                        T.C. Memo. 2008-73



                      UNITED STATES TAX COURT



                 FAITH J. LARSEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3438-05.                Filed March 26, 2008.



     A. Lavar Taylor, for petitioner.

     Alan H. Cooper, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     KROUPA, Judge:   Respondent determined deficiencies in

petitioner’s Federal income tax for 2000 and 2001 of $10,196 and

$64,746, respectively, and an $11,289.20 accuracy-related penalty
                               - 2 -

under section 6662(a)1 for 2001.   After concessions,2 we must

decide two issues.   The first issue is whether petitioner should

have included a $160,000 payment she received from her employer,

Power Conversion, Inc. (PCI), in her taxable income for 2001.     We

hold that petitioner should have included this payment in her

taxable income.3   The second issue is whether petitioner is

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

We hold that she is.

                          FINDINGS OF FACT

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

The stipulation of facts and the accompanying exhibits are

incorporated by this reference.    Petitioner resided in Washington

at the time her petition was filed.

Petitioner’s Employment

    The dispute here focuses upon whether the $160,000

petitioner received from PCI was a gift or taxable income.     PCI

employed approximately 60 people and manufactured electronic

components, magnetic coil, and transformers used by other



     1
      All section references are to the Internal Revenue Code in
effect for the year at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
     2
      The parties have resolved all other issues raised in the
deficiency notice and the petition.
     3
      We note that the parties stipulated that petitioner would
not be liable for self-employment tax if the Court determined
that the payment was income.
                                 - 3 -

electronics manufacturers.    Donald Hoiland4 (Mr. Hoiland) was the

owner of PCI during 2001.

     Petitioner met Mr. Hoiland in 1998.    Mr. Hoiland hired

petitioner as his executive assistant at PCI in July of 1999 at a

$60,000 per annum salary.    Petitioner reported directly to Mr.

Hoiland.    Mr. Hoiland was so impressed by petitioner’s

performance that he promoted her to vice president for operations

and increased her salary by $30,000 after she had worked there a

year.    As vice president, petitioner interacted with different

departments and provided Mr. Hoiland with suggestions regarding

PCI’s operations.    Mr. Hoiland retired and promoted petitioner to

president of PCI during December 2000.

     The interactions between petitioner and Mr. Hoiland were

typically professional.    Petitioner often spoke with Mr. Hoiland

by phone as she drove to work.    The two had lunch together

regularly before Mr. Hoiland retired.    Their relationship was

never intimate.

     Petitioner refused to sign employment contracts of more than

1 year because she was uncertain how long she would stay in

Seattle.    Mr. Hoiland offered petitioner a $20,000 raise, a

Jaguar automobile, and a condominium along with her promotion to

president and to induce her to stay in Seattle, but she turned

them down.


     4
        Mr. Hoiland died in May 2004 at age 73.
                                 - 4 -

The Payment

     In January 2001, approximately 1 month after petitioner was

promoted to the PCI presidency, she received a $160,000 payment

from PCI.    Petitioner opened a bank account for Bossart, an

entity she created for her commercial photography business, in

anticipation of her receipt of the $160,000 payment.      Dave Skone

(Mr. Skone), PCI’s accountant, helped petitioner with the Bossart

licensing and other paperwork.    Petitioner deposited the $160,000

into Bossart’s bank account, over which she had sole signatory

authority.

     Petitioner played a limited role in determining how she

would receive the $160,000 payment.      Her lawyer, Herman

Pettegrove (Mr. Pettegrove), contacted Mr. Skone.      Mr. Hoiland,

Mr. Skone, and Mr. Pettegrove arranged the payment to her.

Petitioner and Mr. Pettegrove allege that Mr. Skone characterized

the payment as a gift.    Neither Mr. Pettegrove nor petitioner

asked PCI for documentation that the payment was a gift.      PCI

issued petitioner a Form 1099-MISC, Miscellaneous Income,

reporting that it paid petitioner $160,000.

     Petitioner and Mr. Hoiland discussed bonuses at Christmas

time, a few weeks before PCI paid her the $160,000.      It was

petitioner’s belief that no other employee of PCI received a

bonus as large as $160,000.
                                 - 5 -

Decline in Petitioner’s Employment Relationship With PCI

     After retiring, Mr. Hoiland traveled extensively.     While

traveling, Mr. Hoiland called petitioner and threatened to fire

her if she did not sleep with him when he returned.    Petitioner

feared that Mr. Hoiland, a recovering alcoholic, was drinking

again, and she attributed his advances to a relapse.   Petitioner

called the personnel manager for PCI, who encouraged her to

prepare and file a summary of her conversation with Mr. Hoiland.

Mr. Hoiland apologized to petitioner when he returned from his

vacation and explained that he had, indeed, been drinking.

     Petitioner’s relationship with Mr. Hoiland and PCI

deteriorated rapidly after this exchange with Mr. Hoiland.     Mr.

Hoiland fired petitioner in September 2001.   Petitioner

informally asserted a claim against PCI for damages after PCI

terminated her employment.   Petitioner and PCI engaged in

mediation to settle the claim.    Petitioner, through her counsel,

alleged that the $160,000 payment was a bonus during mediation.

The mediation resulted in petitioner’s receiving a $100,000

settlement, of which $25,000 was allocated to back wages and

$75,000 to general damages, attorney’s fees, and costs.

Petitioner and PCI also waived all other claims against one

another as part of their mediation agreement.    The tax treatment

of the mediation settlement is not in dispute.
                                 - 6 -

Petitioner’s Federal Income Tax Return

     Petitioner timely filed a Federal income tax return for

2001, but she did not report the $160,000 payment.    Mr.

Pettegrove, who occasionally assisted petitioner in legal matters

and in the preparation of her tax returns, prepared her 2001

Federal income tax return.   Mr. Pettegrove is admitted to

practice before the Tax Court.

     Petitioner provided Mr. Pettegrove with the Form 1099-MISC

that she received from PCI and her other tax documents.     The Form

1099-MISC was in the total amount of $162,662.71, including the

$160,000 payment and $2,662.71 for the value of a computer given

to petitioner.   Petitioner acknowledged receipt of the computer,

but she and respondent agree that its value was $400.

     Mr. Pettegrove asked for no corroboration or substantiation

from petitioner or PCI to show that the $160,000 payment was a

gift.   Other than his conversations with PCI representatives and

petitioner, Mr. Pettegrove made no independent determination of

whether the $160,000 payment was a gift or a bonus.

     Mr. Skone, PCI’s accountant, helped petitioner prepare her

State tax return.   Petitioner reported the $160,000 payment in

the category of “Services & Other Activities” on the State tax

return.   Petitioner paid the Washington State tax due with the

return.   Petitioner wrote “taxes” in the memo line of this check
                               - 7 -

and made her check payable to the Washington State Department of

Revenue.

     PCI did not deduct the $160,000 payment on its Federal

income tax return for 2001.   PCI issued petitioner a Form 1099-

MISC for the $160,000 payment rather than a Form W-2, Wage and

Tax Statement.   PCI did not withhold tax on the $160,000 payment.

     Respondent mailed a deficiency notice to petitioner treating

the $160,000 payment as a bonus not a gift, as petitioner

asserts.   Petitioner filed a timely petition.

                              OPINION

     Petitioner did not report the $160,000 payment and contends

that it was a gift.   Respondent determined that the $160,000

payment was includable in petitioner’s 2001 income and that

petitioner is liable for an accuracy-related penalty.   Petitioner

contends that she is not liable for the accuracy-related penalty

because she acted with reasonable cause and in good faith in

reliance upon the advice of her lawyer and tax preparer.    We

address each issue in turn.

Inclusion of the $160,000 Payment in Petitioner’s Income5

     We first consider whether petitioner should have included

the $160,000 payment in income.   Petitioner failed to include

this amount in income on her return even though PCI issued her a


     5
      Petitioner conceded that she bears the burden of proof on
this issue. See Rule 142(a).
                                - 8 -

Form 1099-MISC showing the payment as income.     Respondent

contends that this payment was not a gift and petitioner should

have included it in income.    Petitioner claims this payment was a

gift from PCI’s owner, Mr. Hoiland, whom petitioner identified as

a “close acquaintance”.    Petitioner alleges that Mr. Hoiland’s

generosity stemmed from a romantic interest in her rather than

her performance for PCI.

     Gross income is income from whatever source derived unless

otherwise excluded.   Sec. 61(a).   Gross income includes

compensation from services.    Sec. 61(a)(1).   Gross income does

not include the value of property acquired by gift.     Sec. 102(a).

Generally, amounts transferred by or for an employer to, or for

the benefit of, an employee are includable in gross income.     Sec.

102(c)(1).   The legislative history underlying section 102(c)

indicates that a payment from an employer to an employee solely

for personal reasons can still be a gift if the payment is

completely unrelated to the employment relationship and reflects

no expectation of a business benefit.    Williams v. Commissioner,

T.C. Memo. 2003-97 (citing S. Rept. 99-313, at 49 (1986), 1986-3

C.B. (Vol. 3) 1, 49), affd. 120 Fed. Appx. 289 (10th Cir. 2005);

H. Rept. 99-426, at 106 n.5 (1985), 1986-3 C.B. (Vol. 2) 1, 106.

     A gift must proceed from a detached and disinterested

generosity, motivated by affection, respect, admiration, charity,

or the like for income tax purposes.    Duberstein v. Commissioner,
                                 - 9 -

363 U.S. 278, 285 (1960); Williams v. Commissioner, supra.       The

transferor’s intention is the most critical consideration for

this inquiry.    Duberstein v. Commissioner, supra at 285.    The

transferor’s own characterization of the payment, however, is not

determinative.   Id. at 285-286.   There must be an objective

inquiry as to whether the payment is really a gift.     Id.

Payments from an employer to an employee may still be income to

the employee even when the two share a close friendship.

Williams v. Commissioner, supra.     Also, payments between an

employer and an employee may be income when the employer provides

neither a Form W-2 nor a Form 1099-MISC and fails to withhold tax

on those payments.     Leschke v. Commissioner, T.C. Memo. 2001-18.

Nevertheless, a payment between an employer and an employee may

be a gift when the relationship between the employer and the

employee is personal and unrelated to work.     Caglia v.

Commissioner, T.C. Memo. 1989-143; Harrington v. Commissioner,

T.C. Memo. 1958-194.    The personal relationship may be indicated

by after-work social interactions or activities such as gambling

trips.   See Caglia v. Commissioner, supra; Harrington v.

Commissioner, supra.

     Mr. Hoiland rewarded petitioner’s performance as an officer

and employee of PCI with promotions and raises.    Mr. Hoiland

arranged to give petitioner the $160,000 payment after she turned

down a $20,000 raise and an offer of a home and an automobile.
                                - 10 -

The offers that preceded the $160,000 payment related to

petitioner’s role as an employee.     Those offers were either to

reward petitioner’s performance or to induce her to remain in the

Seattle area.

     Although petitioner and Mr. Hoiland worked together and were

close acquaintances, there was no romantic relationship between

them.     Petitioner did not travel with Mr. Hoiland, and their

social relationship did not transcend their work relationship.

Although Mr. Hoiland made one sexual advance, petitioner flatly

rejected it.     These facts suggest that the $160,000 payment was

motivated by business exigencies and not by detached or

disinterested generosity.     See Duberstein v. Commissioner, supra

at 285.

        Considering the record as a whole, we find that petitioner’s

uncorroborated testimony that Mr. Hoiland had an unrequited

romantic interest in her or that she was the only employee to

receive a substantial payment at the end of the year is

insufficient to support her contention that the payment was a

gift.     We are not required to accept the self-serving testimony

of interested parties without persuasive evidence or

corroboration.     See Tokarski v. Commissioner, 87 T.C. 74, 77

(1986); Yang v. Commissioner, T.C. Memo. 2000-263.

        PCI’s issuance of a Form 1099-MISC reporting the $160,000

payment indicates that PCI did not intend this payment to be a
                              - 11 -

gift.6   Petitioner reported the $160,000 payment as income under

the category “Services & Other Activities” on her State tax

return and paid the State tax on the additional income.   Mr.

Skone, the same accountant who purportedly advised Mr. Pettegrove

that the payment was a gift, prepared that return.

     Petitioner has failed to establish that the $160,000 payment

was a gift.7   Accordingly, we hold that respondent’s



     6
      While petitioner and respondent had approximately 2 years
from the time that the petition was filed to the start of trial,
both failed to produce relevant information about PCI’s tax
returns that would have been helpful to the Court. Although the
parties stipulated that PCI did not deduct the payment in 2001,
the parties did not present evidence regarding which accounting
method PCI used. A donor’s characterization of his action,
however, is not determinative of its tax treatment in the hands
of the recipient. Duberstein v. Commissioner, 363 U.S. 278, 286-
288 (1960).
     7
      Petitioner also inaptly argued that the duty of consistency
doctrine precludes respondent from asserting that the $160,000
payment is income to petitioner. Petitioner’s argument is
premised upon respondent’s stipulation that the income to
petitioner is either wage income or a gift and that it was not
self-employment income. Petitioner’s counsel suggests that this
is inconsistent with PCI’s treatment of the payment because PCI
did not pay employment taxes on that payment. The duty of
consistency doctrine estops a taxpayer from adopting a position
in an open year that is inconsistent with a position that the
taxpayer took during a different year after the period of
limitations has expired for the earlier year. Estate of Ashman
v. Commissioner, 231 F.3d 541, 543 (9th Cir. 2000), affg. T.C.
Memo. 1998-145. Estoppel and the duty of consistency are to be
applied against the Commissioner with the utmost caution and
restraint, if at all, and only in compelling situations where the
result otherwise would be unwarrantable or unconscionable.
Estate of Emerson v. Commissioner, 67 T.C. 612, 617 (1977).
Petitioner’s argument must fail as there is no inconsistent
treatment or position asserted or taken by respondent.
                               - 12 -

determination that the $160,000 payment to petitioner was

includable in income was not in error.

Whether Petitioner Is Liable for the Accuracy-Related Penalty

     We next consider whether petitioner is liable for the

accuracy-related penalty under section 6662(a).   Respondent

determined that petitioner was liable for the accuracy-related

penalty for 2001 for $160,400 of unreported income, including the

$160,000 payment and $400 for a computer PCI provided her.

Petitioner argues that even if she is liable for income tax on

the $160,000 payment, she is not liable for the penalty because

she acted in good faith and with reasonable cause.

     Respondent bears the burden of production under section

7491(c) and must come forward with sufficient evidence that it

was appropriate to impose the penalty.   See Higbee v.

Commissioner, 116 T.C. 438, 446-447 (2001).

     Respondent determined that petitioner is liable for the

accuracy-related penalty for negligence or disregard of rules or

regulations and/or a substantial understatement of income tax

under section 6662 for 2001.

     A taxpayer may be liable for a 20-percent penalty on any

underpayment of tax attributable to negligence or disregard of

rules or regulations or a substantial understatement of tax.

Sec. 6662(a) and (b).   “Negligence” is any failure to make a

reasonable attempt to comply with the provisions of the Internal
                                - 13 -

Revenue Code, and “disregard” means any careless, reckless or

intentional disregard.   Sec. 6662(c).    An underpayment is not

subject to the penalty for negligence or for disregard of rules

and regulations to the extent that the taxpayer shows that the

underpayment is due to reasonable cause or good faith.

Neonatology Associates, P.A. v. Commissioner, 115 T.C. 43, 98

(2000), affd. 299 F.3d 221 (3d Cir. 2002); see also secs. 1.6662-

3(a), 1.6664-4(a), Income Tax Regs.      A substantial understatement

of tax is an understatement that exceeds the greater of 10

percent of the tax required to be shown on the tax return or

$5,000.   Sec. 6662(d)(1)(A).

     Without including the $160,400 in income, petitioner

reported a tax due of $829, whereas respondent determined a tax

due of $65,575 and a Federal income tax deficiency of $64,746.

Petitioner understated her income tax for 2001 in an amount

greater than $5,000 or 10 percent of the tax required to be shown

on the return.   Respondent has, therefore, met his burden of

production with respect to petitioner’s substantial

understatement of income tax.

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

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

was reasonable cause for the taxpayer’s position and that the

taxpayer acted in good faith with respect to that portion.     Sec.

6664(c)(1); sec. 1.6664-4(b), Income Tax Regs.     Accordingly, we
                                - 14 -

next consider whether the taxpayer acted with reasonable cause

and in good faith.    Our consideration of this aspect is based on

pertinent facts and circumstances, including the taxpayer’s

efforts to assess his or her proper tax liability, the knowledge

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

a professional.    Sec. 1.6664-4(b)(1), Income Tax Regs.   When a

taxpayer relies on the professional judgment of a competent tax

adviser and provides him or her with all relevant information,

the taxpayer’s behavior is consistent with ordinary business care

and prudence.     United States v. Boyle, 469 U.S. 241, 250-251

(1985).

     To establish reasonable cause through reliance on the advice

of a tax adviser, the taxpayer must meet a three-prong test, laid

out by Neonatology Associates, P.A. v. Commissioner, supra at 99:

(1) The adviser was a competent professional who had sufficient

expertise to justify reliance, (2) the taxpayer provided

necessary and accurate information to the adviser, and (3) the

taxpayer relied in good faith on the adviser’s judgment.

     Petitioner bears the burden of proof with respect to the

defenses to the accuracy-related penalty.    See Higbee v.

Commissioner, supra at 446-447.    Petitioner has not established

that she had reasonable cause and acted in good faith.

     Petitioner claims that she relied on Mr. Hoiland and Mr.

Skone’s characterization of the payment.    Petitioner presents no
                              - 15 -

credible evidence corroborating her testimony that this was

indeed their characterization of the payment.   She also presents

no credible evidence that Mr. Hoiland or Mr. Skone was competent

to advise her on the taxable nature of the payment she received.

Petitioner’s claims that Mr. Skone told her the payment was a

gift are even harder to believe because Mr. Skone prepared her

State tax return reporting the payment as income.

     Petitioner also claims to have relied upon the advice of Mr.

Pettegrove.   This is dubious as he offered none.   He relied on

her characterization of the payment as a gift and made no further

inquiry.   Particularly troubling is the fact that he completely

disregarded the Form 1099-MISC from PCI that petitioner provided

to him.

     After considering all of the facts and circumstances, we

find that petitioner failed to establish that she had reasonable

cause and acted in good faith with respect to the underpayment.

Accordingly, we sustain respondent’s determination that

petitioner is liable for the accuracy-related penalty.

     We have considered all the remaining arguments that the

parties made and, to the extent not addressed, we find them to be

irrelevant, moot, or meritless.

     To reflect the foregoing and the concessions of the parties,


                                         Decision will be entered

                                    under Rule 155.
