                         T.C. Memo. 2000-29



                       UNITED STATES TAX COURT



             G.B. DATA SYSTEMS, INC., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24958-97.              Filed January 21, 2000.



     William E. Frantz and John E. James, for petitioner.

     Nancy C. McCurley, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     CHIECHI, Judge:    Respondent determined for the year ended

January 31, 1994, a deficiency in petitioner’s Federal income tax

(tax) in the amount of $399,152 and an addition to tax under

section 6651(a)(1)1 and an accuracy-related penalty under section


     1
      All section references are to the Internal Revenue Code in
                                                   (continued...)
                               - 2 -

6662(a) in the amounts of $14,495 and $79,830, respectively.

      The issues remaining for decision are:

      (1) Is petitioner entitled to deduct for the year at issue a

claimed royalty expense in the amount of $1,158,084?   We hold

that it is not.

      (2) Is petitioner liable for the year at issue for the

accuracy-related penalty under section 6662(a)?   We hold that it

is.

                         FINDINGS OF FACT2

      Some of the facts have been stipulated and are so found.

      Petitioner had its principal place of business in Marina del

Rey, California, at the time the petition was filed.

      Petitioner, which was incorporated on July 1, 1988, used the

accrual method of accounting for its taxable year ended January

31, 1994, the year at issue.   A. Glenn Braswell (Mr. Braswell)

owned all of the stock of petitioner.   He also owned all of the

stock of certain other corporations.3   (We shall refer to some or


      1
      (...continued)
effect for the year at issue. All Rule references are to the Tax
Court Rules of Practice and Procedure.
      2
      Unless otherwise indicated or needed for clarity, our
Findings of Fact and Opinion pertain to Feb. 9, 1999, the date of
the trial in this case, and not to petitioner’s taxable year
ended Jan. 31, 1994, the year at issue. In this regard, the
record is poorly developed as to relevant facts pertaining to the
year at issue.
      3
       Mr. Braswell’s spouse owned one share of stock in one of
                                                    (continued...)
                                 - 3 -

all of the corporations in which Mr. Braswell owned stock as

Braswell companies.)   Since at least 1994 to the date of the

trial in this case, most of the Braswell companies were engaged

in what they referred, and we shall refer, to as “specialized

direct marketing activities”.4    (We shall refer to the Braswell

companies that were engaged in such specialized direct marketing

activities as the Braswell sales corporations.)    Those activi-

ties, which were intended to sell nutritional supplements to

individuals living in the United States, consisted of mailing

directly to those individuals advertisements that described and

offered those supplements for sale (advertising material).    That

advertising material included letters, brochures, and so-called

16-page mailers.   Since at least 1994 to the date of the trial in

this case, certain of the Braswell sales corporations devoted

their specialized direct marketing activities to what they

referred to as the front-end business, i.e., to prospective

customers, and certain of those corporations devoted their

specialized direct marketing activities to what they referred to



     3
      (...continued)
those other corporations.
     4
      As for the remaining Braswell companies, one of them pub-
lished a magazine, another owned certain assets not disclosed by
the record that were utilized by one or more Braswell companies,
another marketed products directly to medical professionals
throughout the world, and another sold certain books written by
professionals through direct response advertising such as newspa-
pers and magazines.
                               - 4 -

as the back-end business, i.e., to existing customers.

     Since around 1989 until a date not established by the record

in this case, Vita Industries, Inc. (Vita), which was incorpo-

rated in January 1989, was one of the Braswell sales corporations

and also provided to the other Braswell sales corporations

certain unspecified management services and other services not

established by the record herein.5     Beginning in 1993, Vita

entered a winding-down stage during which its activities were

limited primarily to collecting its receivables and paying its

liabilities and expenses.

     In October 1992, Vita entered into an agreement with Cam-

paign Media Corporation (CMC), which was wholly owned by Chase

Revel (Mr. Revel) at the time that agreement was executed.        (We

shall refer to that agreement as the Vita-CMC agreement.)        The

Vita-CMC agreement, which was in force until sometime in 1996,

was to be binding on and inure to the benefit of the legal

representatives, successors, and assigns of CMC and Vita.

Pursuant to that agreement, CMC agreed to create advertising

material to promote Vita’s products and any other products that

Vita designated.   In return, Vita agreed “to pay CMC royalties of

5% of the gross sales (less refunds, credit card chargebacks and

sales taxes) generated by any advertising material created by



     5
      It is not clear from the record whether Vita provided such
services to other Braswell companies.
                               - 5 -

CMC.”   Vita further agreed

     to pay said royalties to CMC within 10 working days
     after the end of the first week said advertising mate-
     rials generate sales and continue to pay said royalties
     on a weekly basis thereafter.

In order to determine the amount of royalties payable under the

Vita-CMC agreement, that agreement required Vita

     to provide a list of the sales sources and gross sales
     for each source along with each royalty payment. Said
     sales sources shall be defined as “key codes” for
     direct mail and space advertisements and 800 [tele-
     phone] number assignments.

Gross sales upon which royalties were payable under the Vita-CMC

agreement were determined by using the data processing system

employed by the Braswell sales corporations in order to track

gross sales by means of product codes as well as media codes that

appeared on the advertising material that CMC created for Vita’s

products and other products designated by Vita.

     Mr. Revel concluded shortly after the Vita-CMC agreement was

executed that Mr. Braswell was not the type of individual who

involved himself in the bookkeeping and accounting operations of

the Braswell companies.   Consequently, whenever Mr. Revel had any

questions under the Vita-CMC agreement about the royalty payments

made to CMC thereunder, he addressed those questions to the

employees working in the bookkeeping, sales, and/or accounting

departments of those Braswell companies who compiled the figures

needed to determine the royalties due CMC under the Vita-CMC

agreement.
                               - 6 -

     Throughout the period during which the Vita-CMC agreement

was in force, Mr. Revel dealt with Mr. Braswell, and it did not

matter to Mr. Revel from which of the Braswell companies CMC

received checks for the royalties due CMC under that agreement.

On various dates not established by the record herein throughout

the period during which the Vita-CMC agreement was in force, CMC

received checks from different Braswell companies, including Vita

and petitioner, in amounts not established by that record for

royalties due to CMC under that agreement.   As described below,

the checks that CMC received from petitioner during that period

were issued by petitioner as the disbursing agent for the

Braswell sales corporations whose products were promoted by

advertising material that CMC created pursuant to the Vita-CMC

agreement.

     Since a date not established by the record in this case

until the date of the trial herein, the Braswell sales corpora-

tions used petitioner as a service provider.6   As such, peti-

tioner provided to those corporations personnel, payroll, and

certain other services, the nature of which is not established by

the record in this case.   During that same period, the Braswell

sales corporations utilized a centralized cash control system




     6
      It is not clear from the record whether other Braswell
companies used petitioner as a service provider.
                               - 7 -

under which petitioner served as the disbursing agent for them.7

As such, petitioner maintained approximately five or six bank

accounts on behalf of those corporations, including an investment

account, a payroll account, and other disbursement accounts.    The

Braswell sales corporations for which petitioner served as the

disbursing agent deposited certain funds into the payroll and

other disbursement bank accounts that petitioner maintained on

their behalf.   Thereafter, petitioner disbursed those funds on

behalf of those corporations in order to make payments, inter

alia, for the respective payroll and other liabilities and debts

that those corporations incurred.   Petitioner’s disbursements of

funds on behalf of those corporations included disbursements of

funds that were payable to CMC under the Vita-CMC agreement.

     In return for the services that it provided to the Braswell

sales corporations over a period of time not established by the

record herein, petitioner received an administrative fee from

those corporations.   That administrative fee, which was the

source of most of petitioner’s income during that period, was

calculated on the basis of a formula which, although not specifi-

cally described in the record in this case, took into account the

services that petitioner provided to each of the Braswell sales

corporations and the volume of business that each of those



     7
      It is not clear from the record whether other Braswell
companies used petitioner as a disbursing agent.
                              - 8 -

corporations generated.

     Since around 1989 to the time of the trial in this case,

Robert Miller (Mr. Miller), a certified public accountant,

prepared the tax returns of, and provided certain consulting and

accounting services to, one or more of the Braswell companies.

Around August or September 1994, Christine Wu (Ms. Wu), who

served as petitioner’s controller approximately from 1993 until

1995, sent Mr. Miller financial statements for petitioner’s

fiscal year ended January 31, 1994, in order to enable Mr. Miller

to prepare petitioner’s Form 1120, U.S. Corporation Income Tax

Return, for its taxable year ended on the same date (Form 1120).

Thereafter, during September 1994, approximately eight months

after the close of petitioner’s fiscal and taxable years ended

January 31, 1994, Ms. Wu sent Mr. Miller a document entitled

“G.B. DATA SYSTEMS & CONTROLLED GROUP PRODUCT USAGE 2/1/93-

1/31/94” (purported product usage document).   Ms. Wu sent that

document to Mr. Miller in order to have him (1) prepare and book

on petitioner’s behalf certain accounting entries and (2) reflect

such accounting entries in the Form 1120 that he was preparing

for petitioner.

     Based upon the purported product usage document that Mr.

Miller received from Ms. Wu, Mr. Miller prepared adjusting

journal entries in September 1994 that debited royalty expense

and credited royalties payable in the amount of $1,158,084.    The
                                - 9 -

amount of those entries was the same as the amount shown on the

purported product usage document as the last entry under the

column headed “NET TOTAL (IN BOTTLES)”.     (We shall refer to the

adjusting journal entries prepared by Mr. Miller on the basis of

the purported product usage document as the royalty adjusting

journal entries.)    After having prepared the royalty adjusting

journal entries, Mr. Miller completed preparation of petitioner’s

Form 1120 for its taxable year ended January 31, 1994, based on

those entries and petitioner’s financial statements for the

fiscal year ended on the same date.     Thereafter, but prior to

booking the royalty adjusting journal entries in petitioner’s

books and prior to filing petitioner’s return for the year at

issue, Mr. Miller confirmed with Mr. Braswell the correctness of

booking those entries.    When Mr. Miller booked the royalty

adjusting journal entries in petitioner’s books, he included an

explanation in those entries that he was making them “per AGB”,

i.e., per A. Glenn Braswell.

     Petitioner claimed, inter alia, a royalty expense deduction

in the amount of $1,158,084 in the Form 1120 that it filed for

the year at issue.

     In the notice of deficiency (notice) issued to petitioner

for the year at issue, respondent determined that petitioner

erroneously deducted $1,158,084 as a royalty expense and in-

creased petitioner’s income for that year by that amount.
                               - 10 -

Respondent also determined that petitioner was liable for that

taxable year for the accuracy-related penalty under section

6662(a).

                               OPINION

     Petitioner bears the burden of proving that the determina-

tions in the notice are erroneous.      See Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).

Claimed Royalty Expense Deduction

     Petitioner contends that it is entitled under section 162(a)

to deduct for the year at issue the royalty expense claimed in

the Form 1120 that it filed for that year.     Respondent counters

that petitioner has failed to establish that it satisfies the

requirements of section 162(a).   Respondent also contends that

petitioner has failed to prove that it satisfies the all events

test with respect to the claimed royalty expense.     See sec.

461(a) and (h).   On the record before us, we agree with respon-

dent.

     Section 162(a) allows a taxpayer to deduct all the ordinary

and necessary expenses that such taxpayer paid or incurred during

the taxable year in carrying on such taxpayer’s trade or busi-

ness.   Deductions are strictly a matter of legislative grace, and

a taxpayer must meet the specific statutory requirements for any

deduction claimed.   See INDOPCO, Inc. v. Commissioner, 503 U.S.

79, 84 (1992).    The determination of whether an expenditure
                              - 11 -

satisfies the requirements for deductibility under section 162 is

a question of fact.   See Commissioner v. Heininger, 320 U.S. 467,

475 (1943).

     In support of its position that it is entitled to deduct for

the year at issue the claimed royalty expense, petitioner con-

tends, inter alia, that it provided sales and marketing assis-

tance to the Braswell sales corporations, that Vita assigned its

rights and obligations under the Vita-CMC agreement to peti-

tioner, and that petitioner was obligated to pay a 5-percent

royalty to CMC under that agreement.   On the record before us, we

find that petitioner has failed to establish those (and other)

factual contentions as facts.8

     On the record before us, we find that petitioner has failed

to establish that it incurred the claimed royalty expense during

the year at issue (or during any other year).   We further find

that, assuming arguendo that petitioner had shown that it in-

curred that expense during the year at issue, petitioner has

failed to establish (1) that such expense is an ordinary and

necessary expense that it incurred during that year in carrying

on its trade or business, see sec. 162(a), and (2) that the all




     8
      Assuming arguendo that petitioner had established those
factual contentions as facts, we find on the record before us
that it has not shown that those factual contentions pertain to
the year at issue. See supra note 2.
                             - 12 -

events test is met with respect to that expense, see sec. 461(a)

and (h).9

     Based on our examination of the entire record in this case,

we find that petitioner has failed to show that it is entitled to

deduct for the year at issue the claimed royalty expense.10


     9
      We note that petitioner attempted to introduce the pur-
ported product usage document into evidence in order to prove the
truth of the matters asserted therein. The Court sustained
respondent’s hearsay objection to the admission of that document
into evidence. However, the Court did admit the purported
product usage document into evidence solely for the limited
purposes of showing that Mr. Miller relied on that document in
order to prepare both the royalty adjusting journal entries and
petitioner’s tax return for the year at issue.
     We also note that petitioner claims that the purported
product usage document reflects the “royalties payable to CMC
based on the number of bottles of product sold (and the average
price per bottle) attributable to CMC’s direct-mail pieces.” On
the instant record, we reject petitioner’s claim. In addition,
we have serious reservations about the reliability of the pur-
ported product usage document. We note first that Ms. Wu gave
that document to Mr. Miller in September 1994, approximately
eight months after the close of petitioner’s taxable year ended
Jan. 31, 1994. Although the purported product usage document
purports to cover that year, the document shows only an “ESTIMATE
FOR: 2/1/93-7/31/93", the first six months of that year.
Furthermore, the purported product usage document is a purported
summary of underlying records relating to the royalty expense
payable to CMC under the Vita-CMC agreement. However, the record
in the instant case is devoid of any evidence (such as corporate
records of the Braswell sales corporations showing gross sales on
which the royalty payable to CMC under the Vita-CMC agreement was
calculated, canceled checks, general ledgers, accrual workpapers,
invoices, expense or payable journals, etc.) which establishes
that the purported product usage document is accurate. Nor does
the record contain any evidence establishing that petitioner was
liable for the year at issue (or any other year) for the royal-
ties due CMC under the Vita-CMC agreement.
     10
      We have considered, and find to be without merit and/or
irrelevant, all of the arguments and contentions of petitioner
                                                   (continued...)
                              - 13 -

Accordingly, we sustain respondent’s determination disallowing

the royalty expense deduction that petitioner claimed in its tax

return for that year.

Accuracy-Related Penalty Under Section 6662(a)

     Respondent determined that petitioner is liable for the year

at issue for the accuracy-related penalty under section 6662(a).

Petitioner contends that respondent’s determination is wrong

because (1) “there is no underpayment of tax”; (2) “there is no

evidence that it was negligent or disregarded rules or regula-

tions”; and (3) “there is substantial authority for the deduction

of the Royalty Expense”.   Although it is not altogether clear,

petitioner also seems to contend that it is not liable for the

accuracy-related penalty because it relied on its accountant, Mr.

Miller, in deducting the claimed royalty expense in the Form 1120

that it filed for the year at issue.


     10
      (...continued)
that are not discussed herein, including the following alterna-
tive argument of petitioner:

          Even assuming arguendo that the Royalty Expense
     was an expense of the other Related Entities [i.e., the
     Braswell sales corporations], the assumption by Peti-
     tioner of the marketing functions including the engage-
     ment of CMC’s services and ultimate liability for those
     services substantiates a deductible business expense to
     Petitioner under the principles articulated in Dinardo
     v. Commissioner, 22 T.C. 430 (1954).

We find Dinardo and the other cases on which petitioner relies to
support its alternative argument to be distinguishable from the
instant case and petitioner’s reliance on those cases to be
misplaced.
                              - 14 -

     Section 6662(a) imposes an accuracy-related penalty equal to

20 percent of the tax resulting from a substantial understatement

of income tax.   An understatement is substantial in the case of a

corporation if the amount of the understatement for the taxable

year exceeds the greater of 10 percent of the tax required to be

shown in the tax return for that year or $10,000.    See sec.

6662(d)(1)(A) and (B).   An understatement is equal to the excess

of the amount of tax required to be shown in the tax return over

the amount of tax shown in such return.    See sec. 6662(d)(2)(A).

     The amount of the understatement is reduced to the extent

that it is attributable to, inter alia, an item for which there

is or was substantial authority.   See sec. 6662(d)(2)(B)(i).   In

order to satisfy the substantial authority standard of section

6662(d)(2)(B)(i), petitioner must show that the weight of author-

ities supporting its position is substantial in relation to those

supporting a contrary position.    See Antonides v. Commissioner,

91 T.C. 686, 702 (1988), affd. 893 F.2d 656 (4th Cir. 1990); sec.

1.6662-4(d)(3)(i), Income Tax Regs.    The substantial authority

standard is not so stringent that a taxpayer’s treatment must be

one that is ultimately upheld in litigation or that has a greater

than 50-percent likelihood of being sustained in litigation.    See

sec. 1.6662-4(d)(2), Income Tax Regs.    A taxpayer may have

substantial authority for a position even where it is supported

only by a well-reasoned construction of the pertinent statutory
                                - 15 -

provision as applied to the relevant facts.      See sec. 1.6662-

4(d)(3)(ii), Income Tax Regs.    There may be substantial authority

for more than one position with respect to the same item.        See

sec. 1.6662-4(d)(3)(i), Income Tax Regs.

     The accuracy-related penalty under section 6662(a) does not

apply to any portion of an underpayment if it is shown that there

was reasonable cause for such portion and that the taxpayer acted

in good faith.   See sec. 6664(c)(1).     The determination of

whether a taxpayer acted with reasonable cause and in good faith

depends on the pertinent facts and circumstances, including the

taxpayer’s efforts to assess his or her proper tax liability, the

knowledge and experience of the taxpayer, and the reliance on the

advice of a professional, such as an accountant.      See sec.

1.6664-4(b)(1), Income Tax Regs.    In the case of claimed reliance

on the accountant who prepared the taxpayer’s tax return, the

taxpayer must establish that correct information was provided to

the accountant and that the item incorrectly claimed or reported

in the return was the result of the accountant’s error.      See Ma-

Tran Corp. v. Commissioner, 70 T.C. 158, 173 (1978).

     On the instant record, we reject petitioner’s contention

that respondent’s determination under section 6662(a) is wrong

because “there is no underpayment of tax”.      We have held on that

record that petitioner is not entitled to deduct for the year at

issue the claimed royalty expense.       Consequently, petitioner has
                                - 16 -

not shown that there is no underpayment of tax for that year.

     On the record before us, we also reject petitioner’s conten-

tion that respondent’s determination under section 6662(a) is

wrong because “there is no evidence that it was negligent or

disregarded rules or regulations”.       We note first that respondent

determined that petitioner is liable under section 6662(a)

because of section 6662(b), i.e., because of a substantial

understatement of income tax.    Respondent did not determine that

petitioner is liable under section 6662(a) because of negligence

or disregard of rules or regulations under section 6662(b)(1).

In any event, on the record in this case, we find that petitioner

has failed to show that it was not negligent and did not disre-

gard rules or regulations in claiming the royalty expense deduc-

tion in its Form 1120 for the year at issue.

     We further find on the record before us that petitioner has

failed to establish that it acted with reasonable cause and in

good faith in claiming the royalty expense deduction.      In this

connection, to the extent that petitioner is claiming that it

acted with reasonable cause and in good faith in claiming the

royalty expense deduction in its tax return for the year at issue

because it relied on Mr. Miller who prepared that return, we

reject any such contention.   Petitioner has not established on

the instant record that it provided correct information to Mr.

Miller with respect to that claimed deduction.      The record shows
                                 - 17 -

that during 1994, approximately eight months after the close of

petitioner’s fiscal and taxable years ended January 31, 1994, Ms.

Wu, petitioner’s controller, sent Mr. Miller the purported

product usage document.11     She provided that document to Mr.

Miller in order to have him (1) prepare and book on petitioner’s

behalf certain accounting entries and (2) reflect such accounting

entries in the Form 1120 that he was preparing on petitioner’s

behalf for the year at issue.     Based on the purported product

usage document, Mr. Miller prepared adjusting journal entries in

September 1994 that debited royalty expense and credited royal-

ties payable in the amount of $1,158,084.     The amount of those

entries was the same as the amount shown on the purported product

usage document as the last entry under the column headed “NET

TOTAL (IN BOTTLES)”.     After having prepared the royalty adjusting

journal entries, Mr. Miller completed preparation of petitioner’s

Form 1120 for the year at issue based upon those entries and

petitioner’s financial statements for the fiscal year ended

January 31, 1994.     Thereafter, but prior to booking the royalty

adjusting journal entries in petitioner’s books and prior to

filing petitioner’s return for the year at issue, Mr. Miller

confirmed with Mr. Braswell the correctness of booking those




     11
          See supra note 9.
                               - 18 -

entries.12   On the record before us, we find that petitioner has

failed to establish that it provided correct information to Mr.

Miller when Ms. Wu gave him the purported product usage document.

See Ma-Tran Corp. v. Commissioner, 70 T.C. at 173.

     On the instant record, we also reject petitioner’s conten-

tion that respondent’s determination under section 6662(a) is

wrong because “there is substantial authority for the deduction

of the Royalty Expense”.   On that record, we find that all of the

authorities on which petitioner relies to support its position

regarding the claimed royalty expense deduction are distinguish-

able from the instant case.   Consequently, petitioner’s reliance

on those authorities is misplaced.


     12
      Mr. Miller testified, and we found as a fact, that he
confirmed with Mr. Braswell the correctness of booking the
royalty adjusting journal entries. On the record before us, we
find that Mr. Miller’s confirming with Mr. Braswell the correct-
ness of booking those entries is not equivalent to Mr. Miller’s
undertaking due diligence with respect to those entries such that
Mr. Miller assured himself of the correctness of those entries.
We note in this connection that Mr. Revel testified, and we found
as facts, the following: Shortly after the Vita-CMC agreement
was executed, Mr. Revel concluded that Mr. Braswell was not the
type of individual who involved himself in the bookkeeping and
accounting operations of the Braswell companies. Consequently,
whenever Mr. Revel had any questions under the Vita-CMC agreement
about the royalty payments made to CMC thereunder, he addressed
those questions to the employees working in the bookkeeping,
sales, and/or accounting departments of those Braswell companies
who compiled the figures needed to determine the royalties due
CMC under that agreement. On the record before us, we find that
petitioner has not shown that Mr. Braswell, whom petitioner did
not call as a witness at trial, was in a position to confirm the
correctness of booking the royalty adjusting journal entries
other than by expressing his personal opinion to Mr. Miller that
those entries were correct.
                             - 19 -

     Based on our examination of the entire record before us, we

find that petitioner has failed to establish error in respon-

dent’s determination that it is liable for the year at issue for

the accuracy-related penalty under section 6662(a).   Conse-

quently, we sustain that determination.

     To reflect the foregoing and the concession of respondent,

                                   Decision will be entered

                              under Rule 155.
