide behind an impenetrable wall and they tell us that the Government must accept that daily figure without any opportunity to check its accuracy. Moreover, it was made abundantly clear by the testimony of the partners that they never allowed a partner to count any winnings by himself, in the absence of another partner. It would be asking too much of the respondent to expect him, in turn, to extend more trust to the partners collectively than they extended to each other individually. If we were to believe their story about the accuracy of the now nonexistent slips, that would be an end to this case. But the Judge who presided at the trial and had ample opportunity to observe the witnesses does not believe that they were telling the truth, and we cannot accept their testimony as credible. We do not deem it necessary to set forth the respects in which we find unworthy of belief the assertion that the slips given to the bookkeeper and recorded in the ledger accurately reflected the earnings of the enterprise. Our conclusion is based on the entire record. However, one example will suffice to raise serious doubts as to the reliability of the ledger. The evidence was clear that patronage, and consequently profits, increased as the inclement winter weather ceased. Yet the ledger shows no significant difference in profits as between different seasons of the year.
This case is unlike H. T. Rainwater, 23 T. C. 450, where the records produced were shown to have been used by the partners in determining the amounts of their distributive shares as against the dominant partner, a circumstance that provided a reliable check on the accuracy of the figures presented to the Commissioner and to this Court. This brings us then to the question as to what disposition of the controversy should be made here. The answer to that question is to be found in connection with the applicable burden of proof in this litigation.
Plainly, the burden of proof was upon the petitioners. And to the extent that we find incredible their testimony that they accurately furnished their bookkeeper with the results of their daily operations, the burden has not been carried. Rather than attempting to show by credible evidence what profits were realized from each of the various gambling operations2 conducted at the Jungle, petitioners took the offensive and challenged the Commissioner’s determination as arbitrary. The trial to a considerable degree involved an attack upon tlie revenue agent who had made the investigation and an attempt to discredit the formulas that he used in computing profits from the various gambling operations. Thus, they focus upon admissions made by him that he used formulas or factors given to him by his superiors based, as he understood, upon wide experience within the Internal Eevenue Service in dealing with such activities. Somehow or other, petitioners seem to think they have discredited the Commissioner’s determination by showing that the agent accepted the formulas given to him and that he could not testify of his own knowledge as to their reliability. But the revenue agent is not the Commissioner of Internal Eevenue. The Commissioner, of necessity, must rely upon the assistance of many subordinates in his organization, and his determination often represents the product of study and investigation conducted by many persons. It is no answer here to say that the particular agent on the stand was unable to support each formula used, or that he relied upon instructions or information furnished to him by other subordinates of the Commissioner who were not before the Court.
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OPINION.
Eaum, Judge:
1. Petitioners Farah, Tobin, Coletto, and Delsante were partners in a gambling venture of considerable magnitude. The partnership operated a casino known as the Jungle, near Youngstown, Ohio, which provided its patrons with gambling facilities on an extensive scale. It continued to function during the taxable years until the casino was raided !by State authorities in the evening of August 12,1949.
Farah was plainly the dominant figure. The evidence shows that he furnished the physical facilities for the enterprise, that he controlled the bankroll, that he alone knew the combination of the safe in which the funds were kept, and that he had a 40 percent partnership interest. Tobin and Coletto, although playing important and active parts in the day-to-day conduct of the business, appear to have been subordinate to Farah. Initially, their interests were 25 per cent each, but later, when illness caused one of them to curtail his activities for a substantial period, they readjusted their interests to 20 and 30 per cent. The position of Delsanter, on this record, seems to be highly mysterious. The evidence does not show that he contributed any capital to the partnership or what, if any, services he rendered to it. His 10 per cent interest in the venture could give rise to teasing speculation, but since no question is presented with respect to his participation, we pass over the matter as being outside the issues raised in this litigation.
Seven separate and distinct gambling operations were conducted by the partnership at the Jungle; Dice games, poker games, roulette, bingo, chuck-a-luck, slot machines, and a horsebook. The Jungle was inaccessible except by automobile or taxi, but it had about 300 patrons a night during the first 4 days of the week, and attendance ranged from 500 to 700 during Fridays, Saturdays, and Sundays. The horse-book was operated 6 days a week, and the evidence shows that there may have been some “action” at the poker and dice tables in the afternoons; all forms of gambling except the horsebook were open to patrons and were actively indulged in 7 nights a week.
With the exception of the slot machines, profits from the various operations were determined daily. The net amount of the funds from each operation in excess of the bankroll assigned to such operation was treated as a profit, and any deficiency as a loss. Such profit or' loss for each operation was recorded on an adding machine tape. On 2 nights a week the collections from the slot machines were added. These nightly computations took place in Farah’s office. At least two partners were always present, in order to insure the integrity of the computations. The results of the day’s operations were added to the bankroll for the entire enterprise as of the close of the previous day. A copy of the tape was given to each partner, who thereupon destroyed his copy of the tape for the previous day. There was also recorded by pencil on a slip of paper the date and a single figure preceded by a single word, “win” or “lose,” and this slip was picked up by the bookkeeper for the venture, who entered it in a so-called ledger. There was one page in the ledger for each month and the total for each month accurately reflected the information made available to him by the slips. He prepared returns for the partnership and the individual partners, which were faithfully in accord with the ledger.
We have no doubt that the tapes prepared in Farah’s office each evening for the use of the partners contained reliable data as to the profits of the partnership. And if the penciled slips given to the bookkeeper accurately showed what was recorded on the tapes, there would be no deficiencies here. However, none of the tapes was available to the Government and none was produced in evidence. We have only the word of several of the partners that the bookkeeper was given the correct figure each day. In substance, petitioners have attempted to hide behind an impenetrable wall and they tell us that the Government must accept that daily figure without any opportunity to check its accuracy. Moreover, it was made abundantly clear by the testimony of the partners that they never allowed a partner to count any winnings by himself, in the absence of another partner. It would be asking too much of the respondent to expect him, in turn, to extend more trust to the partners collectively than they extended to each other individually. If we were to believe their story about the accuracy of the now nonexistent slips, that would be an end to this case. But the Judge who presided at the trial and had ample opportunity to observe the witnesses does not believe that they were telling the truth, and we cannot accept their testimony as credible. We do not deem it necessary to set forth the respects in which we find unworthy of belief the assertion that the slips given to the bookkeeper and recorded in the ledger accurately reflected the earnings of the enterprise. Our conclusion is based on the entire record. However, one example will suffice to raise serious doubts as to the reliability of the ledger. The evidence was clear that patronage, and consequently profits, increased as the inclement winter weather ceased. Yet the ledger shows no significant difference in profits as between different seasons of the year.
This case is unlike H. T. Rainwater, 23 T. C. 450, where the records produced were shown to have been used by the partners in determining the amounts of their distributive shares as against the dominant partner, a circumstance that provided a reliable check on the accuracy of the figures presented to the Commissioner and to this Court. This brings us then to the question as to what disposition of the controversy should be made here. The answer to that question is to be found in connection with the applicable burden of proof in this litigation.
Plainly, the burden of proof was upon the petitioners. And to the extent that we find incredible their testimony that they accurately furnished their bookkeeper with the results of their daily operations, the burden has not been carried. Rather than attempting to show by credible evidence what profits were realized from each of the various gambling operations2 conducted at the Jungle, petitioners took the offensive and challenged the Commissioner’s determination as arbitrary. The trial to a considerable degree involved an attack upon tlie revenue agent who had made the investigation and an attempt to discredit the formulas that he used in computing profits from the various gambling operations. Thus, they focus upon admissions made by him that he used formulas or factors given to him by his superiors based, as he understood, upon wide experience within the Internal Eevenue Service in dealing with such activities. Somehow or other, petitioners seem to think they have discredited the Commissioner’s determination by showing that the agent accepted the formulas given to him and that he could not testify of his own knowledge as to their reliability. But the revenue agent is not the Commissioner of Internal Eevenue. The Commissioner, of necessity, must rely upon the assistance of many subordinates in his organization, and his determination often represents the product of study and investigation conducted by many persons. It is no answer here to say that the particular agent on the stand was unable to support each formula used, or that he relied upon instructions or information furnished to him by other subordinates of the Commissioner who were not before the Court. Of course, if the burden were on the Government in this case, then plainly enough the agent’s testimony here would not be sufficient to carry it. But the burden was not on the Government, and we will not lightly assume that the formulas he used were without rational foundation. The petitioners cannot discharge their burden merely by showing that the agent followed instructions of his superiors in using formulas which they supplied to him and which he understood were worked out on the basis of experience in the field. The burden was not on the Government to produce evidence justifying the Commissioner’s determination. The burden was on the petitioner to show that the determination was erroneous. If that burden was difficult to meet by reason of their destruction of their records, it is a situation that they created for themselves. But they cannot shift the burden to the Commissioner and then complain that, since he has not put witnesses on the stand justifying his determination, it is arbitrary and must therefore be disapproved. We cannot say, apart from certain modifications required by the evidence and upon which we will comment below, that the computations made by the agent were unreasonable and that the profits he calculated for each operation did not fairly reflect the gains realized by the partnership.
Horseboolc. The petitioners have not shown that the agent’s method of determining income by taking 12 per cent of the total bets was arbitrary. The agent proceeded upon a reasonable assumption that the 12 per cent formula furnished to him by his superior was based upon a nationwide experience with establishments of this type. Indeed, petitioner Tobin testified to the effect that he thought the partnership retained 10 or 11 per cent. Certainly, the use of the 12 per cent formula has not been shown to be arbitrary.
The agent applied this formula to an assumed total of bets averaging $3,000 a day. We think, on the evidence, that this figure must be revised. It is our best judgment on the record that the average total amount bet at the Jungle horsebook on weekdays during the period before the Court was $2,500, and that the average total amount bet on Saturdays was $3,500. We have made a finding to that effect.
Dice. Here, too, the respondent used a formula to determine income. It was a formula which the agent understood from his superior to be based upon a nationwide experience with dice operations such as were carried on at the Jungle — namely, that it was the usual practice in such operations to employ a staff requiring a salary of not more than 10 per cent of the amounts retained by the house as winnings. Petitioners presented no evidence tending to show that the formula used was lacking in validity, or that there were circumstances rendering it inapplicable to their operation.
The agent conservatively applied the formula to the staff of only one table, although it was customary to open a second table before the evening was over; and, again with conservatism, he used a staff of four, instead of the full complement of five which included the relief man. Since these employees were paid $20 a night, he arrived at the conclusion that the profits amounted to $800 a night or $5,600 a week. The petitioner Coletto himself indicated that the dice operation brought in $5,000 a week. In the circumstances, we do not regard the agent’s conclusion in this respect as arbitrary, and we have found as a fact that the Jungle’s dice operation had average weekly net winnings of $5,600.
Slot machines. The revenue agent computed income from the slot machines on the assumption that the amount given to the change makers each night in this operation was $1,500, and that the entire $1,500 represented gross play; and, on the knowledge that another Ohio slot machine operator using standard machines realized gains equal to 79 per cent of the gross play, he applied that percentage to the $1,500 figure to obtain the earnings of the partnership in this department. We think, on the evidence, that the figure reached by the agent must be revised downward.
We are satisfied that there is some correlation between the amount of cash given to the change makers and the gross play, but, on the evidence, we have found that the nightly amount given to the change makers was $1,080. This does not mean that the 79 per cent formula should be applied to this figure. That formula appears to have been based on a far more limited experience than those employed with respect to other forms of gambling, nor is it clear that the amount given to the change makers should be taken as the equivalent of the gross play. While it appears that they generally did not use all the change each night, and while it is by no means certain that all coins obtained by patrons from the change makers were played, those circumstances could be more than offset by the amount of coins played that did not originate with the change makers and the amount of coins replayed by patrons who had obtained winnings from the machines.
Notwithstanding the foregoing difficulties, we are aided in one important respect in arriving at a reasonable estimate of the nightly winnings of the house from slot machines. Our findings show that there was a total of $926.70 in the collection boxes of the slot machines at 9:30 p. m., Friday, August 12, 1949, at the time of the raid. The boxes had been emptied, according to the practice of the house, on Thursday, and since winnings were computed nightly at the conclusion of the evening’s operations, we must assume that the amounts in the collection boxes represented winnings that were primarily the result of play on Friday. Certainly, petitioners have not shown that they contained any Thursday winnings. At 9:30, the evening was still young, and had the raid not occurred it is plain that the profits would have been considerably higher before the end of the evening. However, taking into account the fact that it was summertime and that the day was a Friday when patronage was higher than average, it is our best judgment that the partnership’s earnings from slot machines over the entire period in question averaged $1,000 a day and we have so found as á fact.
Polcer, roulette, and clmeh-a-lueJc. Respondent concluded that aggregate gains from these three operations were realized at the rate of $50,000 per 52-week year, and he determined the profits from these games by prorating that amount over the number of weeks in 1948 and 1949 that the partnership was operating the Jungle. The record shows that the agent did not rely upon any specific facts or use any formula in the selection of the $50,000 figure. However, the record does contain evidence from which it is possible to make a reasonable estimate as to the profits derived from these games.
On the basis of the evidence before us we have found that the Jungle’s 5 per cent profit on poker averaged $20 per hour. Poker was played not less than 4 hours a night, and there were occasional daytime games. We have found that the partnership’s profits from poker averaged $600 a week. The evidence as to roulette and chuek-a-luck was meager. Apparently, they were not significant aspects of the over-all operation of the establishment. The odds were in favor of the house, but in view of the limited play, we could not find on the record that the winnings were substantially in excess of the salaries of the employees who were in charge of these games. Accordingly, we have found that the profits from roulette and chuck-a-luck were not less than $140 and $250 a week, respectively.
Bingo. The respondent treated bingo as a “break-even” operation and attributed neither gain nor loss to it. The evidence shows that the bingo games were the lure that attracted the large number of patrons to the casino, that the partnership expected to make its profits in the evenings from other forms of gambling in which patrons would participate once they were present, notably dice and slot machines, and that there was no intention of deriving any profit from the bingo games. Moreover, it is persuasive from the evidence that the bingo games were in fact operated at a substantial loss. Petitioners’ counsel, on brief, suggest that the loss might be taken to be $1,000 a week. Although the evidence might support a larger figure, we have accepted the suggestion of petitioners’ counsel as reasonable, and have found as a fact that the bingo games were operated at a loss of $1,000 a week.
2. The next question is whether petitioners are liable for additions to tax under sections 294 (d) (1) (A) and 294 (d) (2), Internal Revenue Code of 1939.3 Contrary to respondent’s contention, this issue was raised by all of the petitioners in their respective petitions.
Section 294 (d) (1) (A) provides for an addition to tax in the case of a failure to make and file a declaration of estimated tax unless the failure is due to reasonable cause and not to willful neglect. Section 294 (d) (2) provides for an addition to tax for substantial underestimate of estimated tax.
This Court has consistently upheld the imposition of additions to tax for failure to file a declaration of estimated tax and concurrently the imposition of the additions to tax for a substantial underestimate of the estimated tax, pursuant to the provisions of sections 294 (d) (1) (A) and 294 (d) (2). See G. E. Fuller, 20 T. C. 308, affirmed 213 F. 2d 102 (C. A. 10) ; Fred N. Acker, 26 T. C. 107; John B. Rictor, 26 T. C. 913. See also Clayton v. Commissioner, 245 F. 2d 238, (C. A. 6, 1957) affirming T. C. Memo. 1956-21.
In the instant case, the parties orally stipulated at the hearing that “Taxpayers John Farah and Anthony Delsanter, Edward Tobin and Ealph Coletto, forwarded declarations of estimated tax for the year 1948 to the collector of internal revenue for estimated income of zero for said period.”
On opening statement counsel for respondent stated that a search of the records of the director (formerly collector) had failed to disclose any record of the filing of estimated tax by any of the petitioners for 1949. While statements of counsel are not to be taken as evidence, this statement did serve to put petitioners on notice. The burden was on petitioners to prove that declarations of estimated tax were filed for the year 1949. They have not met that burden, and we have found as fact that no declaration of estimated tax was filed by any of the petitioners for the year 1949.
The petitioners have not shown that their failure to file declarations of estimated tax for the year 1949 was due to reasonable cause and not to willful neglect. The statute contains no provision excusing an underestimate of estimated tax on a showing of reasonable cause.
Considering all the circumstances, we hold that each of the petitioners is liable for the additions to tax imposed by sections 294 (d) (1) (A) and 294 (d) (2) for the year 1949, the amounts thereof to be computed under Eule 50. We likewise hold that each of the petitioners is liable for the additions to tax imposed by section 294 (d) (2) for the year 1948, the amounts thereof to be computed under Eule 50. See G. E. Fuller and Fred N. Acker, both supra.
The question remains whether each of the petitioners is liable for addition to tax for failure to file a declaration of estimated tax for the year 1948, pursuant to section 294 (d) (1) (A), where the declaration filed showed an estimated tax of zero. Eespondent, in substance, argues that petitioners did not attempt to make a bona fide estimate of their 1948 tax on their declarations filed for that year, and that this amounts to a failure to file a declaration. We do not agree.
In section 294 (d) (2) Congress provided for an addition to tax where there is a substantial underestimation of tax, and it is not for respondent to provide for a second addition where the substantial underestimation is deliberate. If the legislature had intended such a result it would have been a simple matter so to provide. Cf. sec. 293, I. E. C. 1939.
Additionally, respondent points out that petitioners themselves did not estimate their 1948 taxes or file the required declarations, and that these acts were done by their attorney-bookkeeper. This, respondent maintains, does not satisfy the requirements of section 294 (d) (1) (A). There is little merit to the argument. The declarations were in fact signed by the petitioners, and we would open a Pandora’s box if we undertook to go behind them to inquire to what extent each petitioner went through a mental process the results of which were reflected on the declarations.
3. The petitioners John Farah and Shamis Farah allege that either they or the partnership was entitled to deductions for depreciation on 100 slot machines in 1948 and 1949 and for a loss occasioned by the confiscation and destruction of the machines by public officials of the State of Ohio in 1949. In view of our holding that none of the deductions can be allowed on this record, it is unnecessary to decide who is entitled to the deductions.
The claimed depreciation deduction must be denied for complete failure of proof. All the record shows is that Farah acquired the slot machines in 1947 and replaced a few of the machines in 1948. The record does not disclose what amount, if any, he paid for the slot machines, their useful life, and the amount, if any, allowed or allowable as depreciation on the machines in 1947. On the record we are unable to determine even the minimum amount which should be allowed as depreciation in 1948 and 1949.
Similarly, no loss deduction can be allowed for the confiscation and destruction of the slot machines in 1949, there being no showing that these machines had any basis to any of the petitioners at that time. It thus becomes unnecessary to consider whether the loss must be denied in any event because it was like a fine or forfeiture. Cf. G. E. Fuller, supra. See Boyle, Flagg & Seaman, Inc., 25 T. C. 43, 49-50.
Reviewed by the Court.
Decisions will be entered under Bule 50.