                        T.C. Memo. 2011-107



                      UNITED STATES TAX COURT



                 LLOYD T. ASBURY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18443-05.            Filed May 23, 2011.



     Lloyd T. Asbury, pro se.

     Miriam C. Dillard, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     GOEKE, Judge:   Respondent determined the following income

tax deficiencies and additions to tax under sections 6651(f)1 and

(a)(2) and 6654 for the years 1997 through 2002:


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                   - 2 -

                                            Additions to Tax
Year         Deficiency      Sec. 6651(f)    Sec. 6651(a)(2)   Sec. 6654
              1                                                 2
1997           $66,397         $48,138         $16,599           -0-
1998           117,590          85,253          29,398         $5,381
1999            88,408          64,096          22,102          4,279
2000           101,846          73,838          25,462          5,440
2001            82,410          59,747          20,603          3,293
2002            66,358          48,110          33,179          2,217

       1
        Amounts are rounded to the nearest dollar.
       2
        Respondent concedes the sec. 6654 addition to tax for 1997.

       Petitioner, a decorated military hero, was a successful tax

lawyer during the years in question whose life unraveled as the

result of a gambling problem.       The present case is, it is hoped,

the last chapter in the resulting series of negative

repercussions to petitioner.

       After concessions made,2 the issues for decision are:

       (1)    Whether petitioner failed to report dividends from his

incorporated law practice for tax years 1997 through 2002.          We

hold that he did;

       (2)    whether petitioner is entitled to additional itemized

deductions.       We hold that he is;




       2
      Petitioner conceded the following issues: (1) Failure to
report dividends from sources other than his law practice for tax
years 1997 through 2002; (2) failure to report interest income
for tax years 1997 through 2002; (3) failure to report a
premature taxable distribution from his pension account for tax
year 1998; (4) failure to report income from Columbia Plantation
Co., an S corporation in which he was a shareholder for tax years
2000 through 2002; (5) failure to report gambling winnings for
tax years 1999, 2000, and 2002.
                                   - 3 -

       (3)     whether petitioner is liable for the addition to tax

under section 6651(f) for failure to file returns for 1997

through 2002.       We hold that he is;

       (4)     whether petitioner is liable for the addition to tax

under section 6651(a)(2) for 1997 through 2002 for failure to

pay.    We hold that he is; and

       (5)     whether petitioner is liable for the addition to tax

under section 6654 for failure to make estimated payments for tax

years 1998 through 2002.       We hold that he is.

                             FINDINGS OF FACT

       Petitioner resided in Florida when the petition was filed.

Petitioner graduated from the United States Military Academy at

West Point in June 1963 and began an illustrious military career

that lasted more than 10 years.       He received, among other

decorations, the Silver Star and the Purple Heart for service in

Vietnam.

A.     Postmilitary Legal Career

       Petitioner obtained several postgraduate degrees after

serving in Vietnam.       In May 1971 he completed a master’s program

in Paris, France, through Middlebury College.        Petitioner was

subsequently assigned to serve on the staff and faculty at West

Point.       During this assignment petitioner earned an M.B.A. in

accounting and taxation at Fairleigh Dickinson University.        In

April 1976 petitioner resigned from the Army and entered law
                                - 4 -

school at the University of Florida.    In 1978 he completed his

law degree and was admitted to the Florida Bar and began

practicing in Jacksonville, Florida.    Petitioner was admitted to

practice before this Court in 1979.

     Petitioner had immediate success as an attorney.     His

practice focused on taxation, estates, trusts, probate, and

corporate law.    He served as chairman of the Tax Section of the

Jacksonville Bar Association in 1984 and 1985.    After working for

several years with a partner, he opened a solo practice in 1986.

     Petitioner’s financial troubles began after he started his

solo practice.    He developed relationships with several clients

who traveled regularly to Las Vegas to gamble.    Petitioner began

traveling every 6 weeks for gambling junkets.    As substantial

gambling losses accrued, petitioner’s gambling habits affected

other business decisions.    Petitioner relied on credit to cover

his gambling losses, pursued high-risk investments, and

mismanaged client funds.

     During the years at issue, petitioner maintained four bank

accounts at First Guaranty Bank.    He maintained a personal

account under the name Lloyd T. Asbury or Elizabeth F. Asbury,

his then wife.3    He also maintained an operating account, a

payroll account, and a client trust account for the law firm

under the name Lloyd T. Asbury Attorney at Law PA.    Petitioner


     3
         Petitioner and his wife divorced subsequently.
                                - 5 -

also maintained two investment accounts at Paine Webber:     One in

the name of Lloyd T. Asbury Revocable Trust, FBO, and the other

in the names of Elizabeth F. Asbury and Lloyd T. Asbury, JTWROS.

     Petitioner regularly commingled client trust account funds

with funds from other law firm accounts.    He did not keep a

separate file for each client transaction, and he did not

reconcile accounts as required by the Florida Bar.      He frequently

shifted funds between his law firm accounts and personal

accounts.

     Petitioner was the only person with control over the law

firm’s client trust account.    In 2001 the Florida Bar Association

investigated petitioner’s records relating to funds held in trust

for his clients.    Petitioner was unable to provide proper records

to the Florida Bar, and his membership was suspended in November

2001.   Petitioner resigned from the Florida Bar in January 2003.

     On September 14, 2004, petitioner pleaded guilty to one

count of the first degree felony of grand theft under Fla. Stat.

Ann. sec. 812.014(2)(a)1., in connection with the mismanagement

of client funds.    On December 17, 2004, he was sentenced to 5

years’ incarceration, 10 years’ probation, 1,000 hours of

community service, and a restitution payment of $357,000 to his

clients.    On March 2, 2005, petitioner began his period of

incarceration;    on March 11, 2009, he was released.
                               - 6 -

B.   IRS Adjustments

      On June 30, 2005, respondent issued a notice of deficiency

to petitioner for tax years 1997 through 2002 while petitioner

was still incarcerated.   Petitioner neither filed individual

Federal income tax returns for 1997 through 2002 nor made any

estimated tax payments.   In addition, petitioner failed to file

corporate Federal income tax returns for his corporation Lloyd T.

Asbury Attorney at Law PA for the years 1998 through 2002.4

Respondent prepared substitutes for returns (SFRs) under section

6020(b) for tax years 1997 through 2002.   Respondent determined

that petitioner failed to report the following dividends from the

law firm:

                Year           Dividends

                1997           $203,333
                1998            330,367
                1999            256,165
                2000            273,341
                2001            239,152
                2002            166,541

      Petitioner also received income from interest; from

dividends received from sources other than the law firm; from an

S corporation in which he was a shareholder; from a distribution

from his pension account; and from gambling winnings.

      Respondent summoned petitioner’s personal bank records and

the bank records from his law practice in determining his income.


      4
      Petitioner filed a corporate return for 1997 sometime in
April 2002.
                                 - 7 -

Respondent used the specific-item method to compute this income.

Respondent counted as income the amounts of checks that were

written to petitioner and deposited into his personal bank

account, from his law firm’s client trust account, or from his

law firm’s operating account.    Respondent also included as income

payments made to petitioner’s family members, payments made on an

obligation relating to petitioner’s personal residence, and

income reported by third-party payors.    Most of petitioner’s

income is from checks written directly to him.    Respondent refers

to the income petitioner received from his law practice and

through other sources as constructive dividends.

     On October 3, 2005, petitioner timely petitioned this Court

for redetermination of the deficiencies and additions to tax for

the taxable years 1997 through 2002.

                                OPINION

     Petitioner bears the burden of proving by a preponderance of

evidence that respondent’s income tax deficiency determinations

in the notice of deficiency are incorrect.    See sec. 7491(c);

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

     Petitioner acknowledged that he failed to file tax returns

and to pay taxes, including estimated taxes, for the years at

issue.   He filed requests for extensions of time to file tax

returns for years 1997 through 2000 without payment, except for

tax years 1998 and 2000 when he made a payment of $100 for each
                                - 8 -

year.   He stipulated that he received dividends from his law

practice and from other sources for the years at issue.    He

stipulated that he earned interest income for all years at issue

and received a premature distribution from his pension account

for 1998.   Finally, petitioner stipulated that he received income

from an S corporation from 2000 through 2002 and from gambling

winnings in 1999, 2000, and 2002.    Nevertheless, petitioner

argues that he lacked the intent to evade taxes.

     Petitioner also contests the inclusion in income of certain

amounts he deposited into and then withdrew from his law firm’s

client trust and operating accounts.    Although petitioner admits

that he wrongly deposited the funds into his law firm accounts,

he argues that the funds originated from nontaxable sources.

Petitioner testified to the specific instances where he alleges

respondent wrongly included in income money from different

sources.    Respondent counters that petitioner has failed to

introduce any credible evidence to support his argument that

receipts from nontaxable sources were included in income.

I.   Constructive Dividends

     Respondent asserts that constructive dividend income should

be imputed to petitioner for amounts both from his law practice

and from other sources for the years 1997 through 2002.

     A constructive dividend arises when a corporation confers an

economic benefit upon a shareholder without expectation of
                               - 9 -

repayment if the corporation has sufficient earnings and profits.

Loftin & Woodard, Inc. v. United States, 577 F.2d 1206, 1214 (5th

Cir. 1978); Crosby v. United States, 496 F.2d 1384, 1388 (5th

Cir. 1974); Truesdell v. Commissioner, 89 T.C. 1280, 1295 (1987).

Corporate payments to a shareholder which confer personal

benefits on the shareholder may constitute constructive dividends

whether or not dividends are formally declared.   Noble v.

Commissioner, 368 F.2d 439, 442 (9th Cir. 1966), affg. T.C. Memo.

1965-84.

     The evidence in this record clearly establishes that

petitioner did not separate his personal transactions and

expenses from those of his law firm.   He paid personal expenses

with corporate checks.

     Through examinations conducted by the examining agent, in

which petitioner’s personal bank records and bank records for

petitioner’s law firm were summoned, the examining agent

identified checks that were written directly to petitioner or

payments made for his benefit from the bank accounts of the law

firm.   In addition, the examining agent was able to trace checks

written directly to petitioner from his law practice into his

personal bank accounts.

     Consequently, we find that petitioner received constructive

dividends regarding the transactions described herein and thus

those dividends constitute gross income to him.
                              - 10 -

II.   Transactions at Issue

      We will consider the deposits petitioner argues originated

from nontaxable sources and the withdrawals he argues were not

for his personal benefit.

      A. Mortgage Payments

      At trial petitioner argued that respondent wrongly included

income mortgage payments made from his law firm operating

account.   Petitioner has failed to produce any credible evidence

that the payments made for his residence during tax years 1997,

1998, 1999, and 2000 were not for his personal benefit.

Accordingly, petitioner has not met his burden, and respondent’s

determination is sustained.

      B.   Merrill Lynch

      Petitioner argued that respondent wrongly included in income

withdrawals from an investment account with Merrill Lynch.    After

petitioner’s father’s death in 1996, the account stood in the

joint names of petitioner and petitioner’s brother.   Petitioner

testified that neither he nor his brother removed funds for

personal use, but for certain purposes including the care of

their mother.   Petitioner testified that he was his mother’s

caretaker before his brother retired and lived with her.

Petitioner identified three withdrawals from the Merrill Lynch

account, all dated August 11, 2000, of $5,000, $10,000, and

$35,000.
                                  - 11 -

        Petitioner’s Merrill Lynch account statements support his

testimony that on August 11, 2000, he wrote one check to Lloyd T.

Asbury PA of $5,000, and two checks to Lloyd T. Asbury PA Trust

Account of $10,000 and $35,000.       The firm’s operating account

records indicate that a deposit of $5,0005 was made on August 11,

2000.       The firm’s client trust account records indicate that

deposits of $10,000 and $35,000 were made on August 11, 2000.6

        Petitioner’s testimony contradicts earlier statements that

his mother did not own the securities held in the Merrill Lynch

account.       Petitioner filed a petition in this Court on behalf of

his mother in response to a notice of deficiency issued to her.

In the petition, his mother alleged that she did not own the

securities in the Merrill Lynch account.       At trial of the present

case petitioner did not establish who owned the securities or how

the funds were used to care for his mother.       Accordingly,

petitioner has not met his burden, and respondent’s

determinations with respect to the Merrill Lynch transactions are

sustained.

        C.     Check Held for Petitioner’s Wife

        Petitioner contests the inclusion in income of a check for

$68,512.81 from his firm’s client trust account issued to his


        5
      The deposit slip reflects a returned item charge of $5.
The total deposit was $5,005.
        6
      The deposit slips also include returned item charges of $5.
The total deposit amounts were $10,005 and $35,005.
                                - 12 -

then wife.   Petitioner explained that his then wife and two of

her sisters, Ruth Loot and Barbara Milacki, each received a check

for $68,512.81 as part of a distribution from an estate passed on

to them through their mother.    Petitioner’s wife and her sisters

placed these moneys in the firm’s client trust account for the

purpose of reserving funds for their mother’s care.   The firm’s

client trust account later issued three checks, each made payable

to three payees; namely, his then wife and her sisters.

     Petitioner’s firm’s client trust account records show copies

of three checks each made out to Mrs. Asbury and her two sisters,

Ms. Loot and Ms. Milacki, of $68,512.81.   These amounts were

debited from his account on July 17, 1998.   Although petitioner

did not identify the date when the funds were originally

deposited into his account, we find his testimony regarding these

funds credible.   Accordingly, the total amount of these checks

will be subtracted from respondent’s adjustment for 1998.

     D.   Checks Held for Son and Daughter-in-Law

     Petitioner also contests the inclusion in income of funds

from the client trust account used to fund two checks issued to

Jennifer E. and Thomas Asbury, his daughter-in-law and son, while

they were in the process of selling their condominium and

purchasing a home.   Petitioner testified that he deposited his

son’s funds into the firm’s client trust account to hold on his

son’s behalf, but stresses that he was not the recipient of the
                                 - 13 -

funds.    First, he cites a check written to Gibraltar Title

Services for $40,013.90 representing the closing costs for the

purchase of his son and daughter-in-law’s home.      Petitioner’s

firm’s client trust account records show a copy of a check made

payable to Gibraltar Title Services in this exact amount which

was debited from the firm’s account on May 24, 2000.

     Next, petitioner cites a check written on June 8, 2000, for

$1,000.    Petitioner’s law firm’s client trust account records

show a copy of a check made payable to his son and daughter-in-

law debited from his trust account on June 13, 2000, for the same

amount.    Petitioner testified that this check was issued in order

to cover a binder fee when his son and daughter-in-law were

trying to sell their condominium.

     Petitioner failed to produce any evidence verifying that he

deposited his son’s funds into his client trust account for

safekeeping.    Therefore, we find he has not proven that deposits

to the account were not his income.       Respondent’s determination

is sustained.

     E.     Loan From Ms. Baum

     Petitioner testified that he received a loan of $104,622.88

in July 2001 from Georgia Baum.     Ms. Baum held an account at

Invest Financial Corp.    Ms. Baum’s records show that she issued

to the law firm’s client trust account a check for $104,620.88 on

July 24, 2001.    The firm’s trust account records show a copy of a
                                - 14 -

check indicating that a deposit of $104,620.88 was credited to

this account on July 25, 2001.     Accordingly, we find petitioner’s

testimony concerning this transaction credible, and thus he has

met his burden.    The inclusion of this deposit in petitioner’s

income is in error.

     F.     Loan From Mr. Arbogast

     Petitioner cites two loans from Gordon Arbogast of $80,000

on February 28, 2002, and another of $25,000 on May 23, 2002.

     Petitioner could not produce any evidence to trace the

transactions between Mr. Arbogast and himself.     His account

records do not correspond with his testimony and cannot be

verified.     Thus, he has not met his burden, and we sustain

respondent’s determination for these transactions.

     G.      Loan From Mr. Edleberg

     Petitioner cites a loan from J.W. Edleberg of $60,000 in

2002.     However, petitioner could not produce any evidence to

trace the transactions between Mr. Edleberg and himself.     His

account records do not correspond with his testimony and cannot

be verified.     Thus, petitioner has not met his burden, and we

sustain respondent’s determination for this transaction.
                                 - 15 -

     H.    Loan From Ms. Smith

     Petitioner cites a loan from Della Smith of $50,000 on March

1, 2002.   However, petitioner could not produce any evidence to

trace the transactions between Ms. Smith and himself.     His

account records do not correspond with his testimony and cannot

be verified.   Thus, petitioner has not met his burden, and we

sustain respondent’s determination for this transaction.

     I.    Moving Stipend From the City of Jacksonville

     Petitioner cites a check from the city of Jacksonville paid

to him as a moving stipend following the city’s condemnation of

his leased office building.    Petitioner testified that it was

deposited into the firm’s operating account on April 18, 2002.

The firm’s operating account records do reflect a deposit of

$10,000 on April 18, 2002.    The records include a deposit slip

but do not include a copy of the check or identify the payor.       As

a result, petitioner has not met his burden to show this amount

was not income in 2002, and we sustain respondent’s

determination.

III. Additional Deductions

     Section 165(d) permits a taxpayer to deduct losses from

wagering transactions “only to the extent of the gains from such

transactions.”   The taxpayer bears the burden of proving

entitlement to such a deduction.     Schooler v. Commissioner, 68
                                - 16 -

T.C. 867, 869 (1977); see INDOPCO, Inc. v. Commissioner, 503 U.S.

79, 84 (1992).

      For all years at issue, respondent allowed the standard

deduction.    However, for years 1999, 2000, and 2002 respondent

adjusted petitioner’s income for gambling winnings, and for years

1999 and 2002 his gambling winnings exceeded the standard

deduction.    Petitioner’s personal life and professional life were

devastated by his gambling addiction, and his gambling losses

were substantial.    We hold that petitioner proved he sustained

gambling losses and is entitled to additional itemized deductions

for gambling losses for tax years 1999 and 2002 up to the amount

of his gambling winnings in those years.

IV.   Additions to Tax

      1.   Section 6651(a)(2)--Failure To Pay

      Section 6651(a)(2) imposes an addition to tax for failure to

timely pay the amount of tax shown on a taxpayer’s Federal income

tax return.     Cabirac v. Commissioner, 120 T.C. 163, 170 (2003).

      Petitioner did not file valid returns for the years 1997

through 2002.    Where the taxpayer did not file a valid return,

the Commissioner, to satisfy his burden of production for the

section 6651(a)(2) addition to tax, must introduce evidence that

he prepared SFRs.    Respondent prepared SFRs under section 6020(b)

for the years in issue.    SFRs made by the Secretary under section

6020(b) are treated as the returns filed by the taxpayer for
                                - 17 -

purposes of determining whether the section 6651(a)(2) addition

to tax applies.    Sec. 6651(g)(2); Wheeler v. Commissioner, 127

T.C. 200, 208-209 (2006), affd. 521 F.3d 1289 (10th Cir. 2008).

Thus, respondent has established SFRs were prepared and we

sustain respondent’s determination of the failure to pay

additions to tax pursuant to section 6651(a)(2).

     2.   Section 6651(f)--Failure To File

     Section 6651(f) imposes an addition to tax of up to 75

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

when the failure to file a Federal income tax return timely is

due to fraud.

     In ascertaining whether petitioner’s failure to file was

fraudulent under section 6651(f), the Court considers the same

elements that are considered in imposing the fraud penalty under

section 6663 and former section 6653(b).     Those two elements of

fraud are:   (1) The existence of an underpayment, and (2)

fraudulent intent with respect to some portion of the

underpayment.     In a case involving fraud, the Commissioner bears

the burden of establishing fraud by “clear and convincing

evidence”.   Sec. 7454(a); Rule 142(b); Korecky v. Commissioner,

781 F.2d 1566, 1568 (11th Cir. 1986), affg. T.C. Memo. 1985-63;

Clayton v. Commissioner, 102 T.C. 632, 653 (1994); Petzoldt v.

Commissioner, 92 T.C. 661, 699 (1989).
                                 - 18 -

     Fraud is not to be imputed or presumed but rather must be

established by some independent evidence of fraudulent intent.

Beaver v. Commissioner, 55 T.C. 85, 92 (1970); Otsuki v.

Commissioner, 53 T.C. 96, 106 (1969).     Fraud may be established

by surveying the taxpayer’s entire course of conduct and drawing

reasonable inferences therefrom.      Spies v. United States, 317

U.S. 492, 499 (1943); Korecky v. Commissioner, supra at 1568.

     Courts have relied on long-recognized badges of fraud in

deciding whether to sustain the Commissioner’s determinations

with respect to the addition to tax for fraud.     Although no

single factor may be necessarily sufficient to establish fraud,

the existence of several indicia may be persuasive circumstantial

evidence of fraud.      Spies v. United States, supra at 499-500;

Conti v. Commissioner, 39 F.3d 658, 662 (6th Cir. 1994), affg. 99

T.C. 370 (1992) and T.C. Memo. 1992-616; Bradford v.

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

Memo. 1984-601; Niedringhaus v. Commissioner, 99 T.C. 202, 211

(1992).

     We find some of those badges of fraud to be present in this

case.   They include:    Understatement of income; awareness of

obligation to file returns, report income, and pay taxes; failure

to make estimated tax payments; and engaging in illegal activity.

     Petitioner failed to report substantial amounts of income

from his law and tax practice for 6 years.     This Court has held
                               - 19 -

that “consistent understatements of income in substantial amounts

over a number of years by knowledgeable taxpayers, standing

alone, are persuasive evidence of fraudulent intent to evade

taxes.”   Otsuki v. Commissioner, supra at 108.    Moreover, on this

record we are satisfied that petitioner, with his status as a

practicing tax attorney, was aware of his obligation to report

income and to pay taxes on this income.

     The record also demonstrates that petitioner failed to file

returns for both himself and his law practice (with exception of

a 1997 corporate return filed during the examination process) for

the 6 consecutive years at issue.

     Also, petitioner did conceal income and assets for the years

at issue.   Petitioner testified that he had used “my PA trust

account illegally as, essentially as, a checking account.     I

would put funds in.    I would take funds out.”   In addition, he

testified “Did I fail to reveal or try to conceal assets?     I

mean, the record is here. * * * it’s * * * more than what should

have went through these accounts. * * * deposits were made,

checks were written.    There’s no question about that.”

     In addition, petitioner failed to make any estimated tax

payments or have any Federal income tax withheld with respect to

his individual income tax liabilities for the years at issue.

Petitioner’s only payments for the years at issue are two $100

payments--one for tax year 1998 and the other for tax year 2000.
                             - 20 -

In addition, during the years at issue petitioner failed to

timely pay employment taxes for the employees of his law

practice.

     Petitioner did engage in illegal activity.   Petitioner was

convicted of grand theft of client funds during or near the years

at issue, sentenced to 5 years in prison, and ordered to pay

$350,000 in restitution.

     Petitioner’s actions demonstrate a majority of the indicia

of fraud considered by this Court.    Respondent has met his burden

of proof by providing clear and convincing evidence that

petitioner not only established a pattern of failing to file

income tax returns, but he also created trusts designed to

conceal his income, thereby knowingly attempting to evade taxes.

Thus, respondent has shown that at least some portion of the

underpayment for each of the years in issue was due to fraud.

Moreover, petitioner did not demonstrate that any portion of the

underpayment was not attributable to fraud.

     Further, the Court allowed petitioner the opportunity at the

conclusion of trial to file a motion to reopen the record in the

event he could provide additional documentation to support his

position regarding the items he disputes.    Petitioner failed to

provide any further documentation in his defense.    Therefore,

petitioner has failed to show that any additional portions of

respondent’s determinations are incorrect.    Accordingly, the
                                - 21 -

Court finds that petitioner is liable for an addition to tax

under section 6651(f) for each of the years 1997 through 2002.

     3.    Section 6654--Failure To Make Estimated Tax Payments

     Section 6654(a) imposes an addition to tax on an

underpayment of estimated income tax.    A taxpayer generally has

an obligation to pay estimated income tax for a particular year

only if he has a “required annual payment” for that year.    Sec.

6654(d).    The required annual payment is equal to the lesser of:

(1) 90 percent of the tax shown on the individual’s return for

that year (or if no return is filed, 90 percent of the tax for

such year), or (2) 100 percent of the tax shown on the return if

the taxpayer filed a return for the immediately preceding tax

year.     Sec. 6654(d)(1)(B); Wheeler v. Commissioner, 127 T.C. at

210-211.

     Because petitioner failed to file an individual Federal

income tax return for any of the years at issue, the required

payment is 90 percent of the tax due for each of the years 1998

through 2002.     Petitioner failed to make any estimated tax

payments or to have any Federal income tax withheld with respect

to his individual income tax liabilities for the years at issue.

Petitioner’s only payments for any of the years at issue are two

$100 payments--one for tax year 1998 and the other for tax year

2000.
                                - 22 -

     Because the amounts as determined by respondent exceed the

payments made, petitioner is liable for the addition to tax for

failure to pay estimated tax under section 6654(a) for each of

the years 1998 through 2002.7

V.   Conclusion

     Despite his personal struggles and recent efforts to

overcome these challenges, petitioner cannot escape his

obligation to timely file and pay taxes.    Petitioner’s experience

as an attorney made him acutely aware of his obligation to

accurately report income and submit the required tax filings and

payments.    His background as a licensed attorney also gave him

precise knowledge concerning the consequences of his failure to

file.    His failure to make any effort to comply with known tax

obligations over a period of 6 years is substantial and does not

result from any good-faith misunderstanding.    We find his

failures to file returns fraudulent as to the income tax

underpayments we have found previously.

     Consequently, we conclude that (1) petitioner is liable for

deficiencies for the tax years 1997 through 2000; (2) petitioner

is liable for additions to tax for fraudulent failure to file

under section 6651(f) and for failure to pay under section

6651(a)(2) for the tax years 1997 through 2002, and (3)



     7
      Respondent concedes the addition to tax for failure to make
estimated tax payments for the tax year 1997.
                             - 23 -

petitioner is liable for additions to tax for failure to pay

estimated tax under section 6654(a) for the years 1998 through

2002.

     To reflect the foregoing and concessions by the parties,


                                        Decision will be entered

                                   under Rule 155.
