                               T.C. Memo. 2016-133



                         UNITED STATES TAX COURT



                  JACK R. DURLAND, JR., Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent

 TINA D. FAUSETT, Petitioner, AND JACK R. DURLAND, JR., Intervenor v.
        COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket Nos. 27534-10, 28396-10.            Filed July 19, 2016.



      Jack R. Durland, Jr., pro se.

      Scott T. Banks and Kenneth W. Klingenberg, for petitioner in docket No.

28396-10.

      Moenika N. Coleman, Heather L. Lampert, and Linda L. Wong, for

respondent.
                                                        -2-

[*2]                                              CONTENTS

FINDINGS OF FACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.      Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
        A.   Petitioners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
        B.   Mr. Durland’s Disbarment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
        C.   Mr. Durland’s Transfers of Assets to the Durland 1995 Irrevocable
             Trust and Ms. Fausett. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
        D.   Norris R. Harris.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II.     Events Occurring During 1999 and 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
        A.    Mr. Harris Brings Mr. Durland In-House.. . . . . . . . . . . . . . . . . . . . . 12
        B.    Checks From T.J. Oil & Gas.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
        C.    Gulfport Oil & Gas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
        D.    Gulfport Oil & Gas’ Acquisition of Control of ARXA. . . . . . . . . . . 15
        E.    Purported Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
              1.    $20,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
              2.    $350,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
              3.    $65,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
        F.    Matagorda Lease.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
        G.    Gulfport Oil & Gas Checks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
        H.    Private Investor and Investec Checks.. . . . . . . . . . . . . . . . . . . . . . . . 28
        I.    2000 Cashier’s Checks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
        J.    Ms. Fausett’s Separation From Mr. Durland. . . . . . . . . . . . . . . . . . . 29
        K.    2000 Divorce Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
              1.    2000 Oklahoma Divorce Case. . . . . . . . . . . . . . . . . . . . . . . . . 32
              2.    Mississippi Divorce Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
              3.    Ms. Fausett’s Meeting With the FBI. . . . . . . . . . . . . . . . . . . . 34
              4.    Ms. Fausett’s Contempt Hearing. . . . . . . . . . . . . . . . . . . . . . . 35
        L.    1999 Return.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
        M. Boleyn Energy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

III.    Events Occurring During 2001 and 2002. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
        A.    2001 Cashier’s Checks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
        B.    Mr. Durland’s and Mr. Harris’ Assignment of Shares of Gulfport
              Oil & Gas Common Stock to Gulfport Oil & Gas. . . . . . . . . . . . . . . 39
                                                          -3-

[*3] C.           Checks Issued to Boleyn Energy. . . . . . . . . . . . . . . . . . . . . . . . . . . .                42
     D.           Prytania Street House. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       42
     E.           Hubbard Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      43
     F.           Mr. Durland’s Departure.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          44
     G.           2000 and 2001 Returns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         44

IV.      Events Occurring After 2002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            46
         A.    Saint Andrews Court House. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                46
         B.    2002-2007 Returns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          46
         C.    IRS’ Investigation of Mr. Durland. . . . . . . . . . . . . . . . . . . . . . . . . . .                  46
         D.    Mr. Durland’s Transfer of 1,500 Shares of Boleyn Energy
               Common Stock to Rosewood Ventures. . . . . . . . . . . . . . . . . . . . . . .                          47
         E.    Mr. Durland’s Indictment for Tax Evasion. . . . . . . . . . . . . . . . . . . .                         48
         F.    Mr. Durland’s Plea Agreement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  49
         G.    2007 Oklahoma Divorce Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   51

V.       Deficiency Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

OPINION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

I.       Preliminary Matters.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
         A.    Credibility of Witnesses and Reliability of Documentary Evidence. 52
         B.    Judicial Estoppel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
         C.    Mr. Durland’s Plea Agreement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

II.      Period of Limitations on Assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

III.     Unreported Income Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                58
         A.   Burden of Proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        58
         B.   Specific-Item Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            60
         C.   The Parties’ Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              61
         D.   Specific Items at Issue for 1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . .                62
              1.     T.J. Oil & Gas Salary Checks Totaling $55,000. . . . . . . . . . .                                62
              2.     Purported Loans Totaling $435,000.. . . . . . . . . . . . . . . . . . . .                         63
         E.   Specific Items at Issue for 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . .                65
              1.     T.J. Oil & Gas Check for $5,000. . . . . . . . . . . . . . . . . . . . . . .                      66
              2.     Gulfport Oil & Gas Salary Checks Totaling $122,500. . . . . .                                     66
                                                       -4-

[*4]            3.    Checks Payable to T.J. Oil & Gas and Gulfport Oil & Gas.. . 67
                4.    Cashier’s Checks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
       F.       Specific Items at Issue for 2001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

IV.    Civil Fraud Penalties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
       A.     Section 6663(a) Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
       B.     Whether Mr. Durland Is Liable for the Civil Fraud Penalties. . . . . . 73
              1.    Collateral Estoppel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
              2.    Underpayment of Tax.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
              3.    Fraudulent Intent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
                    a.    Understating Income. . . . . . . . . . . . . . . . . . . . . . . . . . . 76
                    b.    Failing To Maintain Adequate Records.. . . . . . . . . . . . 77
                    c.    Offering Implausible or Inconsistent Explanations.. . . 77
                    d.    Concealing Assets or Income.. . . . . . . . . . . . . . . . . . . . 77
                    e.    Providing Incomplete or Misleading Information to
                          the Taxpayer’s Tax Return Preparer. . . . . . . . . . . . . . . 78
                    f.    Offering False or Incredible Testimony.. . . . . . . . . . . . 79
                    g.    Filing False Documents. . . . . . . . . . . . . . . . . . . . . . . . . 79
                    h.    Extensive Dealings in Cash. . . . . . . . . . . . . . . . . . . . . . 80
                    i.    Summary.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

V.     Whether Ms. Fausett Is Jointly and Severally Liable. . . . . . . . . . . . . . . . . . 81
       A.   Joint and Several Liability Generally. . . . . . . . . . . . . . . . . . . . . . . . . 81
            1.     Section 6015(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
            2.     Section 6015(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
            3.     Section 6015(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
       B.   Whether Ms. Fausett Is Eligible for Relief Under Section 6015. . . . 89
            1.     Section 6015(c) Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
                   a.    Actual Knowledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
                         i.     1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
                         ii.    2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
                         iii. 2001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
                   b.    Duress Exception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
            2.     Section 6015(b) Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
            3.     Section 6015(f) Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

VI.    Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
                                        -5-

[*5]        MEMORANDUM FINDINGS OF FACT AND OPINION


       MARVEL, Chief Judge: Respondent determined the following deficiencies

in Federal income tax and civil fraud penalties under section 6663(a) with respect

to Jack R. Durland, Jr.:1

                                                  Penalty
                      Year       Deficiency     sec. 6663(a)

                      1999        $188,709        $141,532
                      2000         556,823         417,617
                      2001          17,653          13,240

Respondent determined the following deficiencies in Federal income tax with

respect to Tina D. Fausett:

                              Year      Deficiency

                              1999      $188,709
                              2000       556,823
                              2001        17,653

       The issues for decision are: (1) whether respondent issued the notices of

deficiency to Mr. Durland and Ms. Fausett before the periods of limitations on

assessment expired for 1999-2001; (2) whether Mr. Durland received unreported


       1
       Unless otherwise indicated, all section references are to the Internal
Revenue Code (Code), as amended and in effect for the years in issue, and all Rule
references are to the Tax Court Rules of Practice and Procedure. Some monetary
amounts have been rounded to the nearest dollar.
                                         -6-

[*6] income of $490,000, $1,552,940, and $45,000 for 1999, 2000, and 2001,

respectively; (3) whether Mr. Durland is liable for civil fraud penalties under

section 6663(a) of $141,532, $417,617, and $13,240 for 1999, 2000, and 2001,

respectively; and (4) whether Ms. Fausett is eligible for relief from joint and

several liability for the 1999-2001 deficiencies under section 6015(b), (c), or (f).

                               FINDINGS OF FACT

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

fact and facts drawn from stipulated exhibits are incorporated herein by this

reference. Petitioners resided at separate addresses in Oklahoma City, Oklahoma,

when they petitioned this Court.

I.    Background

      A.     Petitioners

      Mr. Durland received a law degree from the University of Oklahoma

College of Law in 1962. He received his license to practice law in Oklahoma in

1962, and he practiced law with the Crowe & Dunlevy law firm from 1962 until

1989. In 1989 he and another attorney formed the Berry & Durland law firm.

Berry & Durland subsequently became Durland & Durland; Mr. Durland and his

father, Jack Durland, Sr., were the two name partners of the firm. From before
                                         -7-

[*7] 1995 until 1997 Mr. Durland shared office space with an attorney named

Darquita Maggard. Mr. Durland practiced law with Durland & Durland until

1999.

        Ms. Fausett attended college for approximately three and a half years at

Oklahoma University and Central State College, now the University of Central

Oklahoma, where she majored in history and English education but did not earn a

degree.

        Mr. Durland’s parents and Ms. Fausett’s parents knew each other, and Ms.

Fausett and Mr. Durland saw each other at functions their parents hosted. During

the summer of 1997 Ms. Fausett began working for Mr. Durland as a secretary.

Mr. Durland and Ms. Fausett married on June 26, 1999.

        Mr. Durland had two prior marriages before marrying Ms. Fausett. He and

his second wife divorced on December 5, 1995.

        Ms. Fausett also was previously married before marrying Mr. Durland. She

married Larry McCall in 1972. On November 6, 1995, Ms. Fausett filed for

divorce from Mr. McCall in the District Court of Oklahoma County, Oklahoma.

After firing her original divorce attorney Ms. Fausett hired Ms. Maggard to

represent her in her divorce from Mr. McCall. The court granted Ms. Fausett a

divorce from Mr. McCall on August 16, 1996.
                                        -8-

[*8] B.      Mr. Durland’s Disbarment

      Mr. Durland’s uncle, William T. Durland, established a trust in September

1992. Mr. Durland and Judith Ann Pederson, a niece of William Durland, were

appointed cotrustees of the trust. Without Ms. Pederson’s or William Durland’s

knowledge, Mr. Durland withdrew $220,000 from the trust for his personal use.

In a letter dated March 21, 1997, Mr. Durland falsely told Ms. Pederson that the

withdrawn funds were invested in certificates of deposit, and he subsequently

presented her with forged certificates of deposit.

      Mr. Durland later admitted that his initial story was a lie, and he instead

claimed to have borrowed the withdrawn funds. To support his new claim he

produced unsigned, backdated promissory notes.

      On the basis of Mr. Durland’s fraudulent conduct with respect to his uncle’s

trust the Oklahoma Bar Association brought disciplinary proceedings against him.

Ms. Maggard represented Mr. Durland in those proceedings. On September 8,

1998, a trial panel of the Supreme Court of Oklahoma found that Mr. Durland had

converted for his personal use $220,000 of funds held in trust; had committed

various acts of dishonesty, deceit, fraud, and misrepresentation; and had forwarded

fraudulent certificates of deposit to Ms. Pederson. On the basis of these findings,
                                        -9-

[*9] the trial panel recommended that he be disbarred. On March 18, 2003, the

Supreme Court of Oklahoma disbarred Mr. Durland.

      C.     Mr. Durland’s Transfers of Assets to the Durland 1995 Irrevocable
             Trust and Ms. Fausett

      On a date that is unclear from the record Mr. Durland signed the agreement

for the Jack R. Durland, Jr. 1995 Irrevocable Trust (Durland 1995 Irrevocable

Trust), dated December 8, 1995, as the settlor and trustee of the trust.2 Ms.

      2
        Respondent contends that Mr. Durland backdated the Durland 1995
Irrevocable Trust. Mr. Durland testified that he did not sign the original trust
agreement until 1996 or 1997 (and not in 1995 as the trust agreement states), and
the parties stipulated that Mr. Durland and Ms. Fausett first met in December
1996. However, in September 2000 Ms. Fausett met with the Federal Bureau of
Investigation (FBI) and stated that Mr. Durland executed the trust agreement in
1996, and this is consistent with the documents dated August 19, 1996, that
appointed her as the trustee of the trust. Moreover, the trust agreement refers to
Ms. Fausett primarily as Ms. McCall--her legal name in December 1995--and the
trust agreement and the documents dated August 19, 1996, are all notarized. Ms.
Fausett also testified that her parents and Mr. Durland’s parents knew each other
before Mr. Durland and Ms. Fausett began dating and that she had previously met
Mr. Durland at functions their parents hosted.

       Additionally, Ms. Maggard--who was then sharing an office with Mr.
Durland--testified that she first met Ms. Fausett at the end of 1995 or during 1996
and that she represented Ms. Fausett before her divorce from Mr. McCall on
August 16, 1996. Ms. Fausett testified that Mr. Durland assisted her in her efforts
to gain full custody of her son. In the light of Ms. Fausett’s statement to the FBI
in September 2000, her and Ms. Maggard’s testimony at trial, and the
documentary evidence, we find it unlikely that Mr. Durland and Ms. Fausett first
met in December 1996. See Cal-Maine Foods, Inc. v. Commissioner, 93 T.C. 181,
195 (1989) (disregarding a stipulation as inconsistent with a stipulated exhibit).
                                                                        (continued...)
                                        - 10 -

[*10] Fausett, then referred to as Ms. McCall, was named the beneficiary of the

trust. Ms. Fausett was entitled to all income earned by the assets in the trust

during Mr. Durland’s lifetime, and after his death the trust’s assets were to be

distributed to her. In the event Ms. Fausett died before Mr. Durland, the trust’s

assets were to be distributed to Mr. Durland’s descendants. In documents dated

August 19, 1996, Mr. Durland resigned, and Ms. Fausett was appointed trustee of

the trust. Ms. Fausett signed the document appointing her the trustee on August

19, 1996.

      In an attachment to the original trust agreement Mr. Durland purported to

transfer 195 items of personal and real property to the trustee of the trust.

Included in these items were oil, gas, and other mineral interests owned by three

partnerships and a 1991 Mercedes.

      Additionally, in 1998 Mr. Durland conveyed mineral rights in certain

properties in several counties of Oklahoma and real property in Oklahoma and

Colorado to Ms. Fausett.




      2
       (...continued)
We do not find Mr. Durland’s testimony that he backdated the Durland 1995
Irrevocable Trust agreement to be credible, and we are not persuaded that it was.
                                       - 11 -

[*11] During the years in issue Ms. Fausett maintained a brokerage account at

Merrill Lynch (Fausett Merrill Lynch account). In January 2000 she opened a

brokerage account at Charles Schwab (Fausett Charles Schwab account).

      D.     Norris R. Harris

      In 1977 Norris R. Harris hired Mr. Durland as an attorney for an oil

company, Centex Oil, that he had started in 1976. Mr. Harris attended junior

college in Odessa, Texas. He began working in the oil industry in 1956, and

during the relevant periods owned interests in a variety of business entities. Mr.

Durland subsequently provided legal services to a number of those entities,

including T.J. Oil & Gas, Inc. (T.J. Oil & Gas), and Covington Energy, Inc.

(Covington Energy). T.J. Oil & Gas and Covington Energy had their principal

places of business at the same address in Gulfport, Mississippi.

      During the years in issue Mr. Harris was married to Cindy Harris. He has a

son, Jonathan G. Harris, from a previous marriage.

      During the years in issue Mr. Harris employed Jonathan Harris and Teresa

Richardson in connection with his various businesses. He hired Ms. Richardson in

June 1999.

      Mr. Harris had a close relationship with Betty L. Ferguson, who owned a

check cashing business that did business as Ferguson Check Cashing Co.
                                      - 12 -

[*12] (Ferguson Check Cashing). Mr. Harris regularly sent others to cash personal

checks for him at Ferguson Check Cashing.

II.   Events Occurring During 1999 and 2000

      A.    Mr. Harris Brings Mr. Durland In-House

      In 1998, while Mr. Durland’s disciplinary proceedings were pending, Mr.

Harris asked Mr. Durland to move to Gulfport to help him manage his oil and gas

businesses. On December 10, 1998, Mr. Durland signed an employment

agreement with Covington Energy. The employment agreement provided that Mr.

Durland would receive an annual salary of $120,000 from Covington Energy. In

January 1999 Mr. Durland moved to Gulfport to work for Mr. Harris and his

various businesses.

      In early 1999 Mr. Durland and Mr. Harris called Ms. Fausett to convince

her to join Mr. Durland in Gulfport. They offered to hire Ms. Fausett as Mr.

Durland’s secretary.

      In June 1999 Ms. Fausett moved to Gulfport. On June 24, 1999, Mr.

Durland purchased a 3.8-carat diamond ring for $19,380. On June 26, 1999, Mr.

Durland and Ms. Fausett married, and he gave the 3.8-carat diamond ring to her as

her wedding band.
                                        - 13 -

[*13] B.      Checks From T.J. Oil & Gas

        After Mr. Durland began working for Mr. Harris, he received the following

checks from T.J. Oil & Gas during 1999:

        Check No.      Date                  Memo line            Amount

            1013        1/13     illegible                        $5,000
            1048        1/26     “salary”                          7,500
            1065         2/4                   ---                 5,000
            1084        2/16                   ---                 7,500
            1122         3/5     “salary March”                    5,000
            1137        3/15     “salary Mar 15 99”                5,000
            1515         4/1     “salary April 1 99”               5,000
            1554        4/15                   ---                 5,000
            1587        4/30     “salary 5-1-99”                   5,000
            1613        5/14     “legal fees and consulting”       5,000
             Total                                                55,000

Mr. Durland cashed these checks at Ferguson Check Cashing. Petitioners did not

report these amounts on their 1999 return.

        On a date that is unclear from the record Mr. Durland executed a backdated

$55,000 promissory note payable to T.J. Oil & Gas.3 The promissory note called

for annual interest payments and two principal payments, none of which were

made.




        3
      The promissory note is dated January 1, 1999. However, it is signed by
Ms. Richardson, who began working for Mr. Harris in June 1999.
                                       - 14 -

[*14] Jonathan Harris also executed a backdated $23,000 promissory note payable

to T.J. Oil & Gas.4 The promissory note called for annual interest payments and

two principal payments, none of which were made.

      On June 1, 2000, T.J. Oil & Gas issued a $5,000 check to Mr. Durland. The

memo line on the check stated, “Loan from Corporation”. Mr. Durland cashed the

check at Ferguson Check Cashing. Petitioners did not report this amount on their

2000 return.

      C.       Gulfport Oil & Gas

      On or about April 12, 1999, Mr. Harris and Mr. Durland incorporated

Gulfport Oil & Gas, Inc. (Gulfport Oil & Gas). On April 30, 1999, Mr. Harris, on

behalf of Gulfport Oil & Gas, and Mr. Durland executed a three-year employment

agreement. The employment agreement provided that Mr. Durland (1) would

receive an annual salary of $120,000; (2) would be the vice president of Gulfport

Oil & Gas; (3) would be granted 39% of the common stock of Gulfport Oil & Gas;

(4) would be entitled to a 39% working interest in any oil and gas leases acquired

by Gulfport Oil & Gas in Mississippi, Louisiana, and Texas or from Hawkins

Ranch, Ltd. (Hawkins Ranch), a limited partnership that owned an oil and gas


      4
       The promissory note was also dated January 1, 1999. However, it too is
signed by Ms. Richardson, who began working for Mr. Harris in June 1999.
                                        - 15 -

[*15] lease in Matagorda County, Texas; and (5) would have the right to assign his

working interest in any oil and gas leases to a third party.

      On June 7, 1999, Mr. Harris and Mr. Durland entered into an agreement

with respect to the ownership of the common stock of Gulfport Oil & Gas. The

agreement provided, among other things, that Mr. Harris and Mr. Durland would

own 61% and 39%, respectively, of the common stock of Gulfport Oil & Gas. Ms.

Fausett and Mrs. Harris signed the June 7, 1999, agreement as witnesses.

      On dates that are unclear from the record Mr. Durland discussed with Mr.

Harris and Gene Gibbons, a certified public accountant for an accounting firm in

Mobile, Alabama, then named Gibbons, Gibbons & Buck, PC (Gibbons, Gibbons

& Buck), whether to file Federal income tax returns for Gulfport Oil & Gas.

Gulfport Oil & Gas did not file any returns for the years at issue.

      D.     Gulfport Oil & Gas’ Acquisition of Control of ARXA

      In May 1999 Gulfport Oil & Gas entered into an agreement with ARXA

International Energy, Inc. (ARXA), a publicly traded company, to purchase 6

million shares of ARXA common stock at 20 cents per share. After purchasing

the 6 million shares of ARXA common stock Gulfport Oil & Gas held a

controlling interest in ARXA.
                                       - 16 -

[*16] On May 27, 1999, Gulfport Oil & Gas opened a brokerage account with

Investec Ernst & Co. (Gulfport Oil & Gas Investec account). Gulfport Oil & Gas

held some of its ARXA common stock in the Gulfport Oil & Gas Investec

account.

      On August 23, 1999, Mr. Durland wrote a letter to Mr. Gibbons regarding

ARXA’s Federal income tax reporting. In the letter Mr. Durland stated as follows:

             Since May 7, 1999, we have been paying salaries out of ARXA
      without deducting for Federal Income Tax and State of Mississippi
      Income Tax. There have also been no deductions for Social Security
      payments. We discussed this with you, and you indicated you would
      treat the prior payments as loans and we would start withholding the
      next quarter.

ARXA did not file any returns for the years at issue.

      E.      Purported Loans

      In 1999 Mr. Harris and Mr. Durland received the following purported loans

--which they never repaid--from Gulfport Oil & Gas:

                  Mr. Harris1                           Mr. Durland

     Check                                      Check
      No.          Date         Amount           No.      Date        Amount

    10292          6/11         $125,500    5
                                              1054         6/24       $20,000
    10923          7/12          335,000    6
                                              1090         7/15       350,000
    05244         10/19           75,000    7
                                              0537        10/28        65,000
      Total                      535,500        Total                 435,000
                                        - 17 -

[*17]         1
                Mrs. Harris was the payee on all of the purported loan checks.
              2
                The memo line on check No. 1029 bore the notation “Loan
        from company”.
              3
                The memo line on check No. 1092 bore the notation “Loan
        from company in advance on Deed of Trust”. Mr. Harris used this
        check to pay off a defaulted mortgage on his and Mrs. Harris’ home
        in Long Beach, Mississippi. On July 16, 1999, Mr. Harris and Mrs.
        Harris executed a land deed of trust in favor of Gulfport Oil & Gas
        encumbering their home in Long Beach, Mississippi, in connection
        with a promissory note for a $335,000 loan. The land deed of trust
        was recorded on July 19, 1999.
              4
                The memo line on check No. 0524 bore the notation “loan
        from corporation”.
              5
                Mr. Durland and Jonathan Harris signed check No. 1054.
              6
                Mr. Durland and Jonathan Harris signed check No. 1090, and
        the memo line on the check states “loan from company and advance
        on land deed of trust”.
              7
                Mr. Durland and Mr. Harris signed check No. 0537, and the
        memo line on the check states “loan from corporation”.

        Mr. Durland documented the purported loans that he received from

Gulfport Oil & Gas as follows.

              1.    $20,000

        On a date that is unclear from the record Mr. Durland executed a $20,000

promissory note dated June 25, 1999, payable to Gulfport Oil & Gas. The

promissory note called for annual interest payments and two principal payments,

none of which were made. Mr. Harris and Mrs. Harris signed the promissory note

as witnesses. Mr. Durland executed a security agreement dated June 30, 1999,

granting Gulfport Oil & Gas a security interest in Ms. Fausett’s wedding band. On
                                       - 18 -

[*18] August 16, 2000, in connection with divorce proceedings then occurring in

Mississippi between Mr. Durland and Ms. Fausett, a State of Mississippi UCC-1

financing statement was filed with respect to the purported $20,000 loan. Mr.

Durland, as debtor, and Mr. Harris, as president of Gulfport Oil & Gas, signed the

UCC-1 financing statement.

            2.     $350,000

      On a date that is unclear from the record Mr. Durland and Ms. Fausett

executed a $350,000 promissory note, dated July 16, 1999, payable to Gulfport Oil

& Gas.5 The promissory note called for annual interest payments and two

principal payments, none of which were made. Mr. Harris signed the July 16,

1999, promissory note as witness.

      On October 16, 1999, Mr. Durland and Ms. Fausett signed a contract to

purchase a house on 54th Street in Gulfport, Mississippi (54th Street house) for

$407,500. On November 2, 1999, Ms. Fausett closed on the 54th Street house,

and only her name appears on the deed. On November 3, 1999, Mr. Durland and

Ms. Fausett executed a land deed of trust in favor of Gulfport Oil & Gas




      5
       In September 2000 Ms. Fausett stated to the FBI that she signed the July
16, 1999, promissory note on November 14, 1999.
                                      - 19 -

[*19] encumbering the 54th Street house in connection with the $350,000

promissory note. The land deed of trust was recorded on November 30, 1999.

             3.    $65,000

      On November 15, 1999, Ms. Fausett purchased a 2000 Jaguar XK8 for

$72,570. Ms. Fausett used the proceeds from cashing check No. 0537 to purchase

the 2000 Jaguar.

      On a date that is unclear from the record Mr. Durland executed a $65,000

promissory note, dated October 28, 1999, payable to Gulfport Oil & Gas. The

promissory note called for annual interest payments and two principal payments,

none of which were made. Mr. and Mrs. Harris signed the promissory note as

witnesses.

      On a date that is unclear from the record Mr. Durland executed a security

agreement dated October 28, 1999, granting Gulfport Oil & Gas a security interest

in the 2000 Jaguar. On August 16, 2000, in connection with divorce proceedings

then occurring in Mississippi between Mr. Durland and Ms. Fausett, a State of

Mississippi UCC-1 financing statement was filed with respect to the purported

$65,000 loan. Mr. Durland, as debtor, and Mr. Harris, as president of Gulfport Oil

& Gas, signed the UCC-1 financing statement.
                                       - 20 -

[*20] F.    Matagorda Lease

      On June 29, 1999, Gulfport Oil & Gas and Hawkins Ranch entered into an

oil and gas lease with respect to a 672-acre property in Matagorda County, Texas

(Matagorda lease). Included in the Matagorda lease were Hawkins Ranch Well

No. 1, Lewis Ranch Well No. 4, and Lewis Ranch Well No. 5. The Matagorda

lease was recorded on July 7, 1999.

      On July 14, 1999, Gulfport Oil & Gas, Mrs. Harris, and Ms. Fausett

executed an assignment transferring a 61% interest in the June 29, 1999, lease of

Lewis Ranch Well No. 4 and Lewis Ranch Well No. 5 to Mrs. Harris and a 39%

interest in that lease to Ms. Fausett. The July 14, 1999, assignment had an

effective date of May 2, 1999; was signed by Mr. Durland on behalf of Gulfport

Oil & Gas, Mrs. Harris, and Ms. Fausett; and was recorded on July 22, 1999.6




      6
       On November 16, 1999, Gulfport Oil & Gas, Mrs. Harris, and Ms. Fausett
executed an assignment transferring a 61% interest in the June 29, 1999, lease of
Hawkins Ranch Well No. 1 to Mrs. Harris and a 39% interest in that lease to Ms.
Fausett. The November 16, 1999, assignment had an effective date of September
10, 1999; was signed by Mr. Durland on behalf of Gulfport Oil & Gas, Mrs.
Harris, and Ms. Fausett; and was recorded on December 2, 1999. The November
16, 1999, assignment relates to the same underlying property as the July 14, 1999,
assignment, and it is unclear from the record why a second assignment was
required.
                                      - 21 -

[*21] After August 22, 1999, Gulfport Oil & Gas, Mrs. Harris, and Ms. Fausett

entered into an operating agreement dated May 2, 1999.7 Although the operating

agreement in the record is dated May 2, 1999, the operating agreement originally

had a later date that was subsequently altered without Ms. Fausett’s knowledge.

Additionally, several clauses were later added to the May 2, 1999, operating

agreement without Ms. Fausett’s knowledge. As modified, the May 2, 1999,

operating agreement provided that (1) Gulfport Oil & Gas would operate Lewis

Ranch Well No. 4, Lewis Ranch Well No. 5, and Hawkins Ranch Well No. 1; (2)

Gulfport Oil & Gas was required to open its records to inspection by Mrs. Harris

and Ms. Fausett; (3) Gulfport Oil & Gas could collect all income earned from

Lewis Ranch Well No. 5 and all other wells drilled and completed on the 672-acre

property in Matagorda County, Texas, until Mrs. Harris and Ms. Fausett paid all


      7
        The parties stipulated that the May 2, 1999, operating agreement was
signed on that date. However, we do not find this stipulation to be credible
because the agreement refers to Ms. Fausett as Tina Fausett Durland and on May
2, 1999, Mr. Durland and Ms. Fausett had not yet married; the agreement was
notarized by Ms. Richardson, who began working for Gulfport Oil & Gas in June
1999; and the May 2, 1999, operating agreement refers to assignments of Gulfport
Oil & Gas’ interest in the Matagorda lease to Mrs. Harris and Ms. Fausett that
were executed on July 14 and November 16, 1999. Additionally, in September
2000 Ms. Fausett stated to the FBI that she first began working on the May 2,
1999, operating agreement on August 22, 1999. For these reasons we disregard
the stipulation as inconsistent with stipulated exhibits in the record. See Cal-
Maine Foods, Inc. v. Commissioner, 93 T.C. at 195.
                                       - 22 -

[*22] expenses related to those wells; and (4) the May 2, 1999, operating

agreement was subject to the terms of an agreement dated May 1, 1999, and

entered into by Gulfport Oil & Gas, Mr. Harris, and Mr. Durland.

      After Gulfport Oil & Gas, Mrs. Harris, and Ms. Fausett executed the May 2,

1999, operating agreement, Gulfport Oil & Gas, Mr. Harris, and Mr. Durland

entered into an agreement dated May 1, 1999.8 The May 1, 1999, agreement

provided, in relevant part, that (1) Mr. Harris and Mr. Durland agreed that

Gulfport Oil & Gas would assign its interest in Lewis Ranch Well No. 5 to Mrs.

Harris and Ms. Fausett; (2) Mrs. Harris and Ms. Fausett would be responsible for

all costs and expenses relating to Lewis Ranch Well No. 5 and the drilling and

completion of all other wells on the property subject to the Matagorda lease; and

(3) the related operating agreement would be subject to the May 1, 1999,

agreement.




      8
       The parties stipulated that the May 1, 1999, agreement was signed on that
date. However, we do not find this stipulation to be credible because the
agreement refers to Ms. Fausett as Tina Fausett Durland and on May 1, 1999, Mr.
Durland and Ms. Fausett had not yet married. Additionally, it appears that the
purpose of the May 1, 1999, agreement was to insert additional terms into the May
2, 1999, operating agreement, and we found that the May 2, 1999, agreement was
executed after August 22, 1999. For these reasons we disregard the stipulation as
inconsistent with stipulated exhibits in the record. See Cal-Maine Foods, Inc. v.
Commissioner, 93 T.C. at 195.
                                      - 23 -

[*23] Gulfport Oil & Gas extracted gas from the wells on the property subject to

the Matagorda lease and sold the gas to Eagle Energy Development Co. (Eagle

Energy). Eagle Energy was supposed to issue production checks to Gulfport Oil

& Gas, and Gulfport Oil & Gas in turn was supposed to issue checks to the lessors

of the Matagorda lease.

      Eagle Energy issued the following production checks to ARXA, Gulfport

Oil & Gas, and Gulfport Ventures:9




      9
       ARXA previously had a lease on the property subject to the Matagorda
lease. It is unclear from the record what Gulfport Ventures is, why Eagle Energy
issued production checks to it, and why Gulfport Oil & Gas cashed its production
checks.
                                       - 24 -

[*24]

          Check No.        Date                 Payee          Amount

             5125       7/29/1999       ARXA                   $96,083
             5199       8/31/1999       Gulfport Oil & Gas     106,450
             5255       9/30/1999       Gulfport Oil & Gas     117,828
             N/A       10/29/1999       Gulfport Oil & Gas     120,686
             5395      11/30/1999       Gulfport Oil & Gas      50,160
             5452      12/30/1999       Gulfport Oil & Gas      81,206
             5526       1/31/2000       Gulfport Oil & Gas      47,789
             5580        3/1/2000       Gulfport Oil & Gas      84,151
             5641       3/31/2000       Gulfport Oil & Gas      68,784
             5696       4/28/2000       Gulfport Oil & Gas      56,292
             5731       5/25/2000       Gulfport Oil & Gas      67,221
             5814       6/30/2000       Gulfport Oil & Gas      95,955
             5876       7/28/2000       Gulfport Oil & Gas     171,592
             5967       8/30/2000       Gulfport Oil & Gas     149,317
             6029       9/30/2000       Gulfport Oil & Gas      73,114
             6038       9/30/2000       Gulfport Ventures       91,717
             6103      10/30/2000       Gulfport Oil & Gas      71,197
             6114      10/31/2000       Gulfport Ventures      201,875

With Mr. Harris’ approval Mr. Durland cashed check Nos. 5731, 5814, 5876,

5967, 6029, 6038, 6103, and 6114 at Ferguson Check Cashing. The checks that

Mr. Durland cashed at Ferguson’s Check Cashing totaled $921,988.

        Gulfport Oil & Gas paid out the amounts on the production checks that

Eagle Energy issued to it or ARXA from July 1999 until April 2000 to Ms. Fausett

(or Mr. Durland in certain months) and Mrs. Harris in accordance with Ms. Fausett

and Mrs. Harris’ interests in the Matagorda lease. However, it did not pay out any
                                     - 25 -

[*25] amounts from the production checks during the period in which Mr. Durland

cashed the production checks from Eagle Energy at Ferguson Check Cashing.

      Gulfport Oil & Gas issued the following checks to Ms. Fausett or Mr.

Durland and Mrs. Harris:

                           Ms. Fausett or
                           Mr. Durland               Mrs. Harris

             Date       Check No.    Amount      Check No.   Amount

           7/29/1999       1010         $3,664      ---         ---
           7/30/1999       1014         37,472     1012       $58,611
            9/1/1999       1018         41,516     1017        64,935
           10/1/1999       0302         45,953     0301        71,875
           11/1/1999       0548         47,068     0547        73,619
           12/1/1999       0619         19,562     0618        30,597
            1/3/2000       0667         31,670     0666        49,536
            2/1/2000       0724         18,638     0723        29,151
                                      1
            3/3/2000       0779         32,819     0778        51,332
                                      1
            4/3/2000       0831         26,826     0830        41,958
                                      1
            5/1/2000       0874         21,954     0873        34,338
              Total                   327,142                 505,952
                1
               These checks were made payable to Mr. Durland. The
         remainder were made payable to Ms. Fausett.

Mr. Durland cashed the checks made payable to him at Ferguson Check Cashing.

Mr. Durland told Ms. Fausett on May 15, 2000, that he had been receiving the

production checks. Petitioners reported the amounts on these checks on their 1999

and 2000 returns.
                                       - 26 -

[*26]         G.     Gulfport Oil & Gas Checks

        On February 15, 2000, Gulfport Oil & Gas issued check No. 0750 to Mr.

Durland for $3,503. The memo line on the check states “$5,000 gross salary” and

notes withholding for Medicare, Social Security, Federal income tax, and

Mississippi State income tax. Petitioners reported the amount on this check on

their 2000 return.

        Gulfport Oil & Gas also issued the following checks to Mr. Durland in

2000:
                                       - 27 -

[*27]

             Check No.   Date                   Memo line          Amount

               0826       3/31      “Loan from corporation”         $5,000
               0855       4/14      “Loan from corporation”          5,000
               0872       4/26      “Loan from corporation”          5,000
               0891       5/15      “Loan from corporation”          5,000
               0922       6/19      “Loan from corporation”          5,000
               0946       6/27      “Repayment of loan to
                                    Gulfport Oil & Gas, Inc.”       15,000
               0966       6/30      “Loan from corporation”          5,000
               0983       7/14      “Loan from corporation”          5,000
               1001       7/28      “Loan from corporation”          5,000
               1015       8/15      “Loan from corporation”          5,000
               1059        9/1      “Loan from corporation”          5,000
               1076       9/15      “Loan from corporation”          5,000
               1097      10/13      “Loan from corporation”         10,000
               1103      10/13      “Repayment of principle of
                                     loan to corporation”           17,500
               1104      10/13      “Repayment of principle of
                                     loan to corporation”           15,000
               1151       11/1      “Loan from corporation”          5,000
               1162      11/15      “Loan from corporation”          5,000
                Total                                              122,500

Petitioners did not report these amounts on their 2000 return.10




        10
         Gulfport Oil & Gas also issued checks totaling $152,500 to Mr. and Mrs.
Harris in 2000. The memo lines on many of these checks bore notations indicating
that the checks were for loans from Gulfport Oil & Gas or repayments of loans
made to Gulfport Oil & Gas.
                                       - 28 -

[*28] On August 16, 2000, Gulfport Oil & Gas issued a $12,500 check to T.J. Oil

& Gas. With Mr. Harris’ approval Mr. Durland cashed the check at Ferguson

Check Cashing. Petitioners did not report this amount on their 2000 return.

      H.    Private Investor and Investec Checks

      During 2000 Gulfport Oil & Gas sold some of its ARXA common stock to

private investors, and it received checks from those investors in amounts totaling

$327,200. Additionally, during 2000 Gulfport Oil & Gas sold some of the ARXA

common stock that it held in its Investec account, and it received checks in

amounts totaling $163,752 from Investec for its ARXA stock. Ms. Fausett

witnessed promissory notes for some stock purchases.11 With Mr. Harris’

approval Mr. Durland cashed the private investor and Investec checks at Ferguson

Check Cashing. Petitioners did not report these amounts on their 2000 return.

      I.    2000 Cashier’s Checks

      In 2000 Mr. Durland purchased the following cashier’s checks from

Whitney National Bank with cash:




      11
       Ms. Fausett stated to the FBI in September 2000 that Gulfport Oil & Gas
was “bailing and selling” ARXA stock.
                                        - 29 -

[*29]

  Check
   No.        Date           Payee                 Remitter line          Amount

 08305        6/26     Merrill Lynch        “Gulfport Oil and Gas Inc.”   $30,000
 08637        9/25     Merrill Lynch        “Jack R. Durland Jr.”          35,000
 08676        10/2     Merrill Lynch        “Jack R. Durland Jr.”          22,930
 08690        10/3     Merrill Lynch        “Jack R. Durland Jr.”          30,000
 08807        11/2     Merrill Lynch        “Deposit for account of
                                              Gulfport Oil & Gas Inc.--
                                              Jack R. Durland Jr.”          56,618
 08945       12/19     Gulfport Oil &       “Payment of Royalties on
                        Gas                   Matagorda County, TX
                                              Properties--Jack R.
                                              Durland Jr.”                 30,000
  Total                                                                   204,548

Mr. Durland deposited the cashier’s checks into a Merrill Lynch account owned by

Gulfport Oil & Gas.

        J.    Ms. Fausett’s Separation From Mr. Durland

        In the latter half of 1999 Ms. Fausett became concerned about certain

documents she had signed at Mr. Durland’s request. She began asking Mr.

Durland for copies of documents she had signed and for records relating to the

Matagorda lease. Mr. Durland refused to give Ms. Fausett the documents and

records, and eventually he told her that Mr. Harris did not want her to have them.

        On December 30, 1999, Ms. Fausett separated from Mr. Durland and moved

back to Oklahoma City. On or about January 24, 2000, she moved back to
                                        - 30 -

[*30] Gulfport with Mr. Durland. On February 25, 2000, she again separated from

him and moved back to Oklahoma City.

      In early 2000 Mr. Durland sent a check for $25,000 drawn on the Fausett

Merrill Lynch account to the Internal Revenue Service (IRS). Mr. Durland also

told Ms. Fausett that he had filed for both of them a Form 4868, Application for

Automatic Extension of Time To File U.S. Individual Income Tax Return, for tax

year 1999. On April 12, 2000, Ms. Fausett contacted the IRS, and an IRS

employee informed her that the $25,000 check had not been credited to her and

that no Forms 1099 had been filed showing income to her.

      On April 19, 2000, Mr. Durland told Ms. Fausett that he did not want to

obtain releases on the promissory note and the deed of trust relating to the 54th

Street house because “there is no tax liability on loans.” Ms. Fausett testified that

Mr. Durland also told her “about a case he handled where they never paid back the

loans and the IRS never caught it.”

      On April 30 and again on May 15, 2000, Mr. Durland asked Ms. Fausett to

execute a will naming him as the sole beneficiary. Fearing for her safety Ms.

Fausett declined. Mr. Durland also told Ms. Fausett that the purpose of the well
                                         - 31 -

[*31] assignments was to take money out of Gulfport Oil & Gas and to protect him

and Mr. Harris.12

      On May 31, 2000, Ms. Fausett again contacted the IRS. An IRS employee

informed her that a Form 4868 was filed for Mr. Durland but not for her and that

she would have to file a joint return to avoid late filing penalties.

      In June 2000 Ms. Fausett learned that liens had been filed on the wells

subject to the Matagorda lease because Gulfport Oil & Gas had not paid the

people working on the wells. Ms. Fausett hired an attorney from Piedmont,

Oklahoma, to help her get documents and records from Mr. Durland and Gulfport

Oil & Gas. The attorney wrote letters and made phone calls to Mr. Durland, Mr.

Harris, Gulfport Oil & Gas, and Eagle Energy, but he was unable to secure any of

the records relating to the Matagorda lease.

      On June 21, 2000, Mr. Durland called Ms. Fausett and told her that the

wells subject to the Matagorda lease were only nominally assigned to her and Mrs.

Harris and that he and Mr. Harris were the true owners of those wells. He further

told her that, pursuant to the May 2, 1999, operating agreement, she owed




      12
       Previously, Mr. Durland had told Ms. Fausett that the purpose of the well
assignments was to protect Ms. Fausett and Mrs. Harris.
                                       - 32 -

[*32] hundreds of thousands of dollars to Gulfport Oil & Gas for expenses

incurred on wells subject to the Matagorda lease.

      Ms. Fausett went with Ms. Maggard to Bay City, Texas, to find an attorney

licensed to practice law in Texas. Ms. Fausett subsequently filed a lawsuit against

Gulfport Oil & Gas and Eagle Energy in the District Court for Matagorda County,

Texas, for the purposes of obtaining documents and records relating to the

Matagorda lease and protecting her interest in the lease.

      K.     2000 Divorce Proceedings

             1.    2000 Oklahoma Divorce Case

      On June 30, 2000, Ms. Fausett filed for divorce from Mr. Durland in the

District Court of Oklahoma County, Oklahoma (2000 Oklahoma divorce case).

Ms. Fausett retained an attorney, Anita F. Sanders, to represent her in the 2000

Oklahoma divorce case. Ms. Fausett transferred $65,000 that she had previously

received under the Matagorda lease into Ms. Sanders’ trust fund account.

             2.    Mississippi Divorce Case

      Meanwhile, on July 12, 2000, Mr. Durland filed for divorce from Ms.

Fausett in the Chancery Court of Harrison County, Mississippi (Mississippi

divorce case). Ms. Fausett retained an attorney to represent her in the Mississippi

divorce case.
                                       - 33 -

[*33] On July 19, 2000, Mr. Durland filed a financial statement in the Mississippi

divorce case that stated that he had (1) no income since March 15, 2000; (2)

monthly living expenses of $1,415; and (3) total liabilities of $357,000.

       On July 27, 2000, Ms. Fausett’s Mississippi attorney filed a motion for

temporary relief in the Mississippi divorce case.13 On July 27, 2000, the court in

the Mississippi divorce case issued a temporary order that (1) Mr. Durland pay

spousal support of $4,000 per month to Ms. Fausett; (2) Mr. Durland provide an

accounting of Ms. Fausett’s share of the income from the wells on the property

subject to the Matagorda lease; (3) Mr. Durland and Ms. Fausett exchange income

tax data; and (4) funds from the Matagorda lease be deposited with Gulfport Oil &

Gas.

       On August 3, 2000, Mr. Durland filed a motion to amend the July 27, 2000,

temporary order in the Mississippi divorce case. On August 10, 2000, Mr.

Durland filed a supplemental motion to amend the temporary order; notices of

hearing regarding the motion and supplemental motion to amend the temporary

order; and an amended financial statement. The notices of hearing set a hearing

date of August 11, 2000. In the amended financial statement Mr. Durland stated


       13
       Ms. Fausett testified that she eventually fired her Mississippi attorney
because he failed to file documents and records on her behalf.
                                        - 34 -

[*34] that he (1) had not received any salary from Gulfport Oil & Gas and ARXA

since January 1 and March 15, 2000, respectively; (2) had monthly living expenses

of $1,692; and (3) had total liabilities of $1,346,974.

      On August 15, 2000, the court in the Mississippi divorce case issued a

supplemental temporary order that (1) the balances in the Fausett Merrill Lynch

and Fausett Charles Schwab accounts be frozen; (2) Ms. Fausett deposit $65,000

into the registry of the court; (3) Ms. Fausett be enjoined from pursuing her civil

action against Gulfport Oil & Gas and Eagle Energy in the District Court for

Matagorda County, Texas; (4) Ms. Fausett provide within seven days the account

statements for the Fausett Merrill Lynch and Fausett Charles Schwab accounts to

Mr. Durland’s attorney; and (5) Mr. Durland provide an accounting of the income

and expenses of Gulfport Oil & Gas to Ms. Fausett.

             3.     Ms. Fausett’s Meeting With the FBI

      On or about September 1, 2000, Ms. Fausett met with the FBI at Ms.

Sanders’ law office. At the meeting Ms. Fausett discussed with the FBI her

concerns about Mr. Durland’s and Mr. Harris’ activities. She provided the FBI

with three “lists” in which she expressed those concerns and what she knew about

Mr. Durland, Mr. Harris, and their business associates.
                                       - 35 -

[*35] In the lists Ms. Fausett stated that she knew Mr. Durland received a salary

of $10,000 per month from one of Mr. Harris’ businesses and that Mr. Gibbons

had told Mr. Durland that they could report Mr. Durland’s salary as a loan to avoid

paying taxes.14 Ms. Fausett also stated to the FBI that Mr. Durland had received

the purported loans from Gulfport Oil & Gas, see supra part II.E, but never

planned to repay the amounts and that the loans were intended to avoid their

having to pay taxes.

             4.    Ms. Fausett’s Contempt Hearing

      Mr. Durland filed a motion to modify the August 15, 2000, supplemental

temporary order and to hold a contempt hearing. On September 7, 2000, the court

in the Mississippi divorce case issued a second supplemental temporary order.

The second supplemental temporary order found that Ms. Fausett had not

deposited the $65,000 with the court’s registry and had not provided copies of the

Fausett Merrill Lynch and Fausett Charles Schwab account statements to Mr.

Durland. Consequently, the court ordered that (1) Ms. Fausett deposit the $65,000

to the court’s registry within 24 hours from the date of the order; (2) Mr. Durland

no longer be required to pay temporary spousal support to Ms. Fausett; (3) Ms.

      14
         Ms. Fausett stated that in a court hearing on May 10, 2000, Mr. Durland
testified that he had not received a salary since March 15, 2000, and Ms. Fausett
wrote that she “know[s] for a fact he was still getting salary.”
                                        - 36 -

[*36] Fausett deliver within five days the 2000 Jaguar and her wedding band to

the court clerk; (4) Ms. Fausett deliver within three days copies of the Fausett

Merrill Lynch and Fausett Charles Schwab account statements to Mr. Durland’s

attorney; (5) Ms. Fausett appear for a hearing to show cause why she should not be

held in contempt of court; (6) Mr. Durland be relieved of any obligation to render

an accounting of the income and expenses of Gulfport Oil & Gas; and (7) Ms.

Fausett file a motion to dismiss her civil action against Gulfport Oil & Gas and

Eagle Energy in the District Court for Matagorda County, Texas.

      Ms. Fausett’s contempt hearing in the Mississippi divorce case was set for

September 25, 2000. By then she had retained a new attorney. When she arrived

for the hearing, she learned that the hearing had been postponed because of a

bomb threat. When the hearing finally convened, her new attorney was not

present, and the presiding judge required her to represent herself at the hearing.

The presiding judge ordered Ms. Fausett to deposit her wedding band and a check

drawn on Ms. Sanders’ trust fund account with the court and to call Ms. Sanders

and direct her to file a motion to dismiss the 2000 Oklahoma divorce case. On

September 28, 2000, Ms. Fausett filed a motion to dismiss the 2000 Oklahoma

divorce case.
                                       - 37 -

[*37] After the September 25, 2000, contempt hearing Mr. Durland told Ms.

Fausett that he would agree to settle the Mississippi divorce case if Ms. Fausett

agreed to certain conditions. Mr. Durland wanted Ms. Fausett to return to

Gulfport, but she refused. Instead, they agreed that Ms. Fausett would move to

New Orleans, Louisiana. Mr. Durland also demanded that Ms. Fausett agree to

form a new entity to receive the income earned under the Matagorda lease and to

sign a joint Federal income tax return for 1999. On October 25, 2000, Mr.

Durland and Ms. Fausett filed a stipulation to have the Mississippi divorce case

dismissed.

      L.     1999 Return

      On October 16, 2000, Mr. Durland and Ms. Fausett filed a joint Form 1040,

U.S. Individual Income Tax Return, for 1999 (1999 return). On their 1999 return

petitioners reported wages, taxable interest, Schedule E income, and total income

of $25,000, $7,714, $95,544, and $178,761, respectively. On the attached

Schedule E, Supplemental Income and Loss, petitioners reported royalties,

expenses, depreciation expense or depletion, and net income of $209,521,

$67,883, $46,094, and $95,544, respectively. Gibbons, Gibbons & Buck prepared

the 1999 return on the basis of information that Mr. Durland provided to Mr.

Gibbons.
                                      - 38 -

[*38] M.     Boleyn Energy

       On October 17, 2000, Mr. Durland and Ms. Fausett incorporated Boleyn

Energy, Inc. (Boleyn Energy). Ms. Fausett was the president of Boleyn Energy,

and Mr. Durland was vice president, secretary, and treasurer. Ms. Fausett and Mr.

Durland each owned 750 shares of Boleyn Energy. On October 19, 2000, Ms.

Fausett assigned her interest in the Matagorda lease to Boleyn Energy. After they

incorporated Boleyn Energy, Mr. Durland told Ms. Fausett that he had deposited

into an account at Merrill Lynch owned by Boleyn Energy (Boleyn Merrill Lynch)

the funds from the Matagorda lease production checks that he had previously

cashed.

III.   Events Occurring During 2001 and 2002

       A.    2001 Cashier’s Checks

       In 2001 Mr. Durland purchased the following cashier’s checks from

Whitney National Bank with cash:
                                      - 39 -

[*39]

                          Check
                           No.          Date       Amount

                          09016         1/16       $30,000
                          09302         2/13        12,500
                          09902         4/17         5,000
                          09930         4/24         5,000
                          09959          5/3         4,000
                          10000         5/17         1,500
                           Total                    58,000

The payee on the 2001 cashier’s checks was Gulfport Oil & Gas, and the remitter

line on the checks indicated that the remitter was Mr. Durland and that they were

for the payment of royalties on the Matagorda lease. Mr. Durland deposited the

cashier’s checks into a Merrill Lynch account owned by Gulfport Oil & Gas.

        B.    Mr. Durland’s and Mr. Harris’ Assignment of Shares of Gulfport
              Oil & Gas Common Stock to Gulfport Oil & Gas

        On January 15, 2001, Mr. Durland and Gulfport Oil & Gas entered into an

agreement (Durland January 15, 2001, agreement) to exchange 573 of Mr.

Durland’s 1,170 shares of Gulfport Oil & Gas common stock for the following

promissory notes payable to Gulfport Oil & Gas:
                                       - 40 -

[*40]

                             Date               Amount

                          6/25/1999             $20,000
                          7/16/1999             350,000
                         10/28/1999               65,000
                                                1
                         12/31/2000               34,800
                          Total                 469,800
                             1
                             This promissory note is not in
                        the record.

Mr. Harris, on behalf of Gulfport Oil & Gas, and Mr. Durland signed the Durland

January 15, 2001, agreement. In a document dated January 15, 2001, recorded on

April 11, 2001, and signed by Mr. Harris on behalf of Gulfport Oil & Gas,

Gulfport Oil & Gas released the November 3, 1999, deed of trust encumbering the

54th Street house. In undated documents signed by Mr. Harris on behalf of

Gulfport Oil & Gas and witnessed by Mr. Durland and Ms. Fausett, Gulfport Oil

& Gas acknowledged that the June 25, July 16, and October 28, 1999, promissory

notes were paid in full.15




        15
        Mr. Durland testified that he signed these acknowledgments around
January 15, 2001. We do not find Mr. Durland’s testimony to be credible. Instead
we find credible Ms. Fausett’s statement to the FBI in September 2000 that Mr.
Durland had her prepare releases and acknowledgments of payments at the same
time as he had her prepare the promissory notes for the purported loans.
                                      - 41 -

[*41] On January 15, 2001, Mr. Harris and Gulfport Oil & Gas entered into an

agreement (Harris January 15, 2001, agreement) pursuant to which Gulfport Oil &

Gas and Mr. Harris agreed to exchange 896 of Mr. Harris’ 1,830 shares of

Gulfport Oil & Gas common stock for the following promissory notes:

                              Date             Amount

                          7/16/1999            $335,000
                          7/16/1999             125,000
                         10/19/1999               75,000
                                                1
                         12/31/2000               42,800
                           Total                577,800

                          1
                           This promissory note is not in
                      the record.

Mr. Durland, on behalf of Gulfport Oil & Gas, and Mr. Harris signed the Harris

January 15, 2001, agreement. In a document dated January 15, 2001, recorded on

April 11, 2001, and signed by Mr. Durland on behalf of Gulfport Oil & Gas,

Gulfport Oil & Gas released the July 16, 1999, deed of trust encumbering Mr. and

Mrs. Harris’ home in Long Beach, Mississippi. After Mr. Durland and Mr. Harris

respectively assigned 573 and 896 shares of their Gulfport Oil & Gas common

stock to Gulfport Oil & Gas, Mr. Durland and Mr. Harris continued to own 39%

and 61% of the outstanding Gulfport Oil & Gas common stock, respectively.
                                           - 42 -

[*42]            C.    Checks Issued to Boleyn Energy

         Gulfport Oil & Gas issued the following checks to Boleyn Energy in 2001:

         Check No.      Date     Amount                   Memo line

              1345      3/21      $5,000       “Repayment of loans to company”
              1359      3/21      40,000       “Loan to company”
              1396      4/30      15,000       “Net working interest payment for
                                                 March 2001 Matagorda County,
                                                 TX properties”

   Mr. Durland cashed these checks at Ferguson Check Cashing. Boleyn Energy

   reported the amount on check No. 1396 on its 2001 return, and petitioners reported

   that amount on a Schedule E attached to their 2001 return. Boleyn Energy did not

   report the amount on check No. 1345 or 1359 on its 2001 return, and petitioners

   did not report those amounts on their 2001 return.

         D.      Prytania Street House

         In late 2000 or early 2001 Mr. Durland informed Ms. Fausett that he would

   not divorce her and that he would not give her the records he had promised her.

   He then directed her to look for a house to purchase in New Orleans, Louisiana,

   and he hired someone to take her around to look for one.

         On April 22, 2001, Mr. Durland and Ms. Fausett signed a contract to

   purchase a house on Prytania Street in New Orleans, Louisiana (Prytania Street

   house), for $622,500. On May 31, 2001, Ms. Fausett closed on the Prytania Street
                                        - 43 -

[*43] house, and it was titled in her name. Mr. Durland and Ms. Fausett paid for

the Prytania Street house with a certified check from Merrill Lynch and $25,000 in

cash. The certified check from Merrill Lynch was obtained with funds held in an

account owned by Boleyn Energy. Those funds were--at least in part--from

amounts paid to Mr. Durland, Ms. Fausett, or Boleyn Energy under the Matagorda

lease.

         On September 26, 2001, Ms. Fausett formed Trinity Art & Antiques, LLC

(Trinity Art), to sell art and antiques. On a date that is unclear from the record Ms.

Fausett transferred the Prytania Street house to Trinity Art. Later Trinity Art

transferred the Prytania Street house back to Ms. Fausett so that she could obtain a

loan on the property. After obtaining the loan Ms. Fausett transferred the Prytania

Street house back to Trinity Art.

         E.   Hubbard Litigation

         In December 2000 ARXA changed its name to King Resources, Inc. (King

Resources). On March 9, 2001, creditors of King Resources and Gulfport Oil &

Gas sued King Resources, Gulfport Oil & Gas, Mr. Harris, and Mr. Durland in the

U.S. District Court for the Southern District of Mississippi (Hubbard case or

litigation). The plaintiffs in the Hubbard case claimed that King Resources and

Gulfport Oil & Gas had failed to pay the plaintiffs amounts due on promissory
                                       - 44 -

[*44] notes executed by ARXA and Gulfport Oil & Gas. In November 2002 Ms.

Fausett was added as a defendant in the Hubbard case.

      F.     Mr. Durland’s Departure

      In July 2001 Hawkins Ranch sent a letter to Gulfport Oil & Gas demanding

overdue royalty payments on the Matagorda lease. On September 12, 2001, after

Gulfport Oil & Gas failed to make the required payments, Hawkins Ranch

terminated the lease.

      Around September 2001 Mr. Durland stopped working for Mr. Harris and

Gulfport Oil & Gas. By November 2001 Mr. Durland had moved into the Prytania

Street house with Ms. Fausett and had stopped working altogether.

      G.     2000 and 2001 Returns

      In October 2001 Boleyn Energy filed a Form 1120S, U.S. Income Tax

Return for an S Corporation, for 2000 (2000 Boleyn Energy return), reporting that

it elected to be taxed as an S corporation as of October 17, 2000. An accounting

firm named GibbonsHall, LLC (GibbonsHall),16 prepared the 2000 Boleyn Energy

return, and Mr. Durland signed the return as an officer of Boleyn Energy.




      16
       GibbonsHall’s business address is the same as Gibbons, Gibbons &
Buck’s business address.
                                      - 45 -

[*45] On October 17, 2001, Mr. Durland and Ms. Fausett filed a joint Form 1040

for 2000 (2000 return). On their 2000 return petitioners reported wages, taxable

interest, Schedule E income, and total income of $25,000, $5,254, $133,482, and

$204,238, respectively. On an attached Schedule E petitioners reported royalties,

expenses, depreciation expense or depletion, and net income of $202,716,

$40,000, $29,234, and $133,482, respectively. GibbonsHall prepared the 2000

return on the basis of information that Mr. Durland provided to Mr. Gibbons.

      In September 2002 Boleyn Energy filed a Form 1120S for 2001 (2001

Boleyn Energy return). GibbonsHall prepared the 2001 Boleyn Energy return, and

Mr. Durland signed the return as an officer of Boleyn Energy.

      On September 3, 2002, Mr. Durland and Ms. Fausett filed a joint Form 1040

for 2001 (2001 return). On their 2001 return petitioners reported wages, taxable

interest, Schedule E income, and total income of zero, $20,876, $275,430, and

$292,852, respectively. On an attached Schedule E petitioners reported royalties,

expenses, depreciation expense or depletion, and net income of $436,341,

$67,816, $96,741, and $275,430, respectively. GibbonsHall prepared the 2001

return on the basis of information that Mr. Durland provided to Mr. Gibbons.
                                       - 46 -

[*46] IV.    Events Occurring After 2002

      A.     Saint Andrews Court House

      In July 2003 Mr. Durland and Ms. Fausett moved into a house that Ms.

Fausett purchased on Saint Andrews Court in Frisco, Texas (Saint Andrews Court

house). While she was living in Frisco Ms. Fausett sold antiques through a limited

liability company she owned named Rosewood Ventures, LLC (Rosewood

Ventures).

      B.     2002-2007 Returns

      Mr. Durland and Ms. Fausett filed joint Federal income tax returns for 2002

and 2003. Mr. Gibbons prepared the joint returns. Mr. Durland and Ms. Fausett

filed separate Federal income tax returns for 2004-07. An accounting firm in

Dallas, Texas, prepared the separate returns.

      C.     IRS’ Investigation of Mr. Durland

      On a date that is unclear from the record the FBI gave the IRS the

information that Ms. Fausett had provided to its agents in 2000. In March 2004

Special Agent Nancy Emmons and Revenue Agent Lisa Wansley met with Mr.

Durland and Ms. Fausett.

      On March 30, 2004, Special Agent Emmons and Special Agent Darren

Mayer met with Mr. Harris. During the March 30, 2004, meeting Mr. Harris
                                        - 47 -

[*47] claimed that Mr. Durland had stolen $3 million and corporate records from

Gulfport Oil & Gas but that he had not yet confronted him about the stolen money

or records. On April 13, 2005, Special Agent Emmons and Revenue Agent

Wansley met with Mr. Harris to review documents relating to Gulfport Oil & Gas

and to ask him additional questions. During the April 13, 2005, meeting Mr.

Harris stated that he had not seen, and did not have, currency transaction reports

(CTRs) maintained by Ferguson Check Cashing and filed in his name even though

the CTRs related to checks that Mr. Durland had cashed.17

      D.     Mr. Durland’s Transfer of 1,500 Shares of Boleyn Energy
             Common Stock to Rosewood Ventures

      On a date that is unclear from the record Mr. Durland executed a bill of sale

dated December 28, 2004, that purported to transfer 1,500 shares of common stock




      17
        Mr. Harris also testified that he had not sent Jonathan Harris to retrieve the
CTRs from Ferguson Check Cashing and that neither Jonathan Harris nor Ms.
Ferguson had given him any CTRs. We do not find Mr. Harris’ statement or
testimony to be credible because Jonathan Harris credibly testified that he
retrieved copies of the CTRs from Ferguson Check Cashing, and we find it
implausible that he would have done this on his own or that Mr. Harris did not see
the CTRs that Jonathan Harris retrieved.
                                         - 48 -

[*48] in Boleyn Energy from himself to Rosewood Ventures.18 Mr. Durland

signed the bill of sale as a witness.

      E.     Mr. Durland’s Indictment for Tax Evasion

      On June 21, 2006, the United States filed a criminal indictment against Mr.

Durland with the U.S. District Court for the Southern District of Mississippi. The

indictment charged Mr. Durland with two counts of violating section 7201 with

respect to his 1999 and 2000 Federal income tax liabilities, respectively. With

respect to 2000 the indictment stated as follows:

                                        COUNT 2

             On or about October 2, 2001, in Harrison County, in the
      Southern Division of the Southern District of Mississippi, the
      defendant, JACK R. DURLAND, JR., who was a resident of
      Gulfport, Mississippi, did willfully attempt to evade and defeat a
      large part of the income tax due and owing by he and his spouse to
      the United States of America for the calendar year 2000, by preparing
      and causing to be prepared, and by signing and causing to be signed,
      a false and fraudulent joint U.S. Individual Income Tax Return, Form
      1040, on behalf of themselves, which was filed with the Internal
      Revenue Service, wherein it was stated that their joint taxable income
      for said calendar year was the sum of $201,164, and that the amount

      18
         The parties stipulated that Mr. Durland transferred 1,500 shares of Boleyn
Energy common stock to Rosewood Ventures on December 28, 2004. However,
we do not find this stipulation to be credible because the date on the bill of sale
appears to have been altered and Mr. Durland owned only 750 shares of Boleyn
Energy common stock. We therefore disregard the stipulation as inconsistent with
a stipulated exhibit in the record. See Cal-Maine Foods, Inc. v. Commissioner, 93
T.C. at 195.
                                       - 49 -

      [*49] of tax due and owing thereon was the sum of $56,465, whereas,
      as he then and there well knew and believed, their joint taxable
      income for the said calendar year was substantially in excess of that
      heretofore stated and that upon said additional taxable income a
      substantial additional tax was due and owing to the United States of
      America.

             In violation of Title 26, United States Code, Section 7201.

      F.     Mr. Durland’s Plea Agreement

      In a letter to Mr. Durland’s attorneys dated February 28, 2007, for the

purpose of calculating Mr. Durland’s sentence under the Federal sentencing

guidelines for the count relating to 1999, the U.S. Attorney’s Office for the

Southern District of Mississippi proposed not to include in his income $435,000 in

purported loans from Gulfport Oil & Gas. Additionally, for the purpose of

calculating Mr. Durland’s sentence under the Federal sentencing guidelines for the

count relating to 2000, the U.S. Attorney’s Office proposed not to include the

$12,500 check payable to T.J. Oil & Gas, $163,751 in Investec checks, and

$327,000 in individual investor checks; and to include only 39% of the $921,989

proceeds from Eagle Energy production checks.19 Additionally, the U.S.

Attorney’s Office proposed not to seek an abuse of trust enhancement on the

      19
        The evidence presented at trial indicated that the individual investor
checks total $327,200. After rounding to the nearest dollar, the Court finds that
the proceeds from Eagle Energy total $921,988, and the Investec checks total
$163,752.
                                       - 50 -

[*50] theory that Mr. Durland embezzled the unreported income from Gulfport Oil

& Gas.

      On April 12, 2007, Mr. Durland entered into a plea agreement with the U.S.

Attorney’s Office in which he agreed to plead guilty to count 2 of the June 21,

2006, indictment. Pursuant to the plea agreement, the U.S. Attorney’s Office

agreed, among other things, to move to dismiss the open count; to stipulate that

the tax loss for 2000 is $115,557; and to not further prosecute Mr. Durland or Ms.

Fausett for events relating to their 1999-2001 tax years. The plea agreement stated

as follows:

             8.    Binding Effect On This District Only. It is further
      understood that this plea agreement does not bind any state or local
      prosecuting authorities or any other federal district except as to the
      use of Defendant’s statements voluntarily given hereunder; further,
      this agreement does not bind the Attorney General of the United
      States in regard to any civil matter involving the tax statutes of the
      United States.

                   *     *      *      *        *   *      *

             13. Complete Agreement. It is further understood that this
      plea agreement completely reflects all promises, agreements and
      conditions made by and between the United States Attorney’s Office
      for the Southern District of Mississippi and Defendant.

      On July 27, 2007, the U.S. District Court for the Southern District of

Mississippi accepted a guilty plea as to count 2, and dismissed count 1, of the June
                                          - 51 -

[*51] 21, 2006, indictment. The court sentenced Mr. Durland to a term of

imprisonment of 11 months and supervised release of 3 years and required him to

pay an assessment of $100, a fine of $30,000, and restitution of $97,475. Mr.

Durland was imprisoned in a Federal prison camp in Pensacola, Florida, from

August 2007 until June 2008.20

      G.     2007 Oklahoma Divorce Case

      On November 15, 2007, Ms. Fausett filed for divorce from Mr. Durland in

the District Court of Oklahoma County, Oklahoma (2007 Oklahoma divorce case).

On March 2, 2009, the court in the 2007 Oklahoma divorce case dissolved

petitioners’ marriage. The divorce decree states that both Mr. Durland and Ms.

Fausett are liable for the tax for the years at issue.

V.    Deficiency Notices

      On September 28, 2010, respondent issued duplicate original notices of

deficiency to Mr. Durland and Ms. Fausett. In an attached Form 886-A,

Explanation of Adjustments, respondent determined that the following amounts

      20
         Respondent introduced into evidence several letters that Mr. Durland
wrote to Ms. Fausett while he was incarcerated. Mr. Durland objected to the
introduction of these letters on the basis of the marital communications privilege.
At trial we reserved ruling on Mr. Durland’s objection, and by order we overruled
Mr. Durland’s objection and admitted the letters into evidence. We note, however,
that the parties did not rely on any of those letters in their posttrial briefs, and we
likewise do not base any of our findings of fact on the contents of those letters.
                                       - 52 -

[*52] represented diverted corporate income to Mr. Durland and/or Ms. Fausett for

1999-2001:

             Entity or source       1999         2000         2001

           T.J. Oil & Gas          $55,000        $17,500       -0-
           Gulfport Oil & Gas      435,000        122,500     $45,000
           Eagle Energy              -0-          921,988       -0-
           Investec                  -0-          163,752       -0-
           Individual investors      -0-          327,200       -0-
            Total                  490,000      1,552,940      45,000

Respondent also determined that Mr. Durland and Ms. Fausett were entitled to

additional Schedule E deductions of $144,548 for 200021 and that Mr. Durland

was liable for civil fraud penalties with respect to the entire underpayment of tax

for 1999, 2000, and 2001.

                                     OPINION

I.    Preliminary Matters

      A.     Credibility of Witnesses and Reliability of Documentary Evidence

      In Neonatology Assocs., P.A. v. Commissioner, 115 T.C. 43, 84 (2000)

(citing Boehm v. Commissioner, 326 U.S. 287, 293 (1945), and Wilmington Tr.


      21
         In a document dated June 14, 2005, Revenue Agent Wansley determined
that petitioners substantiated royalty payments of $30,000 deducted on the
Schedule E attached to their 2000 return and that they were entitled to claim
further Schedule E deductions of $144,548 relating to Whitney National Bank
cashier’s check Nos. 08945, 08637, 08676, 08690, and 08807.
                                        - 53 -

[*53] Co. v. Helvering, 316 U.S. 164, 167-168 (1942)), aff’d, 299 F.3d 221 (3d

Cir. 2002), we stated as follows:

             Before turning to the issues at hand, we pause to pass on our
      perception of the trial witnesses [and the reliability of much of the
      documentary evidence]. We observe the candor, sincerity, and
      demeanor of each witness in order to evaluate his or her testimony
      and assign it weight for the primary purpose of finding disputed facts.
      We determine the credibility of each witness, weigh each piece of
      evidence, draw appropriate inferences, and choose between
      conflicting inferences in finding the facts of a case. The mere fact
      that one party presents unopposed testimony [or other evidence] on
      his or her behalf does not necessarily mean that the elicited testimony
      [or other evidence] will result in a finding of fact in that party’s favor.
      We will not accept the testimony of witnesses at face value if we find
      that the outward appearance of the facts in their totality conveys an
      impression contrary to the spoken word. * * *

      The Court’s statement in Neonatology Assocs. is particularly apt here. The

parties called several witnesses to testify and introduced numerous documents.

Unless we otherwise herein expressly find, we did not find the testimony of Mr.

Durland, Ms. Fausett, Mr. Harris, or Ms. Richardson to be credible. Additionally,

we have little confidence in the genuineness or accuracy of many of the documents

that Mr. Durland drafted, maintained, or subscribed.

      B.     Judicial Estoppel

      Under the doctrine of judicial estoppel, a party that wins judicial acceptance

of a theory in one case cannot pursue a contradictory theory in a later case. See
                                        - 54 -

[*54] New Hampshire v. Maine, 532 U.S. 742, 749 (2001); Fazi v. Commissioner,

105 T.C. 436, 445 (1995) (citing Huddleston v. Commissioner, 100 T.C. 17, 28-29

(1993)). Judicial estoppel is an equitable principle the purpose of which is to

“protect the integrity of the judicial process * * * by prohibiting parties from

deliberately changing positions according to the exigencies of the moment”. New

Hampshire v. Maine, 532 U.S. at 749-750 (first quoting Edwards v. Aetna Life

Ins. Co., 690 F.2d 595, 598 (6th Cir. 1982), then quoting United States v.

McCaskey, 9 F.3d 368, 378 (5th Cir. 1993)). “[J]udicial estoppel does not bar a

party from contradicting itself, but from contradicting a court’s determination that

was based on that party’s position.” Teledyne Indus., Inc. v. NLRB, 911 F.2d

1214, 1217 n.3 (6th Cir. 1990).

      Mr. Durland contends that respondent should be barred, under the doctrine

of judicial estoppel, from asserting a deficiency greater than the tax loss that the

sentencing court in his criminal case relied on to determine his restitution

obligation for 2000. In particular Mr. Durland asserts that the tax loss that the

sentencing court relied on was based upon certain concessions that the U.S.

attorney proposed to make in the February 28, 2007, letter to his attorneys. This

contention is without merit because respondent has not asked this Court to accept
                                        - 55 -

[*55] a position contrary to one that the Government successfully asked the court

in Mr. Durland’s criminal case to accept.

      C.        Mr. Durland’s Plea Agreement

      Mr. Durland contends respondent should be bound by the terms of his plea

agreement--under which the count relating to 1999 was dismissed and the

Government agreed not to further prosecute Mr. Durland and Ms. Fausett for

1999-2001--and by certain representations that the U.S. Attorney’s Office

purportedly made to him that were not memorialized in the plea agreement. These

contentions, however, are without merit. Mr. Durland’s plea agreement expressly

stated that the Government was not barred from pursuing any civil tax matter and

that it contains the entire agreement between the U.S. Attorney’s Office for the

Southern District of Mississippi and Mr. Durland.

      Similarly, Mr. Durland’s contention that the doctrine of equitable estoppel

should bar respondent from asserting the deficiencies at issue is without merit. An

appeal in these cases would lie, absent a stipulation to the contrary, in the U.S.

Court of Appeals for the Tenth Circuit. See sec. 7482(b)(1)(A), (2). That court

has held that

      [t]o state a claim of estoppel against a private party, a litigant must
      establish four elements: “(1) the party to be estopped must know the
      facts; (2) the party to be estopped must intend that his conduct will be
                                        - 56 -

      [*56] acted upon or must so act that the party asserting the estoppel
      has the right to believe that it was so intended; (3) the party asserting
      the estoppel must be ignorant of the true facts; and (4) the party
      asserting the estoppel must rely on the other party’s conduct to his
      injury.”

Rios v. Ziglar, 398 F.3d 1201, 1208 (10th Cir. 2005) (quoting Kowalczyk, 245

F.3d 1143, 1149 (10th Cir. 2001)). “A claim of estoppel against the [G]overnment

requires an additional element: the party asserting estoppel must show that the

[G]overnment has engaged in ‘affirmative misconduct.’” Id. (citing Kowalczyk,

245 F.3d at 1149).

      Mr. Durland’s plea agreement expressly stated that the Government was not

barred from pursuing any civil tax matter and disclaimed any extrinsic agreements.

Mr. Durland has presented no credible evidence that he was misled in any way.

Accordingly, respondent is not barred from asserting the deficiencies at issue.

II.   Period of Limitations on Assessment

      Generally, pursuant to section 6501(a), the amount of any tax must be

assessed within three years of the filing of a return. Section 6501(c)(1), however,

provides that “[i]n the case of a false or fraudulent return with the intent to evade

tax, the tax may be assessed * * * at any time.” The determination of fraud for

purposes of section 6501(c)(1) is the same as the determination of fraud for the

purposes of the penalty under section 6663. Neely v. Commissioner, 116 T.C. 79,
                                        - 57 -

[*57] 85 (2001). In the case of income tax deficiencies on joint returns, proof of

fraud against either spouse prevents the running of the period of limitations as to

both spouses. Vannaman v. Commissioner, 54 T.C. 1011, 1018 (1970).

      The statute of limitations is an affirmative defense, and the party asserting it

must specifically plead it and carry the burden of showing its applicability. See

Rules 39, 142(a); Robinson v. Commissioner, 117 T.C. 308, 312 (2001); Adler v.

Commissioner, 85 T.C. 535, 540 (1985). Petitioners properly pleaded the statute

of limitations as a defense in their respective petitions, and the burden of proof for

this issue is on them. However, respondent bears the burden of proving that an

exception to the general three-year period of limitations applies. See Harlan v.

Commissioner, 116 T.C. 31, 39 (2001) (citing Reis v. Commissioner, 142 F.2d

900 (6th Cir. 1944), aff’g 1 T.C. 9 (1942)); Bardwell v. Commissioner, 38 T.C. 84,

92 (1962), aff’d, 318 F.2d 786 (10th Cir. 1963). Additionally, to the extent that

respondent relies on the doctrine of collateral estoppel to preclude Mr. Durland’s

arguing that the 2000 return was not fraudulent, the burden of proof is on

respondent. See Rules 39, 142(a).

      Mr. Durland is precluded by the doctrine of collateral estoppel from arguing

that the 2000 return was not fraudulent. See infra part IV.B.1. Respondent

concedes, however, that Ms. Fausett is not precluded from arguing that the 2000
                                        - 58 -

[*58] return was not fraudulent because she was not a party to Mr. Durland’s plea

agreement. See Vannaman v. Commissioner, 54 T.C. at 1018. We will therefore

determine on the basis of the evidence in these cases whether the 1999-2001

returns were fraudulent.

       Because we conclude below that the 1999-2001 returns were fraudulent, see

infra part IV.B.3, respondent has met his burden of showing that an exception to

the general three-year period of limitation applies, see sec. 6501(c)(1); Neely v.

Commissioner, 116 T.C. at 85; Vannaman v. Commissioner, 54 T.C. at 1018.

Accordingly, petitioners’ statute of limitations defense fails.

III.   Unreported Income Adjustments

       A.    Burden of Proof

       Generally, the Commissioner’s determination of a deficiency is presumed

correct, and the taxpayer bears the burden of proving that the determination is

improper. Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).

However, if a taxpayer produces credible evidence22 with respect to any factual

issue relevant to ascertaining the taxpayer’s liability for any tax imposed by

       22
        “Credible evidence is the quality of evidence which, after critical analysis,
the court would find sufficient upon which to base a decision on the issue if no
contrary evidence were submitted (without regard to the judicial presumption of
IRS correctness).” Higbee v. Commissioner, 116 T.C. 438, 442 (2001) (quoting
H.R. Conf. Rept. No. 105-599, at 240-241 (1998), 1998-3 C.B. 747, 994-995).
                                       - 59 -

[*59] subtitle A or B of the Code and satisfies the requirements of section

7491(a)(2),23 the burden of proof on any such issue shifts to the Commissioner.

See sec. 7491(a)(1).

      With respect to some of the factual issues in these cases petitioners have

failed to introduce credible evidence. We decide the remainder on the

preponderance of the evidence. Because we can decide all of the issues in these

cases without regard to the ultimate allocation of the burden of proof under section

7491(a)(1), we need not decide whether petitioners satisfied the requirements of

section 7491(a)(2). See Blodgett v. Commissioner, 394 F.3d 1030, 1039 (8th Cir.

2005), aff’g T.C. Memo. 2003-212; Knudsen v. Commissioner, 131 T.C. 185, 188-

189 (2008).

      In unreported income cases the U.S. Court of Appeals for the Tenth Circuit

has held that the presumption of correctness does not attach until the

Commissioner has produced some substantive evidence demonstrating that the

taxpayer received the unreported income. See United States v. McMullin, 948

      23
       Sec. 7491(a)(2) requires a taxpayer to demonstrate that he or she (1)
complied with requirements under the Code to substantiate any item, (2)
maintained all records required under the Code, and (3) cooperated with
reasonable requests by the Secretary for witnesses, information, documents,
meetings, and interviews. See also Higbee v. Commissioner, 116 T.C. at 440-441.
The term “Secretary” means the Secretary of the Treasury or his delegate. Sec.
7701(a)(11)(B).
                                       - 60 -

[*60] F.2d 1188, 1192 (10th Cir. 1991); Erickson v. Commissioner, 937 F.2d

1548, 1551 (10th Cir. 1991), aff’g T.C. Memo. 1989-552. The parties have

stipulated that Mr. Durland received the amounts that respondent determined to be

income to him for the years at issue and that these amounts were not reported on

Mr. Durland and Ms. Fausett’s 1999-2001 returns. Petitioners, to be sure, dispute

respondent’s determination that these amounts were income to Mr. Durland.

However, the stipulations are sufficient to allow the presumption of correctness to

attach to respondent’s determination. See McMullin, 948 F.2d at 1192; Erickson

v. Commissioner, 937 F.2d at 1551.

      B.    Specific-Item Method

      A taxpayer must maintain books and records establishing the amount of his

or her gross income. See sec. 6001. If a taxpayer fails to maintain and produce

the required books and records, the Commissioner may determine the taxpayer’s

income by any method that clearly reflects income. See sec. 446(b); Petzoldt v.

Commissioner, 92 T.C. 661, 693 (1989); sec. 1.446-1(b)(1), Income Tax Regs.

The Commissioner’s reconstruction of income “need only be reasonable in light of

all surrounding facts and circumstances.” Petzoldt v. Commissioner, 92 T.C. at

687. The specific-item method is an indirect method of income reconstruction that

consists of evidence of specific amounts of income received by a taxpayer and not
                                         - 61 -

[*61] reported on the taxpayer’s return. See Estate of Beck v. Commissioner, 56

T.C. 297, 353, 361 (1971).

      Mr. Durland failed to maintain accurate books and records for the years at

issue. Respondent was therefore justified in using the specific-item method to

determine petitioners’ tax liabilities for the years at issue. See id. at 353-354.

      C.     The Parties’ Arguments

      Respondent generally asserts that the unreported income that he determined

comprises Mr. Durland’s wages and diverted income from Gulfport Oil & Gas that

petitioners should have reported on their returns. Petitioners argue that (1) any

amounts Mr. Durland received and retained were nontaxable loans and (2) he gave

substantial amounts of the allegedly diverted income to Mr. Harris.

      Gross income includes “all income from whatever source derived”. Sec.

61(a). This includes compensation for services, such as wages, salaries, and

bonuses, see sec. 61(a)(1), “wrongful appropriations”, James v. United States, 366

U.S. 213, 219 (1961), and dividends, see sec. 61(a)(7).

      To the extent that petitioners contend that any of the specific items at issue

were loans, they must show that the underlying transactions created bona fide

indebtedness. “Whether a bona fide debtor-creditor relationship exists is a

question of fact to be determined upon a consideration of all the pertinent facts in
                                        - 62 -

[*62] the case.” Fisher v. Commissioner, 54 T.C. 905, 909 (1970). Factors

indicative of a bona fide debt include whether: (1) evidence of indebtedness

exists; (2) any security is requested; (3) there has been a demand for repayment;

(4) the parties’ records reflect the transaction as a loan; (5) any payments have

been made; and (6) any interest was charged. See, e.g., Alpert v. Commissioner,

T.C. Memo. 2014-70, at *20 (citing Sundby v. Commissioner, T.C. Memo. 2003-

204). The key question is: “Was there a genuine intention to create a debt, with a

reasonable expectation of repayment, and did that intention comport with the

economic reality of creating a debtor-creditor relationship?” Litton Bus. Sys., Inc.

v. Commissioner, 61 T.C. 367, 377 (1973).

      D.     Specific Items at Issue for 1999

      Respondent determined that petitioners failed to report on their 1999 return

(1) salary checks totaling $55,000 that T.J. Oil & Gas paid to Mr. Durland and (2)

fictitious loans totaling $435,000 that Gulfport Oil & Gas paid to Mr. Durland.

             1.    T.J. Oil & Gas Salary Checks Totaling $55,000

      Mr. Harris owned T.J. Oil & Gas. Mr. Durland signed an employment

contract with Covington Energy, another entity owned by Mr. Harris, in December

1998 and with Gulfport Oil & Gas in 1999. His various employment contracts

called for a monthly salary of $10,000. The checks from T.J. Oil & Gas were in
                                      - 63 -

[*63] amounts of around $10,000 per month, and the memo line on several of the

checks indicated that the purpose of the checks was to pay salary to Mr. Durland.

Mr. Durland performed services for T.J. Oil & Gas and several other entities in

1999, but petitioners reported receiving wages of only $25,000 on their 1999

return. Although Mr. Durland executed a backdated $55,000 promissory note,

petitioners introduced no credible evidence showing that any payments were ever

made on the promissory note he executed or on a similar one executed by Jonathan

Harris. Indeed, Jonathan Harris credibly testified that the $23,000 amount on the

promissory note he executed was his salary and that he signed it only because Mr.

Durland told him that he otherwise would not be paid. We conclude that Mr.

Durland received wages of $55,000 from T.J. Oil & Gas that he failed to report on

petitioners’ 1999 return.

             2.    Purported Loans Totaling $435,000

      Although Mr. Durland and Ms. Fausett executed promissory notes of

$20,000, $350,000, and $65,000 dated June 25, July 16, and October 28, 1999,

respectively, petitioners introduced no credible evidence showing that they made

any of the payments required under those notes. Additionally, Ms. Fausett stated

to the FBI that she signed the July 16, 1999, promissory note on November 14,

1999, and the UCC-01 financing statements with respect to the promissory notes
                                       - 64 -

[*64] dated June 25 and October 28, 1999, were not filed until August 16, 2000,

when it was in Mr. Durland’s interest to do so in the 2000 divorce proceedings.

      Petitioners contend that Mr. Durland repaid the $435,000 in purported loans

by transferring 573 shares of his Gulfport Oil & Gas common stock to Gulfport

Oil & Gas in the Durland January, 15, 2001, agreement. However, the Durland

January 15, 2001, agreement was executed on the same date as the Harris January

15, 2001, agreement; and after both agreements were executed, Mr. Durland and

Mr. Harris still owned 39% and 61%, respectively, of the common stock issued by

Gulfport Oil & Gas. Because the January 15, 2001, agreements did not affect Mr.

Durland’s and Mr. Harris’ ownership interests in Gulfport Oil & Gas, the

agreements did not effect a transfer of anything of value from Mr. Durland and

Mr. Harris to Gulfport Oil & Gas. We therefore conclude that Mr. Durland never

repaid--and never intended to repay--the $435,000 in purported loans.

      However, we also do not accept respondent’s contention that Mr. Durland

embezzled the $435,000 because (1) Jonathan Harris and Mr. Harris signed the

checks that Gulfport Oil & Gas issued to Mr. Durland in connection with the

$435,000 in purported loans; (2) Mr. Harris signed the Durland January 15, 2001,

agreement that purported to document the repayment of the $435,000 in fictitious

loans, and (3) Mr. Harris himself, through Mrs. Harris, received at least $535,000
                                       - 65 -

[*65] in fictitious loans from Gulfport Oil & Gas in 1999 and engaged in the same

meaningless transaction as Mr. Durland did to “repay” the loans. Instead, we

conclude that the $435,000 was corporate income diverted from Gulfport Oil &

Gas to Mr. Durland. Petitioners have introduced no credible evidence showing

that the income was not taxable in whole or in part.24 We therefore sustain

respondent’s determination that the $435,000 is includible in Mr. Durland’s gross

income for 1999.

      E.    Specific Items at Issue for 2000

      Respondent determined that petitioners failed to report on their 2000 return

(1) a check for $5,000 that T.J. Oil & Gas issued to Mr. Durland; (2) salary checks

totaling $122,500 that Gulfport Oil & Gas issued to Mr. Durland; and (3) checks

totaling $1,425,440 payable to T.J. Oil & Gas or Gulfport Oil & Gas that Mr.

Durland cashed at Ferguson Check Cashing.25 Mr. Durland appears to contend



      24
         Mr. Durland failed to prove that Gulfport Oil & Gas had any earnings and
profits or that he had any basis in his ownership interest of Gulfport Oil & Gas.
Mr. Durland therefore failed to prove that any part of the diverted corporate
income was not taxable. See sec. 301; Truesdell v. Commissioner, 89 T.C. 1280,
1295-1296 (1987).
      25
        These include a check payable to T.J. Oil & Gas for $12,500; individual
investor checks payable to Gulfport Oil & Gas totaling $327,200; Investec checks
payable to Gulfport Oil & Gas totaling $163,752; and production checks payable
to Gulfport Oil & Gas totaling $921,988.
                                        - 66 -

[*66] that he is entitled to additional deductions for cashier’s checks that he

bought with cash and deposited into an account of Gulfport Oil & Gas.

             1.    T.J. Oil & Gas Check for $5,000

      Mr. Durland performed services for T.J. Oil & Gas and several other entities

in 2000, but on petitioners’ 2000 return he reported receiving wages of only

$25,000. He did not include a $5,000 check that T.J. Oil & Gas issued to him as

wages and that had an entry on the memo line showing the payment as a loan from

the corporation. We do not find the entry on the memo line of the check to be

credible. Petitioners introduced no credible evidence showing that Mr. Durland

ever repaid this purported loan or that any promissory note was executed for it.

Finally, the $5,000 check is similar in amount to the checks that we found to be

salary to Mr. Durland in 1999. See supra part III.D.1. We conclude that Mr.

Durland received a wage payment of $5,000 from T.J. Oil & Gas that he failed to

report on petitioners’ 2000 return.

             2.    Gulfport Oil & Gas Salary Checks Totaling $122,500

      Mr. Durland testified that he admitted to the U.S. attorney that the $122,500

was income to him for 2000, and this testimony is consistent with the evidence.

Mr. Durland’s employment contract with Gulfport Oil & Gas called for a monthly

salary of $10,000. Mr. Durland performed services for Gulfport Oil & Gas and
                                       - 67 -

[*67] several other entities in 2000, but he reported receiving wages of only

$25,000 on petitioners’ 2000 return. Petitioners introduced no credible evidence

showing that Mr. Durland ever repaid or made these purported loans or that any

promissory notes were ever executed for them. Although the memo line on the

checks stated that the amounts on the checks were for loans from the corporation

or repayment of loans to the corporation, we do not find these entries to be

credible. Finally, the amounts on the checks are for the most part similar in

amounts to the checks that we found to be salary to Mr. Durland in 1999. See

supra part III.D.1. We conclude that Mr. Durland received wage payments of

$122,500 from Gulfport Oil & Gas that he failed to report on petitioners’ 2000

return.

             3.    Checks Payable to T.J. Oil & Gas and Gulfport Oil & Gas

      Mr. Durland testified that he gave all of the cash that he received from

cashing the checks payable to T.J. Oil & Gas and Gulfport Oil & Gas at Ferguson

Check Cashing to Mr. Harris. We do not find Mr. Durland’s testimony on this

point to be entirely credible. Mr. Durland and Mr. Harris repeatedly diverted

gross receipts of Gulfport Oil & Gas to themselves and their nominees (seemingly,

to defraud its creditors and investors). We so find.
                                       - 68 -

[*68] Mr. Harris testified that Mr. Durland never gave him any of the money. We

do not find Mr. Harris’ testimony to be credible. He repeatedly claimed to not

remember important facts, and his demeanor suggested that his testimony was

generally untruthful. He falsely testified that he did not send Jonathan Harris to

retrieve the CTRs filed in his name from Ferguson Check Cashing, and he falsely

told the IRS that he had not seen the CTRs. Additionally, the record demonstrates

that Mr. Harris engaged in the same tax evasion tactics as those employed by Mr.

Durland during the years in issue. In short, Mr. Harris was not a credible witness.

      Not only was Mr. Harris not a credible witness, but his testimony struck us

as entirely implausible. In particular we find it remarkable that, although Mr.

Harris had ownership interests of 100% and 61% in T.J. Oil & Gas and Gulfport

Oil & Gas, respectively, neither he nor Jonathan Harris made any attempt to

recover Mr. Harris’ share of the $12,500 and $1,412,940 that Mr. Durland

allegedly diverted from T.J. Oil & Gas and Gulfport Oil & Gas, respectively, in

2000. Additionally, before Mr. Durland started cashing the production checks

from Eagle Energy, Gulfport Oil & Gas had been making payments to Mrs. Harris

and Ms. Fausett in amounts that were exactly proportional to Mr. Harris’ and Mr.

Durland’s respective ownership interests in it, and Mr. Harris and Mr. Durland

both received fictitious loans from Gulfport Oil & Gas in 1999. We infer from
                                      - 69 -

[*69] this and find that Mr. Harris and Mr. Durland both received portions of the

proceeds in accordance with their ownership interests: Mr. Harris had a 61%

ownership interest and Mr. Durland a 39% ownership interest. We conclude that

Mr. Durland actually received 39% of the $1,425,440 in checks payable to T.J. Oil

& Gas or Gulfport Oil & Gas in 2000, or $555,922.26

      We further conclude that the $555,922 that Mr. Durland actually received

was corporate income diverted from Gulfport Oil & Gas to Mr. Durland.

Petitioners have introduced no credible evidence showing that the diverted

corporate income was not taxable. Accordingly, the $555,922 is includible in Mr.

Durland’s gross income for 2000.

            4.     Cashier’s Checks

      Mr. Durland introduced copies of cashier’s checks that he bought with cash

and deposited into an account of Gulfport Oil & Gas in 2000. However,

respondent already allowed additional Schedule E deductions of $144,548 for the

excess of these checks over the Schedule E deductions that petitioners claimed on

their 2000 return. Accordingly, no further adjustments are warranted.




      26
       Because the check payable to T.J. Oil & Gas was drawn on an account of
Gulfport Oil & Gas, we infer that Mr. Durland received his share of that check too.
                                        - 70 -

[*70] F.     Specific Items at Issue for 2001

      Respondent determined that petitioners failed to report on their 2001 return

checks totaling $45,000 payable to Boleyn Energy from Gulfport Oil & Gas.

Respondent did not allow any additional Schedule E deductions for cashier’s

checks that Mr. Durland bought with cash and deposited into an account of

Gulfport Oil & Gas during 2001.

      Mr. Durland performed services for Gulfport Oil & Gas and several other

entities in 2001, but he did not report receiving any wages on petitioners’ 2001

return. Petitioners introduced no credible evidence showing that Mr. Durland

made loans to or received loans from any entity in these amounts or that Mr.

Durland executed promissory notes for these amounts. We conclude that the

$45,000 was compensation to him for the services that he provided. Although the

payee on the checks was Boleyn Energy, the $45,000 was wage income to him that

he failed to report on petitioners’ 2001 return.

      Mr. Durland introduced copies of cashier’s checks that he bought with cash

and deposited into an account of Gulfport Oil & Gas in 2001. The amounts on the

cashier’s checks total $58,000. However, that amount is less than the amount

petitioners claimed as Schedule E expense deductions on their 2001 return.
                                       - 71 -

[*71] Accordingly, no adjustment to the Schedule E expense deductions that

petitioners claimed on their 2001 return is warranted.

IV.   Civil Fraud Penalties

      A.     Section 6663(a) Generally

      Section 6663(a) provides: “If any part of any underpayment of tax required

to be shown on a return is due to fraud, there shall be added to the tax an amount

equal to 75 percent of the portion of the underpayment which is attributable to

fraud.” The Commissioner bears the burden of proving fraud by clear and

convincing evidence. See sec. 7454(a); Rule 142(b). To satisfy that burden, the

Commissioner must show: (1) an underpayment exists and (2) the taxpayer

intended to evade taxes known to be owing by conduct intended to conceal,

mislead, or otherwise prevent the collection of taxes. See Sadler v. Commissioner,

113 T.C. 99, 102 (1999).

      The Commissioner is not required to establish the precise amount of the

deficiency to prove an underpayment. See DiLeo v. Commissioner, 96 T.C. 858,

886 (1991), aff’d, 959 F.2d 16 (2d Cir. 1992). However, he cannot discharge his

burden by simply relying on the taxpayer’s failure to prove error in his

determination of the deficiency. See id. (citing Otsuki v. Commissioner, 53 T.C.

96, 106 (1969), and Pigman v. Commissioner, 31 T.C. 356, 370 (1958)). Once the
                                        - 72 -

[*72] Commissioner establishes an underpayment by clear and convincing

evidence, the deficiency determination enjoys its usual presumption of

correctness. See id. (citing Compton v. Commissioner, T.C. Memo. 1983-642,

and Cleveland v. Commissioner, T.C. Memo. 1983-299).

      Any conduct likely to mislead or conceal may constitute an affirmative act

of evasion, and an intent to mislead may be inferred from a pattern of such

conduct. See Spies v. United States, 317 U.S. 492, 499 (1943). Fraud “does not

include negligence, carelessness, misunderstanding or unintentional

understatement of income.” United States v. Pechenik, 236 F.2d 844, 846 (3d Cir.

1956). If the Commissioner establishes that some portion of the underpayment is

attributable to fraud, the entire underpayment is treated as attributable to fraud,

except with respect to any portion of the underpayment that the taxpayer

establishes is not attributable to fraud. See sec. 6663(b).

      Because fraudulent intent may be difficult to prove by direct evidence, the

Commissioner may establish fraud by circumstantial evidence. See Bradford v.

Commissioner, 796 F.2d 303, 307 (9th Cir. 1986), aff’g T.C. Memo. 1984-601;

DiLeo v. Commissioner, 96 T.C. at 875. Courts have developed a nonexclusive

list of factors--often referred to as badges of fraud--that demonstrate fraudulent

intent. Those badges include: (1) understating income; (2) failing to maintain
                                          - 73 -

[*73] adequate records; (3) offering implausible or inconsistent explanations; (4)

concealing income or assets; (5) providing incomplete or misleading information

to the taxpayer’s tax return preparer; (6) offering false or incredible testimony; (7)

filing false documents, including filing false income tax returns; and (8) engaging

in extensive dealings in cash. See Bradford v. Commissioner, 796 F.2d at 307-

308; Parks v. Commissioner, 94 T.C. 654, 664-665 (1990); Recklitis v.

Commissioner, 91 T.C. 874, 910 (1988); Lipsitz v. Commissioner, 21 T.C. 917,

937 (1954), aff’d, 220 F.2d 871 (4th Cir. 1955); Morse v. Commissioner, T.C.

Memo. 2003-332, slip op. at 8, aff’d, 419 F.3d 829 (8th Cir. 2005). The existence

of any one factor is not dispositive, but the existence of several factors is

persuasive circumstantial evidence of fraud. See Niedringhaus v. Commissioner,

99 T.C. 202, 211 (1992); Petzoldt v. Commissioner, 92 T.C. at 700.

      B.     Whether Mr. Durland Is Liable for the Civil Fraud Penalties

             1.     Collateral Estoppel

      Under the doctrine of collateral estoppel, once an issue of fact or law is

“actually and necessarily determined by a court of competent jurisdiction, that

determination is conclusive in subsequent suits based on a different cause of

action involving a party to the prior litigation.” Montana v. United States, 440

U.S. 147, 153 (1979). Collateral estoppel is a judicially created equitable
                                         - 74 -

[*74] principle the purposes of which are to protect the parties from unnecessary

and redundant litigation, to conserve judicial resources, and to foster certainty in

and reliance on judicial action. Id. at 153-154.

      Before we may apply collateral estoppel in the context of a factual dispute,

the following five conditions must be satisfied: (1) the issue in the second suit

must be identical in all respects with the issue decided in the first suit; (2) the issue

in the first suit must have been the subject of a final judgment entered by a court of

competent jurisdiction; (3) the person against whom collateral estoppel is asserted

must have been a party or in privity with a party in the first suit; (4) the parties

must actually have litigated the issue in the first suit and resolution of the issue

must have been essential to the prior decision; and (5) the controlling facts and

applicable legal principles must remain unchanged from those in the first suit. See

Bussell v. Commissioner, 130 T.C. 222, 239-240 (2008); Peck v. Commissioner,

90 T.C. 162, 166-167 (1988), aff’d, 904 F.2d 525 (9th Cir. 1990).

      Mr. Durland pleaded guilty to tax evasion under section 7201 for 2000. A

conviction for tax evasion pursuant to section 7201, either upon a guilty plea or

upon a jury verdict, conclusively establishes the existence of fraud in a subsequent

proceeding through the doctrine of collateral estoppel. See DiLeo v.

Commissioner, 96 T.C. at 885. It also conclusively establishes liability for the
                                        - 75 -

[*75] civil fraud penalty under section 6663(a) because the elements of criminal

tax evasion under section 7201 and civil fraud under section 6663(a) are virtually

identical. See Anderson v. Commissioner, 698 F.3d 160, 164 (3d Cir. 2012), aff’g

T.C. Memo. 2009-44. Accordingly, Mr. Durland is precluded by the doctrine of

collateral estoppel from arguing that the 2000 return is not fraudulent or that he is

not liable for a civil fraud penalty under section 6663(a) for 2000. He therefore

bears the burden of establishing the portion, if any, of the underpayment for 2000

that is not due to fraud. See sec. 6663(b). However, as explained above, see supra

part II, respondent cannot rely on the doctrine of collateral estoppel for the

purpose of proving that the fraud exception to the general three-year period of

limitations applies with respect to Ms. Fausett.27 Accordingly, we will determine

whether Mr. Durland is liable for the section 6663(a) penalty for all of the years in

issue--and therefore whether the 1999-2001 returns were fraudulent--without

reliance on the doctrine of collateral estoppel.




      27
        However, even as with respect to Ms. Fausett, Mr. Durland’s guilty plea
can be--and is--clear and convincing evidence that he intended to evade a tax due
and owing for 2000. See Norris v. Commissioner, T.C. Memo. 2011-161, 102
T.C.M. (CCH) 26, 31 (2011).
                                        - 76 -

[*76]         2.    Underpayment of Tax

        Respondent has proven by clear and convincing evidence that Mr. Durland

failed to report income for each of the years in issue. See supra part III.D-F.

Accordingly, respondent has met his burden of proving by clear and convincing

evidence that an underpayment exists for each of the years in issue. See DiLeo v.

Commissioner, 96 T.C. at 886 (citing Compton v. Commissioner, T.C. Memo.

1983-642, and Cleveland v. Commissioner, T.C. Memo. 1983-299).

              3.    Fraudulent Intent

                    a.     Understating Income

        A pattern of substantially underreporting income for several years is strong

evidence of fraud, particularly if the reason for the understatements is not

satisfactorily explained or is not due to innocent mistake. See Holland v. United

States, 348 U.S. 121, 137-139 (1954); Spies, 317 U.S. at 499. On the basis of

clear and convincing evidence we determined that Mr. Durland failed to report

substantial income for each of the years in issue. This failure appears to be

deliberate because Mr. Durland took affirmative steps to hide his receipt of this

income. These steps include executing bogus promissory notes, causing Gulfport

Oil & Gas to state on the memo lines of checks that it issued to him that the checks
                                       - 77 -

[*77] were for loans that never existed, and cashing checks at Ferguson Check

Cashing. Accordingly, this factor favors a finding of fraud for 1999-2001.

                   b.     Failing To Maintain Adequate Records

      Because Mr. Durland failed to maintain accurate books and records during

the years in issue, respondent had to resort to the specific-item method to

reconstruct Mr. Durland’s income for the years in issue. Accordingly, this factor

favors a finding of fraud for 1999-2001.

                   c.     Offering Implausible or Inconsistent Explanations

      Mr. Durland’s testimony and statements to the IRS in which he testified and

stated that certain salary checks issued to him in 1999-2001 were for loans from

various entities to him or for repayments of loans he made to the entities are

implausible. Accordingly, this factor favors a finding of fraud for 1999-2001.

                   d.     Concealing Assets or Income

      An intent to evade tax may be inferred from “concealment of assets or

covering up sources of income”. Spies, 317 U.S. at 499; Ruark v. Commissioner,

449 F.2d 311, 312-313 (9th Cir. 1971), aff’g T.C. Memo. 1969-48. Mr. Durland

concealed his 1999 income by drafting bogus promissory notes and by cashing his

salary checks at Ferguson Check Cashing; he concealed his 2000 income by

causing Gulfport Oil & Gas to include false statements on the memo lines of the
                                       - 78 -

[*78] checks that it issued to him and by cashing the checks at Ferguson Check

Cashing; and he concealed his 2001 income by causing Gulfport Oil & Gas to

include false statements on the memo lines of the salary checks that it issued to

him and by cashing the checks at Ferguson Check Cashing. Mr. Durland also

concealed his ownership interest in assets by assigning them to Ms. Fausett.

Accordingly, this factor favors a finding of fraud for 1999-2001.

                   e.     Providing Incomplete or Misleading Information to
                          the Taxpayer’s Tax Return Preparer

      Mr. Durland provided to Mr. Gibbons the information upon which Gibbons,

Gibbons & Buck and GibbonsHall prepared petitioners’ 1999-2001 returns. Mr.

Durland appears to have included information relating to the amounts we

determined to be income to him in handwritten documents that he gave to Mr.

Gibbons for 1999. Additionally, Mr. Gibbons was aware that Gulfport Oil & Gas

was characterizing salaries it paid to its employees in 1999 as loans.

      Mr. Durland did not include information relating to the amounts we

determined to be income to him in a letter that he sent to Mr. Gibbons for 2000 or

in the letters that he sent to Mr. Gibbons for 2001. Accordingly, this factor does

not favor a finding of fraud for 1999 but it does favor a finding of fraud for 2000

and 2001.
                                        - 79 -

[*79]               f.     Offering False or Incredible Testimony

        Mr. Durland repeatedly testified that the salary checks he received during

1999-2001 were for loans from various entities to him or for repayments of loans

he made to the entities. He also testified that he gave all of the cash that he

received from cashing the checks payable to T.J. Oil & Gas and Gulfport Oil &

Gas at Ferguson Check Cashing to Mr. Harris. His testimony was mostly

incredible. Accordingly, this factor favors a finding of fraud for 1999-2001.

                    g.     Filing False Documents

        Fraudulent intent may be inferred when a taxpayer files a document

intending to conceal, mislead, or prevent the collection of tax. See Spies, 317 U.S.

at 499. Filing false documents with the IRS constitutes “an ‘affirmative act’ of

misrepresentation sufficient to justify the fraud penalty.” Zell v. Commissioner,

763 F.2d 1139, 1146 (10th Cir. 1985), aff’g T.C. Memo. 1984-152. Mr. Durland

filed Federal income tax returns for 1999-2001, and for each year he knowingly

omitted substantial amounts of his income. Accordingly, this factor favors a

finding of fraud for 1999-2001.
                                         - 80 -

[*80]                 h.   Extensive Dealings in Cash

        Extensive dealings in cash to avoid scrutiny of a taxpayer’s finances is a

badge of fraud. See Bradford v. Commissioner, 796 F.2d at 307-308. Fraudulent

intent may be inferred when a taxpayer handles his affairs in a manner designed

“to avoid making the records usual in transactions of the kind”. Spies, 317 U.S. at

499. Mr. Durland cashed numerous checks during each of the years in issue at

Ferguson Check Cashing, and he kept large amounts of cash in his office at

Gulfport Oil & Gas. This factor favors a finding of fraud for 1999-2001.

                      i.   Summary

        Many of the badges of fraud are present here. We conclude that respondent

has proven by clear and convincing evidence that Mr. Durland underpaid his tax

liabilities for 1999-2001 and that some part of the underpayment for each year was

due to fraud. Mr. Durland failed to prove that any portion of the underpayment for

any of the years in issue was not attributable to fraud. Accordingly, to the extent

that we sustain respondent’s deficiency determinations, see supra part III.D-F, we

hold that Mr. Durland is liable for section 6663(a) civil fraud penalties for each of

the years in issue.
                                         - 81 -

[*81] V.     Whether Ms. Fausett Is Jointly and Severally Liable

      A.     Joint and Several Liability Generally

      Pursuant to section 6013(a) spouses may file a joint Federal income tax

return. Spouses who elect to file a joint return for a taxable year are required to

compute their tax for the taxable year on the aggregate income of both spouses,

and the liability for that tax is joint and several. See sec. 6013(d)(3). However, to

remedy certain injustices that may occur, section 6015 allows a spouse to obtain

relief from joint and several liability in certain circumstances.

      Section 6015(a)(1) provides that a spouse who has made a joint return may

seek relief from joint and several liability under subsection (b) (dealing with relief

from liability for an understatement of tax with respect to a joint return). Section

6015(a)(2) provides that an eligible spouse may elect to limit that spouse’s

liability for any deficiency with respect to a joint return under subsection (c)

(providing relief from joint and several liability for taxpayers who are no longer

married, are legally separated, or are no longer living together). If a taxpayer does

not qualify for relief under either subsection (b) or (c), the taxpayer may seek

equitable relief under subsection (f).
                                         - 82 -

[*82]         1.     Section 6015(b)

        Under section 6015(b)(1)(A)-(E), the following requirements must be

satisfied for the IRS to grant relief from joint and several liability: (1) the spouses

filed a joint return for the taxable year; (2) an understatement of tax is attributable

to an erroneous item of the nonrequesting spouse; (3) the requesting spouse

establishes that in signing the return he or she did not know, and had no reason to

know, of the understatement; (4) after taking into account all the facts and

circumstances, it is inequitable to hold the requesting spouse liable for the

deficiency attributable to the understatement; and (5) the requesting spouse timely

elects the benefits of subsection (b).

              2.     Section 6015(c)

        Under section 6015(c), if the requesting spouse is either (1) no longer

married to the nonrequesting spouse, (2) legally separated from the nonrequesting

spouse, or (3) not a member of the same household as the nonrequesting spouse

during the 12-month period ending on the date such election is filed, the

requesting spouse may elect to limit his or her liability for a deficiency as provided

in subsection (d). Sec. 6015(c)(1), (3)(A)(i). A requesting spouse may elect

section 6015(c) relief any time after the Secretary asserts a deficiency but no later
                                        - 83 -

[*83] than two years after the date on which the Secretary has begun collection

activities with respect to the requesting spouse. Id. subsec. (c)(3)(B).

      Section 6015(d) provides that, in general, any items giving rise to a

deficiency on a joint return are allocated to the spouses as if they had filed

separate returns. See id. subsec. (d)(3)(A). The allocation is made without regard

to community property laws. See id. subsec. (a) (flush language). The requesting

spouse is liable only for his or her proportionate share of the deficiency that results

from such allocation. See id. subsec. (d)(1). If an item giving rise to a deficiency

provided a tax benefit on the joint return to the nonrequesting spouse, the item is

allocated to the nonrequesting spouse. See id. subsec. (d)(3)(B). The requesting

spouse bears the burden of establishing the amount of the deficiency allocable to

him or her. See id. subsec. (c)(2).

      Relief under section 6015(c) is not available where the Commissioner

proves that the requesting spouse had “actual knowledge, at the time such

individual signed the return, of any item giving rise to a deficiency * * * which is

not allocable to such individual”. Id. subsec. (c)(3)(C). Actual knowledge is “an

actual and clear awareness (as opposed to reason to know) of the existence of an

item which gives rise to the deficiency (or portion thereof).” Cheshire v.

Commissioner, 115 T.C. 183, 195 (2000), aff’d, 282 F.3d 326 (5th Cir. 2002). In
                                         - 84 -

[*84] a case of omitted income the requesting spouse must have had an actual and

clear awareness of the factual circumstances that resulted in the omission of the

income. See King v. Commissioner, 116 T.C. 198, 204 n.6 (2001) (citing

Cheshire v. Commissioner, 115 T.C. 183); Cheshire v. Commissioner, 115 T.C. at

195; see also sec. 1.6015-3(c)(2)(i)(A), Income Tax Regs. The requesting spouse

has actual knowledge when he or she knows that the item giving rise to the

deficiency is incorrectly reported on the tax return. See Cheshire v.

Commissioner, 115 T.C. at 195. The Commissioner bears the burden of proving

by a preponderance of the evidence that the requesting spouse had actual

knowledge when signing the return of any item giving rise to the deficiency. See

sec. 6015(c)(2), (3)(C); Culver v. Commissioner, 116 T.C. 189, 195 (2001); sec.

1.6015-3(c)(2)(i), Income Tax Regs.

      Even when the requesting spouse has actual knowledge of any item giving

rise to the deficiency, he or she may still be entitled to section 6015(c) relief if the

return was signed under duress. Sec. 6015(c)(3)(C). The exception for duress

focuses on the existence or nonexistence of duress in signing the return. Id. The

regulations define duress for the purposes of section 6015(c):

             Abuse exception.--If the requesting spouse establishes that he
      or she was the victim of domestic abuse prior to the time the return
      was signed, and that, as a result of the prior abuse, the requesting
                                        - 85 -

      [*85] spouse did not challenge the treatment of any items on the
      return for fear of the nonrequesting spouse’s retaliation, the limitation
      on actual knowledge in this paragraph (c) will not apply. * * *

Sec. 1.6015-3(c)(2)(v), Income Tax Regs. Duress is therefore established for

purposes of section 6015(c) if the requesting spouse proves that he or she was a

victim of domestic abuse and that he or she did not challenge the treatment of any

items on the return for fear of the nonrequesting spouse’s retaliation. Id. The

requesting spouse has the burden of proving that he or she signed the return under

duress. See sec. 6015(c)(3)(C).

      Because a spouse seeking relief from joint and several liability under

section 6015 has an incentive to exaggerate the degree of any physical and

psychological abuse to which he or she was subjected, if any, we have generally

required substantiation, or at least specificity in allegations, of both physical and

psychological abuse. See Nihiser v. Commissioner, T.C. Memo. 2008-135, slip

op. at 24-25. We have also tried to distinguish between run-of-the mill marital

strife and genuine physical or psychological abuse. See id., slip op. at 25. This is

often difficult to do when, in so many of these cases, there is no expert testimony

to assist the Court, and the evidence of abuse and duress is limited to the

testimony of the requesting spouse and his or her children and friends,

unsupported by any credible evidence from third parties such as a doctor, police,
                                        - 86 -

[*86] or even another court. In Nihiser, we relied upon certain common features

of domestic abuse in domestic relations law to identify a nonexclusive list of

factors that are indicative of psychological abuse by a spouse. Those factors are:

(1) isolating the victim; (2) encouraging exhaustion by, for example, intentionally

limiting food or interrupting sleep; (3) behaving in an obsessive or possessive

manner; (4) threatening to commit suicide, to murder the victim, or to cause the

death of family or friends; (5) using degrading language including humiliation,

denial of victim’s talents and abilities, and name calling; (6) abusing drugs or

alcohol, including administering substances to the victim; (7) undermining the

victim’s ability to reason independently; or (8) occasionally indulging in positive

behavior in order to keep alive hope that the abuse will cease. Id. at 26.

                   3.     Section 6015(f)

      Under section 6015(f), relief from joint and several liability is available if

(1) taking into account all the facts and circumstances, it would be inequitable to

hold the requesting spouse liable for any unpaid tax and (2) relief is not available

to the requesting spouse under subsection (b) or (c). See sec. 6015(f)(1) and (2).

      The Commissioner has published revenue procedures listing the factors that

he considers in determining whether he will grant section 6015(f) relief. See Rev.

Proc. 2013-34, 2013-43 I.R.B. 397, modifying and superseding Rev. Proc.
                                         - 87 -

[*87] 2003-61, 2003-2 C.B. 296. We consider these factors in the light of the

attendant facts and circumstances, but we are not bound by them. See Pullins v.

Commissioner, 136 T.C. 432, 438-439 (2011).

      Rev. Proc. 2013-34, sec. 4.01, 2013-43 I.R.B. at 399-400, sets forth seven

threshold conditions that a requesting spouse must satisfy to be eligible for relief

under section 6015(f): (1) the requesting spouse filed a joint Federal income tax

return for the tax year or years for which relief is sought; (2) the requesting spouse

does not qualify for relief under section 6015(b) or (c); (3) the claim for relief is

timely filed; (4) no assets were transferred between the spouses as part of a

fraudulent scheme; (5) the nonrequesting spouse did not transfer disqualified

assets to the requesting spouse; (6) the requesting spouse did not knowingly

participate in the filing of a fraudulent joint return; and (7) the liability from which

relief is sought is attributable to an item of the nonrequesting spouse.

      When a requesting spouse satisfies the threshold conditions of Rev. Proc.

2013-34, sec. 4.01, the Commissioner considers whether the requesting spouse is

entitled to a streamlined determination of equitable relief under section 6015(f)

pursuant to Rev. Proc. 2013-34, sec. 4.02, 2013-43 I.R.B. at 400. If a requesting

spouse is not entitled to a streamlined determination because the requesting spouse
                                         - 88 -

[*88] does not satisfy all the elements in Rev. Proc. 2013-34, sec. 4.02,28 the

requesting spouse’s request for relief may be considered using the equitable relief

factors in Rev. Proc. 2013-34, sec. 4.03, 2013-43 I.R.B. at 400.

      Under Rev. Proc. 2013-34, sec. 4.03, equitable relief under section 6015(f)

may be granted if, taking into account all the facts and circumstances, it would be

inequitable to hold the requesting spouse responsible for all or part of the liability.

In making the decision, the Commissioner weighs a number of factors, including,

but not limited to:

             (a) Marital status. Whether the requesting spouse is no longer
      married to the nonrequesting spouse as of the date the Service makes
      its determination. * * *

             (b) Economic hardship. Whether the requesting spouse will
      suffer economic hardship if relief is not granted. * * *

             (c) Knowledge or reason to know. * * * In the case of an
      income tax liability that was properly reported but not paid, whether,
      as of the date the return was filed or the date the requesting spouse
      reasonably believed the return was filed, the requesting spouse knew
      or had reason to know that the nonrequesting spouse would not or

      28
        A requesting spouse is eligible for a streamlined determination if the
following elements are satisfied: (1) on the date of the request for relief, the
requesting spouse is no longer married to, or is legally separated from, the
nonrequesting spouse; (2) on the date the return was filed, the requesting spouse
did not know, and had no reason to know, that there was an understatement or
deficiency on the joint income tax return; and (3) the requesting spouse will suffer
economic hardship if the Commissioner does not grant relief. Rev. Proc. 2013-34,
sec. 4.02, 2013-43 I.R.B. 397, 400.
                                        - 89 -

      [*89] could not pay the tax liability at that time or within a reasonable
      period of time after the filing of the return. * * *

            (d) Legal obligation. Whether the requesting spouse or the
      nonrequesting spouse has a legal obligation to pay the outstanding
      Federal income tax liability. * * *

             (e) Significant benefit. Whether the requesting spouse
      significantly benefitted from the unpaid income tax liability or
      understatement. * * *

             (f) Compliance with income tax laws. Whether the requesting
      spouse has made a good faith effort to comply with the income tax
      laws in the taxable years following the taxable year or years to which
      the request for relief relates. * * *

            (g) Mental or physical health. Whether the requesting spouse
      was in poor physical or mental health. * * *

Id. sec. 4.03(2), 2013-43 I.R.B. at 400-403. No single factor is determinative. Id.

at 400.

      B.     Whether Ms. Fausett Is Eligible for Relief Under Section 6015

             1.    Section 6015(c) Relief

      Respondent contends that Ms. Fausett is not entitled to relief under section

6015(c) because (1) she had actual knowledge of the unreported income at issue,

see sec. 6015(c)(3)(C); (2) she and Mr. Durland transferred assets to each other as

part of a fraudulent scheme of theirs, see sec. 6015(c)(3)(A)(ii); sec. 1.6015-1(d),

Income Tax Regs.; and (3) she has not proven that the amounts giving rise to the
                                        - 90 -

[*90] deficiencies are not allocable to her, see sec. 6015(c)(1), (d). Because we

find that Ms. Fausett had actual knowledge of the unreported income at issue and

that she did not sign the returns under duress, she is not eligible for section

6015(c) relief.

                    a.    Actual Knowledge

                          i.     1999

      We sustained respondent’s determination that Mr. Durland had received in

1999 but did not report on petitioners’ 1999 return wage income of $55,000. See

supra part III.D.1. In September 2000, before petitioners filed their 1999 return,

Ms. Fausett stated to the FBI that Mr. Durland had told her that Mr. Gibbons had

told him that they could report Mr. Durland’s salary as a “loan” on the books. Ms.

Fausett was also aware that Mr. Durland received a salary of $10,000 per month

from one of Mr. Harris’ businesses. Although Mr. Durland cashed the salary

checks at Ferguson Check Cashing and the checks all bear dates that are before the

date on which Mr. Durland and Ms. Fausett married, Ms. Fausett stated to the FBI

that she “know[s] for a fact that * * * [Mr. Durland] received [a] salary from T.J.

Oil & Gas * * * up through at least August of 1999”. Accordingly, respondent has

met his burden of proving that Ms. Fausett had actual knowledge that Mr. Durland

received $55,000 in unreported wages in 1999.
                                       - 91 -

[*91] We also sustained respondent’s determination that Mr. Durland had

received unreported diverted corporate income of $435,000 from Gulfport Oil &

Gas in 1999, which Mr. Durland had classified as loans to avoid paying taxes. See

supra part III.D.2. When Ms. Fausett signed the 1999 return she knew that Mr.

Durland had no intention of repaying the purported loans. Ms. Fausett also knew

that Mr. Durland received the unreported diverted corporate income as purported

loans to avoid paying taxes. Accordingly, respondent has met his burden of

proving that Ms. Fausett had actual knowledge that Mr. Durland received diverted

corporate income of $435,000 in 1999.

                         ii.    2000

      We sustained respondent’s determination that Mr. Durland had received

wage income of $5,000 from T.J. Oil & Gas in 2000 that he did not report on

petitioners’ 2000 tax return. See supra part III.E.1. Ms. Fausett was aware that

Mr. Durland received a salary of $10,000 per month from one of Mr. Harris’

businesses. In September 2000 Ms. Fausett stated to the FBI that Mr. Durland had

classified his salary as loans to avoid paying taxes. Accordingly, respondent has

met his burden of proving that Ms. Fausett had actual knowledge that Mr. Durland

received $5,000 in unreported wages from T.J. Oil & Gas in 2000.
                                       - 92 -

[*92] We sustained respondent’s determination that Mr. Durland had received

wage income of $122,500 from Gulfport Oil & Gas in 2000 that he did not report

on petitioners’ 2000 tax return. See supra part III.E.2. Ms. Fausett stated to the

FBI that, on May 10, 2000, Mr. Durland had testified in court that he had not

received a salary since March 15, 2000, and that she “know[s] for a fact he was

still getting salary.” Even with this knowledge, Ms. Fausett signed the 2000 return

that reported only $25,000 of wages.29 Ms. Fausett therefore knew that the amount

of wages reported for the 2000 taxable year was incorrect. Respondent has met his

burden of proving that Ms. Fausett had actual knowledge that Mr. Durland

received unreported wages of $122,500 from Gulfport Oil & Gas in 2000.

      We sustained respondent’s determination that Mr. Durland had received but

did not report on petitioners’ 2000 return diverted corporate income of $555,922

from Gulfport Oil & Gas. See supra part III.E.3. The diverted corporate income

was from the sale of ARXA stock and production checks from Eagle Energy.

Before February 2000 Ms. Fausett regularly received the production checks from

Eagle Energy. After February 2000 Mr. Durland received and cashed the

production checks. On May 15, 2000, Mr. Durland told Ms. Fausett that he had


      29
        The reported wages were from ARXA. Mr. Durland and Ms. Fausett
reported no wages from T.J. Oil & Gas or Gulfport Oil & Gas.
                                        - 93 -

[*93] been receiving the production checks. When Mr. Durland and Ms. Fausett

incorporated Boleyn Energy in October 2000, Mr. Durland told Ms. Fausett that

he had deposited into the Boleyn Merrill Lynch account the funds from the

production checks he had previously cashed. After October 2000 petitioners

assigned Ms. Fausett’s interest in the Matagorda lease to Boleyn Energy. Ms.

Fausett and Mr. Durland subsequently purchased the Prytania Street house in April

2001 with funds from the production checks that had been deposited in the Boleyn

Merrill Lynch account. Petitioners did not file their 2000 return until October 17,

2001. Ms. Fausett therefore knew that Mr. Durland had received diverted

corporate income in the form of production checks from Eagle Energy that

petitioners did not report on their 2000 return.

      Ms. Fausett also stated to the FBI in September 2000 that Gulfport Oil &

Gas was selling ARXA stock to investors, and Ms. Fausett witnessed promissory

notes for some stock purchases. Ms. Fausett told the FBI that Gulfport Oil & Gas

was receiving the funds from the sales but that Mr. Durland would subsequently

receive 39% of the income to correspond with his interest in Gulfport Oil & Gas.

Respondent has therefore met his burden of proving that Ms. Fausett had actual

knowledge that Mr. Durland had received diverted corporate income from the sale

of ARXA stock during 2000 that petitioners did not report on their 2000 return.
                                         - 94 -

[*94]                      iii.   2001

        We sustained respondent’s determination that Mr. Durland had received

wage income of $45,000 from Gulfport Oil & Gas in 2001 that he did not report

on petitioners’ 2001 return. See supra part III.F. Although Mr. Durland and Ms.

Fausett lived apart during most of the relevant part of 2001, Ms. Fausett knew that

Mr. Durland received a salary of $10,000 a month from one of Mr. Harris’

businesses. Mr. Durland moved in with Ms. Fausett in November 2001 after

resigning from Gulfport Oil & Gas in September. Even with the knowledge that

Mr. Durland had worked for Gulfport Oil & Gas until September 2001, Ms.

Fausett signed petitioners’ 2001 tax return reporting no wages. Accordingly,

respondent has met his burden of proving that Ms. Fausett had actual knowledge

that Mr. Durland had received $45,000 in unreported wages from Gulfport Oil &

Gas in 2001.

                    b.     Duress Exception

        Respondent has satisfied his burden of proving that Ms. Fausett had actual

knowledge of the items giving rise to the deficiencies during the 1999-2001

taxable years. See supra part V.B.1.a. Ms. Fausett asserts that she signed the

1999-2001 joint tax returns under duress and that she should be relieved of joint

and several liability for the deficiencies as a result. We therefore consider
                                        - 95 -

[*95] whether Ms. Fausett qualifies for the duress exception under section

6015(c)(3)(C).

      During trial Ms. Fausett testified generally that Mr. Durland physically and

psychologically abused her throughout the years at issue. Additionally, the record

reflects that Ms. Fausett was unable to obtain records of her income and expenses

for the 1999 return, which she claims led her to sign the joint return. We will

address whether the abuse or the inability to obtain records constitutes duress for

the purpose of section 6015(c)(3)(C).

      For the Court to find duress for the purpose of section 6015(c)(3)(C), Ms.

Fausett must substantiate, or at least provide detailed and credible testimony of

physical or psychological abuse. See Pullins v. Commissioner, 136 T.C. at 454;

Nihiser v. Commissioner, slip op. at 24-25. Even if the Court were to find Ms.

Fausett’s testimony credible, which it does not, see supra part I.A, Ms. Fausett

never substantiated or testified with specificity regarding her alleged abuse. Ms.

Fausett testified about generic threats and three alleged instances of physical

abuse, but her testimony was not substantiated by any third party30 and no police

report was filed. Ms. Fausett also never proved she signed any returns because of


      30
        Ms. Fausett testified that there were witnesses to instances of physical
abuse, but none of those alleged witnesses testified at trial.
                                        - 96 -

[*96] fear of retaliation. See sec. 1.6015-3(c)(2)(v), Income Tax Regs. Therefore,

Ms. Fausett has not met her burden of proving that she signed the returns under

duress due to physical or psychological abuse. See sec. 6015(c)(3)(C).

      Ms. Fausett also contends that because Mr. Durland refused to provide her

with records she was forced to file jointly. Before Ms. Fausett and Mr. Durland

filed their joint return on October 16, 2000, Ms. Fausett had requested documents

from Mr. Durland presumably to file her own individual return. Duress under

section 6015 requires evidence of physical or psychological abuse, and because of

that abuse, a fear that the nonrequesting spouse will retaliate if the requesting

spouse does not sign the return. See sec. 1.6015-3(c)(2)(v), Income Tax Regs.

The refusal to provide records is not duress as contemplated by section 6015. Ms.

Fausett did not sign the joint 1999 return under duress but rather, as indicated in

her statements to the FBI in September 2000, she signed the return because she

was concerned about late filing penalties and interest if she was to file

individually. Although Ms. Fausett attempted to obtain financial records, she

never sought the advice of a tax professional to assist her with filing an individual

1999 return. Moreover, it is unclear what records Ms. Fausett needed to file her

return because she had been receiving the production checks from the Matagorda

leases until February 2000. The record does not reflect that Ms. Fausett paid
                                         - 97 -

[*97] expenses with respect to the Matagorda leases, and in fact liens were filed in

June 2000 for unpaid operating expenses. Furthermore, Ms. Fausett did not prove

that she signed the returns for the years at issues because of fear of retaliation.31

Ms. Fausett is therefore not entitled to section 6015(c) relief.

             2.     Section 6015(b) Relief

      Section 6015(b)(1)(C) provides that an individual requesting section

6015(b) relief must not know or have reason to know that an understatement

existed. The actual knowledge requirement under section 6015(c)(3)(C) is

narrower than the knew-or-should-have-known standard under section

6015(b)(1)(C). See Cheshire v. Commissioner, 115 T.C. at 195. Because Ms.

Fausett had actual knowledge, see supra part V.B.1.a, of the items giving rise to

the deficiency, she is ineligible for section 6015(b) relief, see Alt v.

Commissioner, 119 T.C. 306, 313 (2002) (requiring a taxpayer to satisfy all

section 6015(b) requirements to qualify for relief under that subsection), aff’d, 101

F. App’x 34 (6th Cir. 2004).

      31
          Ms. Fausett may have feared that Mr. Durland would proceed with the
divorce proceeding in Mississippi if she did not sign the 1999 return. The abuse
exception of sec. 6015(c)(3)(A) requires that the requesting spouse prove that she
was a victim of domestic abuse and because of that abuse, she signed the return
out of fear of retaliation. See sec. 1.6015-3(c)(2)(v), Income Tax Regs. Although
a divorce proceeding may give rise to mental anguish, the Court does not find that
it rises to the level of domestic abuse in these cases.
                                           - 98 -

[*98]           3.     Section 6015(f) Relief

          Although this Court is not bound by the factors in Rev. Proc. 2013-34,

supra, we generally consider those guidelines. See Pullins v. Commissioner, 136

T.C. at 438-439. We first consider whether Ms. Fausett satisfies the threshold

conditions of Rev. Proc. 2013-34, sec. 4.01, for equitable relief under section

6015(f). We next consider whether equity entitles Ms. Fausett to section 6015(f)

relief.

          As a threshold condition for section 6015(f) relief, the requesting spouse

must not knowingly participate in the filing of a fraudulent joint return. Rev. Proc.

2013-34, sec. 4.01(6). Although Ms. Fausett is not liable for the fraud penalties,

we have determined that the tax returns were fraudulent and that Mr. Durland is

liable for civil fraud penalties. See supra part IV.B.3. Ms. Fausett signed these

returns while knowing that income had been omitted from them. See supra part

V.B.1.a. Accordingly, Ms. Fausett does not satisfy this threshold condition for

equitable relief under section 6015(f).

          Even if Ms. Fausett had not knowingly participated in the filing of a

fraudulent joint return, she would not be eligible for relief because Mr. Durland

and Ms. Fausett transferred assets between them as part of a fraudulent scheme.

Another threshold condition of Rev. Proc. 2013-34, sec. 4.01(4), is that “no assets
                                        - 99 -

[*99] were transferred between the spouses as part of a fraudulent scheme by the

spouses.” The disqualifying transfer in this case relates to the May 2001 purchase

of the Prytania Street house. In purchasing the house Mr. Durland and Ms. Fausett

used funds from an account owned by Boleyn Energy. The Prytania Street house

was titled in Ms. Fausett’s name. The funds in the Boleyn Energy account were--

at least in part-- amounts paid to Mr. Durland, Ms. Fausett, or Boleyn Energy

under the Matagorda lease, and Ms. Fausett and Mr. Durland each owned half of

Boleyn Energy’s stock. By May 2001 Ms. Fausett knew that the purpose of the

well assignments was to defraud ARXA and Gulfport Oil & Gas’ creditors and the

IRS. She also must have known that Mr. Durland insisted on having the Prytania

Street house titled only in her name because he wanted to place his assets (i.e., his

portion of the funds in the Boleyn account that he owned) beyond the reach of his

creditors, including creditors of ARXA and Gulfport Oil & Gas and the IRS.

Nevertheless, she agreed to this arrangement. Mr. Durland therefore transferred

assets under his control to Ms. Fausett as part of a fraudulent scheme.

      Subsequent events support our conclusion that Mr. Durland transferred

assets to Ms. Fausett as part of a fraudulent scheme. Specifically, Ms. Fausett

later transferred the Prytania Street house to Trinity Art. She then caused Trinity

Art to transfer the house back to her so that she could obtain a loan on the Prytania
                                         - 100 -

[*100] Street house and then transferred the house back to Trinity Art. We infer

from these transfers that Mr. Durland and Ms. Fausett no longer thought that

having the Prytania Street house titled in Ms. Fausett’s name was sufficient to

protect the assets from Mr. Durland’s creditors. Although Ms. Fausett testified

that Mr. Durland had told her to transfer the house to Trinity Art because she was

selling art and antiques from the house, we do not find Ms. Fausett’s testimony in

this regard to be credible. Mr. Durland also placed other assets, such as the

Matagorda lease, as well as income that he earned, in Ms. Fausett’s name,

ostensibly to hide the assets and income from creditors throughout the years at

issue. Ms. Fausett is therefore disqualified from equitable relief under section

6015(f).32 See id.

      Assuming arguendo that Ms. Fausett satisfied the threshold conditions for

section 6015(f) relief, equities do not weigh in her favor. Although Ms. Fausett

was not married to Mr. Durland when she requested section 6015 relief and

although she was in compliance with her tax obligations for years after the years at

issue,33 Ms. Fausett had actual knowledge of the understatements for the years at


      32
        A requesting spouse also is not eligible for sec. 6015(c) relief when assets
were transferred as part of a fraudulent scheme. Sec. 6015(c)(3)(A)(ii).
      33
           Respondent concedes that both of these factors favor granting relief to Ms.
                                                                        (continued...)
                                        - 101 -

[*101] issue. See supra part V.B.1.a. Moreover, Ms. Fausett never proved with

any credible evidence that she would suffer economic hardship if relief was not

granted. Additionally petitioners’ divorce decree states that the tax liabilities for

the years at issue are each party’s responsibility.34 Ms. Fausett received significant

benefits from the understatements of tax including an investment account in her

name, expensive jewelry, homes, and a luxury car. Ms. Fausett testified that she

was in poor mental health and attended counseling during the years at issue, but

Ms. Fausett never introduced any credible evidence to corroborate her claims.

Accordingly, the Court is not convinced that equities weigh in Ms. Fausett’s favor.

      Ms. Fausett contends that this Court should grant equitable relief even if

equities do not weigh in her favor because of Mr. Durland’s physical and

psychological abuse. Rev. Proc. 2013-34, sec. 3.01, 2013-43 I.R.B. at 398, gives

greater deference to the presence of abuse than previous guidelines and recognizes

that when abuse is present, it may affect the analysis and possibly negate the

presence of other unfavorable factors. We have already considered whether Ms.



      33
           (...continued)
Fausett.
      34
        Rev. Proc. 2013-34, sec. 4.03(2)(d), 2013-43 I.R.B. at 402, states that the
legal obligation factor is neutral when the tax liabilities are each party’s
responsibility.
                                        - 102 -

[*102] Fausett had proven abuse for purposes of the duress exception under

section 6015(c)(3)(C), and we have found that the alleged abuse was not

substantiated. See supra part V.B.1.b. The record simply does not support a

finding that Ms. Fausett was abused such that the abuse would negate the factors

that weigh against granting her section 6015(f) relief. Her evidence was

uncorroborated and unmoving and her actions during the years at issue were not

consistent with her testimony at trial. Accordingly, we conclude that Ms. Fausett

is not entitled to relief from joint and several liability under any subsection of

section 6015.

VI.   Conclusion

      We have considered the parties’ remaining arguments, and to the extent not

discussed above, conclude those arguments are irrelevant, moot, or without merit.

      To reflect the foregoing,


                                                      Decisions will be entered under

                                               Rule 155.
