                                                                              F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 16 2001
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                  Clerk

 JOHN L. HARMER; CAROLYN
 HARMER,

          Petitioners-Appellants,
 v.                                                         No. 00-9002
 COMMISSIONER OF INTERNAL                                (T.C. No. 7673-98)
 REVENUE,                                                 (U.S. Tax Court)

          Respondent-Appellee.



                             ORDER AND JUDGMENT             *




Before KELLY, BRISCOE,           Circuit Judges, and   MURGUIA , District Judge   **
                                                                                       .


      Taxpayers John and Carolyn Harmer appeal a decision of the United States

Tax Court denying their request for an award of litigation costs pursuant to 26

U.S.C. § 7430. We exercise jurisdiction pursuant to 26 U.S.C. § 7482 and affirm.

      Section 7430 of the Internal Revenue Code provides in pertinent part that

“[i]n any . . . court proceeding which is brought by or against the United States in

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         The Honorable Carlos Murguia, United States District Judge, District of
Kansas, sitting by designation.
connection with the determination, collection, or refund of any tax, interest, or

penalty under [the Internal Revenue Code], the prevailing party may be awarded

. . . reasonable litigation costs incurred in connection with such court

proceeding.” 26 U.S.C. § 7430(a)(2). We review the Tax Court’s denial of the

Harmers’ request for litigation costs for an abuse of discretion. Barford v.

Comm’r, 194 F.3d 782, 786 (7th Cir. 1999); see also Pate v. United States, 982

F.2d 457, 459 (10th Cir. 1993) (applying same standard of review to district court

decision applying § 7430).

      Generally speaking, a taxpayer will qualify as a “prevailing party” for

purposes of § 7430 if two requirements are met. First, the taxpayer must have

“substantially prevailed with respect to [either] the amount in controversy” or

“the most significant issue or set of issues presented.” 26 U.S.C.

§ 7430(c)(4)(A). Second, the Commissioner’s position must not have been

“substantially justified.” 26 U.S.C. § 7430(c)(4)(B)). “The term ‘substantially

justified’ in this context means ‘justified to a degree that could satisfy a

reasonable person’ or having a ‘reasonable basis both in law and fact.’” Pate, 982

F.2d at 459 (quoting Pierce v. Underwood, 487 U.S. 552, 563-65 (1988)). The

Commissioner bears the burden of proving that his position was substantially

justified. 26 U.S.C. § 7430(c)(4)(B)(i).

      The Tax Court effectively concluded that the Harmers did not qualify as the


                                           2
“prevailing party” in the action. Although it was uncontroverted that the Harmers

substantially prevailed in the Tax Court with respect to the most significant issue

presented, i.e., whether certain bank deposits were taxable income, the Tax Court

effectively concluded that the Commissioner’s position was substantially justified

at the time the statutory notice of deficiency was filed. More specifically, the Tax

Court agreed with the Commissioner that the Harmers failed to provide the IRS,

prior to the filing of the statutory notice of deficiency, with sufficient

documentation to support their claims that the deposits were loan proceeds and

loan repayments.

      In attacking the Tax Court’s conclusion, the Harmers do not refute (or even

discuss) the fact that they were tardy in providing the IRS with documentation.

Instead, the Harmers argue that the Commissioner should have accepted the oral

and written representations of Mr. Harmer, the Harmers’ accountant, the Harmers’

lawyer, and Senator Robert Bennett’s (the alleged source of the majority of the

loan proceeds) lawyer, instead of requiring the Harmers or these third persons to

produce actual documentation of the loans at issue. The Harmers also assert that

the government had access to the bankruptcy petition the Harmers filed in 1996 1


      1
         On April 17, 1996, the Harmers filed for Chapter 7 bankruptcy
protection. According to the Harmers, their bankruptcy petition “provided the
names and mailing addresses of the[ir] creditors and the amounts of the personal
loans.” Record Vol. I, Doc. 22 at 7. Further, the Harmers allege “[t]he Internal
                                                                     (continued...)

                                           3
and could have used the bankruptcy petition to verify the existence of the alleged

loans. Further, the Harmers argue that the IRS civil auditors should have

contacted the various witnesses who were ultimately contacted by the

government’s trial counsel before deciding to concede some of the issues and

forego trial. Lastly, the Harmers contend that neither Senator Bennett nor his

agents could produce the documents requested by the Commissioner (e.g.,

promissory notes, loan agreements, loan documents, or an accounting) because

“[m]any of these demanded records did not exist in 1994, 1997, or even now in

1999.” Record Vol. I, Doc. 22 at 9.

      The Harmers’ arguments fly in the face of several established principles.

First, deposits in a taxpayer’s bank account are considered prima facie evidence

of income. Welch v. Comm’r, 204 F.3d 1228, 1230 (9th Cir. 2000); see also Page

v. Comm’r, 58 F.3d 1342, 1347 (8th Cir. 1995) (concluding that the “bank-

deposits-plus-cash-expenditures method is a rational way [for the IRS] to

reconstruct income”). Second, and relatedly, a taxpayer bears the burden of

showing that deposits to his bank account are not taxable income but instead were

derived from a nontaxable source. Welch, 204 F.3d at 1230; Dodge v. Comm’r,

981 F.2d 350, 354 (8th Cir. 1992). Third, in assessing whether a particular



      (...continued)
      1

Revenue Service was a listed creditor of the bankrupt[cy] estate and the
government significantly participated in the bankruptcy proceedings.”   Id.

                                         4
transaction is a “true loan,” a relevant factor is “whether the promise to repay is

evidenced by a note or other instrument.” Welch, 204 F.3d at 1230; see generally

Burke v. Comm’r, 929 F.2d 110, 114 (2d Cir. 1991) (rejecting taxpayer’s claim

that deposit to account was a nontaxable loan repayment because, in part,

taxpayer did not offer any documentation of the loan). In light of these

principles, it was the Harmers, rather than the IRS, who should have been more

active in talking to various third parties and in producing evidence to document

the loans. Further, it is apparent from the record that the Harmers should have

informed the IRS promptly that some of the loans at issue were undocumented

(and thus, the Harmers should also have obtained and produced third-party

affidavits confirming the existence of the alleged loans).

      We conclude the Tax Court did not abuse its discretion in determining that

the Commissioner was substantially justified, at the time the statutory notice of

deficiency was filed, in treating the deposits to the Harmers’ bank account as

taxable income. See In re Yochum, 89 F.3d 661, 671-72 (9th Cir. 1996)

(concluding IRS position was substantially justified because taxpayers failed to

adequately substantiate their claims and, upon doing so, the IRS conceded various

issues). Further, we agree with the Tax Court that the Harmers do not qualify as a




                                          5
“prevailing party” for purposes of § 7430. 2

      The judgment of the Tax Court denying the Harmers’ request for an award

of litigation costs pursuant to 26 U.S.C. § 7430 is AFFIRMED.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




      2
        Because the Harmers’ remaining arguments hinge upon the erroneous
assumption that they were the prevailing party for purposes of § 7430, we find it
unnecessary to address those arguments.

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