                              T.C. Memo. 2016-202



                        UNITED STATES TAX COURT



                HAROLD P. KUPERSMIT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 22350-14.                        Filed November 8, 2016.



      Harold P. Kupersmit, for himself.

      Daniel C. Munce, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      MORRISON, Judge: Respondent mailed petitioner a notice of deficiency

for the 2009 tax year, determining the following income tax deficiency and the
                                          -2-

[*2] following additions to tax for failure to file a return, failure to pay tax, and

failure to pay estimated income tax, respectively:1

                                                      Additions to tax
                                         Sec.              Sec.              Sec.
      Year         Deficiency         6651(a)(1)        6651(a)(2)          6654(a)
      2009           $12,919          $2,256.98         $1,153.57           $232.50

Petitioner timely filed a petition under section 6213(a) for redetermination of the

deficiency and the additions to tax.2 We have jurisdiction under section 6214(a).

After concessions, the issues to be resolved are:

(1)     the amount of petitioner’s taxable Social Security benefits. We hold it is

        $11,244, the amount determined in the notice of deficiency, contingent on

        recomputation of modified adjusted gross income under Rule 155;

(2)     the amount of petitioner’s interest income. We hold it is $577, the amount

        determined in the notice of deficiency;




        1
       Unless otherwise indicated, all section references are to the Internal
Revenue Code of 1986, as amended, in effect for the year at issue. All Rule
references are to the Tax Court Rules of Practice and Procedure.
        2
       Petitioner resided in Pennsylvania when he filed the petition. Therefore, an
appeal of our decision in this case would go to the U.S. Court of Appeals for the
Third Circuit unless the parties designate another circuit in writing. See sec.
7482(b)(1) and (2).
                                        -3-

[*3] (3)     the amount of petitioner’s dividend income. We hold it is $62, the

             amount determined in the notice of deficiency;

(4)   the amount of petitioner’s capital gain income. We hold it is $525, the

      amount determined in the notice of deficiency;

(5)   the amount of petitioner’s gambling income. We hold it is $50,534, not

      $63,855 as determined in the notice of deficiency;

(6)   whether petitioner is liable for the section 6651(a)(1) addition to tax. We

      hold he is liable;

(7)   whether petitioner is liable for the section 6651(a)(2) addition to tax. We

      hold he is liable; and

(8)   whether petitioner is liable for the section 6654(a) addition to tax. We hold

      he is liable.

                               FINDINGS OF FACT

2008 tax year

      Petitioner did not file a Federal income tax return for 2008. On October 18,

2010, respondent prepared a substitute for return for 2008 showing tax of

$870,220.3


      3
      The tax year before the Court is 2009. The record does not reveal how the
IRS determined the tax for 2008.
                                         -4-

[*4] 2009 tax year

      Nor did petitioner file a return for 2009. The only payments of Federal

income tax that he made for 2009 were $2,888 withheld from his gambling

winnings. On February 21, 2012, respondent prepared a substitute for return for

2009, showing tax of $12,919 and credits of $2,888. On April 23, 2012,

respondent mailed petitioner the notice of deficiency for 2009, which reflected the

same amounts of taxable income, tax, and credits as did the substitute for return.

                                     OPINION

      Under Rule 142(a) a taxpayer generally has the burden of proving that the

determinations in the notice of deficiency are wrong. To satisfy that burden for a

particular fact, the taxpayer must prove the fact by a preponderance of the

evidence. Estate of Gilford v. Commissioner, 88 T.C. 38, 51 (1987). Although

the burden of proof can be imposed on the Commissioner regarding the deficiency

if certain conditions are met, sec. 7491(a)(1) and (2), the conditions have not been

met for any of the issues in this case related to the deficiency. The burden of proof

therefore rests on petitioner regarding the deficiency.

      In addition to the burden of proof, by which in this context we mean the

burden of persuasion, Estate of Gilford v. Commissioner, 88 T.C. at 51, a taxpayer

generally has the burden of production regarding determinations in the notice of
                                         -5-

[*5] deficiency. Anastasato v. Commissioner, 794 F.2d 884, 886 (3d Cir. 1986),

vacating T.C. Memo. 1985-101. This is because the determinations in the notice

of deficiency are accorded a presumption of correctness. Id. Where a case

involving unreported income is appealable to the Court of Appeals for the Third

Circuit, the Commissioner must produce foundational evidence linking the

taxpayer to the income-generating activity in order to benefit from the

presumption of correctness. See id. at 887 (citing Gerardo v. Commissioner, 552

F.2d 549, 554 (3d Cir. 1977), aff’g in part, rev’g in part T.C. Memo. 1975-341).

Because petitioner did not file a return for 2009, he did not report any of the

income that the notice of deficiency determined he earned. We therefore consider

whether there is sufficient foundational evidence linking petitioner to the activity

generating the income. We hold that there is. Petitioner acknowledged in his

testimony that he received approximately $13,228 of Social Security benefits.

Petitioner is linked to a bank account at TD Bank N.A. (hereinafter TD Bank) by a

signature card with his name and signature on it. There are also bank statements

with petitioner’s name showing deposits of checks written to him. Petitioner’s

testimony links him with a bank account at Citizens Bank of Pennsylvania. He

said that the bank account was his wife’s money and that all of his wife’s accounts

are joint accounts with him. We consider these statements an admission that the
                                          -6-

[*6] bank account at Citizens Bank of Pennsylvania was a joint account held by

petitioner and his wife. Petitioner is linked to a Morgan Stanley brokerage

account by a Form 1099-DIV, Dividends and Distributions, which refers to the

account as a joint account held by petitioner and his wife. There is also a

brokerage statement stating that the account was held jointly by petitioner and his

wife. Petitioner is linked to gambling activity at Philadelphia Park by Forms W-

2G, Certain Gambling Winnings, and by his own testimony admitting that he

gambled there. Petitioner is linked to gambling activity at Melbourne Greyhound

Park L.L.C. by a Form W-2G and by his testimony admitting he gambled there.

Petitioner is linked to gambling activity at New York Racing Association by his

testimony. When asked about the amount of gambling income from New York

Racing Association, he challenged the amount determined in the notice of

deficiency on the ground that it had not been reduced by the amount of his bets.

We consider this an admission that he gambled with the New York Racing

Association. Petitioner is linked with all the activities generating the income

determined in the notice of deficiency. We therefore hold that the determinations

in the notice of deficiency regarding unreported income are presumed correct.

       The burden of proof and the burden of production regarding the additions

to tax are discussed separately infra parts 6, 7, and 8.
                                        -7-

[*7] 1.     Social Security income

      In the notice of deficiency respondent determined that petitioner received

$13,228 of Social Security benefits and that 85%, or $11,244, was taxable.

Petitioner acknowledged in his testimony that he received approximately $13,228

of Social Security benefits during 2009. However, he testified that it was

“disingenuous” for respondent to determine that 85% of the benefits received was

taxable.

      Section 86 requires the inclusion in gross income of up to 85% of Social

Security benefits received. Brady v. Commissioner, T.C. Memo. 2013-1, at *4.

The taxable portion of Social Security benefits depends in part on the taxpayer’s

modified adjusted gross income. Sec. 86; Jelle v. Commissioner, 116 T.C. 63, 16-

18 (2001). The notice of deficiency determined that the taxable portion of

petitioner’s Social Security benefits was 85% given the notice’s computation of

modified adjusted gross income. The amount of modified adjusted gross income

resulting from the conclusions in this opinion will be computed under Rule 155.

Subject to this computation, we hold that petitioner must include $11,244 of his

Social Security benefits in gross income.
                                        -8-

[*8] 2.      Interest income

      In the notice of deficiency respondent determined that petitioner had interest

income of $577. In his pretrial memorandum respondent contended more

specifically that petitioner received “interest in the amounts of $121.00 and

$456.00 from TD Bank N.A. and Citizens Bank of Pennsylvania, respectively”.

The sum of these two amounts is $577, the amount in the notice of deficiency.

Respondent further contended that he is entitled to use third-party information to

determine petitioner’s income.

      At trial respondent introduced a Form 1099-INT, Interest Income, from TD

Bank reporting that petitioner earned $121 of interest income. Respondent also

introduced a signature card for an account at TD Bank that indicated that the

account holders were petitioner and his wife. The card was signed by both. It

stated that the account was opened on March 18, 2006, with an opening deposit of

$68,661.39. The card indicated that the “OWNERSHIP TYPE” was “Joint (Right

of Survivorship)”. The trial record contains statements for the account (which

reflect the names of both spouses) for the period January 1, 2009, to July 31, 2010.

The statements show that there was no activity in the account except: (1) a

payment for a safety deposit box, (2) interest accruals, and (3) two deposits. The

first deposit was a $4,061.30 check to petitioner from Philadelphia Park (a
                                            -9-

[*9] gambling establishment) dated June 13, 2009. The second deposit was a

$8,453.31 check to petitioner’s wife from Prudential dated January 15, 2010.

          Respondent introduced no Form 1099-INT or any other records related to

Citizens Bank of Pennsylvania. The trial record lacks any documentary evidence

regarding interest income from Citizens Bank of Pennsylvania.

          At trial the Court asked petitioner whether it was true, as respondent alleged

in his pretrial memorandum, that he received $121 of interest income from TD

Bank. Petitioner testified: “No. My wife’s money.”

          The Court also asked petitioner whether it was true, as respondent alleged in

his pretrial memorandum, that he received $456 of interest income from Citizens

Bank of Pennsylvania. Petitioner testified: “My wife’s money, Your Honor.

Same answer. I have no money.” He later testified that: “All of our accounts are

joint.”

          The evidence establishes that petitioner and his wife had a bank account at

TD Bank and that they earned $121 of interest income from that bank account.

The only remaining issue to resolve is whether petitioner should include the $121

of interest in his gross income. For tax purposes, a taxpayer is attributed the

portion of income from jointly held property that the taxpayer is entitled to under

State law. Haynes v. Commissioner, 7 B.T.A. 465 (1927); see also Bour v.
                                         -10-

[*10] Commissioner, 23 T.C. 237, 240 (1954). We therefore turn to Pennsylvania

law to determine the portion of the $121 of interest to which petitioner is entitled.

Title 20 of the Pennsylvania Consolidated Statutes and Consolidated Statutes

Annotated, 20 Pa. Stat. and Cons. Stat. Ann. secs. 6301-6306 (West 2005),

determines the property rights of parties to multiple-party accounts. Id. sec. 6302.

A multiple-party account is defined as a joint account or a trust account. Id. sec.

6301 (“Multiple-party account”). A joint account is an account payable on request

to “one or more of two or more parties”, with or without any right of survivorship.

Id. (“Joint account”).4 An account is defined as a contract of deposit of funds

between a depositor and a financial institution. Id. (“Account”). Title 20 Pa. C.S.

sec. 6303(a) provides: “A joint account belongs, during the lifetime of all parties,

to the parties in proportion to the net contributions by each to the sum on deposit,

unless there is clear and convincing evidence of a different intent.” A net

contribution by a party is generally defined as the sum of all deposits made by the

party less all withdrawals made by the party. Id. sec. 6301 (“Net contribution”).

The fact that both petitioner and his wife signed the signature card for the TD

Bank account, and the fact that the ownership type of the account was recorded to

      4
        The right of survivorship is the right of each owner to automatically inherit
the entire property upon the death of the other owner. See United States v. Craft,
535 U.S. 274, 280 (2002).
                                         -11-

[*11] be a joint account, imply that the amounts in the TD Bank account could be

withdrawn by either petitioner or his wife. Therefore, the TD Bank account was a

joint account. See id. To determine petitioner’s proportional ownership of the TD

Bank account during 2009, the year that the $121 of interest accrued, we need to

know petitioner’s total deposits, his total withdrawals, his wife’s total deposits,

and her total withdrawals, for the period up to and including 2009. See id. (“Net

contribution”). The account was opened on March 18, 2006. We have deposit

and withdrawal information for 2009, but not for any earlier period. Petitioner

testified that the account was his wife’s money. One might infer from this

statement that only his wife made net contributions to the account and that he

made no net contributions. However, we do not credit his testimony on this point

because it is vague, uncorroborated, and self-serving. It is his burden to prove that

his ownership portion in the account is less than the 100% assumed by

respondent’s position.5 Because we cannot calculate his ownership portion in the

      5
       Petitioner has not presented clear and convincing evidence that he and his
wife intended to own their account at TD Bank other than in proportion to their
respective net contributions. See 20 Pa. Stat. and Cons. Stat. Ann. sec. 6303(a)
(West 2005). Pennsylvania law presumes that when property has been placed in
an account in the names of a husband and wife, an estate by the entireties is
created. In re Estate of Holmes, 200 A.2d 745, 747 (Pa. 1964). However, the
creation of an estate by the entireties does not necessarily indicate that both parties
intended that the account belong to both equally. Geerston v. McCrea, 37 Pa. D.
                                                                         (continued...)
                                          -12-

[*12] account, and because he has the burden of proof, we hold that he is the

100% owner of the account. It follows that he is entitled to 100% of the interest

from the account.

      The evidence also establishes that petitioner or his wife earned $456 of

interest from Citizens Bank of Pennsylvania. During his testimony he stated that

the bank account was his wife’s money. We took this to be an implicit

acknowledgment that the account existed and paid $456 of interest. Thus, on the

basis of his testimony we find that he or his wife earned $456 of interest from a

bank account at Citizens Bank of Pennsylvania. The evidence also establishes that

the account at Citizens Bank of Pennsylvania was a joint account. Unlike the

history of the account at TD Bank, the history of the account at the Citizens Bank

of Pennsylvania reveals no records to suggest that it is a joint account. However,

petitioner testified that all of his and his wife’s financial accounts are joint

accounts. In this regard, we find that his testimony is credible. We infer from this

testimony that the amounts in the Citizens Bank of Pennsylvania account could be

withdrawn by either him or his wife. Therefore the account is a joint account. See

20 Pa. Stat. and Cons. Stat. Ann. sec. 6301 (“Joint account”). As to determining


      5
      (...continued)
& C. 3d 583, 586 (Common Pleas Ct. Centre Cty. 1983).
                                         -13-

[*13] his ownership portion of the Citizens Bank of Pennsylvania account, we

know even less about the contributions to and withdrawals from the account than

we do about the contributions to and withdrawals from the TD Bank account.6 We

therefore hold that he is a 100% owner of the account and that he is entitled to

100% of the interest from the account.

      We conclude that petitioner must include in his gross income the $577 of

interest earned on the two bank accounts.

3.    Dividend income

      In the notice of deficiency respondent determined that petitioner had

dividend income of $62. At trial respondent introduced a Form 1099-DIV from

Morgan Stanley indicating that petitioner and his wife, through a brokerage

account held in joint tenancy, earned $62.56 of dividend income. Respondent also

introduced a brokerage statement from Morgan Stanley for the account (which

also stated that the account was held in joint tenancy) showing that $62.56 in

dividend income was earned on the account. The Court asked petitioner whether

he received the dividend income. He initially testified: “It’s my wife’s money.”


      6
       As with the account at TD Bank, petitioner has not presented clear and
convincing evidence that he and his wife intended to own their account at Citizens
Bank of Pennsylvania other than in proportion to their respective net
contributions. See 20 Pa. Stat. and Cons. Stat. Ann. sec. 6303(a).
                                        -14-

[*14] But as he continued to testify, he acknowledged that the Morgan Stanley

account was a joint account. “In that sense, it’s both our money,” he testified.

      In Deutsch, Larrimore & Farnish, P.C. v. Johnson, 848 A.2d 137, 142 (Pa.

2004), the Supreme Court of Pennsylvania held that a brokerage account is an

account under 20 Pa. Stat. and Cons. Stat. Ann. sec. 6303(a). We discern no

relevant distinction between the brokerage account considered in Deutsch and the

Morgan Stanley account held by petitioner and his wife. Therefore we conclude

that the Morgan Stanley account is an account under 20 Pa. Stat. and Cons. Stat.

Ann. sec. 6303(a).

      The brokerage statements for the account bear the names of both petitioner

and his wife. They state the account was held in joint tenancy. We infer that

either petitioner or his wife could have withdrawn money from the brokerage

account. Therefore it is a joint account. See id. sec. 6301 (“Joint account”).

      As to petitioner’s ownership portion of the Morgan Stanley account, we

cannot calculate his or his wife’s net contributions. The record contains

statements for the account only for the year 2009, not for any earlier period.

Furthermore, the statements do not show that any deposits or withdrawals were

made in 2009. And petitioner’s testimony that the account is his wife’s money is

not credible. We therefore hold that he has failed to prove that his ownership
                                        -15-

[*15] portion is less than the 100% assumed by respondent’s position.7 We hold

that he is the 100% owner of the Morgan Stanley account and that he is entitled to

100% of the dividend income from the account. Therefore petitioner must include

in his income $62 of dividends.

4.    Capital gain income

      In the notice of deficiency respondent determined that petitioner had capital

gain income of $525. A Form 1099-B, Proceeds From Broker and Barter

Exchange Transactions, from Morgan Stanley reports that petitioner and his wife

had gross proceeds from exchanges of $525.14. The Form 1099-B relates to the

same account that produced the dividend income, a joint account about which

there is insufficient evidence to determine the respective net contributions of

petitioner and his wife. For reasons given supra part 3, we hold that petitioner is

entitled to 100% of the gross proceeds from the account. Therefore, he must

include in his income $525 of capital gain income.8


      7
       Petitioner has not presented clear and convincing evidence that he and his
wife intended to own their Morgan Stanley brokerage account other than in
proportion to their respective net contributions. See 20 Pa. Stat. and Cons. Stat.
Ann. sec. 6303(a).
      8
       The gain from exchange of property is equal to the amount realized minus
the taxpayer’s adjusted basis. Sec. 1001(a). Petitioner did not assert that he and
his wife had any adjusted basis in the property that was exchanged. A brokerage
                                                                       (continued...)
                                        -16-

[*16] 5.     Gambling income

      Gross income includes all income from whatever source derived, including

gambling. Sec. 61; McClanahan v. United States, 292 F.2d 630, 631-632 (5th Cir.

1961). Gross income from a wagering transaction is generally calculated by

subtracting the bets placed to produce the winnings as a preliminary computation

in determining gross income. See Lutz v. Commissioner, T.C. Memo. 2002-89,

slip op. at 10-11.

      a.     Respondent’s pretrial position

      In the notice of deficiency respondent determined that petitioner had

gambling winnings of $63,855. The notice of deficiency did not reveal how the

$63,855 was calculated or from what evidence it was derived. In his pretrial

memorandum respondent asserted that during 2009 petitioner received “wagering

income in the amounts of $1,265.00, $61,722.00, and $868.00 from the New York

Racing Association, Parx Casino & Racing (formerly Philadelphia Park Racetrack

& Casino), and Melbourne Greyhound Park L.L.C. respectively.” (The sum of the

three numbers in the pretrial memorandum, $1,265 + $61,722 + $868, is $63,855,

the gambling winnings determined in the notice of deficiency.) Respondent


      8
       (...continued)
statement stated that the adjusted basis in the property was zero.
                                        -17-

[*17] asserted in his pretrial memorandum that he was entitled to use third-party

information to determine petitioner’s income.

      b.    Documentary evidence

            i.      Philadelphia Park

      The trial record contains Forms W-2G issued by Philadelphia Park, a

gambling establishment. The table below summarizes the dollar amounts and

dates on these Forms W-2G:

                                                                     Amount of
                                         Federal                         bet
                                         income                      handwritten
                             Gross          tax          Net         on form by
 Date won Date cashed       winnings     withheld      winnings       petitioner
                                                                         1
  1/10/09        1/10/09    $1,296.76      -0-           $1,296.76        $518.40
  1/10/09        1/10/09     1,051.44      -0-            1,051.44             (1)
  1/18/09        1/18/09     1,407.06      -0-            1,407.06       Obscured
  1/24/09        1/24/09       953.47      -0-              953.47         336.00
  1/24/09        1/24/09     4,722.54      -0-            4,722.54         403.20
   2/7/09         2/7/09     1,329.38      -0-            1,329.38         504.00
   2/7/09         2/9/09       954.62      -0-              954.62         616.00
  2/28/09        2/28/09       602.52      -0-              602.52         302.40
   3/7/09         3/7/09     1,346.30      -0-            1,346.30         352.80
  2/28/09         3/7/09       629.60      -0-              629.60         432.00
  3/14/09        3/14/09       847.80      -0-              847.80       Obscured
   3/7/09        3/14/09     1,059.54      -0-            1,059.54         648.00
  3/14/09        3/16/09     4,918.94      -0-            4,918.94         352.80
   4/4/09         4/4/09       861.82      -0-              861.82         126.00
   4/4/09        4/11/09     1,937.19      -0-            1,937.19         504.00
  4/11/09        4/11/09       721.26      -0-              721.26         403.20
  4/25/09        4/25/09     2,558.59      -0-            2,558.59         504.00
  6/13/09        6/13/09     5,441.30     $1,360          4,081.30         294.00
                                        -18-

    [*18]
  6/20/09       6/27/09        705.70          -0-          705.70           252.00
   7/4/09        7/4/09      1,317.60          -0-        1,317.60           360.00
  7/19/09       7/19/09        708.60          -0-          708.60           518.40
  8/15/09       8/15/09      2,312.40          -0-        2,312.40           363.00
  8/22/09       8/22/09      1,256.05          -0-        1,256.05           216.00
  8/29/09       8/29/09      4,273.00          -0-        4,273.00           450.00
  8/30/09       8/30/09      1,146.93          -0-        1,146.93           403.20
   9/5/09        9/5/09      1,123.46          -0-        1,123.46             0.00
   9/7/09        9/7/09        816.20          -0-          816.20           352.80
  9/12/09       9/14/09      6,112.93          1,528      4,584.93           648.00
  9/19/09       9/19/09        705.98          -0-          705.98           504.00
  9/19/09       9/19/09      1,185.73          -0-        1,185.73           504.00
  9/26/09       9/26/09        931.50          -0-          931.50           313.60
  10/3/09       10/3/09      1,653.11          -0-        1,653.11           504.00
 10/10/09      10/10/09        683.37          -0-          683.37           201.60
 10/23/09      10/23/09        871.46          -0-          871.46           235.20
 11/14/09      11/14/09        801.43          -0-          801.43           302.40
  11/6/09      11/14/09        735.80          -0-          735.80           392.00
 12/12/09      12/12/09      1,759.60          -0-        1,759.60           504.00
                                                                        2
   Total                    61,740.98          2,888     58,852.98        13,321.00
      1
         This $518.40 amount appears intended to cover both this $1,296.76
winning and the $1,054.44 winning below.
       2
         The $13,321.00 total does not include obscured amounts. Respondent’s
brief puts the same total at $13,270.

The gross winnings shown on the Forms W-2G from Philadelphia Park are

$61,740.98, slightly greater than the $61,722 that respondent referred to in his

pretrial memorandum as the gross winnings at Philadelphia Park.

             ii.   New York Racing Association

      The trial record contains no documentary evidence regarding petitioner’s

gambling activity at New York Racing Association.
                                         -19-

[*19]         iii.   Melbourne Greyhound Park L.L.C.

        The trial record contains one Form W-2G issued by Melbourne Greyhound

Park L.L.C. This form has a “date won” of February 14, 2009, gross winnings of

$868, and Federal income tax withheld of zero. There is no place on the form for

the date cashed or the net winnings. No handwritten notation for the amount of

the bet appears on the form.

        c.    Testimony

              i.     Philadelphia Park

        As explained above, the Forms W-2G issued by Philadelphia Park include

handwritten notations of the amounts petitioner bet. He testified that before

Philadelphia Park sent the Forms W-2G to respondent, Philadelphia Park allowed

him to write the amounts of his bets on the forms. We find his testimony on this

point credible. Thus, the Forms W-2G respondent received (and which appear in

the trial record) showed the amounts that petitioner claimed he bet. The total bets

written on the Forms W-2G, not including two forms on which the amount is

obscured, is $13,321.

              ii.    New York Racing Association

        The Court asked petitioner whether it was true that, as respondent alleged in

his pretrial memorandum, petitioner had wagering income of $1,265 from New
                                        -20-

[*20] York Racing Association. He testified that he did not know because

“[t]hey” had sent him “a whole bunch of stuff and conveniently forgot to take off

the bet, which was clearly marked on the * * * 1099 I get.”

            iii.   Melbourne Greyhound Park

      The Court asked petitioner whether it was true that, as respondent alleged in

his pretrial memorandum, he had wagering income of $868 from Melbourne

Greyhound Park. He testified that he had gambled at Melbourne Greyhound Park.

He did not challenge respondent’s position about the amount of his gambling

income from Melbourne Greyhound Park.

      d.    Respondent’s posttrial brief

      In his posttrial brief respondent concedes that the amounts petitioner wrote

on Philadelphia Park’s Forms W-2G as his bets should offset the gambling

winnings from Philadelphia Park in calculating petitioner’s gross income.

Respondent asserts that the amounts of bets recorded on the Forms W-2G total

$13,270. Respondent acknowledges that the gross winnings from Philadelphia

Park reflected on the Forms W-2G before the reduction for the amount of the bets

are $61,741, not the $61,722 alleged in respondent’s pretrial memorandum.

Despite proving this extra $19 of gambling winnings from Philadelphia Park,

respondent continues to assert in his brief that the original $63,855 gambling-
                                         -21-

[*21] related adjustment in the notice of deficiency is correct (before accounting

for bets). This assertion is made in the eighth finding of fact requested by

respondent, which is: “Petitioner had unreported wagering income in the amount

of $50,585.00 for the taxable year 2009.” Arithmetically, $50,585 equals $63,855

(the original amount of wagering income determined in the notice of deficiency)

minus $13,270 (the amount of the bets, according to respondent). Although there

are inconsistent calculations later in the brief, see Resp’t opening br. at 17-18, we

view respondent as having articulated the view that before adjustment for bets,

petitioner’s gross winnings from all three gambling establishments are $63,855.

This $63,855 position corresponds to petitioner’s gross winnings from

Philadelphia Park being $61,722, before adjustment for bets. This is because

$63,855 = $1,265 (New York Racing Association) + $61,722 (Philadelphia Park)

+ $868 (Melbourne Greyhound Park). We interpret respondent’s position to be

that the preadjustment gross winnings from Philadelphia Park is $61,722. No

other position is clearly articulated by him.

      e.     Analysis

      Respondent alleges petitioner received gambling income from three separate

gambling establishments: Philadelphia Park, New York Racing Association, and
                                       -22-

[*22] Melbourne Greyhound Park. We examine each of the three alleged sources

of gambling income.

            i.     Philadelphia Park

      The first alleged source of gambling income is Philadelphia Park. For this

source of gambling income, the trial record contains copies of the Forms W-2G

showing the amounts of petitioner’s winnings. Petitioner’s testimony

acknowledged that he gambled at Philadelphia Park. And he did not raise any

legitimate question about the accuracy of the gross winnings amounts reflected on

those forms. See sec. 6201(d) (providing that if a taxpayer asserts a reasonable

dispute with respect to any item of income reported on an information return by a

third party (such as a Form W-2G), the Secretary of the Treasury (respondent’s

superior, who has delegated his authority to respondent) has the burden of

producing reasonable and probative information concerning the deficiency in

addition to such information return). Rather, petitioner argued that the amount of

gross winnings reflected on those forms, which is $61,740.98, should be reduced

by the amounts of bets he wrote on the forms. Respondent concedes that the

amounts should be so reduced. We hold that petitioner’s gambling winnings from

Philadelphia Park should be reduced by $13,321, the total of the bets petitioner

wrote on the Forms W-2G. We consider respondent’s position in his posttrial
                                        -23-

[*23] brief to be that before the reduction for bets the gross winnings for

Philadelphia Park are $61,722. See infra part 5.d. This position is supported by

the evidence that the amount is at least $61,722. Therefore we sustain the

position. We hold that petitioner’s gambling winnings from Philadelphia Park are

$61,722 minus $13,321, or $48,401.

             ii.   New York Racing Association

      The second alleged source of gambling income is New York Racing

Association. Respondent alleged in his pretrial memorandum that petitioner

earned $1,265 in gambling income from this source and suggested that this

amount of income was recorded in an information return from New York Racing

Association. However, respondent did not offer the information return into

evidence. The Court asked petitioner whether respondent’s allegation was correct.

He testified that he did not know because the information return failed to account

for the amount he bet. Although his answer was ambiguous, we interpret his

answer to be that New York Racing Association likely did issue a Form W-2G and

that the form likely did reflect that he won $1,265--an amount calculated without

reduction by the amount he bet. As suggested by his testimony that “[t]hey

conveniently forgot to take off his bet”, petitioner’s argument with the use of the

Form W-2G from New York Racing Association is that the $1,265 did not reflect
                                        -24-

[*24] the amount that he bet. He is therefore not suggesting that the Form W-2G

upon which the $1,265 amount is based is incorrect. See sec. 6201(d). Those

filling out a Form W-2G are instructed to record the amount of the payment, not

the payment minus the bet.9 Instead of an error on the Form W-2G, petitioner is

suggesting that the information reported on the Form W-2G must be supplemented

by additional information--the amount of his bet--to form a conclusion about his

gross income. We therefore consider this remaining question of how to take into

account whatever amount he bet to win $1,265. The first principle we bear in

mind is that it is a taxpayer’s obligation to keep records of his or her income. Sec.

6001. In certain situations we may estimate the amount of a reduction in income

even if the taxpayer fails to keep records. Cohan v. Commissioner, 39 F.2d 540,

543-544 (2d Cir. 1930). However, even in those situations we must have a basis

for making such an estimate. Vanicek v. Commissioner, 85 T.C. 731, 742-743

(1985). We have no basis for estimating how much petitioner bet to win the

$1,265. We therefore hold that petitioner’s income from New York Racing

Association is $1,265.




      9
       The instructions are found on the Internet at https://www.irs.gov/pub/irs-
prior/iw2g--2009.pdf.
                                          -25-

[*25]         iii.   Melbourne Greyhound Park

        The third alleged source of gambling income is Melbourne Greyhound Park.

Petitioner acknowledged in his testimony that he gambled at the Park. He did not

raise any questions about the accuracy of the Form W-2G reflecting that he had

gross winnings of $868. We hold that his income from Melbourne Greyhound

Park L.L.C. is $868.

        f.    Summary

        In summary, we hold that petitioner earned gambling income of $50,534:

$48,401 (from Philadelphia Park) + $1,265 (from New York Racing Association)

+ $868 (from Melbourne Greyhound Park).

6.      Section 6651(a)(1) addition to tax for failure to timely file a tax return

        Respondent determined that petitioner is liable for the section 6651(a)(1)

addition to tax for the 2009 tax year. Section 6651(a)(1) imposes an addition to

tax for the failure to file a tax return by its filing deadline unless the taxpayer can

establish that the failure to file is due to reasonable cause and not due to willful

neglect.

        The Commissioner bears the burden of production for the section 6651(a)(1)

addition to tax. See sec. 7491(c). He satisfies his burden by producing sufficient

evidence to establish that the taxpayer failed to timely file a required Federal
                                        -26-

[*26] income tax return. See Wheeler v. Commissioner, 127 T.C. 200, 207-208

(2006), aff’d, 521 F.3d 1289 (10th Cir. 2008); Higbee v. Commissioner, 116 T.C.

438, 447 (2001). A substitute for return does not count as a return for purposes of

the section 6651(a)(1) addition to tax. Sec. 6651(g)(1).

      Section 6012 requires every individual who has gross income over a certain

amount to file an income tax return. Petitioner’s gross income is well above the

relevant amount. He was therefore required to file a return for 2009. He admitted

that he did not. This is sufficient to satisfy respondent’s burden of producing

evidence that imposing the addition to tax under section 6651(a)(1) is appropriate

for 2009. See Wheeler v. Commissioner, 127 T.C. at 207-208; Higbee v.

Commissioner, 116 T.C. at 447.

      Once the Commissioner has satisfied his burden of production, the burden

of proof is on the taxpayer to show that imposing the addition to tax is improper,

for example, because the failure to file the return was due to reasonable cause and

not willful neglect. See Wheeler v. Commissioner, 127 T.C. at 208; Higbee v.

Commissioner, 116 T.C. at 447-448. Therefore, petitioner is liable for the section

6651(a)(1) addition to tax for the 2009 tax year unless his evidence is sufficient to

persuade the Court that he had reasonable cause for his failure to file his return
                                         -27-

[*27] and that his failure to file was not due to willful neglect. See sec.

6651(a)(1); Higbee v. Commissioner, 116 T.C. at 446-447.

       Reasonable cause excusing a failure to timely file exists if the taxpayer

exercised ordinary business care and prudence but nevertheless was unable to file

the return by the deadline. See sec. 301.6651-1(c)(1), Proced. & Admin. Regs.

Willful neglect means a conscious, intentional failure or reckless indifference.

United States v. Boyle, 469 U.S. 241, 245 (1985). Petitioner testified that he did

not file his 2009 return because he had received an incorrect Form 1099 for a prior

tax year, that he had asked respondent what he should do about it, and that

respondent had never replied to his request. If petitioner had thought one of his

information returns was wrong, even for the year at issue, 2009, he could have

filed his annual tax return using the correct information. We find that petitioner

did not have reasonable cause for his failure to file his 2009 income tax return.

Accordingly, we hold that petitioner is liable for the section 6651(a)(1) addition to

tax.

       The section 6651(a)(1) addition to tax is 5% of the correct amount of tax,

plus another 5% of the correct amount of tax for each month or fraction of a month

the failure to file continues, not to exceed 25% in the aggregate. Sec. 6651(a)(1),

(b)(1). The correct amount of tax, an amount that forms the computational core of
                                        -28-

[*28] the section 6651(a)(1) addition to tax, is reduced by timely payments and

any credits against the tax that can be claimed on the return, including amounts

withheld for Federal income tax. Secs. 6651(b)(1), 31(a). The correct amount of

tax resulting from the conclusions in this opinion will be computed under Rule

155. In his calculations in the notice of deficiency issued to petitioner, respondent

reduced the correct amount of tax by the $2,888 withheld. As discussed infra part

7, petitioner asserts that he made $39,750 of payments but we hold that the only

payments and credits against petitioner’s 2009 tax liability are the $2,888 in

withholdings.

7.    Section 6651(a)(2) addition to tax for failure to timely pay tax

      Respondent determined that petitioner is liable for the section 6651(a)(2)

addition to tax for the 2009 tax year. Section 6651(a)(2) provides that if a

taxpayer fails to pay the amount shown as tax on a return on or before the due date

for payment, and unless the failure is due to reasonable cause and not due to

willful neglect, there is added to the amount shown as tax on the return 0.5% of

the amount, and an additional 0.5% for each additional month or fraction of a

month during which the failure to pay continues, not exceeding 25% in the
                                        -29-

[*29] aggregate.10 A return for this purpose includes either a return filed by the

taxpayer or a substitute for return prepared by the Commissioner under section

6020(b). Sec. 6651(g)(2); Cabirac v. Commissioner, 120 T.C. 163, 170 (2003),

aff’d without published opinion, 94 A.F.T.R. 2d (RIA) 2004-5490 (3d Cir. 2004).

The payment of tax is generally due on or before the unextended due date for

filing the return. Sec. 6151(a). The return for an individual is due April 15. Sec.

6072(a).

      Section 6651(b)(2) provides that the amount of tax shown on the return is,

for purposes of computing the addition for any month, reduced by the amount of

any part of the tax paid on or before the beginning of the month and by the amount

of any credit against the tax which may be claimed on the return. Section 31(a)

provides that any amount withheld for income tax counts as a credit to the

recipient of income for the tax year in which the withholding was made.




      10
         The amount of the addition to tax calculated in the notice of deficiency
was $1,153.57. The notice stated that this was the amount that had accrued as of
the date of the notice of deficiency, April 23, 2012. The notice of deficiency
stated that the “penalty rate” used for calculating the addition to tax was 11.5%.
Conceptually the penalty rate is the product of 0.5% and the number of months for
which the taxpayer failed to pay. For petitioner, then, 11.5% was the product of
0.5% and 23 months, because 11.5% = (0.5%) × (23 months).
                                         -30-

[*30] Section 6651(c)(2) provides that if the correct tax is less than the amount

shown as tax on the return, then both section 6651(a)(2) and (b)(2) are applied by

substituting this lower amount.

      The Commissioner has the burden of producing evidence that the addition

to tax under section 6651(a)(2) is appropriate. Sec. 7491(c). Where the taxpayer

did not file a return, the Commissioner can satisfy his burden of production with

evidence that he filed a substitute for return and that the taxpayer failed to pay the

tax. Wheeler v. Commissioner, 127 T.C. at 210.

      Petitioner did not file a return for the 2009 tax year. However, respondent

prepared a substitute for return.11 The substitute for return qualifies as a return for

purposes of section 6651(a)(2). See sec. 6651(g)(2); Cabirac v. Commissioner,

120 T.C. at 170.

      The amount shown as tax on the substitute for return prepared by

respondent--before accounting for payments and credits and before the

substitution required by section 6651(c)(2)--was $12,919. The substitute for

      11
         Respondent introduced evidence that he filed a substitute for return
meeting the requirements for such a return under sec. 6020(b). A document or set
of documents signed by an authorized official or employee of respondent’s agency
(the Internal Revenue Service) is a return for purposes of sec. 6020(b) if the
document(s): (1) identifies the taxpayer by name and taxpayer identification
number; (2) contains sufficient information to compute the taxpayer’s tax liability;
and (3) purports to be a return. Sec. 301.6020-1(b)(2), Proced. & Admin. Regs.
                                         -31-

[*31] return reflects that petitioner is entitled to credits of $2,888 against his 2009

tax liability.

       The correct tax for 2009 is less than $12,919 because respondent has

conceded that petitioner’s gambling income is less than the gambling income

reflected on the substitute for return. Accordingly, under section 6651(c)(2), it is

the correct tax, not the actual amount shown as tax on the substitute for return, that

is used to calculate the section 6651(a)(2) addition to tax. The correct amount of

tax will be determined under Rule 155.

       The next question to consider is whether petitioner paid the amount of tax

shown on the return (after that amount is substituted with the lower amount of

correct tax pursuant to section 6651(c)(2)). The parties have conflicting views on

the amounts of payments and credits to which petitioner is entitled. Petitioner

testified that he made the following payments to respondent:
                                        -32-

[*32]

                   Date                                    Amount
              June 16, 2008                                $10,000
              July 7, 2008                                  10,000
              Jan. 6, 2008                                     500
              Apr. 13, 2009                                    500
              June 10, 2009                                    500
              Dec. 11, 2006                                   2000
              Feb. 21, 2007                                  1,500
              May 8, 2007                                      750
              June 29, 2007                                    750
              Sept. 8, 2007                                    750
              May 2, 2008                                   12,500
               Total                                       $39,750

However, petitioner did not introduce any evidence, beyond his testimony, that he

made the payments.12 He introduced no checks written to respondent. He

introduced no letters directing respondent how to apply the payments. And when

the Court asked petitioner for which tax years the payments described in the table

should be applied, he could not say. Respondent introduced his own records

showing that petitioner made no payments against his 2009 tax liability. We find

that petitioner made no payments against his 2009 liability.




        12
        Petitioner moved for the admission of a list containing the dates and
payment amounts into evidence. The Court did not admit the list. For one thing,
petitioner failed to demonstrate the list was not barred by the antihearsay rule of
Fed. R. Evid. 802.
                                         -33-

[*33] We conclude that respondent has met his burden of production under

section 7491(c) that it is appropriate to impose the section 6651(a)(2) addition to

tax.

       Respondent does not bear the burden of proof for the “reasonable cause”

exception to the section 6651(a)(2) addition to tax. See Higbee v. Commissioner,

116 T.C. at 446-447. Petitioner is required to come forward with evidence

sufficient to persuade the Court that he had reasonable cause for his failure to pay

the correct amount of tax for 2009 and that his failure to do so was not due to

willful neglect. See id. Petitioner does not contend that his failure to pay the tax

was due to reasonable cause and not due to willful neglect. Accordingly, we hold

that petitioner is liable for the section 6651(a)(2) addition to tax for the 2009 tax

year, subject to postopinion computations under Rule 155 of the correct amount of

tax for 2009.13

8.     Section 6654(a) addition to tax for failure to pay estimated tax

       Respondent determined petitioner is liable for the section 6654(a) addition

to tax for the 2009 tax year. Section 6654(a) imposes an addition to tax on an


       13
         We hold that petitioner is liable for both the sec. 6651(a)(1) addition to
tax, see supra part 6, and the sec. 6651(a)(2) addition to tax for the 2009 tax year.
The amount of the sec. 6651(a)(1) addition to tax must be reduced by the amount
of the sec. 6651(a)(2) addition to tax for the months for which both additions to
tax apply. Sec. 6651(c)(1).
                                          -34-

[*34] individual taxpayer who underpays one or more of the four installments of

estimated tax. Sec. 6654(a), (b), and (c). Each of the four installments is equal to

one-fourth of an amount referred to as the “required annual payment”. Sec.

6654(d)(1)(A). The required annual payment is defined by section 6654(d)(1)(B)

as the lesser of two amounts: (1) 90% of the tax shown on the return for the tax

year (or, if no return is filed, 90% of the correct tax for such year), and (2) if the

individual filed a return for the prior tax year, 100% of the tax shown on the prior

year’s return. Sec. 6654(d)(1)(B). A substitute for return is not a return for the

purpose of computing either the first amount or the second amount. See Nino v.

Commissioner, T.C. Memo. 2009-293, 98 T.C.M. (CCH) 621, 624 (2009)

(nonprecedential authority assuming that substitute for return is not considered a

return for purpose of computing the first and second amounts); Duma v.

Commissioner, T.C. Memo. 2009-304, 98 T.C.M. (CCH) 661, 665 n.6 (2009)

(nonprecedential authority stating that a substitute for return is not considered a

return for purpose of computing the second amount). If the “required annual

payment” is zero, then the taxpayer has no required installments. Sec.

6654(d)(1)(A). The due dates of the required installments for a calendar year

taxpayer such as petitioner are April 15, June 15, and September 15 of the

calendar year in question and January 15 of the following year. Sec. 6654(c)(2).
                                         -35-

[*35] Thus, the due dates for the required installments for the 2009 tax year were

April 15, June 15, and September 15, 2009, and January 15, 2010.

      The section 6654(a) addition to tax is determined by applying the

underpayment interest rate established under section 6621 to the amount of the

underpayment for the period of the underpayment. Sec. 6654(a)(1). The amount

of the underpayment is the excess of the required installment over the amount, if

any, of the installment paid on or before the due date for the installment. Sec.

6654(b)(1). The period of the underpayment runs from the due date for the

installment to the earlier of the 15th day of the 4th month following the close of

the taxable year (i.e., April 15, 2010, for petitioner’s 2009 tax year) or, for any

portion of the underpayment, the date on which such portion is paid. Sec.

6654(b)(2).

      For purposes of section 6654, income tax withholding credits are treated as

payments of estimated tax. See sec. 6654(g)(1). The withheld amount for each

tax year is treated as a payment of estimated tax for that year, and one-fourth of

this amount is deemed as paid on each of the four estimated-tax required-

installment due dates for that tax year, unless the taxpayer establishes the dates on

which all amounts were actually withheld. See id.
                                        -36-

[*36] Respondent bears the burden of production for the addition to tax

determined under 6654(a). See sec. 7491(c). To satisfy his burden of production,

he must produce evidence establishing that petitioner had a “required annual

payment” as defined in section 6654(d)(1)(B). Wheeler v. Commissioner, 127

T.C. at 211-212.

      The record shows that petitioner had a “required annual payment” for the

2009 tax year. A required annual payment is the lesser of two amounts.

Respondent, in his notice of deficiency, calculated that the first amount was

$12,919. According to the statutory formula, the first amount is 90% of the tax

shown on the return for 2009 (or if no return is filed, 90% of the correct tax for

such year). Sec. 6654(d)(1)(B). Petitioner did not file a return for 2009. The first

amount is therefore 90% of his correct tax for 2009. See sec. 6654(d)(1)(B)(i).

This amount will be determined in computations under Rule 155. The second

amount to be compared in determining the amount of petitioner’s “required annual

payment” for 2009 is 100% of tax shown on petitioner’s 2008 return, but only if

he filed a return for 2008. See sec. 6654(d)(1)(B)(ii), (and flush language). He

did not file a return for 2008. His “required annual payment” for 2009 is therefore

90% of his correct tax for 2009.
                                        -37-

[*37] Each of the four required installments is one-fourth of the “required annual

payment” amount. See sec. 6654(d)(1)(A). Petitioner had $2,888 of Federal

income tax withheld from his gambling winnings in 2009. The dates of the Forms

W-2G on which the withholdings were recorded were June 13, 2009 (for $1,360)

and September 14, 2009 (for $1,528). However, neither respondent nor petitioner

contends that the amount of the addition to tax should be computed using these

dates as the payment dates as opposed to using the four deemed-payment dates as

the payment dates. See sec. 6654(g)(1). Accordingly, one-fourth of $2,888, or

$722, is deemed to be a payment of estimated tax made on each of the four due

dates for the 2009 tax year. See sec. 6654(g)(1). These are the same deemed

payment dates and amounts that were used in the notice of deficiency. Besides the

$2,888 of withholding, petitioner made no other payments of estimated tax for

2009. See supra part 7. Respondent has satisfied his burden of producing

evidence that imposing the section 6654(a) addition to tax is appropriate for the

2009 tax year if Rule 155 computations confirm that the $722 deemed payment is

less than each required installment.

      The section 6654(a) addition to tax is mandatory unless the taxpayer

establishes that one of the exceptions listed in section 6654(e) applies. See

Recklitis v. Commissioner, 91 T.C. 874, 913 (1988) (citing Grosshandler v.
                                         -38-

[*38] Commissioner, 75 T.C. 1, 20-21 (1980)). There is no general exception to

the section 6654(a) addition to tax relating to reasonable cause and lack of willful

neglect. See Grosshandler v. Commissioner, 75 T.C. at 21 (citing Estate of Ruben

v. Commissioner, 33 T.C. 1071, 1072 (1960)); cf. sec. 6654(e)(3)(B)(ii).

Petitioner does not contend, nor does the record show, that any of the exceptions

under section 6654(e) applies. Accordingly, we hold that petitioner is liable for

the section 6654(a) addition to tax for the 2009 tax year, subject to computations

under Rule 155.

         In reaching our holdings, we have considered all arguments made, and, to

the extent not mentioned, we conclude that they are moot, irrelevant, or without

merit.

         To reflect the foregoing,


                                                Decision will be entered under

                                        Rule 155.
