                                T.C. Memo. 2013-89



                          UNITED STATES TAX COURT



           HENRY OMOZEE AND JUSTINA OGBOE, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 9463-09.                            Filed April 2, 2013.



      Henry Omozee and Justina Ogboe, pro se.

      Michele A. Yates, Jonathan M. Hauck, Joy E. Gerdy Zogby, and Nancy C.

Carver, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      MORRISON, Judge: On February 9, 2009, respondent (the IRS) issued to

Henry Omozee and Justina Ogboe (the petitioners) a statutory notice of deficiency

for tax year 2004. The notice determined that the petitioners were liable for an
                                         -2-

[*2] income-tax deficiency of $42,354 and a section-66631 fraud penalty of

$31,765.50.

      The issues for decision are: (1) whether the notice of deficiency was issued

after the period for assessment had expired; (2) whether the petitioners had

unreported income of $141,810; and (3) whether the petitioners are liable for a fraud

penalty under section 6663.

      We have jurisdiction, pursuant to section 6214, to redetermine the deficiency

and the penalty determined in the notice of deficiency. See sec. 6214(a).

                               FINDINGS OF FACT

      Some of the facts have been deemed admitted for purposes of this case in

accordance with Rule 91(f).2 We incorporate these facts into our findings by this


      1
       Unless otherwise indicated, all section references are to the Internal Revenue
Code in effect for the year at issue, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
      2
        On February 7, 2011, the IRS filed a motion to show cause why proposed
facts in evidence should not be accepted as admitted under Rule 91(f). Attached to
the motion were a proposed stipulation of facts and Exhibits 1-J through 6-J. By
order dated February 10, 2011, this Court ordered that the petitioners file a response
to the IRS’s motion in accordance with Rule 91(f)(2) on or before March 14, 2011.
On March 14, 2011, the petitioners filed a response to the February 10 order. By
order dated March 15, 2011, this Court found the petitioners’ response did not
comply with Rule 91(f)(2). By that same order, this Court made the order to show
                                                                         (continued...)
                                         -3-

[*3] reference. Henry Omozee and Justina Ogboe were married and resided in

Virginia when the petition was filed.

      Omozee is a certified public accountant with a valid license in Virginia.

During tax year 2004 he was self-employed as a tax preparer doing business as

Henry Omozee, C.P.A., a sole proprietorship. He worked out of offices in

Alexandria and Woodbridge, Virginia. Omozee’s clients paid him fees in exchange

for his tax-preparation services.

      Many of Omozee’s clients participated in a Refund Anticipation Loan

(“RAL”) process,3 which allows a taxpayer to receive an anticipated refund more

quickly than if the refund was issued directly to the taxpayer by the IRS. The RAL

transactions entered into by Omozee and his clients were facilitated by Santa

Barbara Bank and Trust of California (“Santa Barbara Bank”). The RAL process

works as follows: (1) the client signed an RAL form which Omozee submitted to

Santa Barbara Bank for approval; (2) if it approved the RAL, Santa Barbara Bank

      2
        (...continued)
cause under Rule 91(f) absolute and deemed admitted the facts and evidence set
forth in the IRS’s proposed stipulation of facts.
      3
       At trial and in written submissions to the Court, the IRS refers to this process
as a “Rapid Anticipation Loan process”. On the basis of descriptions of the
transactions, however, we believe the IRS meant to refer to “Refund Anticipation
Loans”.
                                         -4-

[*4] paid to the client a sum equal to the amount of his or her anticipated refund,

less the amounts of its fee and Omozee’s fee; (3) after the IRS has processed the

return, it paid Santa Barbara Bank the refund amount owed to the client; (4) Santa

Barbara Bank retained the refund as repayment for the funds it had issued to the

client in anticipation of the refund; (5) Santa Barbara Bank paid over to Omozee his

portion of the fees withheld from its payments to Omozee’s clients. The payments

from Santa Barbara Bank to Omozee are referred to here as RAL fees.

      Since the 2001 tax year Omozee has handled the tax returns of approximately

1,000 individuals per year. Almost all of Omozee’s clients received refunds. A

revenue agent examined the returns of 20 of Omozee’s clients. Nineteen of the

twenty clients admitted that many of the deductions claimed on Schedule-A,

Itemized Deductions, and Schedule-C, Profit or Loss From Business, of their returns

were false. After their examinations were resolved, 19 of the 20 clients ended up

owing money to the IRS, some in substantial amounts.

      During the 2001 through 2003 tax years (the three tax years before the year at

issue) Omozee failed to report on his income-tax returns all the income he received

from his clients. Omozee did not attach a Schedule C to his 2001 or 2002 return,

although he received business income that should have been reported on a
                                        -5-

[*5] Schedule C. Omozee received $25,780 of unreported income in 2001 and

$98,063 of unreported income in 2002. Omozee attached a Schedule C to his

income-tax return for 2003, reporting $40,000 in gross income. However, he

received an additional $166,262 in income during 2003 that he did not report on his

2003 return.

      Omozee was the defendant in the criminal case of United States v. Omozee,

Criminal No. 1:08-mj-00115-TRJ (E.D. Va. filed Feb. 22, 2008). On August 21,

2008, Omozee was found guilty of three counts of making and subscribing false tax

returns for tax years 2001, 2002, and 2003.

      Omozee did not maintain a separate bank account for his business. During

2004 he maintained three accounts at Wachovia Bank: (1) checking account No.

XXXXXXX1009, (2) checking account No. XXXXXXX4149, held jointly with

Ogboe, and (3) money market account No. XXXXXXX6532, held jointly with

Ogboe. Revenue Agent Tammy Barker conducted a bank deposit analysis for 2004

of these three accounts. In conducting her analysis, Barker took into account

nontaxable transfers between accounts. Barker’s bank deposit analysis indicated

that Omozee deposited $127,280 in RAL fees and additional unexplained income of

$14,530 and did not report these amounts on petitioners’ 2004 return.
                                         -6-

[*6] During tax year 2004 Ogboe was employed by Sunrise Continuing Care, Inc.

She earned $10,007.28 in wages during 2004, and her income was reported on

petitioners’ joint return.

       On February 21, 2006, the petitioners filed a joint income-tax return for 2004.

Schedule C of that return listed gross receipts from Omozee’s “finance accounting”

business of $121,000.

       On February 9, 2009, the IRS issued to the petitioners a notice of deficiency

for tax year 2004. The notice determined that the petitioners failed to report

$127,280 in RAL fees and $14,530 in other Schedule-C gross receipts on their

return. The notice determined that, as a result of this underreporting of Schedule-C

gross receipts, the petitioners had a deficiency in tax of $42,354.4 The notice also

determined that the petitioners were liable for a section-6663 fraud penalty of

$31,765.50.

       On April 20, 2009, the petitioners filed a petition with the Tax Court

disputing the determinations in the notice of deficiency.




       4
       The notice also made computational adjustments to the student loan interest
deduction, self-employment tax, and itemized deductions.
                                          -7-

[*7]                                   OPINION

I.     Period of Limitations

       A notice of deficiency must be issued before the IRS can assess a deficiency

in income tax. Sec. 6213(a). Therefore any notice of deficiency must be issued

during the period the IRS can assess the tax. The petitioners allege that the period

for assessing tax expired before the notice of deficiency was issued.

       The general rule is that the IRS must assess tax within three years of the date

a taxpayer filed the return. There is a special rule for a “false or fraudulent return

with the intent to evade tax”. Sec. 6501(c). If such a return is filed, the IRS may

assess the tax at any time. Id. We need not decide whether this special rule applies

to the petitioners’ 2004 return. Their return was filed on February 21, 2006.5 The

notice of deficiency was issued on February 9, 2009, less than three years later.

Therefore the notice was timely.

II.    Deficiencies in Tax

       Generally, a taxpayer bears the burden of proving the IRS’s determinations

incorrect. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). Section

7491 does not shift the burden of proof to the IRS with respect to the

       5
        The petitioners’ return was dated April 15, 2005. However, the stipulation
of facts, deemed established by this Court’s March 15, 2011 order, specifies that the
return was filed on February 21, 2006.
                                          -8-

[*8] determinations because the petitioners have neither alleged that section 7491 is

applicable nor established that they complied with the requirements of section

7491(a)(2)(A) and (B) to introduce credible evidence to substantiate items, maintain

required records, and fully cooperate with the IRS’s reasonable requests.

      The U.S. Court of Appeals for the Ninth Circuit in Weimerskirch v.

Commissioner, 596 F.2d 358, 360 (9th Cir. 1979), rev’g 67 T.C. 672 (1977), held

that for the IRS to prevail in a case involving unreported income, there must be

some evidentiary foundation linking the taxpayer to the alleged income-producing

activity.6 The government alleges that Omozee earned unreported income from tax-

preparation services and facilitating RALs. Omozee acknowledged that he was

engaged in these activities.

      A bank-deposit analysis indicated that the petitioners failed to report

$127,280 in RAL fees and additional income of $14,530. The summary of the

bank-deposit analysis is in the record. The revenue agent who conducted the bank-

deposit analysis testified at trial. The petitioners allege that the bank-deposit

analysis failed to take into account certain transfers between the petitioners’

      6
       Although the U.S. Court of Appeals for the Fourth Circuit has not expressly
adopted or rejected the requirement of Weimerskirch v. Commissioner, 596 F.2d
358 (9th Cir. 1979), rev’g 67 T.C. 672 (1977), the Tax Court has applied the
requirement in cases like this one that are appealable in the Fourth Circuit. See,
e.g., Dunne v. Commissioner, T.C. Memo. 2008-63, slip. op. at 43-44.
                                         -9-

[*9] accounts. However, the revenue agent testified credibly that the bank-deposit

analysis did take into account interaccount and other nontaxable transfers. The

summaries of the bank-deposit analysis confirm that interbank transfers were taken

into account. The petitioners have not satisfied their burden of proving that the

IRS’s determinations were incorrect.

III.   Penalties

       Section 6663 imposes a 75% penalty on the portion of any underpayment due

to fraud. Fraud is defined as an intentional wrongdoing designed to evade tax

believed to be owing. Miller v. Commissioner, 94 T.C. 316, 332 (1990). The IRS

has the burden of proving by clear and convincing evidence that an underpayment

exists for the year in issue and that some portion of the underpayment is due to

fraud. Sec. 7454(a); Rule 142(b); see also sec. 6663(b). To meet this burden, the

IRS must show that the taxpayer intended to evade taxes known to be owing by

conduct intended to conceal, mislead, or otherwise prevent the collection of taxes.

Stoltzfus v. United States, 398 F.2d 1002, 1004 (3d Cir. 1968); Webb v.

Commissioner, 394 F.2d 366 (5th Cir. 1968), aff’g T.C. Memo. 1966-81; Rowlee v.

Commissioner, 80 T.C. 1111, 1123 (1983). The IRS need not prove the precise

amount of the underpayment resulting from fraud, but only that some part of the

underpayment of tax for each year in issue is attributable to fraud. Lee v. United
                                          - 10 -

[*10] States, 466 F.2d 11, 16-17 (5th Cir. 1972); Plunkett v. Commissioner, 465

F.2d 299, 303 (7th Cir. 1972), aff’g T.C. Memo. 1970-274.

      The existence of fraud is a question of fact to be resolved upon

consideration of the entire record. Estate of Pittard v. Commissioner, 69 T.C. 391

(1977); Gajewski v. Commissioner, 67 T.C. 181, 199 (1976), aff’d without

published opinion, 578 F.2d 1383 (8th Cir. 1978). Fraud is not to be imputed or

presumed, but rather must be established by some independent evidence of

fraudulent intent. Beaver v. Commissioner, 55 T.C. 85, 92 (1970); Otsuki v.

Commissioner, 53 T.C. 96 (1969). However, fraud may be proved by

circumstantial evidence and reasonable inferences drawn from the facts because

direct proof of the taxpayer’s intent is rarely available. Spies v. United States, 317

U.S. 492 (1943); Rowlee v. Commissioner, 80 T.C. 1111; Stephenson v.

Commissioner, 79 T.C. 995 (1982), aff’d, 748 F.2d 331 (6th Cir. 1984). The

taxpayer’s entire course of conduct may establish the requisite fraudulent intent.

Stone v. Commissioner, 56 T.C. 213, 223-224 (1971); Otsuki v. Commissioner, 53

T.C. at 105-106. The intent to conceal or mislead may be inferred from a pattern

of conduct. See Spies, 317 U.S. at 499. Circumstantial evidence that may give

rise to a finding of fraud includes: (1) understatement of income; (2) inadequate

records; (3) failure to file tax returns; (4) providing implausible or inconsistent
                                        - 11 -

[*11] explanations of behavior; (5) concealment of assets; (6) failure to cooperate

with taxing authorities; (7) filing false Forms W-4, Employee’s Withholding

Allowance Certificate; (8) failure to make estimated tax payments; (9) dealing in

cash; (10) engaging in a pattern of behavior that indicates an intent to mislead; and

(11) filing false documents. See Bradford v. Commissioner, 796 F.2d 303, 307 (9th

Cir. 1986), aff’g T.C. Memo. 1984-601; Cooley v. Commissioner, T.C. Memo.

2004-49. Although no single factor is necessarily sufficient to establish fraud, a

combination of several of these factors may be persuasive evidence of fraud.

Solomon v. Commissioner, 732 F.2d 1459, 1461 (6th Cir. 1984), aff’g per curiam

T.C. Memo. 1982-603.

      The petitioners’ conduct implicates many of the factors listed above. The

bank-deposit analysis demonstrated, clearly and convincingly, that the petitioners

understated their income for 2004 by $141,810.7 They also failed to report

substantial amounts of income on their 2001, 2002, and 2003 returns. They filed

their 2004 return approximately 10 months late. They failed to produce--to the

IRS or to the Court--business records or other documentation showing how they

calculated the income reported on their 2004 return. Omozee’s explanations for

his failure to report the deposits in question as income were incoherent and

      7
          The same evidence demonstrates that an underpayment exists.
                                         - 12 -

[*12] implausible. Omozee was found guilty of three counts of making and

subscribing false tax returns. Furthermore, 19 out of twenty of Omozee’s clients

whose returns were audited admitted to claiming false Schedule-A and Schedule-C

deductions on returns that Omozee prepared. For these reasons, we find that the

petitioners acted with fraudulent intent in filing their 2004 income-tax return.

Consequently, they are liable for the 75% section-6663 fraud penalty as determined

in the notice of deficiency.

        In reaching our decision, we have considered all arguments made by the

parties. Contentions not addressed herein we find to be meritless, irrelevant, or

moot.

        To reflect the foregoing,


                                                        Decision will be entered

                                                  for respondent.
