Opinion

Jack Goodwill-Oikerhe

Court
United States Tax Court
Filed
Feb 11, 2026
Status
Unpublished
On the bench
Marshall
Cited by
0 cases
Authority
More cited than 38.6%

The opinion

United States Tax Court

T.C. Memo. 2026-18

JACK GOODWILL-OIKERHE,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

__________

Docket No. 20144-19. Filed February 11, 2026.

__________

Jack Goodwill-Oikerhe, pro se.

Victoria E. Cvek, David A. Indek, Archana Ravindranath, Amanda K.

Bartmann, and Nancy M. Gilmore, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

MARSHALL, Judge: Petitioner is a highly educated individual

who wholly owns an S corporation, Golden Express International, Inc.

(GEI), through which he engages in tax return preparation and other

services. Respondent issued petitioner a Notice of Deficiency (NOD) in

which he determined that petitioner is liable for federal income tax

deficiencies of $6,704, $24,067, and $11,223 and section 6663 1 fraud

penalties of $5,028, $18,050, and $8,417 for taxable years 2015, 2016,

and 2017 (years in issue), respectively. Petitioner timely filed the

Petition in this case. The issues for decision are whether petitioner is

(1) entitled to dependency exemption deductions for each of the years in

issue; (2) entitled to a property tax deduction for 2016; (3) entitled to

1 Unless otherwise indicated, statutory references are to the Internal Revenue

Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the

Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and

Rule references are to the Tax Court Rules of Practice and Procedure. Monetary

amounts are rounded to the nearest dollar.

Served 02/11/26

2

[*2] unreimbursed employee expense deductions for vehicle and cell

phone expenses for 2015 and 2016; (4) entitled to various deductions

with respect to GEI for each of the years in issue; and (5) liable for the

fraud penalty for each of the years in issue. For the reasons set forth

below, we sustain respondent’s determinations in full. 2

FINDINGS OF FACT

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

Stipulation of Facts and the accompanying Exhibits are incorporated

herein by this reference. Petitioner resided in Maryland when he filed

the Petition.

I. Petitioner’s Background

A. Residence

During the years in issue petitioner resided on Antanna Avenue

in Baltimore, Maryland. The Antanna Avenue residence consisted of

three stories. During the years in issue petitioner used the top two

stories as living quarters and used the basement exclusively as GEI’s

office. The Antanna Avenue residence was owned by petitioner’s

brother, Austin Oparanma, who resided in Nigeria. Petitioner had a

verbal agreement with his brother to use the residence.

B. Family

Petitioner has two nephews, Chisa and Chinda Oparanma,

through his brother Mr. Oparanma. The nephews were born in 1997 and

1998. During the years in issue Chisa and Chinda attended school in

Ukraine, with Mr. Oparanma paying at least some of their school fees.

C. Education

In 1985, petitioner earned a bachelor’s degree in business

administration from Central State University. In 2006, petitioner

earned a master’s degree in accounting and finance from Morgan State

University. At the time of trial petitioner was a Ph.D. candidate in

public policy and administration at Walden University, a program which

2 In the alternative to the section 6663 fraud penalties, respondent determined

that petitioner is liable for section 6662(a) accuracy-related penalties attributable to

negligence, or a substantial understatement of income tax, for each of the years in

issue. Because we sustain the fraud penalties, we do not address these penalties. Other

adjustments made in the NOD are computational and also will not be discussed.

3

[*3] he began in 2016. As part of his course loads for both his bachelor’s

and master’s degrees, petitioner took courses in accounting and

taxation. Petitioner’s accounting courses covered basic accounting

principles including cash basis versus accrual method accounting.

D. Work Experience

1. Tax Return Preparation

In 1984, petitioner began preparing U.S. income tax returns for

himself, his family, and friends for no compensation. In 2006, after

completing his master’s degree, petitioner began preparing tax returns

commercially through GEI, which we discuss in more detail infra

Findings of Fact Part II. In 2010, petitioner was issued a preparer tax

identification number. As of the time of trial, petitioner still had a

number and continued to prepare tax returns for others.

2. Other Work

During the years in issue petitioner was employed by a car

dealership, Bob Davidson Ford (BDF), as a lot attendant in its service

department. As a lot attendant, petitioner was required to take

customer cars to and from a service lot and occasionally to shuttle

customers to or from their homes. Petitioner would also assist with the

general maintenance of the service department, such as by cleaning

floors. Petitioner would work intermittently for BDF throughout each

year, taking time off to do other things such as his tax preparation work.

When petitioner did work for BDF, he worked approximately 40 hours

per week.

BDF discouraged employees from incurring personal expenses to

complete work-related tasks, including advising against the use of

personal vehicles. BDF provided an employee handbook, or blue book,

that reflected this policy to every employee when they first started with

BDF. If a vehicle was needed to complete a work-related task, BDF

would provide a shuttle vehicle. Or, if a shuttle vehicle was not

available, BDF would put a dealer tag on another car if it was for a short

distance. The general radius allowed by BDF for shuttle pickup and

dropoff of a customer was seven to ten miles.

If a BDF employee was required to pick up a part or other item

for BDF, a shuttle vehicle would also be provided or the BDF parts

department would provide a truck. There was never a time when a BDF

employee would need to use a personal vehicle for a work-related task,

4

[*4] nor did BDF employees need personal cell phones to do work-

related tasks.

One of the managers petitioner reported to at BDF was Anthony

Moskunas. Another of petitioner’s supervisors was John Marshall. Mr.

Moskunas had no knowledge of petitioner’s ever requesting to use a

personal vehicle to complete a work task. And it was Mr. Marshall’s

understanding that BDF would never allow petitioner to drive his

personal vehicle for company business.

For taxable years 2015, 2016, and 2017, petitioner received

income reported on Forms W–2, Wage and Tax Statement, from BDF of

$4,260, $9,230, and $7,054, respectively. 3 For taxable year 2015,

petitioner also received income reported on Form W–2 from Anytime

Labor Baltimore, LLC (Anytime Labor), of $83.

II. GEI

A. In General

During the years in issue petitioner was the sole shareholder of

GEI, a subchapter S corporation that he organized in 2006. In addition

to his other work, petitioner engaged in two separate business activities

through GEI. One, as stated, was tax return preparation. The other was

consolidation and shipping.

GEI obtained customers through referrals. GEI received

payments for services primarily in cash although it also accepted checks.

GEI also paid its expenses primarily in cash, and the parties stipulated

that it used the cash basis method of accounting. GEI used the same

bank accounts for both the tax return preparation and the consolidation

and shipping activities. GEI did not deposit all its gross receipts into its

bank accounts and paid few expenses from its bank accounts. GEI did

not issue any Forms W–2 to petitioner for the years in issue. Nor did it

issue any Forms 1099–MISC, Miscellaneous Income, for the years in

issue.

3 The parties stipulated that petitioner received income reported on Forms

W–2 from BDF of $4,529 for 2015 and $7,053 for 2017. The Forms W–2 included in the

record, however, report these amounts as $4,260 and $7,054, respectively, and these

are the amounts petitioner included in his federal income tax returns. See infra

Findings of Fact Part III.B. Neither party has sought any adjustment with respect to

petitioner’s BDF wages, and they are not in dispute.

5

[*5] GEI had two computers that it used for its business. Petitioner’s

cousin, Sanni Momoh, assisted petitioner with the maintenance of GEI’s

books and records for the years in issue. Mr. Momoh maintained GEI’s

books and records in Excel-type spreadsheets.

B. Tax Return Preparation

Petitioner, through GEI, prepared over 100 returns for taxable

year 2015 and over 300 returns for each of taxable years 2016 and 2017.

Petitioner used tax preparation software to prepare the returns and filed

them electronically. Petitioner generally charged customers $200 for

preparing and filing their federal and state tax returns and $50 for any

additional state tax returns. Petitioner also provided certain discounts,

however, such as for family, friends, and seniors.

C. Consolidation and Shipping

GEI’s consolidation and shipping activity consisted both of

consolidating various size items into freight containers and shipping

them via cargo ships and of transporting vehicles in freight containers

also via cargo ships. GEI charged customers for its consolidation and

shipping expenses, any other corresponding business expenses, the price

of the item if GEI purchased it (e.g., if it purchased a vehicle), and a

profit margin. For the shipment of a vehicle, GEI generally charged

approximately $1,200.

GEI used ports in New Jersey, Boston, Baltimore, and Miami, and

shipped items primarily to Africa and the Caribbean. GEI would

contract with shipping partners who it would have ship the consolidated

freight containers and vehicles from the U.S. ports to their destinations.

GEI sometimes paid day laborers in the United States to help load

containers before shipment. GEI also sometimes paid day laborers at the

shipment’s destination to get the items to their recipients. GEI never

directly purchased fuel for shipping.

GEI also sometimes worked with George Apusa, who was in

Boston. Mr. Apusa had a business separate from but similar to GEI’s

consolidation and shipping activity. Mr. Apusa informed petitioner

about expenses that he ostensibly incurred for GEI, such as payments

to dockworkers and fuel expenses. Mr. Apusa did not break such

expenses down by line item, however. For example, he would not tell

petitioner how much he ostensibly paid each dockworker, but only the

total amount it allegedly cost to do a job.

6

[*6] GEI did not pay Mr. Apusa directly for any such expenses. Nor

did it pay Mr. Apusa any wages or other direct compensation. Instead,

petitioner and Mr. Apusa had an arrangement whereby they would do

work for each other and then give the other credit for the same amount.

The expense numbers Mr. Apusa provided to petitioner with respect to

issues he handled for GEI were the numbers petitioner had entered into

GEI’s books and records. Petitioner also used these numbers in

preparing GEI’s tax returns for the years in issue, which we discuss in

more detail infra Findings of Fact Part III.A. Petitioner never requested

any underlying documents, such as receipts or invoices, to support the

numbers Mr. Apusa provided.

III. Tax Returns

Petitioner prepared and timely filed Forms 1120S, U.S. Income

Tax Return for an S Corporation, for GEI for each of the taxable years

2015, 2016, and 2017. Petitioner also prepared and timely filed Forms

1040, U.S. Individual Income Tax Return, for himself for each of the

taxable years in issue.

A. GEI’s Returns

On GEI’s returns for each of the years in issue, petitioner reported

that GEI used the cash method of accounting. In preparing GEI’s

returns, petitioner looked at income and expense numbers given to him

by Mr. Momoh, but he did not review any underlying records or

spreadsheets maintained by Mr. Momoh. As stated, neither did

petitioner request any supporting documents from Mr. Apusa. GEI,

through petitioner, reported its income and expenses, in pertinent part,

as follows.

1. Gross Receipts

GEI reported its gross receipts as $115,875, $124,692, and

$82,746 for 2015, 2016, and 2017, respectively.

2. Fuel Tax Credits

GEI claimed fuel tax credits of $15,480, $17,268, and $12,582 for

2015, 2016, and 2017, respectively. With respect to the credits, each

return also reported the prior year’s claimed fuel tax credit as other

income. These amounts were $14,176, $15,480, and $17,268 for 2015,

2016, and 2017, respectively.

7

[*7] 3. Expenses

On its returns for the years in issue, GEI also claimed deductions

for various reported expenses including the following.

2015 2016 2017

Bad Debts $2,482 $3,863 $5,172

Rents 9,000 9,000 9,000

Freights & 79,856 82,176 48,931

Purchases

Travel & — 6,734 7,426

Entertainment

Nonemployee 14,250 — —

Compensation

Commissions — — 7,520

4. Ordinary Business Income

Subtracting its deductions from its total reported income (i.e.,

gross receipts plus other income), GEI reported its ordinary business

income as $11,312, $20,338, and $4,841 for 2015, 2016, and 2017,

respectively. GEI issued to petitioner Schedules K–1, Shareholder’s

Share of Income, Deductions, Credits, etc., for each of the years in issue

on which it reported these amounts as petitioner’s 100% share of income

from GEI.

B. Petitioner’s Returns

As with GEI, petitioner used the cash basis method of accounting

on his individual returns. On his returns for 2015 and 2016, petitioner

reported zero taxable income and claimed refunds of $5,292 and $5,882,

respectively. And on his 2017 return petitioner reported $3,073 of

taxable income and claimed a $4,514 refund. Petitioner further reported

his income and expenses, in pertinent part, as follows.

1. Wage, Schedule C, and Other Income

Petitioner reported his GEI Schedule K–1 income as gross

receipts on Schedule C, Profit or Loss From Business, for taxable year

8

[*8] 2015 and as other income for taxable years 2016 and 2017. 4

Petitioner did not report any income on Schedule E, Supplemental

Income and Loss, for the years in issue.

2. Dependency Exemption Deductions

Petitioner claimed dependency exemption deductions with

respect to his two nephews for each of the years in issue.

3. Property Tax Deduction

For taxable year 2016, petitioner claimed an itemized deduction

for personal property taxes of $4,630.

4. Unreimbursed Employee Expense Deductions

For taxable years 2015 and 2016, petitioner claimed itemized

deductions with respect to unreimbursed employee expenses of $9,505

and $8,188, respectively. On his corresponding Form 2106, Employee

Business Expenses, for 2015, petitioner included in his unreimbursed

employee expense amount $8,221 of vehicle expenses and $1,284 of cell

phone expenses. With respect to the vehicle expenses, petitioner

reported that he drove 14,298 business miles, that his vehicle was used

98.39% for business, and that he had no other vehicle available for

personal use. On his 2016 Form 2106, petitioner included in his

unreimbursed expense amount $5,068 of vehicle expenses and $3,120 of

cell phone expenses. As to these vehicle expenses, petitioner reported

that he drove 9,386 business miles, that his vehicle was used 98.159%

for business, and that he again had no other vehicle available for

personal use.

IV. Examination

Internal Revenue Service (IRS) Revenue Agent Kevin Cascante

(RA Cascante) examined petitioner’s 2015, 2016, and 2017 tax returns.

In conjunction with this examination RA Cascante also examined GEI’s

2015, 2016, and 2017 tax returns. RA Cascante was assigned to

petitioner’s case in early 2018 by his then manager, Ashley Gunn. When

RA Cascante became a revenue agent, he received training on how to

4 For 2017, petitioner reported total other income of $17,423. The parties

stipulated that this amount included the $4,841 of income reported on petitioner’s 2017

Schedule K–1. We note that the remaining amount, $12,582, is the same amount as

the fuel tax credit GEI claimed for 2017.

9

[*9] perform examinations. As of the time of trial, RA Cascante had been

a revenue agent for 13 years and performed at least 100 income tax

examinations, including examinations for both individuals and

businesses.

A. Meetings and Documents, in General

RA Cascante met with petitioner four times during the

examination, twice in February 2018, once in June 2018, and once in

July 2018. Each of these meetings took place at the Antanna Avenue

residence. During these meetings RA Cascante asked petitioner to

provide documents in support of his return positions. Petitioner

provided RA Cascante only a few documents in response to this request.

RA Cascante had certain procedures he would follow depending

on whether the document petitioner provided was an original or a copy.

For original documents RA Cascante would memorialize the contents of

the document in the case file and hand the document back to petitioner.

Every receipt petitioner handed to RA Cascante, RA Cascante handed

back to petitioner on the same day. For copies RA Cascante might take

the document back to his office and make it a part of the case file.

Specifically, RA Cascante took some copies of petitioner’s invoices for

GEI’s tax preparation clients back to his office, “scheduled them out,”

and then mailed them back to petitioner. These copies were the only

records that RA Cascante took with him from petitioner’s residence. RA

Cascante never kept any original documents that petitioner gave him.

RA Cascante followed these same procedures in every other case to

which he was assigned and in which a taxpayer gave him documents.

Petitioner told RA Cascante that he had documents to support his

case in addition to the few that he had given him, but he did not provide

RA Cascante with these additional documents. Neither did he provide

RA Cascante with bank records, and RA Cascante had to summon the

records. RA Cascante asked petitioner to reconstruct his records from

the bank statements, but petitioner was unable to do so.

Petitioner did show RA Cascante a drawer or two that contained

documents but told RA Cascante that he was unprepared to go through

those documents and never provided them to RA Cascante. Petitioner

also told RA Cascante that he would bring Mr. Momoh to a meeting with

him to discuss GEI’s records but he never did, nor did he provide RA

Cascante with any spreadsheets prepared by Mr. Momoh. Petitioner

further explained to RA Cascante that he could not provide more

10

[*10] documents during the examination because there had been a flood

at the Antanna Avenue property in early 2017 that destroyed his

records.

To support his explanation of a flood, petitioner showed RA

Cascante work proposals from a plumber for drain cleaning and

replacement of a sewer line. The proposals were not signed by either

petitioner or the plumber, and petitioner acknowledged to RA Cascante

that the work was never completed. Petitioner did not provide RA

Cascante with any other evidence that there was a flood or that a flood

was the reason he was unable to provide more documents. Petitioner did

not take any photographs of the alleged flood damage or file an

insurance claim for flood damage. During RA Cascante’s meetings with

petitioner at his residence, RA Cascante did not see any evidence of a

flood, even when he walked through the property’s basement with

petitioner during his first visit. Petitioner did not collect any

information from Mr. Apusa to help reconstruct his records. Similarly,

petitioner did not contact the shipping companies.

B. Specific Deductions

During the examination, RA Cascante discussed with petitioner

the deductions petitioner claimed on his individual returns. RA

Cascante also discussed with petitioner the deductions he claimed on

GEI’s returns, which flowed through to petitioner’s individual returns.

See § 1366(a).

1. Petitioner’s Deductions

a. Dependency Exemption Deductions

As to the dependency exemption deductions petitioner claimed

with respect to his two nephews, petitioner told RA Cascante that Chisa

and Chinda stayed with him for visits. But petitioner was unable to tell

RA Cascante when their visits were or how long the visits lasted. Nor

did petitioner show RA Cascante any evidence of the nephews’ living

with him at the Antanna Avenue residence when RA Cascante met with

him there. Petitioner likewise did not tell RA Cascante what expenses

he paid with respect to his nephews. The only evidence petitioner did

provide to RA Cascante ostensibly with respect to providing their

support was two or three Western Union-type receipts totaling

approximately $1,100.

11

[*11] b. Property Tax Deduction

Petitioner informed RA Cascante that he claimed the $4,630

personal property tax deduction on his 2016 return because he paid

property taxes on the Antanna Avenue residence. In support of the

deduction, petitioner showed RA Cascante a water bill, a property tax

bill, and a $3,468 receipt dated in 2017 from the City of Baltimore.

Petitioner asserted to RA Cascante that the City of Baltimore receipt

covered property taxes with respect to at least part of 2016 such that the

date on which he paid the taxes did not matter.

c. Unreimbursed Employee Expense Deductions

With respect to the vehicle and cell phone expenses for which he

claimed unreimbursed employee expense deductions for 2015 and 2016,

petitioner told RA Cascante that the expenses were incurred primarily

for his work at BDF and that he would use his personal vehicle to pick

up parts and vehicles and to shuttle customers. RA Cascante asked

petitioner for documentation to support these expenses, but petitioner

did not provide any, nor was he able to explain to RA Cascante how he

calculated his expenses.

RA Cascante attempted to verify petitioner’s statements

regarding the use of his personal vehicle at BDF. During one of his

meetings with petitioner, RA Cascante and petitioner had a phone call

with petitioner’s supervisor Mr. Marshall. Mr. Marshall stated his

understanding that BDF would never allow petitioner to drive his

personal vehicle for company business. After the call, petitioner told RA

Cascante that Mr. Marshall was not aware of an agreement petitioner

had with a higher level of management at BDF authorizing him to use

his personal vehicle. But when RA Cascante asked petitioner if he would

be willing to drive to BDF to clear up the issue, petitioner declined. Nor

did petitioner explain the business necessity of the cell phone use to RA

Cascante or provide him with any supporting documentation with

respect to the phone.

2. GEI’s Flowthrough Deductions

a. Bad Debts

Petitioner did not provide RA Cascante with any documents to

support GEI’s bad debt deductions for the years in issue. Petitioner told

RA Cascante that there were generally two scenarios in which he would

claim bad debt deductions: (1) if someone wrote petitioner a bad check,

12

[*12] he would deduct it as bad debt expense when it happened; and

(2) if he purchased a vehicle for transport overseas and upon receipt and

inspection of the vehicle the customer negotiated a lower payment

amount than that originally agreed upon. RA Cascante explained to

petitioner that because GEI used the cash basis method of accounting,

GEI would not be entitled to a bad debt deduction in petitioner’s sample

situations because the initial amount of income would not have been

reported in gross receipts. In response to RA Cascante’s explanation,

petitioner declared he did not know what RA Cascante was talking

about.

b. Rents

As to GEI’s rent deductions for the years in issue, petitioner

informed RA Cascante that the deductions reflected rent he paid to his

brother Mr. Oparanma for GEI’s use of the Antanna Avenue residence’s

basement. Petitioner further informed RA Cascante that his rental

agreement with his brother was a verbal one and that he was paying

$750 per month. But petitioner provided RA Cascante with no evidence

of the agreement or any rent payments to Mr. Oparanma. RA Cascante

did, however, view the 2017 City of Baltimore receipt as proof that

petitioner had made a payment in lieu of rent for that year.

Consequently, RA Cascante allowed one-third of the amount of the

receipt, or $1,156, as a rent expense for 2017. RA Cascante arrived at

the one-third amount by counting the basement as constituting one-

third of the residence.

c. Freights and Purchases

In discussing GEI’s freight and purchase expenses, petitioner

provided RA Cascante with a buyer’s order for a Jaguar that was

purchased for $78,037 in 2015 as well as documents showing that a

Mack truck and a car were shipped from Boston to Nigeria for $2,930 in

2017. RA Cascante allowed the documented expenses. Petitioner did not

provide any additional substantiation or explanation for the reported

freight and purchase expenses above the amounts allowed by RA

Cascante.

d. Travel and Entertainment

Petitioner did not provide RA Cascante with any information

regarding GEI’s reported travel and entertainment expenses for 2016

and 2017.

13

[*13] e. Nonemployee Compensation

Petitioner had no records to support the nonemployee

compensation expense GEI deducted for 2015, and he could not provide

any to RA Cascante during the examination. Petitioner was also unable

to reconstruct the amount reported as nonemployee compensation.

Petitioner explained to Mr. Cascante that GEI was not required to issue

Forms 1099 with respect to the nonemployee compensation because no

individual worker was paid over $600. Petitioner could not name any of

the workers paid, however, and he did not know whether the same

person had worked for him multiple times.

f. Commissions

Petitioner provided RA Cascante with no records to support the

commission expense GEI deducted for 2017. Petitioner told RA Cascante

that the purpose of the commission expense was to pay a transfer agent

in Nigeria.

C. Examination Results

RA Cascante’s examination resulted in adjustments with respect

to both petitioner’s and GEI’s returns for each of the years in issue. RA

Cascante also determined that section 6663 fraud penalties should be

imposed with respect to petitioner.

V. Notices of Deficiency

On August 14, 2019, respondent issued petitioner the NOD for

taxable years 2015, 2016, and 2017 in which he determined that

petitioner is liable for the deficiencies and section 6663 fraud penalties

at issue. On December 3, 2019, respondent issued GEI an NOD in which

he determined GEI was also liable for deficiencies for taxable years

2015, 2016, and 2017.

A. GEI’s NOD

In GEI’s NOD, the only adjustment respondent made was to

disallow the fuel tax credits that GEI claimed for the years in issue.

Respondent issued a separate NOD to GEI for the fuel tax credit

adjustments because they were entity-level adjustments that did not

flow through to petitioner’s individual income tax returns. See § 1366(a),

(f)(1). Respondent reflected the remaining adjustments that resulted

from the examination of GEI’s returns on petitioner’s NOD as

14

[*14] flowthrough adjustments. No petition was filed with respect to

GEI’s NOD.

B. Petitioner’s NOD

1. The Deficiencies

Respondent determined the deficiencies in petitioner’s NOD on

the basis of multiple adjustments. Respondent disallowed the

dependency exemption deductions that petitioner claimed with respect

to his two nephews for each of the years in issue. Respondent also

disallowed the itemized deductions that petitioner claimed with respect

to unreimbursed employee expenses for 2015 and 2016 and with respect

to personal property tax for 2016. In addition, respondent determined

that petitioner had Schedule E income of $38,863, $106,631, $61,536 for

2015, 2016, and 2017, respectively.

The Schedule E income amounts were based on respondent’s

recharacterization of the GEI Schedule K–1 income that petitioner had

reported as Schedule C gross receipts for 2015 and as other income for

2016 and 2017. 5 They were also based on the aforementioned

flowthrough adjustments with respect to GEI. More specifically, the

Schedule E income amounts reflected the following modifications with

respect to GEI’s claimed deductions.

2015 2016 2017

Claimed Allowed Claimed Allowed Claimed Allowed

Bad Debts $2,482 –0– $3,863 –0– $5,172 –0–

Rents 9,000 –0– 9,000 –0– 9,000 $1,156

Freights & 79,856 $78,037 82,176 –0– 48,931 2,930

Purchases

Travel & — — 6,734 –0– 7,426 –0–

Entertainment

Nonemployee 14,250 –0– — — — —

Compensation

Commissions — — — — 7,520 –0–

5 For 2017, respondent recharacterized only the $4,841 amount reflected on the

2017 Schedule K–1. Respondent removed the remaining $12,582 petitioner reported

as other income.

15

[*15] They also reflected respondent’s removal of the other income that

GEI reported with respect to the disallowed fuel tax credits.

2. The Section 6663 Fraud Penalties and Their

Approval

Respondent also determined in petitioner’s NOD that section

6663 fraud penalties should apply because all or part of the

underpayment for each taxable year in issue was due to fraud.

Respondent first notified petitioner of the determination to impose the

fraud penalties in a Letter 950, or 30-day letter, that respondent issued

to petitioner on April 26, 2019. The 30-day letter included a copy of RA

Cascante’s examination report and a summary of the adjustments made

to petitioner’s returns for 2015, 2016, and 2017. The 30-day letter was

signed by Ms. Gunn as “Group Manager.”

When Ms. Gunn signed the 30-day letter, RA Cascante had

accepted a new position within the IRS with a new supervisor, Joanna

Caree. Ms. Caree was not assigned to petitioner’s case, however, and Ms.

Gunn remained the supervisor responsible for the case. For the duration

of RA Cascante’s work on the examination, which continued after he

accepted his new position, RA Cascante reported to Ms. Gunn with

respect to petitioner’s case and he discussed the imposition of the section

6663 fraud penalty with her. Neither Ms. Caree nor any other manager

supervised RA Cascante’s work on the case.

On the same date that Ms. Gunn signed the 30-day letter, she also

signed a Civil Penalty Approval Form. RA Cascante prepared the form

as part of his examination of petitioner’s returns. The form identifies its

“primary” position as “IRC 6663 Fraudulent Failure to File, Civil,” and

an attachment to the form bears checks in a “yes” box next to “6651(f)

Fraudulent Failure to File” and in a “no” box next to “6663 Civil fraud.”

It was RA Cascante’s intention in preparing the form to assert section

6663 fraud penalties and the references to the section 6651(f) fraudulent

failure to file penalty were made by mistake. The parties have stipulated

that the Civil Penalty Approval Form approved the assertion of section

6663 penalties for taxable years 2015, 2016, and 2017.

OPINION

Petitioner contends that he is entitled to the disputed deductions.

He also contends that no penalties should apply. In support of these

contentions, petitioner generally asserts that he supplied

documentation to support his expenses to the best of his ability and that

16

[*16] he was unable to produce more documents both because his

records were destroyed in a flood and because RA Cascante took his

records and did not return them. 6

I. The Disputed Deductions

A. Burden of Proof

The Commissioner’s determinations in an NOD to disallow

deductions are generally presumed correct, and the taxpayer bears the

burden of proving those determinations are erroneous. Welch v.

Helvering, 290 U.S. 111, 115 (1933). Deductions are matters of

legislative grace, and the taxpayer must show his entitlement to any

deductions claimed and substantiate their amounts. 7 § 6001; Rule

142(a); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992);

Hradesky v. Commissioner, 65 T.C. 87, 89–90 (1975), aff’d per curiam,

540 F.2d 821 (5th Cir. 1976). There must be enough evidence in the

record to permit the Court to conclude that a deductible expense was

paid in at least the amount allowed. See Williams v. United States, 245

F.2d 559, 560 (5th Cir. 1957). A taxpayer’s “self-serving declaration is

generally not a sufficient substitute for records.” Fine v. Commissioner,

T.C. Memo. 2013-248, at *4. And in evaluating a taxpayer’s evidence, we

are not bound to accept unverified and undocumented testimony. Shea

v. Commissioner, 112 T.C. 183, 189 (1999); Tokarski v. Commissioner,

87 T.C. 74, 77 (1986).

When a taxpayer claims a deduction but cannot fully substantiate

the underlying expense, the Court in certain circumstances may

approximate the allowable amount, “bearing heavily . . . upon the

taxpayer whose inexactitude is of his own making.” Cohan v.

Commissioner, 39 F.2d 540, 543–44 (2d Cir. 1930). But the Court is not

required to guess at a number; rather “we must have some basis on

which an estimate may be made.” Vanicek v. Commissioner, 85 T.C. 731,

6 As we understand it, petitioner further asserts that respondent miscalculated

GEI’s gross receipts attributable to tax return preparation by insufficiently accounting

for fee discounts. We note, however, that respondent did not reflect any adjustments

to GEI’s gross receipts in petitioner’s NOD.

7 Section 7491(a) provides that the burden of proof may shift to the

Commissioner on a factual issue if, among other requirements, the taxpayer

“introduces credible evidence with respect to [that] issue” and “has maintained all

records required under this title and has cooperated with reasonable requests by the

[Commissioner] for witnesses, information, documents, meetings, and interviews.” See

§ 7491(a)(1), (2)(B). Petitioner does not contend, and the record does not demonstrate,

that he meets these requirements.

17

[*17] 743 (1985). In addition, under section 274(d), certain categories of

deductions, including deductions with respect to certain vehicle, travel,

and entertainment expenses, are subject to strict substantiation

requirements. See §§ 274(d), 280F(d)(4). Section 274(d) provides that no

deduction shall be allowed for these expenses unless the taxpayer

substantiates the amount, time and place, business purpose, and

business relationship to the taxpayer of the person receiving the benefit

for each expenditure by adequate records or sufficient evidence

corroborating his own statements. The Court may not apply the Cohan

rule to approximate expenses covered by section 274(d). See Sanford v.

Commissioner, 50 T.C. 823, 827–28 (1968), aff’d per curiam, 412 F.2d

201 (2d Cir. 1969).

B. Petitioner’s Records

Before we consider the specific deductions at issue, we first

address petitioner’s general assertions that he had records supporting

the disputed deductions that were destroyed in a flood and that were

taken by RA Cascante and not returned.

As to the alleged flood, petitioner explained to RA Cascante

during his examination that there had been a flood at the Antanna

Avenue residence in early 2017 that destroyed his records. To support

this explanation, petitioner showed RA Cascante work proposals from a

plumber for drain cleaning and replacing a sewer line. But the proposals

were not signed by either petitioner or the plumber, and petitioner

acknowledged to RA Cascante that the work was never completed.

Petitioner did not provide RA Cascante with any other evidence

that there was a flood or that a flood was the reason he was unable to

provide more documents during the examination. Petitioner did not take

any photographs of the alleged flood damage or file an insurance claim

for flood damage. And during RA Cascante’s meetings with petitioner at

his residence, RA Cascante did not see any evidence of a flood, even

when he walked through the property’s basement with petitioner. In

addition, petitioner provided RA Cascante with only very few documents

for the years in issue, i.e., although the flood allegedly occurred in early

2017, petitioner did not provide RA Cascante with notably more

documents for the remainder of taxable year 2017 than he did for

taxable years 2015 and 2016.

At trial, petitioner further asserted that his records had been the

casualty of a basement flood. And here he provided no supporting

18

[*18] evidence at all. Petitioner testified that the flood caused

significant damage to the basement, including to GEI’s computers, but

he offered no documents to support such damage or asserted repairs. He

testified he did not know whether he or Mr. Momoh had backed up the

computer files. And he did not make any effort to reconstruct his records,

admittedly not collecting any supporting information from Mr. Apusa or

the shipping companies after the alleged flood occurred. As we have

stated, we are not bound to accept a taxpayer’s self-serving, unverified,

and undocumented testimony, and we see petitioner’s assertion that he

had records destroyed in a flood as nothing more.

Petitioner’s assertion that RA Cascante took his documents and

failed to return them is similarly unavailing. We have found RA

Cascante had certain procedures he would follow depending on whether

the document petitioner provided was an original or a copy. For original

documents, RA Cascante would memorialize the contents of the

document in the case file and hand the document back to petitioner.

Every receipt petitioner handed to RA Cascante, he handed back to

petitioner on the same day. For copies, RA Cascante might take the

document back to his office and make it a part of the case file.

Specifically, RA Cascante took some copies of petitioner’s invoices for

GEI’s tax preparation clients back to his office, “scheduled them out,”

and then mailed them back to petitioner. But these copies were the only

records that RA Cascante took with him from petitioner’s residence, and

he never kept any original documents that petitioner gave him.

As of the time of trial, RA Cascante had been a revenue agent for

13 years and performed at least 100 income tax examinations. He

followed these same procedures in every case to which he was assigned

and in which a taxpayer gave him documents. And as with the alleged

flood, we likewise do not accept petitioner’s baseless assertion that, in

his case, RA Cascante kept his records and that this is the reason

petitioner cannot provide more support for the disputed deductions.

C. Petitioner’s Deductions

1. Dependency Exemption Deductions

Petitioner claimed dependency exemption deductions with

respect to his nephews Chisa and Chinda for each of the years in issue.

Section 151(c) permits a taxpayer to claim as a deduction an exemption

for each dependent as that term is defined under section 152.

19

[*19] Section 152(a) provides that a dependent must be either a

qualifying child or a qualifying relative.

Section 152(c)(1) defines a qualifying child as a child who bears a

specified relationship to the taxpayer, who lived with the taxpayer for

more than one-half of the taxable year at issue, who meets certain age

requirements, who did not provide more than one-half of his or her own

support during the taxable year, and who did not file a joint return with

a spouse for the taxable year. As relevant here, a child satisfies the

specified relationship requirement if the child is a descendant of the

taxpayer’s sibling. § 152(c)(2)(B). A child satisfies the age requirement

if the child is less than 19 years old, a student less than 24 years old, or

permanently and totally disabled. § 152(c)(3).

Section 152(d) defines a qualifying relative as an individual who

bears a specified relationship to the taxpayer, who earned gross income

of less than the exemption amount defined in section 151(d) during the

taxable year, who had more than one-half of his or her support provided

for by the taxpayer during the taxable year, and who is not the

qualifying child of any other taxpayer. As relevant here, an individual

satisfies the specified relationship requirement if the individual is a son

or daughter of the taxpayer’s sibling. § 152(d)(2)(E).

Respondent concedes that Chisa and Chinda each satisfied the

relationship, age, support, and non-filing requirements for a qualifying

child. Respondent also concedes that they each satisfied the

relationship, gross income, and nonqualifying child requirements for a

qualifying relative. He contends, however, that petitioner has failed to

show that his nephews lived with him for more than one-half of each of

the years in issue or that he provided over one-half of his nephews’

support for each of the years in issue, as is required for qualifying

children and qualifying dependents, respectively. We agree with

respondent on both counts.

During the examination petitioner told RA Cascante that his

nephews stayed with him for visits but was unable to say when his

nephews’ visits were or how long the visits lasted. Nor did petitioner

show RA Cascante any evidence of the nephews’ living with him at the

Antanna Avenue property when RA Cascante met with him there. At

trial, however, petitioner testified that his nephews lived with him “for

a very long time,” staying with him during winter breaks from

approximately December to February and summer breaks from

approximately May to August during the years in issue. But as with RA

20

[*20] Cascante, petitioner offered the Court no documentary or other

evidence, such as testimony from Chisa or Chinda, in support of his

testimony.

Nor did petitioner tell RA Cascante what expenses he paid with

respect to his nephews. The only evidence petitioner offered to RA

Cascante with respect to providing their support was two or three

Western Union-type receipts totaling approximately $1,100. Petitioner

testified these receipts were for school fees, but he did not know the

name of the school. Petitioner also testified that he paid for his nephews’

flights to and from Ukraine, but he failed to offer documentary evidence

in support of these, or any other, payments with respect to his nephews.

In addition, petitioner did not know specifically how much he paid with

respect to his nephews during the years in issue, and he admitted that

his brother provided at least some of their support.

Petitioner contends that he has “done things in the family ways

for my nephews who are my dependents and not counting monetary

contributions to their livelihoods but purely on the family bonds that

existed in us” and that “[w]hen there is call for needs or actions for

incidental expenses, I do not count the pennies and dimes for doing the

things for my nephews.” Even if we assume, however, that petitioner’s

nephews stayed with him during at least some portion of their school

breaks and that petitioner paid at least some of their expenses, we find

it implausible based on petitioner’s inconsistent and unsubstantiated

explanations that they lived with him for more than one-half of any of

the years in issue 8 or that he provided more than half of their support

for any of those years. Consequently, petitioner is not entitled to the

dependency exemptions he claimed with respect to his nephews for the

years in issue. 9

8 We acknowledge that a taxpayer and child may be considered to occupy the

same household for an entire taxable year notwithstanding temporary absences by the

child due to special circumstances, such as education. See Treas. Reg. § 1.152-1(b).

Considering petitioner’s failure to provide any credible evidence showing where the

nephews actually lived during the taxable years in issue, particularly when they were

not at school, however, we cannot and will not find that they lived with petitioner for

more than one-half of any of those years.

9 In addition to deciding whether petitioner is entitled to certain deductions,

we must also decide whether he is liable for section 6663 fraud penalties. And as we

discuss further infra Opinion Part II.C.2, a relevant factor in determining whether

petitioner is liable for the penalties is whether he has provided implausible or

inconsistent explanations of behavior. In consideration of this factor, in our analysis of

21

[*21] 2. Property Tax Deduction

Petitioner claimed a $4,630 personal property tax deduction on

his 2016 tax return. Section 164 allows itemized deductions for state and

local personal property taxes and for state and local real property taxes

paid during the taxable year. For this purpose, the term “personal

property tax” means an ad valorem tax imposed on an annual basis in

respect of personal property, and the term “real property tax” means tax

imposed on interests in real property and levied for the general public

welfare. § 164(b)(1); Treas. Reg. § 1.164-3(b).

Respondent contends that petitioner is not entitled to a deduction

for personal property taxes because petitioner has not provided any

substantiation for any such expenses. Respondent further contends that

to the extent petitioner intended to claim a deduction for real property

taxes paid with respect to the Antanna Avenue residence, rather than

for personal property taxes, such a deduction should also be disallowed.

In this regard respondent asserts that the deduction should be

disallowed because the only receipt petitioner provided in support of the

payment of real property taxes was dated 2017, and thus it did not

establish that petitioner paid any such taxes during the year for which

the deduction was claimed. In addition, respondent asserts that even if

petitioner did pay real property taxes with respect to the Antanna

Avenue residence in 2016, he still could not deduct them because he did

not own the residence. Here again, we agree with respondent on all

counts.

Petitioner has not provided any credible evidence, or even alleged,

to the Court that he paid any personal property taxes during 2016. The

record is similarly lacking in evidence that petitioner paid any real

property taxes with respect to the Antanna Avenue residence during

2016. Petitioner, as a cash basis taxpayer, must recognize income for the

year in which he “actually or constructively” receives it and take an

allowable deduction into account for the taxable year in which the

underlying expense was paid. §§ 451, 461; Treas. Reg. §§ 1.451-1(a),

1.461-1(a)(1). As respondent indicates, the only documentary evidence

the disputed deductions, including the dependency exemption deductions here, we

have thus highlighted where petitioner has given implausible explanations to either

RA Cascante or the Court as well as where the explanations he gave to RA Cascante

were inconsistent with those he gave to the Court. We note, however, that our

redetermination of petitioner’s tax liabilities is based on the merits of the case he

presented to the Court and not on any previous record developed at the administrative

level. See Greenberg’s Express, Inc. v. Commissioner, 62 T.C. 324, 328 (1974).

22

[*22] petitioner has provided at any point in support of a real property

tax deduction is the receipt from the City of Baltimore dated 2017, which

he provided to RA Cascante. But this receipt, which petitioner did not

introduce into evidence, and petitioner’s otherwise unsupported

testimony are simply not enough to persuade us petitioner paid any real

property taxes during 2016 with respect to the Antanna Avenue

residence.

Furthermore, even if we were to assume petitioner did pay real

property taxes with respect to the Antanna Avenue residence in 2016,

we must also agree with respondent that petitioner still would not be

entitled to a deduction under section 164 because it was not petitioner,

but his brother, who owned the property. Generally, taxes are deductible

only by the person upon whom they are imposed. Treas. Reg. § 1.164-

1(a). We have held that taxpayers who do not hold legal title to property

but establish they are equitable owners of the property are entitled to

deduct property tax they paid for the property. See Aulisio v.

Commissioner, T.C. Memo. 2024-29, at *38 (citing Steinert v.

Commissioner, 33 T.C. 447, 449 (1959)). But petitioner has also failed to

allege or produce any credible evidence that any real property taxes he

did ostensibly pay were paid as the equitable owner of the Antanna

Avenue residence. We therefore also disallow petitioner’s claimed

property tax deduction.

3. Unreimbursed Employee Expense Deductions

For taxable years 2015 and 2016, petitioner claimed itemized

deductions with respect to unreimbursed employee expenses of $9,505

and $8,188, respectively. On his corresponding Form 2106 for 2015,

petitioner included in his unreimbursed employee expense amount

$8,221 of vehicle expenses and $1,284 of cell phone expenses. With

respect to the vehicle expenses, petitioner reported that he drove 14,298

business miles, that his vehicle was used 98.39% for business, and that

he had no other vehicle available for personal use. On his 2016 Form

2106, petitioner included in his unreimbursed expense amount $5,068

of vehicle expenses and $3,120 of cell phone expenses. As to these vehicle

expenses, petitioner reported that he drove 9,386 business miles, that

his vehicle was used 98.159% for business, and that he again had no

other vehicle available for personal use.

Pursuant to section 162(a), a taxpayer may deduct all the

ordinary and necessary expenses paid during the taxable year in

carrying on any trade or business. For the years in issue, a taxpayer may

23

[*23] claim an unreimbursed employee business expense as a

miscellaneous itemized deduction, subject to the 2% floor of section

67(a), under section 162(a). See § 67(b); Lucas v. Commissioner, 79 T.C.

1, 6–7 (1982). An employee is considered to be in the business of being

an employee and may deduct expenses that are (1) nonreimbursable,

(2) related to the employee’s trade or business of rendering services to

the employer, and (3) ordinary and necessary expenses of such a trade

or business. See Lucas, 79 T.C. at 6–7; Treas. Reg. § 1.162-1(a).

An expense is ordinary if it is normal, usual, or customary within

a particular trade, business, or industry or arises from a transaction of

common or frequent occurrence in the type of business involved. Deputy

v. du Pont, 308 U.S. 488, 495 (1940). An expense is necessary if it is

appropriate and helpful for the development of the business. Welch v.

Helvering, 290 U.S. at 113. Ordinary and necessary business expenses

do not include nondeductible personal, living, or family expenses. Treas.

Reg. § 1.162-17(a); see § 262(a). Whether an expenditure satisfies the

requirements of section 162 is a question of fact. Commissioner v.

Heininger, 320 U.S. 467, 475 (1943).

Respondent contends that petitioner is not entitled to deduct the

disputed vehicle and cell phone expenses both because they are not

ordinary and necessary and because petitioner failed to substantiate

them. Respondent further asserts that the expenses are unreasonable

and implausible on their face. We agree with respondent here as well.

During the examination petitioner told RA Cascante that the

disputed expenses were primarily related to his work at BDF and that

he would use his personal vehicle to pick up parts and vehicles and to

shuttle customers when the shuttle was not available. RA Cascante

asked petitioner for documentation to support these expenses, but he

did not provide any. Petitioner was also unable to explain to RA

Cascante how he calculated his expenses.

RA Cascante attempted to verify petitioner’s statements

regarding the use of his personal vehicle at BDF. During one of his

meetings with petitioner, RA Cascante asked petitioner to call his

supervisor. The supervisor to which they spoke, Mr. Marshall, said BDF

would never allow petitioner to drive his personal vehicle for company

business. After the call, petitioner told RA Cascante that Mr. Marshall

was not aware of an agreement petitioner had with a higher level of

management at BDF authorizing him to use his personal vehicle. But

when RA Cascante asked petitioner if he would be willing to drive to

24

[*24] BDF to clear up the issue, petitioner declined. And petitioner’s

other BDF manager, Mr. Moskunas, had no knowledge of petitioner’s

ever asking to use his personal vehicle for a work task. Nor did petitioner

explain the business necessity of the cell phone use to RA Cascante or

provide him with any supporting documentation with respect to the

phone.

At trial petitioner testified that all of the unreimbursed employee

business expenses that he claimed were related to his work at BDF.

Petitioner also testified, however, that, in addition to BDF, the expenses

were related to another “agency” at which he had worked. He then

further testified that they were “mostly” related to using his personal

vehicle to shuttle customers for BDF, but that he never picked up parts

for BDF, and that some portion of the expenses was indirectly connected

with GEI’s shipping activity as well.

As to BDF, petitioner additionally testified both that he never

received BDF’s employee handbook, which set forth its policy

discouraging employees from incurring personal expenses to complete

work-related tasks, and that there “were times” when he did not have

it. He also testified that Mr. Marshall gave him the authority to use his

personal vehicle but admitted that Mr. Marshall did not give him

specific permission to do so.

On this record we cannot allow petitioner the claimed deductions

with respect to the reported vehicle and cell phone expenses. We agree

with respondent that these expenses were neither ordinary nor

necessary with respect to petitioner’s employment with BDF. Rather

than give petitioner permission to incur such expenses, we instead find

BDF discouraged him, along with its other employees, from doing so.

There is also no credible evidence that any of these expenses related to

petitioner’s employment with respect to another “agency” or GEI. For

2015, petitioner does seem to have also been employed by Anytime

Labor, from which he received a Form W–2. But petitioner offered no

explanation or documentation as to how any of the reported expenses

would have related to that employer at all let alone as to how they would

have been ordinary and necessary as to that employer. We are also

unpersuaded by petitioner’s unsupported assertion that some

unidentified portion of the reported vehicle and cell phone expenses

qualified as deductible employee expenses because they were indirectly

connected with GEI’s shipping activity.

25

[*25] We further conclude that petitioner failed to sufficiently

substantiate any of the reported expenses. As to the vehicle expenses,

they are subject to the strict substantiation requirements of section

274(d). Thus petitioner must show the amount, time and place, business

purpose, and business relationship to him of the person receiving the

benefit for each expenditure by either adequate records or sufficient

evidence corroborating his own statements. §§ 274(d)(4), 280F(d)(4).

Petitioner testified that he kept a book of his mileage expenses but that

it was destroyed in the alleged flood, and he failed to provide any other

supporting evidence. This is clearly insufficient. And as to the cell phone

expenses, although they do not require strict substantiation for the

years in issue, petitioner’s inconsistent and unsupported explanations

for these expenses are insufficient as well. 10 (We are hardly surprised

by the lack of evidence in support of the reported unreimbursed

employee expenses, however. As respondent has observed, petitioner’s

contention that he paid $9,505 in such expenses for 2015 and $8,188 for

2016 is simply implausible given that his total reported Form W–2

wages for 2015 and 2016 were only $4,343 and $9,230, respectively.) We

therefore conclude that petitioner is also not entitled to the claimed

deductions for unreimbursed employee expenses.

D. GEI’s Flowthrough Deductions

Pursuant to section 1366(a), a shareholder of an S corporation

generally must take into account his pro rata share of the S corporation’s

income, losses, deductions, and credits. The examination of GEI for

taxable years 2015, 2016, and 2017 resulted in the disallowance of

several of GEI’s deductions, specifically, those claimed with respect to

bad debts, rents, freights and purchases, travel and entertainment,

nonemployee compensation, and commissions. These adjustments

flowed through to petitioner’s individual returns, resulting in increased

income from GEI for each of the taxable years in issue. Where, as here,

an NOD includes adjustments for S corporation items with other items

unrelated to the S corporation, we have jurisdiction to determine the

10 See Small Business Jobs Act of 2010, Pub. L. No. 111-240, § 2043, 124 Stat.

2504, 2560 (removing cell phones from the definition of section 280F(d)(4) listed

property, and thus from the scope of section 274(d), for taxable years beginning after

December 31, 2009). Even though petitioner is not required to meet the strict

substantiation requirements of section 274(d), we note that he must still show that the

cell phone was used for business rather than personal purposes and provide some

credible evidence as to the extent of the business use, which he did not do. See, e.g.,

Parker v. Commissioner, T.C. Memo. 2016-194, at *15 n.5.

26

[*26] correctness of all the adjustments. 11 See Johnson v. Commissioner,

160 T.C. 18, 28 (2023); Winter v. Commissioner, 135 T.C. 238, 245–46

(2010).

As with the other deductions at issue, petitioner bears the burden

of proving his entitlement to the flowthrough deductions claimed and of

substantiating their amounts. See § 6001; Rule 142(a); INDOPCO, Inc.

v. Commissioner, 503 U.S. at 84; Hradesky, 65 T.C. at 89–90; see also,

e.g., Isaacs v. Commissioner, T.C. Memo. 2015-121, at *25–57 (applying

burden of proof to taxpayer in regard to whether the Commissioner

properly disallowed flowthrough deductions for certain business

expenses of taxpayer’s wholly owned S corporation). As set forth supra

Opinion Part I.C.3, a taxpayer may deduct business expenses paid

during the taxable year pursuant to section 162(a). Deductible business

expenses include the ordinary and necessary expenditures directly

connected with or pertaining to the taxpayer’s business, except items

which are used as the basis for a deduction or a credit under provisions

of law other than section 162. Treas. Reg. § 1.162-1(a).

1. Bad Debts

GEI claimed bad debt deductions of $2,482, $3,863, and $5,172 for

taxable years 2015, 2016, and 2017, respectively. Section 166(a)

generally allows a taxpayer a deduction for “any debt which becomes

worthless within the taxable year.” To be entitled to a business bad debt

deduction, taxpayers must prove (1) that a bona fide debt was created,

(2) that the debt was created or acquired in proximate relation to a trade

or business, and (3) that the debt became worthless in the year claimed.

§ 166(a)(1); United States v. Generes, 405 U.S. 93, 96 (1972); Calumet

Indus., Inc. v. Commissioner, 95 T.C. 257, 284 (1990). A debt is bona fide

if it arose “from a debtor-creditor relationship based upon a valid and

enforceable obligation to pay a fixed or determinable sum of money.”

Treas. Reg. § 1.166-1(c).

Worthless debts arising from unpaid fees, wages, salaries, rents,

and similar items of income, however, are not deductible as a bad debt

unless the taxpayer has included the amount in income for the year for

which the bad debt is deducted or for a prior taxable year. See Gertz v.

Commissioner, 64 T.C. 598, 600 (1975); Treas. Reg. § 1.166-1(e). “It is

11 As discussed supra Findings of Fact Part V.A, respondent also disallowed

GEI’s claimed fuel tax credits, but these were entity-level adjustments that did not

flow through to petitioner’s individual returns and for which GEI received a separate

NOD. See § 1366(a), (f)(1). As such, they are not at issue in this case.

27

[*27] well settled that a taxpayer is not allowed to reduce ordinary

income actually received by the amount of income he failed to receive.”

Ratcliff v. Commissioner, T.C. Memo. 1983-636, 47 T.C.M. (CCH) 86, 87

(quoting Hendricks v. Commissioner, 406 F.2d 269, 272 (5th Cir. 1969),

aff’g per curiam T.C. Memo. 1967-140)).

During the examination, petitioner told RA Cascante that there

were generally two scenarios in which he would claim bad debt

deductions: (1) if someone wrote petitioner a bad check, he would deduct

it as bad debt expense when it happened; and (2) if he purchased a

vehicle for transport overseas and upon receipt and inspection of the

vehicle the customer negotiated a lower payment amount than that

originally agreed upon. Although he has generally asserted that he is

entitled to all the deductions in issue, petitioner has not made any

additional arguments regarding the bad debt deductions to the Court.

And as with RA Cascante, petitioner has failed to provide the Court with

any records to support the bad debt deductions claimed.

Respondent contends that petitioner is not entitled to the bad

debt deductions because of his failure to establish that any debts were

created obligating a debtor to pay a fixed or determinable sum of money

or that any such debts became worthless during the years in issue, as

well as because of general lack of substantiation. To the extent any

alleged bad debts relate to unpaid fees, he further contends that

petitioner failed to establish that GEI included any corresponding

amounts in income.

In the first instance, we agree with respondent that petitioner has

provided no credible evidence demonstrating that any debts were

created obligating debtors to pay fixed or determinable sums of money

to GEI or that any such debts became worthless during the years in

issue. In addition, even if we assume GEI did have worthless debts, we

also agree that petitioner has failed to provide any credible evidence of

the amounts of any such debts.

Moreover, as respondent aptly observes, it is “conspicuous” that

GEI is a cash basis taxpayer and the bad debt examples given by

petitioner to RA Cascante relate to unpaid fees. As we have explained,

the unpaid fees would need to have been previously reported in income

for the debt to be deductible. See Treas. Reg. § 1.166-1(e). As a cash basis

taxpayer, however, GEI would not have included the fees in income

before they were actually or constructively received. See §§ 451, 461;

Treas. Reg. §§ 1.451-1(a), 1.461-1(a)(1); see also Crosson v.

28

[*28] Commissioner, T.C. Memo. 2003-170, 85 T.C.M. (CCH) 1475, 1477

(“[The taxpayers] used the cash method for reporting income and

deductions; therefore, fees for services that remain unpaid have not been

included in income. Such debts do not constitute ‘bad debts’ within the

meaning of section 166 for which a deduction for worthlessness may be

claimed.”).

Petitioner testified at trial that he did sometimes report GEI’s

income on its books before it was received. But he provided no evidence

in support of this testimony, which runs counter to both his stipulation

that GEI used the cash basis method of accounting for the taxable years

in issue and to his reporting on GEI’s returns that GEI used the cash

method. The Court treats a stipulation as a binding admission, and it

will not permit a party to a stipulation to qualify, change, or contradict

the stipulation in whole or in part, “except that it may do so if justice

requires.” Rule 91(e). Similarly, “[s]tatements made on a tax return

signed by the taxpayer are considered binding admissions unless there

is ‘cogent evidence’ that indicates such statements are wrong.”

Kornhauser v. Commissioner, T.C. Memo. 2013-230, at *5, aff’d, 632

F. App’x 421 (9th Cir. 2016). We do not consider petitioner’s self-serving

and unsupported testimony sufficient to require the Court to treat GEI’s

alleged unpaid fees as having been previously included in GEI’s income,

and we hold that the worthless debt deductions GEI claimed for the

years in issue are disallowed.

2. Rents

GEI claimed a $9,000 rent deduction for each of the years in issue.

Petitioner used the basement of the three-story Antanna Avenue

residence exclusively as GEI’s office. The Antanna Avenue residence

was owned by petitioner’s brother, Mr. Oparanma. Petitioner had a

verbal agreement with his brother to use the residence. During the

examination, petitioner informed RA Cascante that the deductions

reflected $750 per month in rent that he paid to Mr. Oparanma for GEI’s

use of the basement. But petitioner provided RA Cascante with no

evidence that he was making rental payments to Mr. Oparanma.

RA Cascante did, however, view the 2017 City of Baltimore

receipt as proof that petitioner had made a payment in lieu of rent for

that year. RA Cascante therefore allowed one-third of the amount of the

receipt, or $1,156, as a rent expense for 2017, as is reflected in

29

[*29] petitioner’s NOD. 12 Respondent contends that other than this

receipt, petitioner provided no substantiation that GEI paid rent in

taxable years 2015, 2016, and 2017, and, therefore, GEI is not entitled

to deduct any additional rent expense for these years. Again, we must

agree.

At trial, petitioner testified that his verbal agreement with Mr.

Oparanma required the reported $9,000 in yearly rental payments for

GEI’s use of the basement. He also testified that he would pay expenses

and deposit money into “funds” for his brother in lieu of paying rent. But

petitioner did not provide the Court with any support for this testimony.

And just as his unsupported and self-serving testimony has been

insufficient to persuade us as to the disputed deductions thus far, it is

insufficient here.

3. Freights and Purchases

GEI claimed deductions for freight and purchase expenses of

$79,856, $82,176, and $48,931 for taxable years 2015, 2016, and 2017,

respectively. In discussing the freight and purchase expenses during the

examination, petitioner provided RA Cascante with a buyer’s order for

a Jaguar that was purchased for $78,037 in 2015 as well as documents

showing a Mack truck and a car were shipped from Boston to Nigeria

for $2,930 in 2017. RA Cascante allowed the documented expenses, as is

reflected in petitioner’s NOD.

Respondent contends that petitioner is not entitled to deduct any

additional amounts because he did not provide any additional credible

evidence as to the reported freight and purchase expenses either during

his examination or at trial. We agree here too and hold that GEI is not

entitled to deductions for freight and purchase expenses beyond those

already allowed.

4. Travel and Entertainment

GEI claimed deductions for reported travel and entertainment

expenses of $6,734 and $7,426 for taxable years 2016 and 2017,

respectively. Petitioner did not provide RA Cascante with any

information regarding these expenses during the examination. At trial,

petitioner testified he went to Nigeria on several occasions and other

locations such as Houston, Boston, Miami, New York, and Pennsylvania

12 As previously explained, RA Cascante arrived at the one-third amount by

counting the basement as one-third of the residence.

30

[*30] to check out shipments for GEI. But petitioner did not identify any

specific details regarding the travel or provide any documents in support

of his testimony.

Travel and entertainment expenses for the years in issue are

subject to the strict substantiation requirements of section 274(d). See

§ 274(d)(1) and (2). Respondent contends that petitioner has failed to

meet these requirements, and we agree here as well. Petitioner’s vague

and unsupported testimony regarding his alleged trips do not

sufficiently substantiate their amount, time and place, business

purpose, and business relationship to petitioner of the person receiving

the benefit for each expenditure by adequate records or sufficient

evidence corroborating his own statements. The deductions for these

expenses are therefore also disallowed.

5. Nonemployee Compensation

GEI claimed a deduction for a $14,250 nonemployee

compensation expense on its return for taxable year 2015. During the

examination, petitioner had no records to support the expense, and he

was unable to reconstruct the amount reported, which he asserted had

been paid in cash. Petitioner explained to Mr. Cascante that GEI was

not required to issue Forms 1099 with respect to the nonemployee

compensation because no individual worker was paid over $600. See

§ 6041(a). But petitioner could not name any of the workers paid, nor

did he know whether the same person worked for him multiple times.

At trial petitioner testified that the amount of nonemployee

compensation he reported on GEI’s return was based on amounts given

to him by Mr. Apusa with respect to shipment issues he handled in

Boston. He also testified that Mr. Apusa did not tell petitioner how much

each person got paid but provided only a total amount it would allegedly

cost to do a job and that it was Mr. Apusa who directly paid the workers

rather than himself. Petitioner could not estimate the number of people

paid nonemployee compensation or the amount each person was paid.

As with the other GEI expenses in dispute, respondent contends

that petitioner has failed to provide substantiation sufficient to show

GEI is entitled to the claimed deduction, with petitioner appearing to

know very little about the amount or purpose of the alleged nonemployee

compensation expenses or about whether nonemployee compensation

payments were even made at all. We again agree and conclude that

petitioner has failed to sufficiently substantiate a nonemployee

31

[*31] compensation deduction for the amount claimed. Although we

have found GEI did sometimes pay day laborers to help load containers

in the United States and to help unload containers abroad, we similarly

conclude that petitioner has failed to provide enough evidence for us to

estimate an amount and that to do so would amount to unguided

largesse. See Williams, 245 F.2d at 560.

6. Commissions

GEI claimed a deduction for a $7,520 commission expense on its

return for taxable year 2017. Petitioner told RA Cascante during his

examination that the purpose of the commission expense was to pay a

transfer agent in Nigeria. Petitioner did not provide RA Cascante with

any records to support the expense.

At trial petitioner testified that the commission expense was for

payments made to workers in Nigeria to move goods from the dock to

the client and that he paid such workers by sending money to his cousin

Santi Oksuha, who then paid the workers. Petitioner also testified that

he paid commissions to day workers in Boston to load trucks.

Respondent contends that petitioner has failed to sufficiently

substantiate this deduction as well, emphasizing that petitioner

provided no documentation to support that any commission payments

were made to Mr. Oksuha, that Mr. Oksuha made any commission

payments to Nigerian agents, or that GEI incurred the commission

expenses at all. And as with the nonemployee compensation expense, he

further emphasizes that petitioner provided no credible evidence

regarding the amounts of any commission payments, the frequency of

the payments, or the number of people paid. We here again agree that

petitioner has failed to sufficiently substantiate a deduction in the

amount claimed or in any other amount and disallow this deduction as

well. 13

13 Respondent also points out that there appears to have been some overlap in

petitioner’s testimony regarding what he characterized as nonemployee compensation

expenses and what he categorized as commission expenses. We agree, particularly with

respect to the Boston workers, who petitioner’s testimony suggested were paid

nonemployee compensation by Mr. Apusa but commissions by himself. We note that

petitioner’s conflation of these asserted expenses further bolsters our reluctance to

estimate either.

32

[*32] E. Conclusion

Having held that petitioner is not entitled to any of the disputed

deductions, we sustain respondent’s determinations disallowing the

deductions.

II. Fraud Penalties

We next consider respondent’s section 6663 fraud penalty

determinations.

A. Burdens of Production and Proof

Section 6663(a) provides that “[i]f any part of any underpayment

of tax required to be shown on a return is due to fraud, there shall be

added to the tax an amount equal to 75 percent of the portion of the

underpayment which is attributable to fraud.” Where the Commissioner

seeks to apply this penalty to an individual, as a threshold matter he

must produce evidence that he complied with section 6751(b)(1). See

§ 7491(c); Graev v. Commissioner, 149 T.C. 485, 492–93 (2017),

supplementing and overruling in part 147 T.C. 460 (2016). Section

6751(b)(1) requires that the “initial determination” of assessment of

certain penalties, including the section 6663 fraud penalty, be

“personally approved (in writing) by the immediate supervisor of the

individual making such determination.”

The Commissioner must also prove by clear and convincing

evidence that “an underpayment exists for the years in issue and that

some portion of the underpayment is due to fraud.” Petzoldt v.

Commissioner, 92 T.C. 661, 699 (1989); see § 7454(a); Rule 142(b). The

Commissioner need not prove the precise amount of the underpayment

resulting from fraud, however, only that some part of the underpayment

of tax for each year in issue is attributable to fraud. Petzoldt, 92 T.C.

at 699. If the Commissioner establishes that any portion of an

underpayment is attributable to fraud, then the entire underpayment is

treated as attributable to fraud, except with respect to any portion of the

underpayment which the taxpayer establishes by a preponderance of the

evidence is not attributable to fraud. § 6663(b).

B. Penalty Approval

As stated, section 6751(b)(1) requires that the “initial

determination” of assessment of a section 6663 fraud penalty be

“personally approved (in writing) by the immediate supervisor of the

33

[*33] individual making such determination.” In Belair Woods, LLC v.

Commissioner, 154 T.C. 1, 14–15 (2020), we explained that the “initial

determination” of a penalty assessment is typically embodied in a

document “by which the IRS formally notifie[s] [the taxpayer] that the

Examination Division ha[s] completed its work and . . . ha[s] made a

definite decision to assert penalties.” Once the Commissioner introduces

evidence sufficient to show written supervisory approval of that

determination, the burden shifts to the taxpayer to show that the

approval was untimely, i.e., “that there was a formal communication of

the penalty [to the taxpayer] before the proffered approval” was secured.

Frost v. Commissioner, 154 T.C. 23, 35 (2020). 14

Respondent contends that he obtained proper, written

supervisory approval of the section 6663 fraud penalties for the years in

issue. In support of this contention, he asserts that RA Cascante

obtained timely approval of the penalty when Ms. Gunn, as RA

Cascante’s only supervisor involved in petitioner’s case, signed both the

30-day letter and the Civil Penalty Approval Form on April 26, 2019,

which was the first time the penalties were communicated to petitioner.

We agree that Ms. Gunn was the appropriate supervisor to

provide approval. Although RA Cascante was transferred to a new

position with a new supervisor during his work on petitioner’s case, Ms.

Gunn remained the supervisor responsible for petitioner’s case and the

only supervisor to whom RA Cascante reported with respect to it. See

Sand Inv. Co. v. Commissioner, 157 T.C. 136, 142–43 (2021). We also

agree that Ms. Gunn’s approval was timely. Both the 30-day letter and

the Civil Penalty Approval Form appear in the record. Respondent first

notified petitioner of the determination to impose the section 6663 fraud

penalties in the 30-day letter, which was issued on April 26, 2019. And

on that date, Ms. Gunn signed both the 30-day letter itself, which clearly

14 Absent stipulation to the contrary, this case is appealable to the U.S. Court

of Appeals for the Fourth Circuit. See § 7482(b)(1)(A). Unlike certain other appellate

courts, that court has not squarely addressed the question of when supervisory

approval must be secured for purposes of section 6751(b)(1). Cf. Swift v. Commissioner,

144 F.4th 756, 770 (5th Cir. 2025), aff’g T.C. Memo. 2024-13; Minemyer v.

Commissioner, No. 21-9006, et al., 2023 WL 314832, at *5 (10th Cir. Jan. 19, 2023),

aff’g in part, rev’g in part and remanding T.C. Memo. 2020-99; Kroner v. Commissioner,

48 F.4th 1272, 1276, 1279 n.1 (11th Cir. 2022), rev’g in part T.C. Memo. 2020-73;

Laidlaw’s Harley Davidson Sales, Inc. v. Commissioner, 29 F.4th 1066, 1074 (9th Cir.

2022), rev’g and remanding 154 T.C. 68 (2020). We therefore apply our own precedent

on the issue. See Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff’d, 445 F.2d 985

(10th Cir. 1971); Lawrence v. Commissioner, 27 T.C. 713, 716–17 (1957), rev’d per

curiam on other grounds, 258 F.2d 562 (9th Cir. 1958).

34

[*34] asserted the section 6663 fraud penalties, and the Civil Penalty

Approval Form, which, although imperfect, the parties stipulated

approved the assertion of the section 6663 penalties for the years in

issue. See, e.g., Frost, 154 T.C. at 35; Soleimani v. Commissioner, T.C.

Memo. 2023-60, at *9–11; Cuthbertson v. Commissioner, T.C. Memo.

2020-9, at *70.

Petitioner has neither made any argument nor provided any

evidence that the penalties were not approved by RA Cascante’s

immediate supervisor or that the approval was untimely. He argues

instead that “I do not think it was fair for [Ms.] Gunn to have formed

[her] opinion of me based on the frivolous characterization of me by [RA]

Cascante without speaking with me or appearing during the trial to

allow me the opportunity for questioning the charges that she signed on

to.” But the written supervisory approval requirement of section

6751(b)(1) “requires just that: written supervisory approval.” Belair

Woods, LLC, 154 T.C. at 17 (quoting Raifman v. Commissioner, T.C.

Memo. 2018-101, at *61). And “‘[w]e decline to read into section

6751(b)(1) the subtextual requirement’ that respondent demonstrate the

depth or comprehensiveness of the supervisor’s review.” Id. (quoting

Raifman, T.C. Memo. 2018-101, at *61). In this case the 30-day letter

and the Civil Penalty Approval Form were signed in timely fashion by

Ms. Gunn, RA Cascante’s immediate supervisor with respect to

petitioner’s case, and we conclude that respondent has complied with

section 6751(b)(1).

C. Underpayments Due to Fraud

To satisfy his burden of proof regarding the 6663 fraud penalties,

respondent must show two things for each of the years in issue. First,

respondent must prove that an underpayment exists. See Parks v.

Commissioner, 94 T.C. 654, 660 (1990). And second, he must show that

petitioner intended to evade taxes known to be owing by conduct

intended to conceal, mislead, or otherwise prevent the collection of taxes.

See id. at 661.

1. Underpayment of Tax

The first prong of the fraud test requires that respondent

affirmatively prove that petitioner underpaid his tax for each of the

years in issue. See id. at 660. Where the Commissioner has prevailed on

the issue of the existence of a deficiency by virtue of a taxpayer’s failure

to carry his burden of proof, he cannot rely on that failure to sustain his

35

[*35] burden. Id. at 660–61. In this case petitioner failed to meet his

burden of proof as to the deficiency determinations. As demonstrated by

our analysis of the disputed deductions supra Opinion Part I.C. and D,

however, wholly independent of petitioner’s failure to meet his burden

of proof, there is also clear and convincing evidence in the record that

petitioner claimed deductions to which he was not entitled and which

resulted in an underpayment of tax for each year. Therefore, respondent

has satisfied his burden of proof on this issue. See Jordan v.

Commissioner, T.C. Memo. 1986-389, 52 T.C.M. (CCH) 234, 237.

2. Fraudulent Intent

Fraud is defined as an intentional wrongdoing designed to evade

tax believed to be owing. DiLeo v. Commissioner, 96 T.C. 858, 889 (1991),

aff’d, 959 F.2d 16 (2d Cir. 1992). The existence of fraud is a question of

fact to be resolved upon consideration of the entire record. Petzoldt, 92

T.C. at 699. Because direct evidence of fraud is rarely available, fraud

may be proved by circumstantial evidence and reasonable inferences

from the facts. Id.

Courts have developed a nonexclusive list of factors, or “badges of

fraud,” that demonstrate fraudulent intent. Niedringhaus v.

Commissioner, 99 T.C. 202, 211 (1992). These badges of fraud include:

(1) understating income (including by overstating deductions);

(2) keeping inadequate records; (3) giving implausible or inconsistent

explanations of behavior; (4) failing to cooperate with tax authorities;

(5) filing false documents (including false tax returns); (6) dealing in

cash; (7) engaging in a pattern of behavior that indicates an intent to

mislead; and (8) providing testimony that lacks credibility. See Spies v.

United States, 317 U.S. 492, 499 (1943); Bradford v. Commissioner, 796

F.2d 303, 307–08 (9th Cir. 1986), aff’g T.C. Memo. 1984-601; Gould v.

Commissioner, 139 T.C. 418, 446 (2012), aff’d, 552 F. App’x 250 (4th Cir.

2014); Niedringhaus, 99 T.C. at 211; Drobny v. Commissioner, 86 T.C.

1326, 1349 (1986). Although no single factor is necessarily sufficient to

establish fraud, the existence of several indicia is persuasive

circumstantial evidence of fraud. Petzoldt, 92 T.C. at 700. The taxpayer’s

intelligence, education, and tax expertise are also relevant in

determining fraudulent intent. Gould, 139 T.C. at 446.

In support of his contention that the section 6663 fraud penalties

should apply, respondent asserts that petitioner’s sophistication, in

conjunction with his substantial understatements of income tax due to

overstated expenses, lack of records, failure to cooperate with RA

36

[*36] Cascante, dealings in cash, and continuous inconsistent

statements, demonstrate petitioner’s fraudulent intent. 15 We agree that

there is considerable evidence to show 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, 94 T.C. at 661.

Petitioner is a well-educated businessman and an experienced tax

return preparer, and yet he significantly overstated the deductions to

which he was entitled on his and GEI’s returns for each of the years in

issue. During the examination, he required RA Cascante to summon his

bank records, failed to provide promised documents and meetings, and

ultimately provided RA Cascante with only minimal documentation to

support the claimed deductions. And during trial petitioner provided the

Court with no documentation or other corroborating evidence at all with

respect to his testimony.

Petitioner also made implausible and inconsistent statements

throughout the course of the examination and trial, as repeatedly

demonstrated throughout our analysis of the disputed deductions supra

Opinion Part I.C. and D, including statements surrounding his

employee business expenses that were refuted. And we have found

incredible his assertions that whatever books and records he did

maintain were destroyed in a flood or absconded with by RA Cascante.

We also note that petitioner caused GEI to operate primarily in cash and

that GEI did not deposit all its gross receipts into, and paid few expenses

from, its bank accounts.

In light of the foregoing, respondent has clearly and convincingly

established that at least some portion of the underpayment for each year

in issue is attributable to fraud. Petitioner asserts that he did not

“knowingly or intentionally . . . defraud anyone or the government.”

Particularly given petitioner’s education and experience, however, this

assertion also seems to us incredible. We conclude therefore that the

entire underpayment for each year must be treated as attributable to

fraud. See § 6663(b). Consequently, we hold that petitioner is liable for

the section 6663 fraud penalties determined by respondent.

15 Respondent asserts that petitioner’s claiming of GEI’s disallowed fuel tax

credits is also indicative of fraud. As we have noted, however, the fuel tax credits are

not at issue in this case. And regardless of whether they were properly claimed, we

find more than sufficient evidence in the record to clearly and convincingly support the

existence of fraud. We thus consider the fuel tax credits no further.

37

[*37] III. Conclusion

We have held that petitioner is liable for the deficiency and

section 6663 fraud penalty determined by respondent for each of the

years in issue. We have considered all arguments made and facts

presented in reaching our holdings, and to the extent not discussed

above, we conclude that they are moot, irrelevant, or without merit.

To reflect the foregoing,

Decision will be entered for respondent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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