Llorente v. Commissioner

74 T.C. No. 20, 74 T.C. 260, 1980 U.S. Tax Ct. LEXIS 138

• Court: United States Tax Court
• Decided: May 13, 1980
• Docket: Docket No. 10962-76
• Status: Published

Opinions

Sterrett, Judge:

By letter dated September 17, 1976, respondent determined a deficiency in petitioner’s income taxes for the taxable year ended December 31, 1974, in the amount of $29,403.76. Respondent has also determined additions to tax pursuant to sections 6651(a), 6653(a), and 6654(a), I.R.C. 1954, in the amounts of $7,350.94, $1,470.19, and $940.93, respectively. After concessions, the primary issue remaining is whether petitioner had unreported income evidenced by his mortgage payments and purchase of cocaine in 1974, as determined by respondent utilizing the expenditures method to reconstruct petitioner’s income for taxable year 1974. The other issues presented are (1) whether petitioner is liable for the following additions to tax for the taxable year 1974: section 6651(a) failure to file, section 6653(a) negligent underpayment of income tax, and section 6654(a) failure to make estimated tax payments, and (2) whether petitioner is entitled to dependency exemption deductions for two of his sons.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. The stipulation of facts, together with the exhibits attached thereto, are incorporated herein by this reference.

At the time Raul Llorente (petitioner) filed his petition herein he resided in Jamaica, N.Y. Petitioner did not file a Federal income tax return for calendar year 1974. Petitioner’s wife, Cristina Llorente, filed a Federal income tax return for 1974 utilizing the filing status of married filing separately on which she reported gross income of $779. Two of petitioner’s children, Carlos and Nestor, were students and lived with their parents during 1974. Petitioner’s wife claimed Nestor as a dependent on her 1974 tax return.

Petitioner was born in Colombia, South America, and first came to the United States on February 2, 1965. Upon immigrating to the United States, petitioner brought with him $1,500 in cash. In August 1972, petitioner had $11,000 in savings of which he used $10,000 for a downpayment on his personal residence.

Petitioner and his wife reported gross income in the amount of $13,020, of which $565 represented interest income, on their joint Federal income tax return for calendar year 1973.

Petitioner’s and his wife’s cost of living for 1974 was between $900 and $1,000 per month. That amount included the one or two trips made by petitioner to Colombia at a cost of approximately $380 per trip. In January 1974, petitioner purchased the LaPaz Bar and Grill for $9,000 cash.

During 1974 and part of 1975, the New York City Police Department maintained an undercover investigation of illegal narcotics activity. As a result of that investigation, petitioner was arrested on March 8, 1975. At the time of his arrest, petitioner’s bail was set at $1 million but was subsequently reduced to $300,000. Petitioner never raised the bail. On April 1, 1975, an indictment was filed in the Supreme Court of the State of New York against petitioner, accusing him of the crime of conspiracy in the first degree to commit the crimes of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, and criminal sale of a controlled substance in the first degree for the period from February 1974 to March 8, 1975.

On May 24, 1977, petitioner entered a plea of guilty to the crime of attempted conspiracy in the first degree to cover the indictment, and was sentenced on September 6, 1977, to time served, i.e., the time petitioner had spent in jail following his arrest on March 8, 1975, to his sentencing on September 6, 1977.

Hugo Sossa, Alvaro Doronzoro, and Louis Irving Taylor were patrons of petitioner’s bar and grill and were known by him. During 1974, a police department undercover agent purchased cocaine and engaged in conversation and other transactions involving the purchase of cocaine with Louis Irving Taylor (Taylor) and Alvaro Doronzoro (Doronzoro) at petitioner’s bar and grill. During one such transaction, the undercover agent was informed by Taylor that he would have to check to see if his shipment had arrived. Following that statement to the agent, Taylor left the table at which they were sitting and engaged in a conversation with petitioner. Upon returning, he informed the agent that his shipment had not arrived. On another occasion, the undercover agent entered petitioner’s bar and grill to purchase cocaine from Doronzoro. The agent heard Doronzoro inquire of petitioner whether Doronzoro’s shipment of cocaine was available. Further, the agent heard petitioner inform Doronzoro that the shipment had not arrived.

The undercover agent was informed by a confidential informant that petitioner, the informant, and Doronzoro had gone to Alfonso Velasco’s house in Queens, N.Y., where there were 6 kilos of cocaine. According to the informant, at that time and location, petitioner examined the package because some of the merchandise had been delivered in a damp condition.

Upon completion of his investigation, the undercover agent advised respondent that petitioner had purchased 6 kilos of cocaine. He further advised respondent that the cost of a kilo of cocaine to petitioner was in the $9,000 to $14,000 range.

Based upon the information received from the undercover agent and a conversation with an assistant district attorney who worked on the criminal case, respondent determined that petitioner expended $54,000 for cocaine in 1974. In 1974, petitioner made payments with respect to a mortgage on his residence in the amount of $3,156. Petitioner, in the same year, received $5,300 as remuneration from Caveman Lounge, Inc. Petitioner was president of Caveman Lounge, Inc., and apparently the corporation was the legal owner of the LaPaz Bar and Grill.

OPINION

Petitioner argues that respondent’s determination that he purchased illegal drugs is arbitrary, that the information used by respondent in reconstructing his income was insufficient to establish the correctness of the deficiency, thereby shifting the burden of going forward with the evidence to respondent. Petitioner argues in the alternative that, if the burden of going forward with the evidence is not shifted, he has met his burden.

Respondent argues that the statutory notice of deficiency is entitled to the ordinary presumption of correctness. Further, he argues that petitioner’s testimony, which was the only evidence presented to support petitioner’s argument, lacks sufficient credibility to shift the burden of going forward.

A statutory notice ordinarily carries with it a presumption of correctness that, except where provided in the Internal Revenue Code or the Tax Court Rules of Practice and Procedure, places the burden of proof and the burden of going forward with the evidence on the petitioner. Rule 142, Tax Court Rules of Practice and Procedure, and Welch v. Helvering, 290 U.S. 111 (1933). However, a showing by petitioner that the statutory notice is arbitrarily excessive or without foundation has the effect of shifting the burden of going forward with the evidence to respondent. Helvering v. Taylor, 293 U.S. 507 (1935). In neither circumstance is such a showing reason for finding the statutory notice null and void.

When petitioner asks the Court to find a statutory notice arbitrary, he is asking the Court to look behind the statutory notice. As a general rule, we will not honor such a request. Greenberg’s Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974). The rare exception to this rule is where respondent, in a case involving unreported income, introduces no direct evidence but rests on the presumption of correctness and petitioner challenges the deficiency on the ground that it is arbitrary. Jackson v. Commissioner, 73 T.C. 394 (1979).

Petitioner argues that the instant case meets this exception and is therefore controlled by Jackson v. Commissioner, supra, and Weimerskirch v. Commissioner, 596 F.2d 358 (9th Cir. 1979), revg. 67 T.C. 672 (1977). Respondent argues that Weimerskirch is distinguishable.¹ For reasons hereinafter stated, we agree.

In Weimerskirch, the Circuit Court for the Ninth Circuit held that the Government must introduce substantive evidence linking the taxpayer with the charged activity. In so holding, the Circuit Court relied heavily upon the Supreme Court decision in United States v. Janis, 428 U.S. 433 (1976). In its discussion of the applicability of the exclusionary rule in civil tax cases, the Supreme Court in that case defined a “naked assessment” as “one ‘without rational foundation and excessive,’ and not properly subject to the usual rule with respect to the burden of proof in tax cases.” United States v. Janis, supra at 441. The Court did not stop there, but went further and illustrated a “naked assessment” as occurring when the evidence “seized by the Los Angeles police cannot be used in the formulation of the assessment.” United States v. Janis, supra at 441. The ultimate holding of the Court was that “the judicially created exclusionary rule should not be extended to forbid the use in the civil proceeding of one sovereign of evidence seized by a criminal law enforcement agent of another sovereign.” United States v. Janis, supra at 459.

Thus, we must bear in mind that the Supreme Court’s reference to a “naked assessment” was in the context of illegally obtained evidence. Therefore, the discussion by the Ninth Circuit of the Janis case is not helpful to this petitioner since there is no suggestion here that the statutory notice in issue was predicated on such evidence.

While, as we will emphasize later, we find that the Llórente notice was supported by substantive evidence, we point out that a statutory notice may be based in whole or in part upon inadmissible evidence.² See Weimerskirch v. Commissioner, 67 T.C. 672, 675 (1977), and cf. Rosano v. Commissioner, 46 T.C. 681, 687 (1966).³ Further, the burden of going forward does not shift if the deficiency is supported by evidence which can be properly introduced, even though respondent had access to evidence which cannot be utilized in the formulation of the deficiency.

The essence of the matter is that petitioner’s reliance on our decision in Jackson v. Commissioner, supra, and the decision of the Court of Appeals in Weimerskirch is misplaced because the facts in both cases differ so significantly from those present here. The deficiency in Jackson was premised on respondent’s conclusion that the taxpayer was in the drug business. Yet, there was no firsthand testimony introduced at the trial by respondent to support such a conclusion, and he was compelled to admit that the deficiency was based upon what an informant, who did not testify, had told his agent. Thus, there was no evidence to put Jackson in the drug business, much less any evidence relevant to drug income. Similarly, the facts in Weimerskirch are inappo-site. There, there was a notice of deficiency based upon statements of unidentified informers and information supplied by law enforcement agencies. There was no evidence linking the petitioner to the drug business.⁴

In the instant case there was testimony from a witness, whom the Court believed, that he personally heard petitioner refer to a drug shipment. Furthermore, petitioner was indicted (and subsequently pled guilty to cover the indictment as it related to attempted conspiracy) for the crime of conspiracy in the first degree to commit the crimes of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, and criminal sale of a controlled substance in the first degree for the period from February 1974 to March 8, 1975. With these facts, respondent cannot be deemed to have arbitrarily placed petitioner in the drug business, a business not noted for its nonprofit purpose. In view of the foregoing factual distinctions, we need not address ourselves to the precise arguments made by the Court of Appeals in the Ninth Circuit in reversing our decision in Weimerskirch. We find that the notice of deficiency was not arbitrarily issued. Accordingly, petitioner has the burden of proof of going forward.⁵

Petitioner impliedly challenges the methodology utilized by respondent to determine the deficiency. Respondent is entitled to use any reasonable means of reconstructing income. Further, he is given greater latitude in determining which method of reconstruction to apply where the case involves an illegal enterprise in which petitioner has failed to file a return and has kept no records. Nor is mathematical exactitude required of respondent, for if it were it “would be tantamount to holding that skillful concealment is an invincible barrier to proof.” United States v. Johnson, 319 U.S. 503, 517-518 (1943).

Respondent used the expenditure method to determine that petitioner has expended $54,000 for 6 kilos of cocaine and $3,156 on mortgage payments. To these figures, respondent added petitioner’s compensation of $5,300 from Caveman Lounge, Inc. In effect, respondent has combined the commonly used receipts method with the expenditures method to determine petitioner’s total gross income. The expenditures method is a permissible method for respondent to utilize to reconstruct a taxpayer’s income. Taglianetti v. United States, 398 F.2d 558, 562 (1st Cir. 1968), affd. 394 U.S. 316 (1969).⁶

Finally, petitioner contends that, if he had the burden of going forward, his own testimony was sufficient to carry this burden.⁷ We find some of petitioner’s testimony to be credible. However, we reject his complete denial of participation in, or awareness of, illegal narcotics activity. The testimony of the undercover agent and the indictment clearly connect petitioner with the illegal activity.

Nonetheless, our agreement with respondent’s determination, that petitioner was in some manner connected with the illegal narcotics business, does not require us to accept in its entirety his finding that petitioner purchased 6 kilos of cocaine. The undercover agent testified that Alvaro Doronzoro, the informant, and petitioner were at Velasco’s house where the cocaine was located. Doronzoro was a known dealer in cocaine and a person from whom the undercover agent had, in the past, purchased cocaine. Further, the informant’s statement indicated that some of the cocaine was damp and may well have been damaged. Therefore, it can reasonably be assumed that petitioner was not the purchaser of the entire shipment for lack of need or that he was only one of several purchasers or that a portion thereof was not purchased because of the possible damage.

Petitioner testified that he paid $9,000 for the bar in January 1974, and that his family’s cost of living was $900 to $1,000 per month. Petitioner has stipulated that his wife’s income for 1974 was only $779. Petitioner concedes income of only $5,300. Thus, based on petitioner’s own admissions and testimony, he and his wife had expenditures of between $19,800 and $21,000, although they acknowledge income of only $6,079. Petitioner contends that the amounts expended in excess of this amount came from savings or from loans, and points to his interest income and interest paid as shown on his 1973 return in support of this position. Petitioner testified at trial that he had bank books which would prove the existence of the savings account, but failed to produce those records. The burden to produce such evidence rested on petitioner. To the extent petitioner had these records under his control yet failed to produce them, we must assume that if presented at trial the evidence would not have supported petitioner. Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947).

For the reasons previously expressed, we find that petitioner had unreported taxable income during 1974. It is obvious from the facts herein that the precise amount of unreported income cannot be determined with exactitude. However, this difficulty is not of respondent’s or the Court’s making. We calculate the unreported income in the following manner: taking the lower estimate by petitioner of his cost of living, $10,800 for such expenses; purchase of the bar in January of 1974, $9,000; and bearing in mind that there were three possible purchasers present when the 6 kilos were examined and that some of the cocaine may have been damaged, and applying principles analogous to those expounded in Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930), the purchase by petitioner of his share of cocaine, $18,000; for total expenditures of $37,800. This expenditures figure should be reduced by the $779 income reported by petitioner’s wife.⁸ In so doing, we arrive at a final unreported income figure of $37,021.

Respondent determined additions to tax under sections 6651(a), 6653(a), and 6654(a). The burden of proof is upon petitioner. Welch v. Helvering, 290 U.S. 111 (1933).

Petitioner contends that his incarceration at the time his return was due is reasonable cause within the meaning of section 6651(a)(1) for failure to file. This is the only evidence presented by petitioner on this point, and, consequently, we find that his incarceration at the time the return was due was not reasonable cause for failure to file. Accordingly, petitioner is liable for the addition to tax under section 6651(a). Petitioner failed to present any evidence with respect to the additions to tax under sections 6653(a) and 6654(a). Therefore, he has failed to carry his burden of proof, and accordingly, we find for respondent on these two issues.

The final issue presented is whether petitioner is entitled to claim two of his sons as dependents during 1974. Respondent contends that he was not given fair notice of this matter being in issue. Further, respondent argues that, since the issue was not pleaded in the petition, this Court should not consider it. Estate of Horvath v. Commissioner, 59 T.C. 551, 556 (1973).

Petitioner did not raise the dependency issue in the stipulation or pursue it in his briefs. He first raised the issue at the trial and respondent did not object. To the contrary, respondent implied at trial that petitioner could not have supported his wife and the two children on the income alleged by petitioner and his wife. We find that the issue of dependency of the two children was properly raised and that respondent was not placed at a disadvantage by petitioner’s raising the issue at trial.

Petitioner testified that he was the sole support of his two children, Carlos and Nestor Llorente, for 1974. Petitioner’s wife claimed dependency exemption deduction for their son, Nestor, on her 1974 return. The issue of which parent is entitled to the deduction when the parents are married but elect to file separate returns does not appear to have been previously raised in this Court. Cf. Maley v. Commissioner, 17 T.C. 260 (1951).

Resolution of the issue is controlled by determining which parent in fact provided the child’s support. The parties have stipulated that the wife’s income for 1974 was less than $800, and we have found that petitioner’s income was some $37,000. It is obvious from the stipulation that petitioner’s wife could not have supported either of her two children. Petitioner testified that both children were students who lived with petitioner and had no earned income during 1974.

Petitioner’s testimony on this point was credible and he carried his burden of proof. Therefore, we find that petitioner is entitled to claim Carlos and Nestor as his dependents on his 1974 return.

Decision will be entered under Rule 155.

Reviewed by the Court.

Chabot, J., concurs.

1 Jackson v. Commissioner, 73 T.C. 394 (1979), was decided by this Court after the parties filed their opening briefs. Respondent’s reply brief was filed after our decision in Jackson but it does not address itself to the case. Petitioner’s reliance on Jackson is contained in his reply brief.

2 The above statement is not intended to imply a position with respect to the applicability of the exclusionary rule in tax cases in this Court. We have left that question open. Proesel v. Commissioner, 73 T.C. 600 (1979).

3 While hearsay evidence is inadmissible as substantive evidence, such evidence is hearsay only when offered to prove the truth of the matter asserted. Rule 801(c), Federal Rules of Evidence. Accordingly, such evidence is admissible when offered, not for the truth of the matter asserted, but to establish that respondent did not act arbitrarily in formulating the deficiency. Avery v. Commissioner, 574 F.2d 467, 468 (9th Cir. 1978), affg. T.C. Memo. 1976-129.

4 The above is not intended to imply an acceptance of the legal position stated by the Ninth Circuit in Weimerskirch v. Commissioner, 67 T.C. 672 (1977), revd. 596 F.2d 358 (9th Cir. 1979).

5 The Court is not unsympathetic to petitioner’s burden. “The law imposes much less of a burden upon a taxpayer who is called upon to prove a negative — for example, that he did not receive the income which the Commissioner claims — than it imposes on a taxpayer who is attempting to sustain a deduction on his return.” Schildhaus v. Commissioner, T.C. Memo. 1969-283, quoting 9 J. Mertens, Law of Federal Income Taxation, sec. 50.61, p. 158.

6 More often, the expenditures method has been applied to those situations where the items purchased by expenditures are shown to be in the possession of the petitioner. See Burgo v. Commissioner, 69 T.C. 729 (1978). However, respondent is not required to present the actual item into evidence. Giddio v. Commissioner, 54 T.C. 1530 (1970).

7 A petitioner’s uncorroborated testimony may be sufficient to carry his burden in an unreported income case in which respondent has failed to produce any evidence to support the deficiency. Demkowicz v. Commissioner, 551 F.2d 929 (3d Cir. 1977), affg. T.C. Memo. 1975-278.

8 Petitioner had not reported his income of $5,300 from Caveman Lounge.