                  T.C. Summary Opinion 2008-10



                     UNITED STATES TAX COURT



     TIMOTHY A. RUNELS AND EMMA VALDIVIESO RUNELS, ET AL.,1
   Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 21450-05S, 6848-06S,   Filed January 29, 2008.
                  9395-06S.



     Timothy A. Runels and Emma Valdivieso Runels, pro sese.

     Chong S. Hong, for respondent.


     DEAN, Special Trial Judge:   These consolidated cases were

heard pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect when the petitions were filed.   Pursuant

to section 7463(b), the decisions to be entered are not

reviewable by any other court, and this opinion shall not be


     1
      Cases of the following petitioners are consolidated
herewith: Timothy A. Runels and Emma Valdivieso, docket Nos.
6848-06 and 9395-06S.
                               - 2 -

treated as precedent for any other case.   Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for the years in issue, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

     Respondent determined deficiencies of $6,391, $4,838 and

$3,479 in petitioners’ 2002, 2003, and 2004 Federal income tax,

respectively.   Respondent also determined that petitioners are

liable for accuracy-related penalties under section 6662(a) of

$1,278.20 for 2002, $967.60 for 2003, and $18 for 2004.

     Respondent concedes that the adjustment to petitioners’

gross receipts for 2002 reported on Schedule C, Profit or Loss

From Business, should be $11,169.   Respondent also concedes that

for 2003, the Schedule C depreciation adjustment should be

$8,504; and for 2004 the Schedule C adjustments should be $5,843

for “other expenses” and $995 for depreciation, the self-

employment tax is $303, and the self-employment tax deduction is

$152.

     Petitioners concede as correct the adjustment for rent/lease

of business property for 2002 and the adjustments to Schedule F,

Profit or Loss From Farming, for 2002 and 2003.   Petitioners

presented no evidence or argument with respect to respondent’s

adjustments to itemized deductions for 2002, 2003, and 2004.    The

Court therefore deems the latter adjustments to have been

conceded by petitioners.   See Rule 149(b); Rothstein v.
                               - 3 -

Commissioner, 90 T.C. 488, 497 (1988); Cerone v. Commissioner, 87

T.C. 1, 2 n.1 (1986).

     The issues remaining for decision are whether petitioners:

(1) Had unreported income from self-employment in 2002 and 2003;2

(2) had unreported income from dividends and capital gains in

2004; (3) are entitled to business expense deductions greater

than those allowed by respondent for 2002, 2003, and 2004; and

(4) are liable for the accuracy-related penalty under section

6662(a) for 2002, 2003, and 2004.

                            Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.    At the time the petitions

were filed, petitioners resided in Oceano, California.

     Timothy Runels (Mr. Runels), during the years at issue,

worked 5 days a week for Luker Framing, a subsidiary of J&S

Lumber.   He was also self-employed in the business of repairing

and selling wooden pallets, primarily on Saturdays and Sundays.

In addition, Mr. Runels picked up pallets in the mornings and

evenings during the week.

     Emma Valdivieso Runels (Mrs. Runels) was in the bookkeeping

business, working for a certified public accountant (C.P.A.),

     2
      The resolution of this issue and the business expense
issues will also resolve the issue of petitioners’ liability for
and deductability of self-employment taxes.
                               - 4 -

preparing accounts payable for Lenders Choice Network.    In 2002,

she had 2 or 3 years experience.    Mrs. Runels is aware that

businesses and individuals keep books and records and receipts.

     Petitioners’ Federal income tax returns for 2002, 2003, and

2004 were chosen for examination.    Tax Compliance Officer (TCO)

Carolyn Price sent the initial contact letter to petitioners.

The TCO was subsequently contacted by petitioners’ return

preparer, who held a power of attorney (POA) for 2002.

Eventually, the return preparer attended a meeting with the TCO

but provided “a very minimal amount of records.”    Ultimately, the

TCO obtained most of petitioners’ bank statements and prepared a

bank deposits analysis to verify petitioners’ income.    The

results of the bank deposits analysis caused the TCO to make an

adjustment to petitioners’ gross receipts for 2002.    The TCO had

contact only with petitioners’ return preparer for 2002, and not

with petitioners.

     Petitioners failed to respond to requests from the TCO for

information for 2003 during the initial examination.

Petitioners’ return preparer appeared before the TCO, without a

POA, to provide some documentation for 2004.    After the TCO

prepared the audit report for 2004, petitioners requested and

received audit reconsideration for the year.    Petitioners

disagreed with the amounts allowed for depreciation and vehicle

expenses.   The TCO prepared a “corrected report”, lowering the
                                - 5 -

adjustments for Schedule C “Other Expenses”, Schedule C

depreciation and section 179 expenses, and self-employment tax.

     Although no dividends or capital gains or losses were

reported on petitioners’ joint return for 2004, the American

Funds of the Investment Company of America reported in a

statement issued to petitioners a capital gain of $246.67 and

total dividends of $358.90 for 2004.

                            Discussion

     Generally, the Commissioner’s determinations in a notice of

deficiency are presumed correct, and the taxpayer has the burden

of proving that those determinations are erroneous.     See Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).     In some

cases the burden of proof with respect to relevant factual issues

may shift to the Commissioner under section 7491(a).     Petitioners

did not present evidence or argument that they satisfied the

requirements of section 7491(a).   Therefore, the burden of proof

does not shift to respondent.

Unreported Schedule C Gross Receipts

     Section 6001 requires a taxpayer to maintain sufficient

records to allow for the determination of the taxpayer’s correct

tax liability.   Petzoldt v. Commissioner, 92 T.C. 661, 686

(1989).   If a taxpayer fails to maintain or does not produce

adequate books and records, the Commissioner is authorized to

reconstruct the taxpayer’s income.      See sec. 446; Petzoldt v.
                               - 6 -

Commissioner, supra at 686-687.   Indirect methods may be used for

this purpose.   Holland v. United States, 348 U.S. 121 (1954).

The Commissioner’s reconstruction need only be reasonable in

light of all the surrounding facts and circumstances.      Petzoldt

v. Commissioner, supra at 687; Giddio v. Commissioner, 54 T.C.

1530, 1533 (1970).

     The evidence shows that petitioners failed to provide

adequate records to account for the gross receipts from their

pallet sales.   Therefore, it was reasonable for the TCO to use

indirect methods, i.e., the bank deposits method for 2002 and a

“cash T” analysis for 2003, to reconstruct petitioners’ gross

receipts.

     2002

     Bank deposits constitute prima facie evidence of income.

Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).     The bank

deposits method of determining income assumes that all the money

deposited into a taxpayer’s bank accounts during a specific

period constitutes income taxable to the taxpayer.     Price v.

United States, 335 F.2d 671, 677 (5th Cir. 1964).    The

Commissioner, however, must take into account any nontaxable

source or deductible expense of which he has knowledge.        Id.

The method employed is not invalidated even if the calculations

of the Commissioner are not completely correct.     DiLeo v.
                               - 7 -

Commissioner, 96 T.C. 858, 868 (1991), affd. 959 F.2d 16 (2d Cir.

1992).

     Petitioners kept no books of account for their Schedule C

pallet business.   Records for the pallet business consisted of

petitioners’ checkbook, invoices for sales of pallets dated for

the months of April through November 2002, and purchase orders

for pallets dated for the months of February, March, May, July,

and October through December of 2002.    Petitioners reported gross

receipts of $3,638 on Schedule C.   Petitioners’ invoices for

sales of pallets for 2002 total $3,400.    Respondent was unable to

determine from petitioners’ records whether they deposited their

gross receipts into their bank accounts.    He therefore treated

the amounts shown on the invoices for sales of pallets as cash

that was not deposited to their bank accounts.    Mrs. Runels

testified, however, that she commingled payments from the pallet

business with their personal funds.    But when Mrs. Runels was

asked at trial to identify in her bank records for 2002 deposits

of any of the amounts shown on the invoices for sales of pallets,

she was unable to do so.

     Petitioners argue that respondent’s bank deposits analysis

was incorrect because it double counted bank deposits by

including bank transfers.   Mrs. Runels, however, testified that

she conferred with the TCO and with counsel for respondent to

demonstrate which items were transfers.    Respondent took into
                                 - 8 -

consideration the transfers pointed out by petitioners and

reduced the adjustment for gross receipts.

         Petitioners argue that the gross receipts adjustment for

2002, even as adjusted for transfers, is incorrect because it

does not take into consideration deposits of loan repayments from

Mrs. Runels’s friend, Leta Edar (Ms. Edar), and gifts from her

father, Juan L. Valdivieso.     Mrs. Runels testified that she also

deposited into the bank accounts expense reimbursements from her

job of amounts she expended at Costco.     She provided no evidence,

however, other than her own vague testimony, that reimbursements

by her employer may have been deposited.

     Petitioners offered a typewritten statement dated September

1, 2005, from Mrs. Runels’s father3 to the effect that he had

given petitioners “several thousands of dollars in monetary gifts

in the year 2002.”     Petitioners offered no details as to either

the amounts or timing of the alleged gifts or when they were

deposited, if at all.

     According to Mrs. Runels’s testimony, she lent Ms. Edar

$6,000 for which she received no promissory note, maintained no

written record of repayment, and received repayments only in cash

for which she never provided a receipt.     She testified that Ms.

Edar “still owes me $400”; she added that “This is just a friend

helping a friend.”

     3
      Juan Luis Valdivieso passed away on December 5, 2006.
                               - 9 -

     As evidence of the repayments and deposits in 2002,

petitioners provided copies of 10 ATM receipts of deposit dated

from December 28, 2001,4 through December 27, 2002, totaling

$3,189.69.   With the exception of the deposit in 2001, and one

deposit for $500 in March of 2002, the ATM receipts for deposit

were for less than $500.   Only part of the amount of each deposit

represents repayment of the loan, Mrs. Runels testified.   But she

also testified that she did not keep a record of transactions

showing either the dates and amounts of repayments or a current

balance.   When asked how she could use the deposit slips to

determine Ms. Edar’s repayments Mrs. Runels replied:   “We’ve just

every time she paid me money I just subtracted, okay, this is how

much you owe me from here on out.”.

     Mrs. Runels’s friend, Ms. Edar, appeared as a witness and

testified regarding the alleged loan, but her testimony was not

consistent with that of Mrs. Runels.   Ms. Edar testified that the

loan was not made in a lump sum but was in “small amounts”, maybe

$2,000 each time, when she needed a truck payment or a rent

payment.   She testified that she made repayments of “500 there,

1,000 here, 1,800.”   Ms. Edar gave confused testimony about what

the outstanding balance of her loan was during the years at

issue.   She first testified that at the end of 2003 she still


     4
      Because this $900 deposit was in the previous year it would
not affect the bank deposits analysis for 2002.
                              - 10 -

owed $4,000 or $5,000.   She then testified that she owed $400 at

the end of 2003, changed that to testify that she currently owes

$400, and then claimed that she paid back $4,000 in 2003 and owed

$2,000 at the end of 2003.

     Even if the Court were to accept at face value the testimony

of Mrs. Runels and Ms. Edar about the existence of the loan, the

record provides no basis on which to attribute any particular

amount to 2002 or 2003 as having been repaid or deposited into

petitioners’ accounts.   Respondent’s determination of unreported

gross receipts for 2002, as revised, is sustained.

     2003

     The cash T analysis is performed by setting up a table with

income items (debits) on the left side of the “T” account and

expenses (credits) on the right side of the “T” account.    See,

e.g., Owens v. Commissioner, T.C. Memo. 2001-143.    Its purpose is

“to measure a taxpayer’s reported income against personal

expenditures to determine whether more was spent than was

reported.”   Rifkin v. Commissioner, T.C. Memo. 1998-180, affd.

without published opinion 225 F.3d 663 (9th Cir. 2000).    The

implication is that the excess of expenditures over reported

income represents unreported income.   Id.

     Petitioners failed to respond to requests from the TCO for

information for 2003 during the examination, and respondent,

using the cash T analysis, determined that petitioners had
                              - 11 -

unreported gross receipts of $6,670.   At trial, petitioners

argued that the analysis was faulty because it failed to take

into account an insurance settlement of $6,635.90 received in

2003.   During her testimony, Mrs. Runels introduced into evidence

a document from Interinsurance Exchange of the Automobile Club

referencing a February 2, 2003, payment to petitioners of

$6,635.90 for a claim for damage to their dwelling.   Mrs. Runels

explained that the payment was for a claim for “our dog flooding

our house.”   Petitioners argue that the check “pretty much covers

that extra $7,000 they say I made.”    Petitioners are correct; the

insurance payment was not included on the “income” side of

respondent’s cash T analysis because they did not inform the TCO

about the transaction during the examination.

     The Court infers, without evidence to the contrary, that

petitioners expended in 2003 the insurance settlement of

$6,635.90 to repair the flood damage to their home.   Since the

expenditures for the flood damage repairs were not included on

the expense side of the analysis, the exclusion of the insurance

settlement payment from the “income” side of the item failed to

affect the analysis because it would be balanced by the

additional expenses for repairs.

     Petitioners also argued that they had a $38,000 line of

credit available as well as $5,000 in a savings account as of

January 2003.   But petitioners offered no evidence during the
                              - 12 -

examination or at trial to show whether the $5,000 was expended

during the year for expenses already taken into consideration or

how the $38,000 line of credit was used.

     Respondent’s determination of unreported gross receipts for

2003 is sustained.

Dividends and Capital Gains in 2004

     Petitioners dispute the dividends and capital gains

determined for 2004.   The only evidence presented on the issue,

however, was the American Funds of the Investment Company of

America statement to them reporting a capital gain of $246.67 and

total dividends of $358.90 for 2004.   Respondent’s determinations

on these issues are sustained.

Schedule C Expenses

     Section 162 generally allows a deduction for ordinary and

necessary expenses paid or incurred during the taxable year in

carrying on a trade or business.   Generally, no deduction is

allowed for personal, living, or family expenses.   See sec. 262.

The taxpayer must show that any claimed business expenses were

incurred primarily for business rather than social reasons.     See

Rule 142(a); Walliser v. Commissioner, 72 T.C. 433, 437 (1979).

To show that the expense was not personal, the taxpayer must show

that the expense was incurred primarily to benefit his business,

and there must be a proximate relationship between the claimed

expense and the business.   See Walliser v. Commissioner, supra.
                              - 13 -

     Where a taxpayer has established that he has incurred a

trade or business expense, failure to prove the exact amount of

the otherwise deductible item may not be fatal.   Generally,

unless prevented by section 274, the Court may estimate the

amount of an expense and allow the deduction to that extent.    See

Finley v. Commissioner, 255 F.2d 128, 133 (10th Cir. 1958), affg.

27 T.C. 413 (1956); Cohan v. Commissioner, 39 F.2d 540, 543-544

(2d Cir. 1930).   In order for the Court to estimate the amount of

an expense, however, the Court must have some basis upon which an

estimate may be made.   See Vanicek v. Commissioner, 85 T.C. 731,

742-743 (1985).   Without such a basis, an allowance would amount

to unguided largesse.   See Williams v. United States, 245 F.2d

559, 560 (5th Cir. 1957).

     Certain business deductions described in section 274 are

subject to strict rules of substantiation that supersede the

doctrine in Cohan v. Commissioner, supra.   See sec. 1.274-5T(a),

Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov. 6, 1985).

Section 274(d) provides that no deduction shall be allowed with

respect to:   (a) Any traveling expense, including meals and

lodging away from home; (b) any item related to an activity of a

type considered to be entertainment, amusement, or recreation; or

(c) the use of any “listed property”, as defined in section

280F(d)(4), unless the taxpayer substantiates certain elements.
                             - 14 -

“Listed property” includes any passenger automobile,5 sec.

280F(d)(4)(A)(i), and any cellular telephone, sec.

280F(d)(4)(A)(v).

     To meet the requirements of section 274(d), the taxpayer

must present adequate records or sufficient evidence to

corroborate his own testimony to establish:   (1) The amount,

based on the appropriate measure, of the expenditure or use

(mileage may be used in the case of automobiles); (2) the time

and place of the expenditure or use; (3) the business purpose of

the expenditure or use; and (4) the business relationship to the

taxpayer of each expenditure or use, in the case of an

entertainment or gift expense.

     To meet the adequate records requirements of section 274, a

taxpayer must maintain some form of records and documentary

evidence that in combination are sufficient to establish each

element of an expenditure or use.   See sec. 1.274-5T(c)(2),

Temporary Income Tax Regs., 50 Fed. Reg. 46017 (Nov. 6, 1985).     A

contemporaneous log is not required, but corroborative evidence

to support a taxpayer’s reconstruction of the elements of

expenditure or use must have “a high degree of probative value to

elevate such statement” to the level of credibility of a



     5
      With exceptions not pertinent here, a passenger automobile
includes a truck rated at 6,000 pounds gross vehicle weight or
less. Sec. 280F(d)(5)(A).
                                - 15 -

contemporaneous record.    Sec. 1.274-5T(c)(1), Temporary Income

Tax Regs., supra.

     Automobile Expenses

     Petitioners failed to provide any records relating to their

automobile expenses for the pallet business either during the

examination or during the reconsideration of the original

examination for 2004.     The TCO testified that during the

reconsideration of the original examination, Mr. Runels advised

her that he did not have a vehicle log.     He was asked to provide

something that would show odometer readings for the years under

consideration.   Petitioners provided no additional documentation

to substantiate business mileage.     The TCO testified that “we

retraced what he was doing” and she allowed an amount that she

estimated was the appropriate business use.     The TCO testified

that she took the mileage that Mr. Runels traveled for his job,

adjusted for nondeductible commuting mileage, and added an amount

for pickup and dropoff of his pallets.     The TCO estimated his

business mileage and based depreciation on her estimate of

business use.

     In the “Corrected Report”, issued as a result of the

reconsideration of petitioners’ 2004 return, the TCO determined

the business use of petitioners’ truck to be 29 percent.      She

reduced the original adjustment to reflect that use.     Petitioners

acquired the truck in July of 2003, when the truck was placed in
                               - 16 -

service.   As part of the reconsideration of 2004, the TCO

computed an “allowable amount” for 2003 but made no change to the

original adjustment to the 2003 return denying any depreciation

deduction.   Respondent has conceded that petitioners are entitled

to a depreciation deduction of $2,835 for 2003.

     Two months before trial, Mrs. Runels sent to respondent’s

counsel electronic facsimiles of documents represented to be

worksheets recording where Mr. Runels had to be for his job and

the pallets he picked up and “mileage books we have been keeping

since 2005.”    The documentation was ostensibly for November and

December of 2003, for January of 2004, and for 2007.    About a

month before trial, petitioners sent to respondent’s counsel

copies of work logs for 2003 and 2004.    At trial, Mr. Runels

testified that the belatedly submitted records of business

mileage were reconstructions rather than contemporaneous records.

He described them as “rough estimates of what we did.”

     The Court finds that petitioners failed to provide

corroborative evidence to support their reconstruction of the

elements of use.   See sec. 1.274-5T(c)(1), Temporary Income Tax

Regs., supra.    Petitioners are entitled to deduct depreciation

for 2003, as conceded by respondent, but have otherwise failed to

show that they are entitled to deduct automobile expenses greater

than those allowed by respondent.
                              - 17 -

     Other Expenses

     The only other Schedule C expenses for which petitioners

offered evidence were statements billing for Internet service

from March 4, 2002, through January 3, 2003, and cellular

telephone service for March through December of 2002.

Petitioners, however, offered no evidence to show that the

expenses were not personal, that they were incurred primarily to

benefit their business, and that there was a proximate

relationship between each claimed expense and the business.    See

sec. 262; Walliser v. Commissioner, supra.

Accuracy-Related Penalty

     Section 7491(c) imposes on the Commissioner the burden of

production in any court proceeding with respect to the liability

of any individual for penalties and additions to tax.    Higbee v.

Commissioner, 116 T.C. 438, 446 (2001); Trowbridge v.

Commissioner, T.C. Memo. 2003-164, affd. 378 F.3d 432 (5th Cir.

2004).   In order to meet the burden of production under section

7491(c), the Commissioner need only make a prima facie case that

imposition of the penalty or addition to tax is appropriate.

Higbee v. Commissioner, supra.

     Respondent determined that petitioners are liable for

accuracy-related penalties under section 6662(a).   Section

6662(a) imposes a 20-percent penalty on the portion of an

underpayment attributable to any one of various factors,
                              - 18 -

including negligence or disregard of rules or regulations and a

substantial understatement of income tax.    See sec. 6662(b)(1)

and (2).   “Negligence” includes any failure to make a reasonable

attempt to comply with the provisions of the Internal Revenue

Code, including any failure to keep adequate books and records or

to substantiate items properly.    See sec. 6662(c); sec.

1.6662-3(b)(1), Income Tax Regs.    A “substantial understatement”

includes an understatement of tax that exceeds the greater of 10

percent of the tax required to be shown on the return or $5,000.

See sec. 6662(d)(1)(A); sec. 1.6662-4(b), Income Tax Regs.

     Section 6664(c)(1) provides that the penalty under section

6662(a) shall not apply to any portion of an underpayment if it

is shown that there was reasonable cause for the taxpayer’s

position and that the taxpayer acted in good faith with respect

to that portion.   The determination of whether a taxpayer acted

with reasonable cause and in good faith is made on a case-by-case

basis, taking into account all the pertinent facts and

circumstances.   Sec. 1.6664-4(b)(1), Income Tax Regs.   The most

important factor is the extent of the taxpayer’s effort to assess

his proper tax liability for the year.    Id.

     Petitioners had a substantial understatement of tax for 2002

since the understatement amount exceeded the greater of 10

percent of the tax required to be shown on the return or $5,000.

Petitioners claimed deductions for 2003 farm expenses to which
                                - 19 -

they were not entitled and had underreported gross receipts from

their pallet business.   For 2004, petitioners failed to report

capital gains and dividends, the only adjustments to which the

penalty was applied.   The Court concludes that respondent has

produced sufficient evidence to show that the accuracy-related

penalties under section 6662 are appropriate.

     Petitioners have not shown that their underreporting of

income and overreporting of deductions were actions taken with

reasonable cause and in good faith.      Respondent’s determinations

of accuracy-related penalties under section 6662(a) for 2002,

2003, and 2004 are sustained.

     To reflect the foregoing,

                                            Decisions will be entered

                                      under Rule 155.
