                  T.C. Memo. 2011-261



                UNITED STATES TAX COURT



           PERRY W. BROWNING, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 3531-08.             Filed November 3, 2011.



     In December 1995, P, the principal shareholder,
president, and CEO of SBE, a Vermont-based
manufacturing corporation, on the advice of its
promoters and his own tax adviser, entered into an
offshore employee leasing (OEL) arrangement whereby he
agreed to lease his services to T, an Irish corporation
that subleased his services to L, a U.S. employee
leasing company that subleased his services back to
SBE. During the audit years (1995-2000), in
consideration of P’s services, SBE paid L annual
amounts equivalent to what SBE had paid P as wages in
prior years. L paid a portion of those amounts to P,
who reported those payments as wages. L remitted the
balance, after deducting certain amounts, including the
payroll taxes owed with respect to its payments to P,
to T for deposit in a deferred compensation or
retirement account for P’s benefit (the retirement
account). The retirement account was opened in the
name of a Bahamas subsidiary of T. P and his wife
received and used, during 1998-2000, credit cards
                         - 2 -

issued by a Bahamas bank and backed by an account at
the same bank in the name of the T subsidiary. Money
from P’s retirement account funded the bank account
used to pay the credit card charges, many of which P
recognized were personal. During all of the audit
years, P continued to represent himself to third
parties as an employee and president of SBE, and he
acted on behalf of SBE in the same manner as before
adoption of the OEL arrangement. He also determined
the amounts to be deposited in the retirement account
and he effectively controlled the manner in which the
assets in the account were invested. During 1998-2000,
he exercised his unrestricted access to the funds in
the account by means of the Bahamas bank credit cards.

     Both the 3- and 6-year periods of limitations on
assessment under I.R.C. sec. 6501(a) and (e) had
expired before R issued the notices of deficiency (the
notices) to P. R alleges that the notices were timely
issued by reason of the application of I.R.C. sec.
6501(c), which permits assessment of tax at any time in
the case of a false or fraudulent return. R also
alleges that, for all open audit years, P (1)
underreported his income, (2) is liable for the I.R.C.
sec. 6663 fraud penalty, and (3) alternatively, is
liable for the I.R.C. sec. 6662 accuracy-related
penalty.

     1. Held: For all audit years, P was in
constructive receipt of (1) amounts equal to the excess
of SBE’s payments to L for his services on behalf of
SBE over the sum of the amounts he reported as wages
plus the employer portions of the Social Security and
Medicare taxes that L paid with respect to those
reported wages and (2) the capital gains and investment
income generated by the assets in the retirement
account.

     2. Held, further, P’s 1998-2000 returns were
fraudulent by reason of P’s concealment of the Bahamas
bank account and associated credit cards by means of
which he had, and intended to exercise, his
unrestricted access to the constructively received
amounts described in holding 1., supra.

     3. Held, further, P’s 1995-97 returns were not
fraudulent with the result that R’s determinations and
adjustments regarding those years are barred.
                                   - 3 -

          4. Held, further, P is subject to the I.R.C. sec.
     6663 fraud penalties for 1998-2000 with respect to all
     the constructively received amounts described in
     holding 1., supra.

          5. Held, further, because we apply the I.R.C.
     sec. 6663 fraud penalties to P’s total underpayments
     for 1998-2000, the I.R.C. sec. 6662 accuracy-related
     penalties do not apply for those years. See I.R.C. sec.
     6662(b) (flush language).



     John M. Colvin and Robert J. Chicoine, for petitioner.

     Carina J. Campobasso and Robert W. Dillard, for respondent.



                MEMORANDUM FINDINGS OF FACT AND OPINION


     HALPERN, Judge:     By two notices of deficiency dated January

3, 2008 (the notices), respondent determined joint deficiencies

in income taxes and related penalties for petitioner and his

wife, Nancy L. Browning (Mrs. Browning), as follows:

                                                 Penalty
     Year             Deficiency                Sec. 6663
     1995              $142,489                 $106,867
                        1                        1
     1996                 71,747                   53,810
     1997                54,166                    40,625
     1998                  6,336                    4,752
     1999                11,514                     8,636
     2000                53,275                    39,956

            1
           The deficiencies for all of the years are primarily
     attributable to the difference between what petitioner’s
     corporation, S B Electronics (SBE) deducted as payment for
     petitioner’s services and the wages petitioner reported. By
     an amendment to amended answer, respondent asserted an
     increased deficiency for 1996 of $82,200 and a sec. 6663
     fraud penalty of $61,650. Those increased amounts relate to
     $25,394 of reported wages earned by either petitioner or
                               - 4 -

     Mrs. Browning that the agent mistakenly attributed to a
     source other than SBE.

     Petitioner and Mrs. Browning (sometimes, the Brownings)

filed separate petitions to this Court in response to the

notices, and Mrs. Browning’s case received its own number, docket

No. 6922-08.   Because the parties in docket No. 6922-08 filed a

stipulation to be bound by any deficiency redetermined in this

case, we decided not to consolidate the two cases, and we

consider herein only petitioner’s case.1

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years at issue and

all Rule references are to the Tax Court Rules of Practice and

Procedure.   All dollar amounts have been rounded to the nearest

dollar.

     The issues for decision are (1) whether the notices for one

or more of the years 1995-2000 (the audit years) were timely

issued by reason of the application of section 6501(c)(1), which

provides for assessment of tax at any time in the case of a false

or fraudulent return, and, if so, whether petitioner (2) had

additional, unreported wages for one or more open audit years

comprising all or a portion of the excess of the amounts SBE paid

to a leasing company for his services over the amounts petitioner



     1
      In the stipulation, respondent concedes that the fraud
penalty “does not apply” to Mrs. Browning for any of the audit
years.
                              - 5 -

reported as wages received from the leasing company; (3) had

additional, unreported capital gains for one or more open audit

years that were generated by an alleged deferred compensation

account; (4) had additional unreported dividends for 1999 and

2000 (if open) that were generated by the alleged deferred

compensation account; (5) as an alternative to issues (2) through

(4), had additional, unreported income for 1998-2000 (if open)

arising out of petitioner’s and Mrs. Browning’s charges to a

credit card that were paid from the alleged deferred compensation

account referred to in issues (3) and (4); (6) is liable for the

section 6663 fraud penalty for one or more open audit years; and

(7) as an alternative to issue (6), is liable for the section

6662 accuracy-related penalty for one or more open audit years.2

If we decide for petitioner with respect to issue (1), then

respondent is time barred from raising any of the other issues,

and we must decide the case in petitioner’s favor.3




     2
      There are also certain computational adjustments that
follow from the adjustments at issue, but they are not in
controversy and we need not discuss them.
     3
      Both the general 3-year limitations period on assessments
provided by sec. 6501(a) and the 6-year limitations period on
assessments provided by sec. 6501(e)(1) in the case of
substantial omissions from gross income (which was potentially
applicable to 1995-97 and 2000) had expired for all of the audit
years by Jan. 3, 2008, both notices’ date of issuance.
                                 - 6 -

                         FINDINGS OF FACT

Introduction

     Some facts are stipulated and are so found.    The stipulation

of facts, with accompanying exhibits, is incorporated herein by

this reference.

     At the time he filed the petition, petitioner resided in

Florida.

Petitioner’s Education and Work Experience

     Petitioner graduated from the University of Maryland with a

bachelor of science degree in industrial management.      After

graduation, he worked, in both technical and sales positions, for

E.I. Dupont.   In 1969, he left E.I. Dupont and went to work for

Sprague Electric Co. (Sprague), a manufacturer of electronic

components, in Barre, Vermont.    Petitioner worked for Sprague in

a number of managerial positions, including plant manager, until

1985 when he founded S B Electronics (SBE).    He purchased for SBE

one of Sprague’s operating divisions (Sprague had decided to

close its Barre plant), which SBE (like Sprague, an electronic

components manufacturer) continued to operate in Barre.

     While at Sprague, petitioner attended the University of

Vermont part time to pursue an MBA degree.    He enrolled in some

accounting courses but dropped out of the program because of his

inability to become a full-time student.    In 1982, he

participated in a management development program at the
                                - 7 -

University of New Hampshire.    He has never taken any tax courses,

and he has little familiarity with tax law.

     Petitioner was the principal owner, president, and CEO of

SBE from 1985 through June 2002 when he sold the company’s assets

to a new company owned, in part, by one of his sons.    SBE was

organized as an S corporation and, at its peak, employed 60 to 70

persons.    Mrs. Browning and the five Browning children were

minority shareholders of SBE.    Petitioner is also a part owner

and director of Dearborn Electronics in Longwood, Florida.

Petitioner’s Relationship With Viggo Carstensen

     Petitioner’s primary tax adviser has been his longtime

accountant, Viggo Carstensen (Mr. Carstensen).    Mr. Carstensen, a

Canadian by birth, worked for Air Canada for 25 years, first in

Canada and, beginning in 1973, in the United States, eventually

becoming that company’s head of human resources for the United

States.    After retiring from Air Canada in 1985, Mr. Carstensen

purchased a franchise of General Business Services (GBS), through

which he entered the tax preparation and business consulting

fields for clients in central Vermont.    Before the advent of

reliable tax preparation software, GBS franchisees like Mr.

Carstensen’s obtained the relevant information from clients and

sent it to the GBS office in Rockville, Maryland, for actual

return preparation.    Mr. Carstensen’s primary function was to

help his small business clients create recordkeeping systems to
                                - 8 -

enable them to track income and expenses and become more

profitable.    When the tax preparation software improved, Mr.

Carstensen learned more about taxes and assumed the tax

preparation function on behalf of his clients.     He also passed

the enrolled agent’s exam and began representing clients before

the Internal Revenue Service (IRS).     Sometime later, he joined

H.D. Vest Investment Securities, Inc. (HD Vest), a registered

broker-dealer that used certified public accountants and tax

advisers to market its investment products, as a licensed or

registered investment representative/adviser.

     Petitioner met Mr. Carstensen at a seminar both attended as

new business owners in connection with their each obtaining a

Federal ID number, petitioner for SBE and Mr. Carstensen for his

GBS franchise.   The seminar provided information with respect to

a new business owner’s employment tax and information reporting

obligations.

     Initially, petitioner retained Mr. Carstensen to install a

system for keeping records that would form the basis for SBE’s

financial statements and to prepare quarterly and annual payroll

reports.   After he joined HD Vest, Mr. Carstensen became an

investment adviser to and account representative for petitioner

and Mrs. Browning.    Mr. Carstensen also prepared all of

petitioner and Mrs. Browning’s individual tax returns, going back
                                - 9 -

at least to 1990, and all of SBE’s corporate returns for the

audit years.

Petitioner’s Decision To Engage in a Deferred Compensation/
Offshore Leasing Plan

     The years 1994-96 were peak profit years for SBE.   However,

the company was beginning to lose its largest customer to foreign

competition.    That customer accounted for at least 50 percent of

SBE’s sales.    Recognizing that SBE was in the midst of its most

profitable period, petitioner sought a means to defer receipt of

a portion of those profits until his retirement.    In response to

that concern, petitioner’s estate planning advisers, to whom he

had been referred by Mr. Carstensen, suggested that he meet with

Jim Schmidt (Mr. Schmidt), a Florida attorney.   One of those

advisers referred to Mr. Schmidt as professing to have a state-

of-the-art plan in the areas of estate planning and deferred

compensation.

     In the fall of 1995, petitioner and Mr. Carstensen met with

Mr. Schmidt and another attorney, Tom Drysdale (Mr. Drysdale),

who worked with Mr. Schmidt.   During that meeting, Messrs.

Schmidt and Drysdale gave petitioner and Mr. Carstensen various

handouts, charts, and other related materials, including a legal

analysis, which described an offshore employee leasing plan (OEL

plan or program) as follows:   (1) Petitioner enters into an

employment contract with an Irish corporation (Irish

corporation), pursuant to which, in exchange for petitioner’s
                             - 10 -

services, Irish corporation agrees to (a) pay petitioner’s

business expenses facilitated by the issuance of an offshore

credit card to petitioner, (b) pay petitioner “a relatively

modest current salary” for his services, and (c) provide “an

attractive salary deferral program”; (2) Irish corporation, for a

fee, subleases petitioner’s services to a U.S. employee leasing

company (U.S. leasing company), which, for a larger fee,

subleases petitioner’s services to SBE; (3) out of its fee, U.S.

leasing company pays petitioner a salary, provides him with

taxable and nontaxable fringe benefits, and discharges the

payroll tax obligations with respect to his salary, all pursuant

to its agreement with Irish corporation; and (4) out of its fee

from U.S. leasing company, which it receives tax free pursuant to

the United States-Ireland income tax treaty, see infra note 6,

Irish corporation creates, funds, and administers a nonqualified

(under U.S. law), offshore deferred compensation account or trust

for petitioner’s benefit in its (or a subsidiary’s) name.    The

assets in the account are subject to the claims of the Irish

corporation’s (or the subsidiary’s) creditors.

     Petitioner and Mr. Carstensen recognized that the principal

tax benefit of the OEL plan, as compared with petitioner’s

existing status as a direct employee of SBE, was SBE’s ability to

treat the amounts paid to U.S. leasing company as a currently

deductible business expense while petitioner avoided tax on the
                                - 11 -

amounts set aside in the deferred compensation account until paid

to him upon his retirement from SBE.

     The written materials that Messrs. Schmidt and Drysdale

presented to petitioner and Mr. Carstensen represented that the

OEL plan was largely predicated on IRS revenue rulings (Rev. Rul.

74-330, 1974-2 C.B. 278, and Rev. Rul. 74-331, 1974-2 C.B. 281)

that discuss the tax aspects of employee loan-out programs in the

entertainment industry.   Those materials also stressed that the

program must be both structured and implemented so as to avoid

falling within U.S. caselaw in which the employee leasing

arrangement (e.g., of an athlete “leased” to his team) was not

respected for tax purposes.

     Although both petitioner and Mr. Carstensen were very

impressed by Messrs. Schmidt and Drysdale, Mr. Carstensen decided

to seek a second opinion from a former vice president for tax at

GBS who was then in private practice, Jim McCarthy (Mr.

McCarthy).4   On October 12, 1995, he sent Mr. McCarthy the

promotional materials that had been furnished by Messrs. Schmidt

and Drysdale.   Thirteen days later, Mr. McCarthy gave his

response, in which he expressed a number of misgivings regarding

the efficacy of the OEL plan:    (1) The promoters’ failure to

either obtain an IRS ruling or guarantee the payment of penalties


     4
      The record does not indicate whether Mr. McCarthy was
either (or both) an attorney or a certified public accountant,
only that he was “a very knowledgeable individual within GBS.”
                              - 12 -

and interest that might result from the very real possibility of

a successful IRS challenge to petitioner’s and/or SBE’s tax

position, (2) the OEL plan “is geared toward” personal service

providers such as “entertainers, athletes, attorneys, doctors,

accountants, engineers, etc.; those that would fall into the

Personal Service Corporation category if incorporated”, and (3)

in contrast, petitioner “would still be working solely as the

head of his manufacturing facility * * * His relationship with

his controlled corporation would not change, except on paper.”

Mr. McCarthy viewed those distinctions as possibly providing the

IRS “with a telling argument against * * * [petitioner].”

Lastly, Mr. McCarthy noted that, for the OEL plan “to have any

chance of deferring tax on the foregone compensation, * * *

[petitioner] must be at risk for that amount with no guarantee of

receipt.”   Mr. McCarthy feared that “if the Irish company goes

under, * * * [petitioner] would lose all.”

     Mr. Carstensen considered Mr. McCarthy’s advice as a warning

that the IRS might challenge the OEL plan, not as a warning that

it was either illegal or improper.

     In December 1995, after further discussions with Mr.

Carstensen and his estate planning advisers, petitioner decided

to implement the OEL plan.
                             - 13 -

Implementation of the OEL Plan

     Beginning in December 1995, petitioner, with Mr.

Carstensen’s assistance and under Mr. Schmidt’s guidance, took

various steps that were intended to implement the OEL plan as it

had been described by Messrs. Schmidt and Drysdale.   That month,

pursuant to Mr. Schmidt’s instructions, petitioner and Mr.

Carstensen traveled to Canada where petitioner signed (1) an

employment agreement with an Irish corporation,5 (2) on behalf of

SBE, an agreement between SBE and U.S. leasing company, and (3)

an SBE check for $500,000, made out to TransNational, and mailed

all three to TransNational at a Dublin, Ireland, address.6   The


     5
      The record does not reveal the identity of the Irish
corporation with which petitioner contracted. Whereas both
petitioner and Mr. Carstensen believe it to have always been
TransNational Leasing Co. (TransNational), there is evidence that
it was Montrain Services, Ltd., which, later, was replaced by
TransNational. Also, the parties appear to agree that at least
three U.S. leasing companies were involved in purportedly
implementing the OEL plan during the audit years. Because it is
the nature or substance of each entity’s participation in the
execution and implementation of the plan that is germane to the
legitimacy of the plan and the issue of fraudulent intent rather
than its name or identity, we will not address the latter issue.
We will refer to the Irish corporation as the Irish company or as
TransNational, which respondent appears to acknowledge did, in
fact, become the purported participating Irish corporation as of
December 1997, and we will generally refer to the U.S. leasing
company as U.S. leasing company.
     6
      Presumably, Mr. Schmidt’s reason for requiring petitioner
to execute and mail documents to TransNational from outside the
United States was, in what appears to be an excess of caution, to
assure that the transaction would not endanger TransNational’s
assumed treaty exemption from United States income taxation. See
Convention for the Avoidance of Double Taxation and the
                                                   (continued...)
                               - 14 -

$500,000 payment was used, in part, to initially fund the

deferred compensation account.

     On its Forms 1120S, U.S. Income Tax Return for an S

Corporation, filed for the audit years, SBE deducted, as part of

its “other deductions” on line 19, “Employee Leasing Program”

expenses, and petitioner reported, as wages from the various U.S.

leasing companies, by name, the following amounts:

                                        Petitioner’s Reported Wages
     Year        SBE Deductions           From U.S. Leasing Company
     1995           $500,000                      $150,000
     1996            348,342                       150,000
     1997            269,254                       150,000
     1998             99,627                        86,000
     1999             70,958                        54,500
     2000            107,950                          -0-

     The differences between the amounts SBE deducted as employee

lease payments and the amounts that petitioner reported as wages

(after the deduction of various fees payable to TransNational and

U.S. leasing company, taxes, and health insurance premiums, which

totaled $163,463 during the 1995-2002 existence of the OEL

program) were deposited in an account with HD Vest in Irving,

Texas, in the name of TransNational Leasing Capital Management

Ltd. (TLCM) (the HD Vest account).


     6
      (...continued)
Prevention of Fiscal Evasion with Respect to Taxes on Income and
Capital Gains, U.S.-Ir., art. 7, July 28, 1997, U.S. Tax Treaties
(CCH) par. 4401 (providing, in effect, that the business profits
of an Irish enterprise are not taxable in the United States
unless those profits are attributable to a United States
“permanent establishment”).
                               - 15 -

     The amounts deposited in or withdrawn from the HD Vest

account were as follows:

          Year          Deposits             (Withdrawals)1
   1996 (Feb.)2         $303,963                   ---
   1996 (Dec.)2          158,346                   ---
       1997                ---                     ---
       1998               85,420                ($15,416)
       1999                ---                   (95,528)
       2000                ---                   (70,541)
       2001               94,439                 (63,389)
       2002                ---                  (116,477)
       2003                ---                  (218,090)

            1
           With two exceptions, all of the withdrawals were used
     to pay the charges to the credit cards issued in connection
     with the HD Vest account. Those exceptions were (1) $31,000
     refunded to SBE in 2002 and (2) the $218,090 final
     distribution to petitioner in 2003.
            2
           The February 1996 deposit was taken from the $500,000
     that petitioner mailed to Ireland in December 1995. The
     December 1996 deposit, like the subsequent deposits, was
     derived from an SBE payment to U.S. leasing company and a
     U.S. leasing company payment to TransNational (or TLCM) for
     the year of deposit.

     During the 1996-2000 period, the HD Vest account earned

capital gains in excess of $195,000 and investment income of

$1,299.    It also incurred investment expenses of $48,062.7

     TLCM was a corporation organized under the laws of the

Bahamas.    Jeremy Cafferata (Mr. Cafferata), a Bahamas resident,

was president of and acted on behalf of TLCM.    Mr. Cafferata

appointed Mr. Carstensen as the account representative or



     7
      Total deposits plus capital gains and investment income
exceeded total withdrawals plus expenses because the account
realized a $62,727 investment loss during its existence.
                              - 16 -

executive for the HD Vest account.     Mr. Cafferata billed

petitioner through Mr. Carstensen for his services with respect

to the account and the credit cards (discussed infra) issued in

connection therewith.

     Mr. Cafferata and the people in Texas handling the HD Vest

account routinely acquiesced to petitioner’s wishes regarding the

movement of funds within and the withdrawal of funds from the

account.   Moreover, even though the account was in TLCM’s name

and, therefore, subject to its creditors, if any, petitioner

recognized that the money in the account was being held for his

benefit alone and that it was his money.     Petitioner also assumed

that he could terminate the program at any time and have the

funds in the account returned to him.

     The HD Vest account was opened in February 1996, and the

last reported activity, including the final distribution to

petitioner, occurred in May 2003.

     As part of the implementation of the OEL plan, U.S. leasing

company handled petitioner’s payroll taxes and provided for his

health insurance, tasks that SBE had previously performed.

Throughout the audit years, however, petitioner continued to

identify himself to non-payroll-department employees of SBE, to

customers of SBE, to financial institutions, and even to Mrs.

Browning as president of and as an employee of SBE.     Moreover, in

1997 and 1999, on various applications to open an IRA or other
                                - 17 -

financial accounts, petitioner listed SBE as his employer and

himself as either “president” or as “president and CEO” of SBE.

     The contractual relationships among petitioner, SBE,

TransNational and U.S. leasing company are uncertain.    The

contracts that petitioner executed in Canada and mailed to

Ireland either were never returned to petitioner or, if returned,

were discarded or lost after the sale of SBE in June 2002.

Petitioner did retain sample or draft contracts, which may have

been provided during the initial presentation of the OEL plan by

Messrs. Schmidt and Drysdale.    Assuming the sample or draft

employment contract between petitioner and TransNational

generally reflected the intended or actual contractual

relationship between the parties (which petitioner believed to be

the case), petitioner remained unaware of its actual terms so

that his compliance with any specific term would have been

coincidental.

     In practice, even after adopting the OEL plan, petitioner

continued to act on behalf of SBE just as he had before

participating in the plan.   The only significant changes were (1)

the substitution of U.S. leasing company for SBE in the handling

of his salary, fringe benefits, and payroll taxes, and (2) the

diversion, through U.S. leasing company and TransNational, of

what previously had been part of his wages to the HD Vest

account.   No employee of TransNational exercised any direction
                               - 18 -

and/or control over petitioner’s services and no employee of

TransNational was ever known to him.    His only “contact” was Mr.

Schmidt, who was the creator and promoter of and petitioner’s

informal adviser with respect to the OEL program, but who was not

an officer or employee of TransNational exercising any

supervision over petitioner.

     Petitioner and Mr. Carstensen agreed with Messrs. Schmidt

and Drysdale that the annual amount to be placed in the deferred

compensation account would be a formulary amount based upon SBE’s

annual profits, but, in practice, petitioner unilaterally decided

on the annual amount to be placed in the account.   When, in 2002,

petitioner determined that SBE’s business needs required

additional cash, he authorized a transfer of funds from the HD

Vest account back to SBE, the funds to be reported as additional

income by SBE.

Leadenhall Bank Credit Card

     In 1998, either Mr. Schmidt or Mr. Drysdale advised

petitioner and/or Mr. Carstensen that they were able to issue a

credit card to petitioner in connection with the OEL program for

his use in defraying business expenses.   Use of a credit card had

been an anticipated feature of the OEL program from its

inception.   Thereupon, in May 1998, petitioner was issued a

credit card by Leadenhall Bank and Trust Company, Ltd., a Bahamas

company (Leadenhall Bank and Leadenhall Bank credit card), and an
                               - 19 -

HD Vest checking account at that bank (the Leadenhall Bank

account) was created to pay the credit card charges, funds to be

obtained from the assets in the HD Vest account.    Initially, Mr.

Cafferata (at petitioner’s request) caused $10,000 to be moved

from the HD Vest account to the Leadenhall Bank account to secure

charges to the Leadenhall Bank credit card.   That security

account was opened in the name of “TransNational Leasing c/o

Cafferata & Co.”   Mr. Cafferata had signature authority with

respect to that account.   Petitioner arranged for Mrs. Browning

to receive a Leadenhall Bank credit card in 1999.   He did not

explain to her the circumstances of the issuance of the card, nor

did he place any restrictions on her use of the card.

     During the period from May 1998 through September 2002,

petitioner and Mrs. Browning charged over 2,000 items to the

Leadenhall Bank credit card.   During that period, over $330,000

was transferred from the HD Vest account to pay petitioner’s and

Mrs. Browning’s credit card charges and associated expenses.      A

substantial portion (and in Mrs. Browning’s case, the

overwhelming majority) of those charges was considered by

petitioner to be personal, which, to him, meant unrelated to

SBE’s business.8   During the 3 audit years in which petitioner


     8
      The draft employment contract between the Irish company
employer and petitioner that Mr. Schmidt left with petitioner
provides for the issuance of a credit card to petitioner, but it
limits the use thereof to “corporate [presumably referring to the
                                                   (continued...)
                              - 20 -

and Mrs. Browning used the Leadenhall Bank credit cards (1998-

2000), their charges to those cards totaled $128,734 ($14,919,

$57,274, and $56,541 for 1998-2000 respectively).   Of that

amount, $58,621 ($9,621, $29,503, and $19,390 for 1998-2000

respectively) constituted expenditures that petitioner considered

personal.9   For those same 3 years, the following amounts were

withdrawn from the HD Vest account to pay credit card charges


     8
      (...continued)
Irish company employer, not SBE] business expenses”, all of which
are subject to the employer’s approval and to its “prior written
approval” for expenses exceeding $250. Those conditions were
routinely ignored by petitioner and Mrs. Browning in connection
with their use of the Leadenhall Bank credit cards issued to
them.
     9
      For 1999 and 2000, we accept as recognized personal charges
the charges petitioner listed as personal on a 2003 submission to
respondent’s agent, Belinda Evans (Ms. Evans), who audited
petitioner’s 1995-2000 returns. Although there are discrepancies
regarding the description of a particular charge as personal or
as business between that submission and a 2008 submission to Ms.
Evans covering Nov. 27, 1998, through Sept. 16, 2002, we accept
as an accurate reflection of what petitioner considered to be
personal charges for 1999 and 2000 the earlier submission because
it is 5 years closer to those years. For the period from Nov.
28, 1998, to 1998 yearend, we accept as what petitioner
considered to be personal charges the charges petitioner
identified as personal on the 2008 submission as it constitutes
petitioner’s only analysis of his and Mrs. Browning’s credit card
expenditures during that period that is in evidence. The record
also contains Leadenhall Bank statements reflecting their credit
card usage for June-August and part of September 1998. All but a
very few of the charges reflected on those statements clearly are
personal, and those few are, at best, ambiguous. In the absence
of evidence to the contrary we have treated all of the credit
card charges listed on those 1998 statements as charges
petitioner would consider personal. Also, because there is no
evidence to the contrary, we have assumed that for the rest of
1998 (January-May and Oct. 1-Nov. 26) the Brownings either did
not have Leadenhall Bank credit cards or did not use them.
                              - 21 -

“and Other Bahamian Fees”:   1998, $15,416; 1999, $95,528; and

2000, $70,541.   Petitioner has never reported and paid tax on any

amount attributable to his or Mrs. Browning’s use of the

Leadenhall Bank credit cards for what they considered personal

expenditures.

     Copies of the Leadenhall Bank credit card statements were

faxed to Mr. Carstensen, who retained and furnished them to

respondent during the audit and the litigation of the case.

Petitioner did not review those statements with Mr. Carstensen to

determine business versus personal expenditures in connection

with the preparation of his income tax returns.

     Line 7a of Schedule B, Interest and Ordinary Dividends, of

the 1998-2000 Form 1040, U.S. Individual Income Tax Return

(sometimes, just Line 7a), asks:

     at any time during * * * [the taxable year], did you
     have an interest in or a signature or other authority
     over a financial account in a foreign country, such as
     a bank account, securities account, or other financial
     account?

On their joint returns for 1998-2000, the Brownings answered “no”

to that question.

Termination of the OEL Program

     After SBE’s assets were sold, on June 30, 2002, to a new

corporation owned, in part, by one of petitioner’s sons,

petitioner and Mrs. Browning retired to Florida.   In May 2003,

the remaining investments in the HD Vest account were sold and,
                               - 22 -

on May 23, 2003, the asset remaining in the account ($218,090 in

cash) was withdrawn from the account and distributed to another

account with HD Vest that petitioner and Mrs. Browning

maintained.

The Audit

     By letter dated June 19, 2002, respondent commenced an audit

of petitioner and Mrs. Browning’s 1999 and 2000 joint returns.10

The agent, Belinda Evans (Ms. Evans), attached to that letter a

Form 4564, Information Document Request (IDR), requesting, among

other items, the following information regarding petitioner’s

credit card use during 1999 and 2000:

     List of all credit * * * cards, foreign or domestic,
     under any name, used by you to make purchases * * * or
     to pay expenses for any purpose, including personal or
     business use, during the [audit] year(s) * * *.

     In response to that request, petitioner, through Mr.

Carstensen, provided only a credit report that did not list the

Leadenhall Bank credit card.   It was not until Ms. Evans met with

Mr. Carstensen on August 14, 2002, and told him she was aware of



     10
      The record does not indicate when the audit was expanded
to encompass petitioner and Mrs. Browning’s 1995-98 taxable
years. The parties stipulate that each of the returns for those
years was timely filed on or about Apr. 15 of the following year,
which means that the normal 3-year limitations period on
assessments, under sec. 6501(a), for each of those years, had
expired before the June 19, 2002, commencement of the audit. The
record also does not indicate why respondent failed to obtain
from petitioner agreements to extend the 3-year limitations
period on assessments for 1999 and 2000 pursuant to sec.
6501(c)(4).
                              - 23 -

that credit card that the latter acknowledged its existence and

explained its connection with the OEL program, which, until that

moment, he also had not described to Ms. Evans.

     In the 2003 analysis of credit card charges submitted to Ms.

Evans (see supra note 9), petitioner breaks down the charges not

listed as “personal” as follows:   $16,377 is listed as “ATM”

charges and $10,662 as “meals/entertainment”.   The balance (or

some 33 percent of the total) petitioner attributes to

“computer/office”, “business gifts”, “charitable”,

“dues/[sub]scription”, “travel auto”, and “prod sup/oper

supplies”.   Petitioner was unable to identify what portion, if

any, of the “ATM” charges he considered business related, and he

did not retain any records that might have substantiated as

business expenses one or more of the listed “meals/entertainment”

expenses in accordance with the requirements of section 274(d)

and the regulations thereunder.

     The 2008 analysis of credit card charges (also submitted to

Ms. Evans--see supra note 9) covered charges to the Leadenhall

Bank credit card from November 27, 1998, through September 16,

2002.   That analysis broke down the charges between business and

personal with a separate column describing the nature of the

alleged business charges.   The vast majority of the business-

denominated expenses were stated to be for travel (including

“auto”) and entertainment for which no section 274(d)
                                 - 24 -

substantiation was provided.     As stated supra note 9, there are a

number of inconsistencies between the 2003 and 2008 analyses of

credit card charges in that many of the items listed as business

expenses on one were listed as personal expenses on the other.

Moreover, on the 2008 analysis petitioner classified 30 of the 55

charges made after he sold SBE on June 30, 2002, as business

expenses.

                                 OPINION

I.   Application of Section 6501(c)(1)

      A.     Introduction

      Section 6501(a) provides, generally, that the amount of any

tax must be assessed within 3 years of the filing of a return.

Pursuant to section 6501(c)(1), however, if a taxpayer files “a

false or fraudulent return with the intent to evade tax, the tax

may be assessed * * * at any time.”

      Respondent argues that the income taxes due from petitioner

for the audit years may be assessed at any time pursuant to

section 6501(c)(1) “because petitioner knowingly filed false or

fraudulent income tax returns for said years with intent to evade

tax.”      Alternatively, respondent argues that Mr. Carstensen, on

behalf of petitioner, acted with the requisite fraudulent intent

in his preparation and filing of petitioner’s returns for the

audit years.      He cites Allen v. Commissioner, 128 T.C. 37, 40-42

(2007), which holds that an underreporting of taxes attributable
                               - 25 -

to the return preparer’s (rather than the taxpayer’s) fraud is

sufficient to invoke the application of section 6501(c)(1).

Petitioner disagrees with both arguments.

     B.   Proof of Fraudulent Return

           1.   Introduction

     Respondent must establish by clear and convincing evidence

that petitioner filed false and fraudulent returns with the

intent to evade tax.   See sec. 7454(a); Rule 142(b); Botwinik

Bros. of Mass., Inc. v. Commissioner, 39 T.C. 988, 996 (1963).

Respondent’s burden of proof under section 6501(c)(1) is the same

as that imposed under section 6663, which provides for the

imposition of a civil fraud penalty.     See Pennybaker v.

Commissioner, T.C. Memo. 1994-303.      To satisfy that burden,

respondent must prove (1) that an underpayment exists and (2)

that fraud exists, i.e., that petitioner intended to evade taxes

known to be owing by conduct intended to conceal, mislead, or

otherwise prevent the collection of taxes.     See Parks v.

Commissioner, 94 T.C. 654, 660-661 (1990).      Respondent must prove

both of those elements of fraud by clear and convincing evidence.

See DiLeo v. Commissioner, 96 T.C. 858, 873 (1991), affd. 959

F.2d 16 (2d Cir. 1992); Petzoldt v. Commissioner, 92 T.C. 661,

699 (1989); Recklitis v. Commissioner, 91 T.C. 874, 909 (1988);

Richardson v. Commissioner, T.C. Memo. 2006-69, affd. 509 F.3d

736 (6th Cir. 2007).   The existence of fraud is a question of
                               - 26 -

fact to be resolved from the entire record.      Gajewski v.

Commissioner, 67 T.C. 181, 199 (1976), affd. without published

opinion 578 F.2d 1383 (8th Cir. 1978).     Respondent must meet his

burden through affirmative evidence because fraud is never

imputed or presumed.    See Niedringhaus v. Commissioner, 99 T.C.

202, 210 (1992); Petzoldt v. Commissioner, supra at 699; Beaver

v. Commissioner, 55 T.C. 85, 92 (1970).     Once respondent has

produced sufficient evidence to establish that any portion of

petitioner’s underpayment was due to fraud, the entire

underpayment shall be treated as attributable to fraud, except

with respect to any portion thereof that petitioner establishes,

by a preponderance of the evidence, is not attributable to fraud.

See sec. 6663(b).    The entire taxable year remains open under

section 6501(c)(1) even if only a part of the deficiency for a

year is attributable to fraud.      Lowy v. Commissioner, 288 F.2d

517, 520 (2d Cir. 1961), affg. T.C. Memo. 1960-32.     “Thus, where

fraud is alleged and proven, respondent is free to determine a

deficiency with respect to all items for the particular taxable

year without regard to the period of limitations.”      Colestock v.

Commissioner, 102 T.C. 380, 385 (1994).

          2.   Underpayment of Tax

                a.   Introduction

     The first element necessary for finding a fraudulent return

under section 6501(c)(1) (or fraud under section 6663(a)) is an
                              - 27 -

underpayment of tax.   Section 6664(a) defines an “underpayment”

for purposes of section 6663 (with exceptions not here relevant)

essentially as a “deficiency” as defined by section 6211.    As

applicable herein, that is the amount by which the tax imposed by

the Internal Revenue Code exceeds the amount shown as the tax by

petitioner on his return.

               b.   The Parties’ Arguments

     Although respondent argues that the evidence fails to

support the existence of the OEL program and that, even if the

purported contractual arrangements did exist, they were shams

without economic substance, we first address his argument that

“even if the Court accepted petitioner’s claims that he was

actually an employee of TransNational * * * , all amounts * * *

[SBE] paid into the OEL arrangement are currently taxable to

petitioner because he constructively received the payments.”11


     11
      As an alternative to his constructive receipt argument,
respondent argues that petitioner is taxable on those amounts
under the economic benefit doctrine; i.e., “[p]etitioner gained
the financial and economic benefit of the OEL funds [placed in
the HD Vest account] because, in addition to his use of them to
pay personal credit card bills * * *, the funds were * * * set
aside for him and were not subject to” SBE, TransNational, or
TLCM creditors, the last because TLCM (in whose name the account
was opened) “if it existed at all, was a shell.” Respondent also
invokes the application of sec. 83 (Property transferred in
connection with the performance of services) to the transfers of
funds to the HD Vest account, stating that “section 83 all but
codifies the economic benefit doctrine in the compensation
context” and noting that those funds were “either transferable or
not subject to a substantial risk of forfeiture” with the result
that they are “includible in petitioner’s income when earned by
petitioner and ‘set aside’ by * * * [SBE].” Because we find
                                                   (continued...)
                              - 28 -

     Petitioner rejects the factual premises upon which

respondent bases his finding of constructive receipt:     (1)

Petitioner’s ability to direct Messrs. Carstensen and Cafferata

with regard to the use of the funds in the account, (2) his

ability to terminate the account and retrieve the funds in it at

any time, and (3) his unlimited access to those funds by means of

the Leadenhall Bank credit cards.   In each case, petitioner

argues that there is inadequate factual support for respondent’s

characterization.   Petitioner argues that unrelated third

parties, not petitioner, owned and controlled the HD Vest

account, and that the funds in the account were subject to a

substantial risk of forfeiture.   Petitioner also argues that his

participation in the OEL program is governed by a series of cases

in which an individual entertainer, artist, or athlete contracts

with a personal service corporation (PSC), which he either

controls or in which he has a significant interest, to lease his

services to third parties with which he either previously had or

could have had a direct relationship (the entertainer, artist,

athlete cases).   In each case, the Commissioner tried to

attribute the PSC’s income to the individual, and in each case

the court rejected the Commissioner’s sham corporation and/or

assignment of income arguments, in some cases despite the



     11
      (...continued)
that petitioner was in constructive receipt of the funds in
question, we do not address respondent’s alternative arguments.
                               - 29 -

admitted existence of a tax avoidance motive, and respected the

separate existence of the PSC for tax purposes.    See Sargent v.

Commissioner, 929 F.2d 1252 (8th Cir. 1991), revg. 93 T.C. 572

(1989); Laughton v. Commissioner, 40 B.T.A. 101 (1939), remanded

113 F.2d 103 (9th Cir. 1940); Fox v. Commissioner, 37 B.T.A. 271

(1938); Estate of Cole v. Commissioner, T.C. Memo. 1973-74.

     For the reasons set forth in section I.B.2.c., infra, we

hold that petitioner was in constructive receipt of and,

therefore, understated his income for the audit years by (1) the

amount by which SBE’s payments to U.S. leasing company that it

deducted as “Employee Leasing Program” expenses exceeded (a) the

amounts that petitioner received from U.S. leasing company and

reported as wages plus (b) the employer portions of the Social

Security and Medicare taxes that U.S. leasing company paid with

respect to those reported wages (the excess SBE payments), plus

(2) the earnings (capital gains and investment income) on the HD

Vest account.

                c.   Application of the Constructive Receipt
                     Doctrine

     Under section 451(a), an individual taxpayer, like

petitioner, who is on the cash method of accounting must include

amounts in gross income in “the taxable year in which received”.

Section 1.451-2(a), Income Tax Regs., provides in pertinent part:

     Income although not actually reduced to a taxpayer’s
     possession is constructively received by him in the
     taxable year during which it is credited to his
                              - 30 -

      account, set apart for him, or otherwise made available
      so that he may draw upon it at any time, or so that he
      could have drawn upon it during the taxable year if
      notice of intention to withdraw had been given.
      However, income is not constructively received if the
      taxpayer’s control of its receipt is subject to
     substantial limitations or restrictions. * * *

     The evidence clearly and convincingly supports respondent’s

assertion that petitioner constructively received all of the

excess SBE payments in the years in which SBE made those

payments.   That is because those funds were deposited or were

potentially available for deposit in the HD Vest account, which

petitioner and Mr. Carstensen, on petitioner’s behalf,

effectively controlled.   Although the HD Vest account was opened

in TLCM’s name, it is clear that Mr. Cafferata, TLCM’s president,

and the people in Texas facilitating the movement of funds out of

and within the account were merely functionaries whose actions

with respect to the account were dictated by petitioner or by Mr.

Carstensen on petitioner’s behalf.     Moreover, because there is no

evidence that TLCM, the nominal owner of the account, was other

than a shell corporation with no significant creditors, there was

no meaningful risk (other than normal market risk) that the

assets in the account would become unavailable to petitioner.

Petitioner had unrestricted control over what went into the

account and unrestricted access to funds placed in the account.

He demonstrated the former by unilaterally determining what, if

anything went into the account for a given year; and he
                               - 31 -

demonstrated the latter, i.e., his unfettered access to the funds

in the account, not only by directing the investment of funds

placed therein, but also, in 2002, by directing that $31,000 be

returned to SBE and, beginning in 1998, by using the Leadenhall

Bank credit cards for any expenditure, personal or business, he

and Mrs. Browning chose to make.   Amounts credited to a brokerage

account (which is what the HD Vest account, in essence, was)

owned and controlled by the taxpayer are constructively received

by him.    See Mendes v. Commissioner, 121 T.C. 308, 313 (2003).

     Because the amounts credited to the HD Vest account were

“made available [to petitioner] so that he * * * [was able to]

draw upon * * * [them] at any time”, as required by section

1.451-2(a), Income Tax Regs.--which is all that is necessary for

a finding of constructive receipt--we conclude that petitioner

constructively received, and was therefore taxable on, all of the

money that was transferred (or available for transfer) to that

account under the OEL plan (i.e., the excess SBE payments less

U.S. leasing company’s payment of various fees and health

insurance premiums with funds derived from those payments) in the

years in which excess SBE payments were so transferred or

available for transfer, together with the earnings (capital gains

and investment income) accruing on the account in the year(s) of

accrual.    Moreover, because the various fees and health insurance

premiums that U.S. leasing company paid were paid for
                               - 32 -

petitioner’s benefit, i.e., because those expenditures were an

integral part of a program that was designed to provide a tax

deferral benefit to petitioner, those amounts also constituted

income to petitioner.12   Presumably, the taxes that U.S. leasing

company paid out of SBE’s payments to it were the payroll taxes

with respect to petitioner’s reported wages.

     The parties agree that all of the excess SBE payments, less

the above-referenced fees, taxes, and health insurance premiums

(totaling $163,463 for the 1995-2002 life of the OEL program),

were ultimately deposited in the HD Vest account.   Therefore,

because we find that petitioner constructively received those

payments and was also taxable on the above-referenced fees,

taxes, and health insurance premiums, we find that petitioner’s

underpayments for the audit years constituted the tax

attributable to (1) the excess SBE payments plus (2) the capital

gains and investment income generated by the assets in the HD

Vest account.

     Our conclusion is unaffected by the entertainer, artist,

athlete cases that petitioner relies upon because they are

inapposite.   In each of those cases, the determinative issue is



     12
      Petitioner does not argue and, therefore, we do not find
that any health insurance premiums paid by U.S. leasing company
on petitioner’s behalf were excludable from petitioner’s income
under sec. 106. Moreover, there is nothing in the record as to
the amount of any such premium payments. Therefore, we do not
reduce petitioner’s underpayment by an amount attributable to
payments of health insurance premiums on petitioner’s behalf.
                              - 33 -

the viability, for Federal income tax purposes, of the purported

employer corporation.   We do not rest our conclusion herein on

the sham nature of TransNational or U.S. leasing company, but on

the fact that petitioner was in constructive receipt of the SBE

payments in excess of the amounts he reported as wages, which

primarily consisted of funds placed by TransNational in the HD

Vest account.   Unlike the facts in the entertainer, artist,

athlete cases, there was no viable PSC standing between

petitioner and the amounts in the HD Vest account.

     Because we agree with respondent that petitioner was in

constructive receipt of all funds deposited in the HD Vest

account, we do not address respondent’s additional arguments to

the effect that the entire OEL program, including the

participation of TransNational, TLCM, and U.S. leasing company,

“was a sham completely lacking in economic substance”.13


     13
      Respondent’s argument that the entire OEL program must be
disregarded as solely tax motivated and, therefore, without
economic substance is based upon his allegations that (1)
petitioner’s purported Irish employer did not exist when it
supposedly contracted with petitioner to employ him, (2)
petitioner never consciously complied with the terms of that
alleged contract, nor was such compliance required by his
purported employer, (3) petitioner remained president of SBE
throughout the audit years, working solely for and holding
himself out to all third parties as still in the employ of SBE,
and (4) petitioner retained control over and, by means of the
Leadenhall Bank credit card, was able to access the funds placed
in the HD Vest account. It is only necessary that we sustain (as
we have) the last of those allegations in order to find that the
amounts deposited in the HD Vest account constituted income to
petitioner on the dates of those deposits. The other

                                                     (continued...)
                                  - 34 -

               d.    Conclusion

     We hold that, for each of the audit years, petitioner’s

underpayment consisted of the amount of tax attributable to the

excess SBE payments plus the earnings (capital gains and

investment income) on the HD Vest account.

          3.   Fraudulent Intent

                a.   Introduction

     The second element that we must consider in determining the

application of section 6501(c) is petitioner’s or Mr.




     13
      (...continued)
allegations, even if we were to sustain them, would presumably
result in our disregarding TransNational, TLCM, and U.S. leasing
company for Federal tax purposes and in findings that (1)
petitioner continued in the employ of SBE and (2) it was SBE
that, in substance, made the deposits in the HD Vest account.
But unless we were to find, as we have, that petitioner was
taxable on those deposits when made, the deemed arrangement
involving only SBE might very well have constituted the
equivalent of a so-called rabbi trust whereby the Commissioner
permits an employer to place a portion of the employee’s salary
in an irrevocable trust (the assets of which remain subject to
claims of the employer’s creditors) on a tax-free (to the
employee) basis. See Rev. Proc. 92-64, 1992-2 C.B. 422; G.C.M.
39230 (Jan. 20, 1984). In that event, respondent’s quarrel would
have been with SBE’s deduction of the deposits when made because
a rabbi trust, which is in essence a grantor trust, is merely a
set-aside of funds by the grantor/employer who is entitled to
deductions only as the funds are distributed or made available to
the beneficiary/employee. See, e.g., sec. 671; Accardi v. IT
Litig. Trust (In re IT Group, Inc.), 448 F.3d 661, 665 (3d Cir.
2006). SBE’s deduction of its payments to U.S. leasing company
for deposit in the HD Vest account for the years in which those
payments were made is not at issue herein.
                             - 35 -

Carstensen’s14 state of mind; to wit, whether either intended to

evade tax believed to be owing by conduct intended to conceal,

mislead, or otherwise prevent the collection of tax.   See, e.g.,

Recklitis v. Commissioner, 91 T.C. at 909.    A fraudulent state of

mind may be proved by circumstantial evidence because direct

proof of the taxpayer’s intent is rarely available.    See, e.g.,

id. at 910.

     Over the years, courts have developed a nonexclusive list of

factors that demonstrate fraudulent intent.   Those badges of



     14
      As we stated in Allen v. Commissioner, 128 T.C. 37, 40
(2007):

          The statute keys the extension to the fraudulent
          nature of the return, not to the identity of the
          perpetrator of the fraud. * * *

          *      *       *       *       *        *       *

          the special disadvantage to the Commissioner in
          investigating fraudulent returns is present if
          the income tax return preparer committed the
          fraud that caused the taxes on the returns to be
          understated. Accordingly, taking into account
          our obligation to construe statutes of
          limitation strictly in favor of the Government,
          we conclude that the limitations period for
          assessing * * * [the taxpayer’s] taxes is
          extended if the taxes were understated due to
          fraud of the preparer.

     In Allen, we specifically noted that the Commissioner was
“seeking to collect only the deficiency in tax from * * * [the
taxpayer]” and was “not asserting the fraud penalty”, thus
implying that collection of the latter after expiration of the 3-
year limitations period on assessments would depend upon proof of
the taxpayer’s, not merely the preparer’s, fraud. That also
appears to be the Commissioner’s position. See Field Service
Advisory 200126019 (Mar. 30, 2001).
                              - 36 -

fraud include:   (1) Understating income, (2) maintaining

inadequate records, (3) failing to file tax returns, (4)

implausible or inconsistent explanations of behavior, (5)

concealment of income or assets, (6) failing to cooperate with

tax authorities, (7) engaging in illegal activities, (8) an

intent to mislead which may be inferred from a pattern of

conduct, (9) lack of credibility of the taxpayer’s testimony,

(10) filing false documents, and (11) dealing in cash.    See Spies

v. United States, 317 U.S. 492, 499 (1943); Douge v.

Commissioner, 899 F.2d 164, 168 (2d Cir. 1990); Bradford v.

Commissioner, 796 F.2d 303, 307-308 (9th Cir. 1986), affg. T.C.

Memo. 1984-601; Recklitis v. Commissioner, supra at 910.

Although no single factor is necessarily sufficient to establish

fraud, a combination of factors is more likely to constitute

persuasive evidence.   Solomon v. Commissioner, 732 F.2d 1459,

1461 (6th Cir. 1984), affg. per curiam T.C. Memo. 1982-603.       A

taxpayer’s intelligence, education, and tax expertise are also

relevant for purposes of determining fraudulent intent.     See

Stephenson v. Commissioner, 79 T.C. 995, 1006 (1982), affd. 748

F.2d 331 (6th Cir. 1984); Iley v. Commissioner, 19 T.C. 631, 635

(1952).
                                 - 37 -

               b.   Discussion

                    (1)   Introduction

     For the 1998-2000 audit years, there exist at least four

indicia of fraud, all of which relate to the establishment and

use of the Leadenhall Bank account and credit cards:     (1)

Concealment of assets, (2) intent to mislead, (3) lack of

credibility of petitioner’s and Mr. Carstensen’s testimony, and

(4) intentional understatement of income.     We shall consider each

in turn.

                    (2)   Concealing the Existence of the
                          Leadenhall Bank Account and Associated
                          Credit Cards

     As noted supra, on line 7a of Schedule B of petitioner’s

1998-2000 returns, petitioner answered “no” to the question

asking whether at any time during the taxable year he had “an

interest in or a signature or other authority over a financial

account * * * such as a bank account” in a foreign country.

     Petitioner testified that he did, in fact, check “no” on

line 7a, and he defended that answer on the ground that he did

not have signature authority over the Leadenhall Bank account

associated with his and Mrs. Browning’s use of the Leadenhall

Bank credit cards, and on the further ground that “it was never

* * * [his] intent to hide that money that was down there”; i.e.,

in the Bahamas bank account.     Mr. Carstensen testified that he

merely followed his tax preparation software, which automatically
                              - 38 -

defaulted to a “no” answer, and that he never considered whether

that response was correct.   He further testified that he still

believed that “no” was the correct answer to line 7a because

petitioner lacked “control” over the account.

     We find the testimony of both men to be incredible.   Line 7a

plainly asks whether the taxpayer has “an interest in * * * or

other [than signature] authority over a [foreign] financial

account * * * such as a bank account”.   It is inconceivable that

either petitioner, a college graduate with a successful business

background, or Mr. Carstensen, an experienced tax return preparer

and business consultant, could misinterpret or, in Mr.

Carstensen’s case, ignore that language.   Moreover, the notion

that petitioner lacked control over the Leadenhall Bank account

is patently unsupportable in the light of:   (1) The certainty

that Mr. Cafferata would respond to petitioner’s directions to

move funds from the HD Vest account to that bank account as

necessary to cover petitioner’s and Mrs. Browning’s credit card

charges and (2) petitioner’s unrestricted ability to obtain funds

from the account, for any purpose, by use of his credit card.

     Direct evidence of an intent to conceal the existence of the

Leadenhall Bank credit cards is furnished by petitioner and Mr.

Carstensen’s response to Ms. Evans’ IDR dated June 19, 2002,

requesting a list of “all credit * * * cards, foreign or

domestic, under any name” used by petitioner “for any purpose,
                                - 39 -

including personal or business use, during the [audit] years”.

That response consisted of a credit report that listed credit

cards issued under petitioner’s Social Security number, which did

not include the Leadenhall Bank credit cards.    The language of

Ms. Evans’ IDR clearly encompasses the Leadenhall Bank credit

cards.   Therefore, we conclude that petitioner’s and Mr.

Carstensen’s failure to include those cards in their response to

Ms. Evans’ IDR constitutes clear and convincing evidence of their

attempt to conceal the cards’ existence.

                   (3)   Intent To Mislead the Revenue Agent

     The incomplete answer to Ms. Evans’ June 19, 2002, IDR also

furnishes clear and convincing evidence of an intent to mislead

Ms. Evans regarding the existence of the Leadenhall Bank credit

cards.   Moreover, Ms. Evans testified that, at her first face-to-

face meeting with Mr. Carstensen on August 14, 2002, she again

asked him to list all the credit cards that petitioner and Mrs.

Browning used during the audit years (at that time, 1999 and

2000) and, again, Mr. Carstensen failed to reveal the existence

of the Leadenhall Bank credit cards.     It was not until Ms. Evans

advised Mr. Carstensen that she was aware of those credit cards

that he acknowledged their existence and, for the first time, the

existence of the OEL program.
                                - 40 -

                    (4)   Lack of Credibility of Petitioner’s and
                          Mr. Carstensen’s Testimony

     As discussed supra, we find incredible both petitioner’s and

Mr. Carstensen’s testimony that they believed a “no” answer to

line 7a of petitioner’s 1998-2000 returns was proper.

     We find equally incredible petitioner’s testimony that he

believed he would have to repay TransNational the amounts

corresponding to his and Mrs. Browning’s personal use of the

Leadenhall Bank credit cards.    In fact, petitioner never

reconciled, for TransNational, his business versus personal

charges.15   Moreover, petitioner, by his own admission at trial,

knew that no representative of TransNational would ever require a

reconciliation because TransNational had no economic interest in

the HD Vest account from which the funds were drawn to pay the




     15
      Petitioner was apparently unaware of the illusory
distinction between his personal and business-related credit card
expenditures, assuming that he believed he was participating in a
valid employee leasing program. The draft employment contract
between petitioner and the Irish company authorized petitioner’s
use of a credit card for “corporate business expenses”. Because,
under the OEL program as described to petitioner by Messrs.
Schmidt and Drysdale, petitioner was no longer an SBE employee,
and because his Irish company employer had no contractual
relationship with SBE, the referenced business expenses had to
relate to the business of petitioner’s Irish company employer.
Thus, any of petitioner’s credit card expenditures relating to
SBE’s business must be considered after-tax capital contributions
to SBE by petitioner (who still remained a controlling
shareholder therein), and all of his credit card expenditures
must be considered personal expenditures. As a result, the use
of the HD Vest funds to pay the credit card charges would, under
the program, constitute a nondeductible use of those funds by
petitioner.
                              - 41 -

Leadenhall Bank credit card charges.   Petitioner fully recognized

that the money in that account was his money.   Petitioner further

admitted at trial that had TransNational required him to

reimburse the HD Vest account for personal credit card

expenditures, the effect would have been like taking money from

one of his pockets and placing it in another; i.e., there would

be no economic impact on petitioner.

                   (5)   Intentional Understatement of Income

     Petitioner believed that a substantial amount of his and

Mrs. Browning’s Leadenhall Bank credit card charges were for

their personal benefit because they were unrelated to SBE’s

business and that, absent an accounting to TransNational for

those expenditures, he would be required to pay taxes thereon.

Yet, as of the date of trial, he had never made such an

accounting and he had never paid tax on any amount of his and

Mrs. Browning’s Leadenhall Bank credit card charges.16




     16
      We do not find that the inconsistencies between the 2003
and 2008 analyses of the Brownings’ Leadenhall Bank credit card
charges regarding the identity of certain charges as being
business related or personal constitute evidence that petitioner
intentionally understated his income. Petitioner testified that
he prepared the 2008 analysis without referring to the 2003
analysis, and the passage of 5 years between the two explains
those inconsistencies to our satisfaction. It is not those
relatively few inconsistencies, but, rather, it is the sheer
volume of the charges that petitioner believed to be personal,
his realization that there was no need to make a meaningful
accounting of those charges to anyone, and his demonstrated lack
                                                   (continued...)
                               - 42 -

     Ms. Evans’ testimony regarding her audit meeting with

petitioner further indicates that petitioner intended to

understate his income by hiding from respondent his and Mrs.

Browning’s 1998-2000 expenditures of unreported excess SBE

payments by means of their personal charges to the Leadenhall

Bank credit cards.   That testimony was as follows:

          Q    Okay. So, Ms. Evans, what was the nature of
     your conversation with Mr. Browning regarding his use
     of the Leadenhall credit card?

          A    We had asked him if it was his intent to
     report the deferred compensation when he withdrew it as
     taxable income, then why didn’t he report the amounts
     of personal charges at that time on his tax return.
     Mr. Carstensen stated that --

          Q      Mr. Carstensen or Mr. Browning?

          A    Mr. Carstensen stated that everybody does it.
     Mr. Browning then stated that this is the standard way
     of using credit cards. Mr. Browning then went on to
     say it’s like running a red light or going the speed
     limit. You do things you shouldn’t while you can.

     When asked by counsel whether he had ever told the agents

that using the Leadenhall Bank credit card “was like speeding and

hoping not to get caught, something to that effect”, petitioner

responded:    “I have no recollection of that, that doesn’t sound

like anything I would say.”    Thus, petitioner did not deny making




     16
      (...continued)
of any intention of ever paying taxes on the amounts in question
that provide the requisite clear and convincing evidence of
fraudulent intent.
                                    - 43 -

the statement quoted by Ms. Evans, only that he did not recall

making such a statement.

     We find Ms. Evans to have been a credible witness and accept

her testimony as an accurate description of her conversation with

petitioner and Mr. Carstensen.

                  c.   Conclusion

     We have found that, for each of the audit years, petitioner

was in constructive receipt of the excess SBE payments, most of

which were deposited in the HD Vest account, plus the earnings on

that account.17    That finding was based upon our preliminary

finding that petitioner had unrestricted access to and control

over the funds in the HD Vest account, and, therefore, to the SBE

excess payments, which funded that account.     He and Mrs. Browning

exercised that access by means of the Leadenhall Bank account and

credit cards.     That account and those credit cards were, in

effect, the spigot through which the SBE excess payments flowed

(via the HD Vest account) to petitioner.     Petitioner knew that,

to the extent he was able to access those funds (particularly for

what he knew to be personal purposes), he was taxable on them.

We surmise that it was for that reason that he (and Mr.

Carstensen) intentionally hid from respondent his means of access




     17
      As we   noted supra, amounts that U.S. leasing company did
not deposit   in the HD Vest account it spent on petitioner’s
behalf and,   therefore, those amounts also were constructively
received by   him.
                                - 44 -

to the excess SBE payments during 1998-2000.    Thus, the evidence

clearly and convincingly demonstrates that both petitioner and

Mr. Carstensen intentionally sought to evade tax on all or a

portion of the 1998-2000 excess SBE payments.   As a result, 1998-

2000 remain open under section 6501(c), and respondent is free to

determine deficiencies with respect to any item for those 3

years.   See Lowy v. Commissioner, 288 F.2d at 520; Colestock v.

Commissioner, 102 T.C. at 385.

           4.   Application of Section 6501(c)(1) to 1995-97

                 a.   Introduction

     Because the Leadenhall Bank account and credit cards did not

exist until 1998, the tax evasion that is evidenced by

petitioner’s concealment of that account and those credit cards

does not pertain to the earlier audit years, 1995-97.    We

strongly suspect that had Messrs. Schmidt and Drysdale been able

to comply with petitioner’s 1996 request for an offshore credit

card at the time of that request, the pattern of tax evasion that

petitioner and Mr. Carstensen exhibited during 1998-2000 would

have been present during 1996 and 1997; i.e., that the

restriction of that behavior to 1998-2000 was merely fortuitous.

“This Court, however, will not sustain a finding of fraud based

upon circumstances which at the most create only suspicion.”

Katz v. Commissioner, 90 T.C. 1130, 1144 (1988).    Moreover, our

suspicion is not reinforced by anything that occurred before 1998
                              - 45 -

with respect to the then-pending offshore credit card.     Although

petitioner testified that having a credit card was a “very

important” consideration in his determination of whether to

embark upon the OEL program as outlined by Messrs. Schmidt and

Drysdale, it was not clear, at that time (December 1995) or,

indeed, until the card was issued in 1998, that the charges to

the card would be funded by the excess SBE payments via the HD

Vest account rather than by petitioner’s ostensible Irish

employer or directly by SBE, or that those charges would, in

significant part, be for personal use.18   Petitioner also

testified that he made the decision, in 1998, to fund those

charges from his ostensible deferred compensation account rather

than from SBE because, at that time, SBE was starting to have

financial problems and he did not want to further weaken the

company.   That testimony indicates that a different credit card

funding arrangement might have occurred had the card been issued

before 1998 at a time when SBE was profitable and in a stronger

financial condition.   Therefore, we must find clear and




     18
      In fact, the promotional materials that Mr. Schmidt
furnished to petitioner and Mr. Carstensen contained the
following representation:

     The Irish corporation will pay your business expenses,
     including providing you with a variety of fringe
     benefits * * *. To facilitate the payment of many of
     these fringe benefits, the company can provide you with
     a credit card, the charges of which are paid from
     abroad by the company * * * [Emphasis added.]
                                - 46 -

convincing evidence of fraud, unrelated to petitioner’s

contemplated use of an offshore credit card, that existed either

throughout the audit years or, specifically, during one or more

of the pre-1998 audit years (1995-97).

                 b.   Respondent’s Arguments

     Respondent argues that “the evidence of fraud is

overwhelming.”   He points to a number of alleged indicia of fraud

unrelated to the Leadenhall Bank account and credit cards:    (1)

The “lack of substance” of the OEL program, (2) petitioner’s

noncompliance “with any of the terms of the purported contracts”,

(3) the fact that petitioner’s relationship with SBE remained

unchanged throughout the period of the OEL program, (4) the fact

that the funds representing the allegedly deferred amounts ended

up in a U.S. brokerage account under petitioner’s control, (5)

the fact that petitioner never dealt with anyone known by him to

be from Ireland or to be an officer or employee of his alleged

Irish company employer, TransNational, and (6) petitioner’s

inability to produce any evidence of an agreement with

TransNational, the company he claimed was always his employer.

Respondent also alleges fraud in that petitioner lied in stating

that (1) he lacked control over the HD Vest account, (2) he did

not know why Mr. Carstensen was chosen to manage that account,

and (3) Mr. Cafferata had control over the HD Vest account.

Respondent also points to:    (1) What he considers petitioner’s
                                 - 47 -

incredible testimony regarding his faith in the OEL program as a

valid income deferral program, (2) the absence of financial

records, contracts, or correspondence with any employees of

TransNational, and (3) petitioner’s submission of false and

misleading answers to Ms. Evans’ interrogatories during her

audit.    Respondent concludes overall:

     As in Foxworthy v. Commissioner, T.C. Memo. 2009-203,
     the whole scheme was aimed at concealing petitioner’s
     untaxed compensation in a nominee account that he
     controlled and to which he had access through his
     advisor Carstensen and through the credit card. * * *

     With respect to Mr. Carstensen, respondent cites, as “the

most obvious aspect of his fraud”, the fact that he knew from Mr.

McCarthy’s pre-implementation analysis “that the scheme was a

sham”, and, even without that analysis, that “the OEL scheme

lacked substance.”      Respondent ties Mr. Carstensen to many of the

allegedly fraudulent features of petitioner’s conduct in

concluding that he too acted fraudulently in helping to implement

the OEL program and in preparing and signing petitioner’s 1995-

2000 returns “which he knew to be false, with intent to evade

tax.”

     c.    Discussion

     We agree with respondent that petitioner’s failure to

produce copies of actual written agreements to which he,

TransNational, and/or the U.S. leasing company were parties, his

indifference to the actual terms of any such agreement to which
                              - 48 -

he was a party, and his effective control over the funds in the

HD Vest account, are among the factors indicating that the OEL

program lacked economic substance.     Respondent’s problem is that,

even if we were to make that finding, before petitioner’s

concealment of the Leadenhall Bank account and credit cards,

which pertains only to 1998-2000, there is no clear and

convincing evidence that any of petitioner’s or Mr. Carsenten’s

actions demonstrated an intent to conceal income and, thereby,

evade tax.

     On its 1995-97 returns, SBE specifically included as one of

its “other deductions” on line 19 “Employee Leasing Program”

expenses, and petitioner reported as wages from the various U.S.

leasing companies, by name, amounts that were substantially less

than SBE’s leasing program deductions for those years.    Thus, it

cannot be said that the existence of some form of leasing program

involving both SBE and petitioner and the non-U.S. taxation of a

substantial portion of SBE’s payments for petitioner’s services

was intentionally hidden from respondent.

     Both petitioner and Mr. Carstensen appeared to believe that

the OEL program, as constructed and explained to them by Messrs.

Schmidt and Drysdale, would result in the sought-after tax

deferral for petitioner.   Petitioner trusted Mr. Schmidt and

viewed him as the principal architect of the program.    Petitioner

thought he understood the basics of the program and that it was
                              - 49 -

being followed, even though he had not read and, therefore, was

unfamiliar with (and even indifferent to) the actual terms of the

contracts pursuant to which the program was supposed to be

implemented.   He testified that his failure to read the contracts

was based upon his assumption that Mr. Schmidt would advise him

of anything he needed to know.   He also testified that he

believed that he was in compliance with the requirements of the

program so long as he adhered to any and all requests that

Messrs. Schmidt and Drysdale made in connection with the program.

That he continued to identify himself to third parties as

president and as an employee of SBE exemplifies his indifference

to the actual requirements of the OEL program (i.e., to what he

characterized as the “small print”) and is further proof of the

program’s lack of economic substance as implemented by

petitioner, but it is not proof of fraudulent intent.

     Petitioner viewed the HD Vest account as something akin to a

pension plan account or IRA that would be available when he

needed it.   As in the case of an IRA, petitioner apparently

believed he had a right to participate in or even control his

investment or risk profile in the account.   Moreover, before his

and Mrs. Browning’s use of the Leadenhall Bank credit cards,

beginning in 1998, there is no clear and convincing evidence that

petitioner intended to access the funds in the account; i.e.,
                               - 50 -

that he intended to treat the account as other than a retirement

account.

     The record is, at best, ambiguous regarding whether

petitioner’s answers to Ms. Evans’ written interrogatories were

purposely misleading or merely reflective of his understanding of

what he believed to be a legitimate deferral arrangement the

actual details of which, because he viewed them as insignificant,

were largely unknown to him.   Also, to the extent that respondent

sees dishonesty and fraud in petitioner’s interrogatory response

wherein he states that he could not “control or access the money”

in the HD Vest account, or in his response that TransNational

“possessed full control and discretion over the account”, it is

possible that petitioner viewed control as synonymous with

signature authority, and because he lacked the latter, he

honestly (if unrealistically) believed he also lacked the former.

     Petitioner testified that the absence of SBE’s financial

records, correspondence, etc. for examination by Ms. Evans

resulted from their disposal, in 2003, as unnecessary after the

sale of SBE’s business in 2002.   He further testified to his

belief that none of those documents was relevant to Ms. Evans’

audit.   We find no clear and convincing evidence that

petitioner’s testimony was untrue or intended to be misleading.

     Moreover, there is nothing inherently fraudulent in setting

up a deferral account in the United States.   From petitioner’s
                              - 51 -

standpoint, signatory authority over the HD Vest account by a

third party (foreign or domestic) appeared sufficient to justify

petitioner’s ostensible lack of control and, hence, the sought-

after deferral.

     Finally, we reject respondent’s argument that the OEL

program in this case is similar to the OEL program that we held

to be fraudulent in Foxworthy, Inc. v. Commissioner, T.C. Memo.

2009-203.   In Foxworthy, the money transferred to the offshore

deferred compensation account was almost immediately transferred

out of that account to other investment accounts in various

corporate names but used by the individual taxpayer for his own

purposes.   The evidence supported our finding that, from the

beginning, the individual taxpayer intended to hide those funds

from the Commissioner and to use them in furtherance of a number

of schemes designed to generate false deductions, all of which

actions clearly constituted tax evasion subject to the section

6663 fraud penalty.   Petitioner’s only activity that may have

resembled the individual taxpayer’s actions in Foxworthy was his

use of the Leadenhall Bank credit card, and that activity did not

begin until 1998.19


     19
      Another similarity between Foxworthy, Inc. v.
Commissioner, T.C. Memo. 2009-203, and this case is the manner in
which the OEL program was launched. In both cases, the program
was initiated by a transfer of funds to the Irish “employer”
corporation and a reduced salary payment to the taxpayer employee
in December of the initial implementation year. In Foxworthy,

                                                    (continued...)
                              - 52 -

     As noted supra, Mr. Carstensen, like petitioner, appeared to

believe that the OEL program, as implemented by petitioner with

his participation, would legitimately accomplish the desired tax

deferral.   There is nothing in the record to indicate that Mr.

Carstensen, although a professional preparer of income tax

returns, had any experience in the evaluation of tax deferral

schemes or programs.   That appears to be why he sought Mr.

McCarthy’s advice regarding the merits of the OEL program.

Respondent argues that, on the basis of Mr. McCarthy’s concerns

regarding the likelihood of an IRS attack, Mr. Carstensen “knew

from the very outset * * * that the scheme was a sham.”   We

disagree.   Mr. McCarthy did indeed have concerns that the

authorities cited in the promotional materials supplied by

Messrs. Schmidt and Drysdale were distinguishable from the OEL

program as described in those materials, but those concerns did

not amount to a conclusion that the program was a sham that could

not withstand IRS scrutiny.   Rather, it was a warning that a

successful IRS challenge represented a distinct possibility.    The



     19
      (...continued)
the individual taxpayer reported, for that entire year, only the
wages received from the U.S. leasing company for December.
Petitioner reported total wages of $323,887 for the initial year,
1995, of which $150,000 was received from the U.S. leasing
company for December. Although that essentially 50-50 split of
petitioner’s 1995 taxable wage payments between SBE and the U.S.
leasing company was obviously unrealistic, it was not as
aggressive as reporting no wages from the taxpayer’s former
employer, for whom he had worked for 11 months during the year,
as occurred in Foxworthy.
                               - 53 -

fact that Mr. Carstensen, in the face of that warning, still

chose to rely upon the assurances of Messrs. Schmidt and Drysdale

that the program would withstand such a challenge, while perhaps

demonstrating poor professional judgment on his part, does not

amount to fraud.   Similarly, we do not believe that Mr.

Carstensen’s alleged recalcitrance in responding to Ms. Evans’

requests for documents or the minor inconsistencies in his

testimony identified by respondent amounted to clear and

convincing evidence of fraud applicable to the first 3 years of

petitioner’s participation in the OEL program.

           d.   Conclusion

      Respondent has failed to provide clear and convincing

evidence that petitioner’s 1995-97 returns were fraudulent.

Accordingly, the extended limitations period provided in section

6501(c) is inapplicable, and respondent’s determinations and

adjustments relating to those years are barred.

II.   Application of the Section 6663 Fraud Penalty for 1998-2000

      A.   Discussion

      We have found that, for each of the audit years,

petitioner’s underpayment of tax equaled the excess SBE payments

plus the capital gains and investment income on the HD Vest

account.    We have also concluded that petitioner filed fraudulent

returns for 1998-2000 attributable to his (and Mr. Carstensen’s)

concealment of the Leadenhall Bank account and credit cards.   We
                                - 54 -

determined that that concealment, on petitioner’s 1998-2000

returns and during the audit of those returns, clearly and

convincingly demonstrated that petitioner knew that his and Mrs.

Browning’s unrestricted access to the 1998-2000 excess SBE

payments for any purpose (and, in particular, for personal

expenses) was inconsistent with the deferral of the excess SBE

payments for those years and was, therefore, a fraudulent attempt

to evade tax on those amounts.

     Moreover, petitioner has not persuaded us by a preponderance

of the evidence that his affirmative attempts to hide the

Leadenhall Bank account and credit cards do not justify imposing

the section 6663 fraud penalty on the entire amount of the

underpayment for each of the 1998-2000 years.   See sec. 6663(b).

     We do not find incredible petitioner’s testimony that he

believed any business-related expenses to be deductible so that

it was of no tax consequence that he failed to include the excess

SBE payments to be used for business purposes in income.    But we

find it more likely that that testimony was part of a contrived,

overall explanation designed to falsely justify petitioner’s

failure to include any portion of the excess SBE payments in

income despite his unrestricted access to the entirety of those

funds, by means of the Leadenhall Bank credit cards, and his

knowledge that that unrestricted access rendered him taxable on

those payments for 1998-2000.    That, in an our estimation, is why
                               - 55 -

he and Mr. Carstensen endeavored to hide the Leadenhall Bank

account and credit cards from respondent.

       B.   Conclusion

       The entire amount of petitioner’s underpayment for each of

his 1998-2000 years is subject to the section 6663 fraud penalty.

III.    Application of the Section 6662 Accuracy-Related Penalty

       Because we have applied the section 6663 fraud penalties to

petitioner’s total underpayments for 1998-2000, the section 6662

accuracy-related penalties do not apply for those years.    See

sec. 6662(b) (flush language).


                                          Decision will be entered

                                     under Rule 155.
