179 F. Supp. 876 | S.D. Miss. | 1959
This is a consolidation of five separate complaints filed by plaintiff to recover additional income taxes and penalties assessed for the years 1940, 1941, 1942, 1944, and 1945. Payment of these assessments was made June 26, 1952, and the complaints seek interest from the date of payment. At the time these assessments were made, the statute of limitations had been extended by written consent from plaintiff for the year 1941 only. For the other four years, the validity of the assessments depends entirely upon proof of fraud. Internal Revenue Code of 1939, § 276(a), 26 United States Code Annotated (now § 6501(e), Internal Revenue Code of 1954, 26 U.S.C.A. § 6501(c)). The burden of proving fraud is defendant’s, which is conceded. This burden is “to prove affirmatively by clear and convincing evidence actual and intentional wrongdoing on the part of the petitioner with a specific intent to evade the tax”. Carter v. Campbell, 5 Cir., 1959, 264 F.2d 930, 936. In addition to this heavy burden, defendant is met.here by other obstacles of no small moment and these must be precisely stated so that the boundaries of this inquiry-may be clearly seen. Defendant concedes that plaintiff’s return for 1939 was not tainted with fraud. Civil Action No. 722 in this court was a complaint seeking recovery of additional income tax assessed and paid for the year 1943, the fraud penalty thereon and interest from date of payment. That cause was tried by Judge Mize and he found that there was no fraud on the part of plaintiff for that year. See Broadhead v. Enochs, D.C., 162 F.Supp. 897. From that action of this court, de-
1) The additional tax, penalty, and interest paid, as here involved, is shown in Table I
2) Sam E. Broadhead, the plaintiff, has a sixth grade public school education, and was a farmer and common laborer in Alabama before coming to Mississippi. He had been “following an edger” for five cents per hour immediately before coming to this state, and when he arrived here, he had less than two weeks pay and one gray mule. Shortly after coming to Mississippi, he bought one old truck on credit and began logging for a lumber mill. A few months later, he bought another second hand truck on credit in order to, enlarge his logging operation, which was then in Clarke County, Mississippi. Later he acquired additional used trucks and some work mules and horses. He first commenced lumber operations for himself at Carmichael, Mississippi, a rural community in Clarke County, about forty miles Southeast of Meridian, Mississippi. Nearest banking facilities were in Quit-man, also in Clarke County. In about 1938, Broadhead moved to Brewer, another small rural community, without banking or postal facilities, but located several miles closer to Quitman. He lived and operated in Brewer until the summer of 1945, when he moved to Meridian. In 1939, he borrowed money from a lumber company and bought about 3,000 acres of timber land for $5,-160, giving a deed of trust on the land and lumber which might be produced therefrom. He bought three other small timber tracts at Brewer for about $1,300 cash in 1939, and filed his first income tax return for that calendar year.
3) During the several years here involved, plaintiff had the office help of only one person. She began work as a store clerk, then began to work as a billing clerk, and later undertook whatever routine bookkeeping that was done in the simple system used for both the lumber business and the commissary connected therewith. This consisted of entering and preserving purchase and sale invoices, bank statements, deposit slips, and cancelled checks, mill reports, and books containing lumber and merchandise sales registers, purchase journal, and check register. Plaintiff obviously knows nothing of office records or of bookkeeping or accounting, and, unfortunately, the one clerical helper mentioned was untrained.
4) In 1939 plaintiff employed a reputable certified public accountant who installed a simple bookkeeping system for him that year and prepared plaintiff’s 1939 income tax return. This same accountant also prepared plaintiff’s income tax returns for the years 1944, 1945, and 1946. A skilled bookkeeper, who had been head bookkeeper for a large lumber concern with an office at Quitman, prepared plaintiff’s income tax return for 1942 and 1943. This bookkeeper died in about 1944. All these returns were signed by plaintiff with the exception of that for 1942. This was signed by the said bookkeeper, but was not signed by Broadhead. All returns were signed by the accountants (bookkeeper) and Broadhead testified that he did not know why he did not sign the 1942 return personally, that it was his return and he so intended it, and would have signed it without question.
5) During all of the years here in question, it is apparent that plaintiff relied upon said experienced bookkeeper
6) Plaintiff is a shrewd buyer of property connected with the lumber business, but relied principally on four other people to sell his manufactured product and to collect the proceeds of such sales. At the banks where he did business during these years, plaintiff was extended liberal credit. In his business dealings, other than routine operation of his lumber business, he relied on his bankers, lawyers, and accountants for guidance. Substantially all of his dealings were in the lumber business and most'of his operations were channelled through his bank accounts, particularly in 1944 and 1945. When he undertook an oil drilling enterprise in 1945, he suffered a substantial loss and withdrew therefrom in a very short time.
7) Investigations were begun in 1946 for the years 1940, 1941, and 1942. The scope of the investigations was later enlarged to include the years 1943, 1944, and 1945. It also appears that the 1939 return of plaintiff was called out, but that no question was ever raised with respect thereto. Stemming from these investigations were othpr investigations affecting the years 1946. and 1947, with which we are not here concerned. A Special Agent was assigned to this project as his first investigation after joining the Intelligence Unit of the Treasury Department. In addition to the investigation made by the Special Agent, there was an investigation made by a Revenue Agent. These investigations were extensive, detailed and thorough. Basically, two well known methods were used by these investigating agents since they considered plaintiff’s ■ books and records’ to be inadequate. 'Théy were the bank deposits plus cash expenditures method and the net worth method. The principal result of these investigations, with which we are here concerned, was a determination by the Commissioner of Internal Revenue of additional amounts of unreported taxable income, for each of the years involved, and the assessment of additional taxes, fraud penalties, and interest as heretofore shown. For its case of fraud, defendant relies principally on what is claimed to be plaintiff’s consistent failure to report substantial amounts of income over the years with which we are concerned, but he also relies on other circumstantial evidence claimed to indicate fraudulent intent with respect to income tax on the part of plaintiff. Dealing first with the two differing versions of income as reflected by plaintiff’s returns and the determinations based on these investigations, it is apparent that some of the principal differences arise with respect to inventory, depletion (or stumpage), and deprecia-tiop. There are other differences which are proper for consideration on the question of fraud, although some of these differences may be in method rather than in fact.
8) Lumber inventories, in the aggregate, for the years involved present the largest area of controversy. Inventory was not considered in preparing plaintiff’s tax returns, but the determination upon which these additional assessments were based, included an opening lumber inventory on January 1, 1940, of $25,-665, and showed substantial increases each year. The proof offered by defendant of the existence of inventory was a letter signed by plaintiff addressed to the Special Agent under date of May 14, 1947, listing lumber inventories at the end of each year in question. The “spread back” of lumber inventories mentioned In this letter grew out of an audit report made for plaintiff by his aforementioned certified public accountant in connection with a project by plaintiff to seek a large bank loan. The audit report was made as of August 31, 1946, and the portion thereof dealing with lumber inventory was based upon a physical count
9) The determination, upon which these additional assessments were based, allowed as a deduction, in lieu of depreciation, payments made by plaintiff for automotive equipment purchased. To this there was added amounts allowed as depreciation on other depreciable property. In the aforementioned trial of Civil Action No. 722, this court found that the added amount allowed as depreciation, was based solely upon a memorandum dated April 3, 1947, of a certified public accountant, who, in that particular, gratuitously undertook to represent plaintiff without any authority so to do, and that the depreciation figures therein listed for the years here involved did not represent any determination by the Commissioner of Internal Revenue that the depreciation claimed by plaintiff in his several returns was erroneous or excessive. The evidence in this trial shows that such depreciation amounts allowed were similarly derived. The evidence further shows, because of the nature of plaintiff’s business, and the effect thereof upon the items of depre-ciable property involved, that the depreciation claimed by plaintiff was reasonable in each of the years here involved. This is particularly true in view of the fact that the depreciable property used by plaintiff was largely used or old machinery when acquired by him. The average useful life of such property was four to five years as to mills and machinery, but only about fourteen months as to automotive equipment and logging tractors. The arbitrary allowance on the determination precludes its consideration as proof of fraud. At most, it was a difference of opinion which is not “clear and convincing evidence (of) taxpayer’s actual and intentional wrong doing with a specific intent to evade the tax”, as required by Carter.
10) In his lumber operations, plaintiff undertook to accumulate land acreage, and by the end of 1945, he had approximately 33,000 acres of land, most of which had cost between $1.50 and $3.50 per acre. Most of this was sold after the years here involved. As he was acquiring timber land, plaintiff undertook to pay for it with the timber he cut from it. These payments, as determined by
11) In arriving at the determination upon which the additional assessments were based, under the bank deposits plus cash expenditures method as used, certain paid checks of plaintiff were classified as expended for personal uses and were thus not allowable as deductions. An arbitrary estimate of additional personal living expenses was also added to plaintiff’s net taxable income. In fact, these two items, as dealt with in the determination, seem inconsistent and with respect to the issue of fraud, should not be considered as a part of income.
12) When these principal areas of difference are considered in the light as discussed herein, they all have a significant bearing on the issue of fraud. This may be demonstrated by an approximate statement of “economic income” or actual cash or cash equivalent earnings shown available to plaintiff on the face of his returns. On his figures, there was available to him $166,921.90. See Table IV
And, it is also helpful to note that, on the figures used in these determinations, a total of $247,779.87 was in the area of estimates and assumptions. See Table V
13) Considering the issue of fraud from a different viewpoint, the determination of plaintiff’s net worth in 1940 was $23,043.19 compared with an ending net worth as determined for 1945 of $360,-420.97, an apparent increase of $337,-377.78 for the entire six year period. Eliminating $44,153.74 allocated in the determination as increase in net worth for 1943, there is left a claimed increase, for the five years here involved, of $293,-224.04. But, eliminating the aggregate amount of lumber inventory increase allocated to these five years, there remains a figure of $185,944 which is pertinent. Included in this figure, however, is $19,475 as the depreciated cost of an oil rig claimed by defendant to be on hand at the end of 1945. It was stipulated in the trial of the 1946 Tax Court proceedings between these parties that this equipment was not owned by plaintiff during the year 1946. Thus, he could not have owned the oil rig at the end of 1945. Additionally, the evidence here discloses that this rig was sold by plaintiff before the end of 1945. The final corrected amount of apparent net worth increase, as claimed by defendant, is $166,-469, which closely approximates the “economic income” of plaintiff shown on the face of his returns for these years, that is, actual income before deductions for depreciation, depletion (or stump-age), and bad debts. See Table IV
14) Additionally, in the claimed opening net worth of plaintiff, at the beginning of these years, January 1, 1940, of $23,043.19, automotive equipment was not considered. There was on hand at that time such equipment at a cost of $9,745.73. Consistent with the method employed, a deduction for the cost of this equipment when paid, the cost of the equipment on hand at the beginning of the period, for which no depreciation deduction was claimed on plaintiff’s 1939 return, should be recognized as such a deduction. And the ending net worth statement in the determination used as a basis for the additional assessments at issue here, at the end of 1945, erroneously failed to include accounts payable and outstanding checks of plaintiff in the amount of $14,430.07 incurred by plaintiff in the oil rig project heretofore mentioned. The total of these last two amounts is $24,175.81, which must be eliminated, upon the fraud issue here presented, from the net worth increase as determined.
15) Plaintiff purchased from Dixie Planing Mill, Incorporated, a number of timber contracts and approximately 30 trucks, 5 small sawmills, and other logging equipment for $49,500, but subject to contract rights of persons operating said mills to buy such equipment. This entire sum was erroneously included in the determination as accounts receivable by plaintiff in the net worth figure determined for the end of 1945. The evidence shows that approximately $42,000 of this amount was purchase price paid for the trucks and logging equipment, and at least that amount should be excluded from the closing net worth figure as determined for 1945.
16) In plaintiff’s return for 1944, there was claimed as a bad debt de
17) In addition to the determination used as a basis for the assessments here in question, defendant sought to establish plaintiff’s net worth for the year 1945 independently by the testimony of an accountant with respect to balance sheets prepared by him for plaintiff, in connection with the preparation of plaintiff’s income tax return for the year 1946. These two balance sheets as of December 31, 1946, differed by $54,-872.81, and defendant relied upon the larger figure of $523,175. These two balance sheets differ in one particular only. One showed an account payable of $40,393.62 and no account receivable from the same company. The other balance sheet shows an account receivable from this company in the amount of $14,479.19, but no account payable to that company. The difference between such account payable amount and such account receivable amount, for the same company, on the same date, thus is $54,872.81, the natural result of transforming an account payable into an account receivable. Both of said balance sheets reflect an opening inventory of $189,000 in 1946. Thus, this balance sheet net worth figure must be adjusted by eliminating therefrom the beginning lumber inventory of $189,000 for reasons previously stated, and by eliminating the so-called “accounts” of sawmill operators arising from the aforementioned Dixie Planing Mill transaction. Elimination of these errors will reduce the effect of this independent proof to a figure in line with the previous findings shown by this opinion when proper consideration is given to depletion (stumpage), depreciation and bad debts in the light aforementioned.
18) Initially defendant contended that plaintiff received and had not accounted for large sums of currency during these years in question, but this aspect of defendant’s case, on the issue of fraud, is not urged in the brief submitted following the close of the hearing. Substantially all of the cash shown to have come into plaintiff’s hands in the form of currency is accounted for and most of it through regular bank transactions. In 1944 and 1945, plaintiff made a number of lumber sales to C.' E. Hood Lumber Company. These total about $40,000 in 1944 and approximately the same amount in 1945. Unsatisfactory credit experience with Hood and information received concerning Hood’s checks caused plaintiff to insist upon being paid in cash rather than by check. In 1944, this money went into plaintiff’s regular bank accounts. In 1945, after plaintiff sold substantially all of his stock of lumber at Brewer, prior to moving to Meridian, with most of the sales being made to C. E. Hood, plaintiff took the cash from such sales, together with some checks from other sales, and deposited a total of $51,390.98 in the Citizens National Bank in Meridian in the name of Virdie Cox, plaintiff’s wife. Deposits to this account were made twice, one in May and one in June of 1945. Plaintiff testified that this money was ear-marked by him to finance his move to Meridian from Brewer so that he could buy a place of business and a home. About two months later, after plaintiff had selected his home and arranged for the purchase of a mill, this account was closed by transferring it to plaintiff’s regular business account at the First National Bank in Meridian. Plaintiff was the only person having authority to sign checks on.this account, and after it was put in his name, he drew on this account for the purchase of his
19) The bank deposits plus cash expenditures method of audit is an expedient, of value only when available books and records are inadequate. It does not yield the same results as any recognized standard of bookkeeping or method of accounting based on adequate books and records, although it probably more nearly approximates the cash system of record keeping and tax reporting than any other. It does not approximate nor parallel the accrual system of record keeping, which was the system used by plaintiff. In many areas, this audit method will yield results of significant difference from those which would be reflected by an accrual system of bookkeeping and tax reporting. In at least one noticeable instance, there was such a significant difference in this case. The determination was that plaintiff’s total gross income for the year 1942 was $225,764.84, while the return reported his total gross income at $172,685.76, or $53,079.08 less than determined under the aforesaid audit method. However, plaintiff’s return for 1941 showed gross income of approximately $63,160.10 more than was determined by this audit method used, after correction for substantial errors in this determination. Hence, apparently, the method shifted gross income from 1941 to 1942. Included as gross income for 1942 were the collections made in that year from sales which were made in 1941, and reported by plaintiff, on his accrual method, as income in 1941, although not collected in 1941; this was done without an accompanying shift in deductions. The determination showed gross income for the two years, 1941 and 1942, together, to be $400,065.55, but it seems that this amount should be no more than $337,905.45, after correction for apparent errors totaling approximately $63,-160.10. This amount is about equal the 1942 net income changes of $65,485.92 made by the investigating agents, other than those from estimates of inventory increase, living expense, depreciation and personal cheeks. With these corrections, it is obvious that plaintiff reported more gross income for the two years, together, than was found, with an accurate application of the method of audit used, for the same two years.
20) This audit method used has its greatest value when it is accomplished accurately, and applied consistently, especially for a period of several years, such as we have in this case. Numerous errors were made in its application in this case. For example, a deposit item in the amount of $7,638.43, deposited to plaintiff, as treated by the Special Agent, resulted in an increase in net income of at least that amount, although it was re
21) An effort to impeach the credibility of plaintiff as a witness was made by defendant who brought the following out on trial, principally through exhibits introduced over objections by the plaintiff. Plaintiff was indicted for evasion of income tax for some of the years here at issue, including the year 1943, and entered a plea of nole contendere to the indictment. Judge Mize considered this plea on the trial of the aforementioned Civil Action No. 722, saying that it was to be considered * * * “but has very little weight” * * *. [162 F.Supp. 902.] That finding would appear to be binding here, and in addition, it has been almost uniformly held that such a plea is a mere statement of unwillingness to contest and it is not receivable in another proceeding as evidence of guilt and it has only a very limited value in certain restricted areas for impeachment. Mickler v. Fahs, 5 Cir., 1957, 243 F.2d 515. Plaintiff was indicted on a charge of violating the OPA ceiling price in the sale of a 1942 truck by selling such truck for $1,000, whereas the ceiling price thereon was $800, and was fined in the amount of $230. A permanent injunction was issued by this court against plaintiff in April of 1941 enjoining violations of the provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq, and he was afterward cited for contempt for violation of the injunction and fined. A claim for additional taxes, penalty and interest was made against plaintiff by the Tax Commission of the State of Mississippi for some of these years. To comply with the requirements of this court in the matter of minimum wages, plaintiff paid his employees by check. Some of these checks were paid through plaintiff’s regular bank account, but many of them were paid, according to plaintiff, by him, in cash, with the checks being used as receipts when endorsed by the payees. Some of these latter checks were bank stamped, although not cleared through the bank account. Plaintiff testified that many of these checks were cashed by him as an accommodation to his employees, since there were no banking facilities available to these employees where work for plaintiff was being done. Cash withdrawals from his regular bank accounts were sufficient' during this period to cover most, if not
22) Considering all of the evidence and all of the circumstances disclosed by this record, it seems clear to this court that defendant has failed, for any of the five years with which we are concerned, to meet the burden of proving by clear and convincing evidence any actual and intentional wrong doing on the part of plaintiff with a specific intent to evade the tax. Carter v. Campbell, supra.
23) Turning now to the additional assessment for the year 194L which is not dependent upon a finding of fraud for its validity, this court is met with a problem quite different from that heretofore discussed with respect to the issue of fraud. To overcome this additional assessment, when the fraud aspects are laid aside, plaintiff has a twofold burden (1) to show that the additional assessment is erroneous and, also, (2) to show the correct amount of tax which should have been returned and paid. Helvering v. Taylor, supra; Decker v. Korth, 10 Cir., 1955, 219 F.2d 732, certiorari denied, 350 U.S. 830, 76 S.Ct. 61,100 L.Ed. 740; United States v. Harris, supra; United States v. Pfister, supra; Taylor v. Commissioner, supra; Roybark v. United States, supra. Plaintiff may have met the first burden. His return reported his net taxable income for 1941 as $9,121.71, while the determination of his net taxable income for that year, resulting from the aforesaid investigations, was $29,147.28. Thus, there was a difference between return and determination of $20,026.67. A substantial part of this difference is composed of estimated lumber inventory (derived from the aforementioned letter which does not “reflect fact”) and estimated living expense, made, as it appears, ex parte by the agents conducting the investigations. Other parts of the determination are highly questionable. But, conceding that plaintiff has shown the determination for this year to be erroneous, he did not attempt to show that his return was correct and the evidence does not, with any degree of accuracy, show the correct amount of tax which should have been returned and paid. Hence, except for the imposition of the fraud penalty, the additional assessment for 1941 must stand.
24) In accord with the foregoing, the following findings of fact are made:
a) Defendant failed to meet the burden of showing by “clear and convincing evidence” that plaintiff filed fraudulent returns for any of the years involved here (1940, 1941, 1942, 1944, and 1945) “with a specific intent” to evade payment of income tax, as is required by Carter.
b) Plaintiff failed to meet the burden of showing the correct amount of income tax which should have been returned and paid for the year 1941.
25) It necessarily follows as a conclusion of law, that plaintiff is entitled to the relief prayed for in Civil Actions numbered 724 (1940), 675 (1942), 684 (1944), and 679 (1945), and, to the extent of the fraud penalty only, in Civil Action No. 723 (1941), but, he is not entitled to any relief with respect to the additional tax assessed and paid for the year 1941.
Orders may be prepared in accordance with this opinion.
. Table I.
. Table II.
. Table III
* No stumpage appears in the return as an identifiable separate item.
. Table IT
. Table V
. See Note 4 on page 882.
The original determination of net income for 1944 was $80,520.32. This was corrected by the allowance of depletion for that year in the amount of $2,220 and an allowance of $3,500 as transfers or loans deposited.
. To illustrate the validity of the “economic income” statement and its value in determining whether an estimate of personal living expenses added to determined income has much evidential effect where an issue of fraud is involved: A taxpayer’s return shows gross income of $20,000 with a deduction (among others) of $5,000 for depreciation. Taxable income is shown at $1,200. Taxpayer would have, on the face of such a return, at least $6,200 available in money for the payment of personal living expense. Hence, addition of an estimate for personal living expense, as evidence tending to show fraud, would seem to have little value.