UNITED STATES TAX COURT

JMP

T.C. Memo. 2012-194

UNITED STATES TAX COURT

SCOTT M. ERIKSEN, ET AL.,'Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 30768-09, 4527-10,

4900-10, 4902-10.

Filed July 12, 2012.

Richard Carl Eriksen, Fred A. Foley, and Michelle Aaron (specially

recognized), for petitioners.

Alicia A. Mazurek and Alexandra E. Nicholaides, for respondent.

Cases of the following petitioners are consolidated herewith: Tina E.

Aginaga, a.k.a. Tina E. Aginaga-Dove, docket No. 4527-10; Mitchell L. Hardin

and Stephanie A. Hardin, docket No. 4900-10;. and Jeffrey L. Kesselring and

Arleen L. Kesselring, docket No 4902-10.

SERVED Jul12 2012

-2. MEMORANDUM FlNDINGS OF FACT AND OPINION

.

LARO, Judae: After the three-year period of limitations on assessment

under section 6501(a) had expired, respondent issued to petitioners notices of

deficiency determining deficiencies in, and section 6662(a) accuracy-related

penalties with respect to, their 1999, 2000, 2001, and/or 2002 Federal income tax.

Petitioners are sheriff's deputies (deputies) or employees with the Oakland County

Sheriff's Department (OCSD) who argue that the assessments were time barred by

the three-year period of limitations in section 6501(a). Relying on Allen v.

Commissioner, 128 T.C. 37 (2007), respondent counters that the limitations period

remains open under section 6501(c) because petitioners' return preparers prepared

each return at issue falsely or fraudulently with intent to evade tax.

The threshold issue for decision is whether respondent has clearly and

convincingly proven that any of petitioners' returns was false or fraudulent. We

hold that respondent has not met his burden with respect to petitioners Scott M.

Eriksen, Mitchell L. Hardin and Stephanie A. Hardin, or Jeffrey L. Kesselring and

Arlene L. Kesselring, and that assessment against these petitioners is time barred.

2Unless otherwise indicated, section references are to the applicable

versions of the Internal Revenue Code (Code), and Rule references are to the Tax

Court Rules of Practice and Procedure. Some dollar amounts are rounded.

-3We hold that respondent has met his burden witlrrespect to petitioner Tina E.

Aginaga, a.k.a. Tina Aginaga-Dove (Deputy Aginaga), and that the period of

limitations on her 1999 through 2002 returns remains open. Giveri that holding,

Deputy Aginaga concedes respondent's deficiency determinations with respect to

her 1999 through 2002 Federal income taxes in the respective amounts of $495,

$675, $803, and $825. We also decide whether Deputy Aginaga is liable for

accuracy-related penalties under section 6662(a) and (b)(1) for 1999 through 2002

on account of negligence or disi·egard of rules or regulations. We hold she is.

I.

FINDINGS OF FACT

Preliminaries

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

and the accompanying exhibits!are incorporãted herein by this reference. Each

petitioner or couple resided in lWichigan when he, she, or they petitioned the

Court.

IL

Petitioners

Petitioners worked for OCSD in Michigan at all relevant times. Scott M.

Eriksen (Deputy Eriksen), Depïhty Aginaga, Mitchell L. Hardin (Deputy Hai·din),

and Jeffrey L. Kesselring (Deputy K.esselring) (collectively deputy petitioners)

worked as deputies in the corre¼tive services division of OCSD, administering

-4care and custody to inmates in the Oakland County (county) main jail or one of its

satellite jails. Stephanie L. Hardin (Ms. Hardin) was employed as a clerk or

cashier, and Arleen L. Kesselring (Ms. Kesselring) worked as a technician. We

refer to Deputy Hardin and Ms. Hardin.as the Hardins as they were married during

the years at issue. We refer to Deputy Kesselring and Ms. Kesselring as the

Kesselrings for the same reason.

III.

Tax Return Preparers and Preparation of Returns

A.

Mr. Kern

James Kern graduated from the Detroit College of Business in 1965 with a

bachelor of science degree and a major in accounting and tax. He eventually

became an enrolled agent with the Internal Revenue Service (IRS), and he

represented clients before the IRS. He sometimes held himself out to clients and

to staff as a former IRS employee though he was not.

.

Mr. Kern began preparing tax returns in college, and he continued to do so

throughout much of his career. He operated a sole proprietorship accounting firm

from the late 1970s until sometime in 1998, when he partnered with his then

girlfriend to form Kern Weyn Associates, Inc. (KWA). Mr. Kern specialized, to

an extent, in preparing tax returns for law enforcement personnel. His clientele

included, but was not limited to, employees of OCSD, the Michigan State Police,

-5the Wayne County Sheriff's Office, and the Detroit Police Department. Mr. Kern

prepared upwards of 3,000 tax rëturns in or afound 200 l, including between 300

-and 400 returns for law enforcement employees. Many làw enforcement clients

were personal friends with whoih Mr Kern associated socially.

As a result of knowledge Mr. Kern acquired froni preparing officers' tax

returns, he devised a generic qu stiònnaire that he used to prepare returns for law

enforcement clients. The questiönnaire referenced deductions allegedly available

to law enforcement personnel, iricluding expenses for ammunition, equipment,

boots, and mileage driven to and from court or the gun range? While the set of

questions made Mr. Kern's praciice efficient, it lent itself to inaccuracies with its

one-size-fits-all approach. In particular, the questionnaire targeted cash outlays

but failed to determine the deductibility of those items for Federal income tax

3OCSD deputies, including deputy petitioners, attended the shooting range

at least once per month for qualification purposes. They also used thëir personal

vehicles to guard prisoners off site or to attend training exercises, and they could

request reimbursement from the county for related mileage expenses. Deputy

petitioners rarely (if ever) used their personal vehicles to attend court, though each

Federal income tax return at issue reported that they did. Petitioners established at

trial that the expense category "rnileage to court" also included mileage to guard

prisoners off site and mileage to and from the gun range.

-6purposes. For example, the survey did not question whether expenses incurred

were ordinary, necessary, or otherwise reimbursable by OCSD or the county.4

Mr. Kern often claimed deductions for clients, including deputy petitioners,

without receipts or supporting documentation. At least in part, he determined his

client's entitlement to deductions on the basis of the completed questionnaire and

sometimes through a question and answer session. He often estimated expenses,

using receipts, information returns, and copies of canceled checks to establish the

amounts and deductibility of certain items only when that information was

provided to him. He relied on the employee's Form W-2, Wage and Tax

Statement, for information on employer-reimbursed expenses, but he never

questioned clients about employers' reimbursement policies. Nor did he

investigate the same on his own.

Mr. Kern had minimal (if any) contact with many of his clients during the

years at issue. He made light of unethical conduct to his partners and staff, stating

on one occasion that claiming deductions for items that did not appear to be

deductible was "not wrong until you get caught". He met with each petitioner or

couple once during the years at issue, and he was unable at trial to recall preparing

4There was in effect a countywide policy during the years at issue whereby

petitioners could seek reimbursement for qualifying job-related expenses.

-7any return at issue. Nor did Mr. Kern adopt a fixed fee schedule; his clients set the

price for Mr. Kern's services and paid him what they thbught his services were

worth.

B.

Mr. Redinger

Curt Redinger earned a college degreë in math and business from Michigan

Technological Institute in 1990 He became a certified public accountant in the

mid-1990s and was a member in good standing during the years at issue. After

working at small and mid-sized accounting firms for the better part of 12 years,

Mr. Redinger desired to go into business for himself, and he engaged a business

broker to perform due diligence and find a suitable practice to acquire.

Mr. Redinger purchased KWA, including its client list, in November 2001.5

Having been trained as a corporate return preparer, Mr. Redinger was unfamiliar

with preparing individual tax returns. To guide Mr. Redinger in the preparation of

such returns, Mr. Kern stayed on with KWA as a contract employee for two years.

During the 2002 filing season Mr. Kern prepared most (but not all) individual

income tax returns for the 2001itaxable year.

For the most part, Mr. Rëdinger adopted Mr. Kern's practice of eliciting

information from his clients anE reporting that information on tax returns without

5We refer to KWA and lVir. Redinger's successor firm collectively as KWA.

-8substantiation. Mr. Redinger gathered information to prepare his clients' tax

returns from answers given in response to questionnaires. Mr. Redinger often (but

not always) estimated his client's current year deductions using amounts the

individual claimed on his or her prior year's tax return. He did not meet with his

clients every year; and when he did, he did not seek substantiation of claimed

deductions, merely confirming with his clients that their expenses were "the same

as it has been" or "about the same" as last year.

To facilitate the return preparation process, Mr. Kern supplied Mr. Redinger

with a list of deductions that Mr. Kern believed taxpayers were entitled to clåim

according to their occupation (i.e., police officers received one set of deductions;

firemen another). Among the expenses targeted for law enforcement officers were

side-arm purchases, ammunition, cell phones, uniform cleaning, court-related

travel, and on-the-job meals. Mr. Redinger used the outline as a starting point for

preparing clients' returns, and he generally adjusted each taxpayer's return

according to that taxpayer's situation. Mr. Redinger did not investigate the

reimbursement policies of OCSD or the county on his own.

C.

Preparation ofNonparty Witnesses' Returns

Mr. Kern, and on occasion Mr. Redinger, instructed his staff to use prior

year's itemized deductions when preparing law enforcement clients' current year's

.

-9tax returns.6 Employees were also directed to allocate police officers a charitable

contribution deduction equal to 1.5% of their gross (tótal) income. This amount

was not based on actual donations but was determined from industry standards of

amounts individuals donated to charities. We note that petitioners' ratios of

charitable contribution deductions to total income reported for each year at issue

do not equal 1.5%.7

During the years at issueiMichael-Summérs (Deputy Summers) and Timitre

Kyriakides (Deputy Kyriakides) worked at OCSD and had their personal income

tax returns prepared by Mr. Kern or Mr. Redinger. Among the retums prepared

were the 1999 through 2002 personal income tax returns for Deputy Summers and

the 2001 through 2003 personal income tax returns for Deputy Kyriakides.

Deputy Summers, during an in-person.meeting with Mr. Kern, felt encouraged to

claim a deduction for a gun he did not purchase. He later stopped using KWA as a

return preparer because he was opposed to claiming a deduction for a fictitious

6Petitioners' returns do not report identical deductions year to year; nor are

we able to discern any statistical significance from the deductions claimed across

multiple years.

7The ratio of charitable contributions to total income, rounded to ihe nearest

one-tenth of.1%percent ranges for Deputy Eriksen for 1999 through 2002 from

2.9% to 3.6%; for Deputy Aginaga for 1999 through 2002 from 2.5% to 3.9%; and

for the Hardins for 2000 through 2002 from 2.6% to 4.0%. The Kesselrings'

ratios for 2001 and 2002 were 1.7% and 6.9%, respectively.

1

- 10 firearm. Deputy Kyriakides' 2001 through 2003 returns claimed itemized

deductions for weapons, ammunition,.a cell phone, and protective equipment for

which he did not provide receipts or substantiation. Respondent; made an offer of

proof at trial of the testimony ofäpproximately 150 fact witnesses who would

have testified to experiences with Messrs. Kern and/or Redinger similar to those

testified to by Deputies Summers and Kyriakides.

IV.

Criminal Prosecution of Messrs. Kern and Redinge

Respondent's Criminal Investigation Division (CID) investigated KWA.

Special agents with CID executed a search warrant at KWA's office and seized all

individual tax returns attaching Schedules A, Itemized Deductions. Thereafter, the

U.S. Attorney's Office for the Eastern District of Michigan filed separate criminal

informations with the U.S. District Court for the Eastern District of Michigan

charging Messrs. Kern and Redinger each with one count of willfully aiding and

assisting in the preparation and presentation to the IRS of a false individual

Federal income tax return.

Subsequently, Messrs. Kern and Redinger each pleaded guilty to one count

of aiding and assisting in the preparation of a false Federal income tax return in

violation of section 7206(2). In the agreed factual basi 541

for guilty plea, Mr. Kern

admitted to preparing a false 2002 Federal income tax return for Robert C. Turner

.

- 11 -.

and Kelly A. Turner by inflating itemized deductions (charitable contributions)

and business expenses (unreimbursed.employee'expenses). Mr. Kern also

admitted, for sentencing purposes, to preparing 51 Federal income tax returns

claiming improper deductions and causing a total tax.loss to the United States,

exclusive of penalties ánd interest, of $115,869. Petitioners' returns were not

included among the 51 returns considered as part of Mr. Kern's guilty plea.

In the stipulated factual basis for guilty plea, Mr. Redinger admitted to

willfully assisting in the preparation of a false 2001 Federal income tax return for

Derek Meyers and Sarah Meyers, one of whom was an OCSD deputy, by claiming

false unreimbursed employee expenses as itemized deductions. For sentencing

purposes, Mr. Redinger admitted to preparing 34 Federal income tax returns on

which he claimed improper deductions for clients and causing a total tax loss to

the United States of $58,728, not including penalties and interest. Petitioners'

returns were again not included among the 34 returns considered as part of Mr.

Redinger's guilty pleä. The record is not clear as to whether there is overlap

between the false and fraudulent returns admitted to by Messrs. Kern and

Redinger.

During his plea allocution Mr. Kern stated that not all returns he prepared

were fraudulent. Upon further questioning from the District Court on that point,

- 12 Mr. Kern represented that of the 1,900 or so tax returns that he prepared annually,

between 30 and 40 were false. He also maintained that the IRS was, in some .

instances, challenging legitimate deductions.

As part of his criminal plea agreement, Mr. Redinger agreed to disclose to

the IRS false and fraudulent Federal tax returns that he and Mr. Kern prepared. In

furtherance thereof, on November 25, 2008, Mr. Redinger submitted to a revenue

agent in respondent's civil division a partial list of clients for whom he and Mr.

Kern prepared false tax returns for 1999, 2000, and/or 2001. Petitioners were not

included in that summary, and the record is not clear as to whether Mr. Kern or

Mr. Redinger provided a more comprehensive list to CID at another time. Nor is

the record clear as to whether Mr. Kern agreed to cooperate with the IRS or

whether he participated in preparing Mr. Redinger's list.

After conclusion of the criminal cases against Messrs. Kern and Redinger,

CID referred more than 200 Federal income tax returns to the IRS civil division

for examination, including the returns at issue here. The IRS audited between 130

and 150 individual returns, including those of each petitioner or couple. Some

individuals whose returns were referred to the civil division amended their tax

returns to remove falsely claimed deductions. Petitioners did not.

- 13 V.

Federal Income Tax Returns and Determination of Deficiencies

A.

Overview

Petitioners hired Mr. Kern or Mr. Redinger to prepare their Federal income

tax returns for each year at issue. Generally, each petitioner or.couple met with

Mr. Kern or Mr. Redinger once in the first year the return preparer was retained.

In subsequent years each petitioner or couple simply dropped off at KWA's office

information considered necessary by that taxpayer to prepare his, her, or their tax

returns. Each return claimed deductions for unreimbursed employee expenses and .

charitable contributions. Respondent disallowed most of these deductions, and the

parties stipulate that petitioners have not substantiated any of the claimed

deductions.8

Respondent reflected his determinations in notices of deficiency separately

issued to each petitioner or coulále outside the period of limitations on assessment

in section 6501(a). In.particular, respondent determined the following deficiencies

and section 6662(a) accuracy-related penalties:

8As discussed more fully below, respondent allowed Deputy Aginaga, the

Hardins, and the Kesselrings each a $250 charitable contribution deduction for

each year at issue. The record is not clear why respondent allowed those

deductions given the parties' stipulation that the donations were not substantiated.

- 14 -

Scott M. Eriksen (Docket No. 30768-09)

Year

Deficiency

1999

2000

2001

2002

$266

812

1,086

1,066

Penalty

Sec. 6662(a)

.

$53

162

217

213

Tina E. Aginaga a.k.a. Tina E. Aginaga-Dove (Docket No. 4527-10)

Year

Deficiency

Penalty

Sec. 6662(a)

1999

. 2000

2001

2002

$495

675

803

825

$99

135

161

165

Mitchell L. Hardin and Stephanie A. Hardin (Docket No. 4900-10)

Year

Deficiency

Penalty

Sec. 6662(a)

2000

2001

2002

$262

705

892

$52

141

178

Jeffrey L. Kesselring and Arleen L. Kesselring (Docket No. 4902-10)

Year

Deficiency

Penalty

Sec. 6662(a)

2001

2002

$321

443

- $64

89

- 15 We summarize respondent's proposed adjustments for each petitioner or couple in

turn.

B.

Deputy Eriksen

Mr. Kern prepared, and Deputy Eriksen filed, Federal income tax returns for

1999 through 2002. Respondent selected each return for examination. Deputy

Eriksen claimed for 1999, and respondent disallowed, an unreimbursed employee

expense deduction of $3,056, a charitable contribution deduction of $1,025, and a

deduction for tax preparation fees of $100.9 Deputy Eriksen also claimed the

following itemized deductions, among others:

Item

2000

2001

2002

Weapon and ammunition

$1,1.28

Uniforms and cleaning

636

Protective equipment

941

Uniforms and protective

clothing

-0Cell phone and pager

983

Boots and shoes

197

Union and/or professional dues 3'72

$1,126

-0-0-

$1,046

-0-0-

1,894

883

-0472

944

180

1,575

125

1,910

947

-0414

' 882

210

1,785

125

Mileage

694

Professional subscriptions

Charitable contributions

Tax preparation fees

-01,185

100 ,

9The record includes a copy of Deputy Eriksen's 1999 Federal income tax

return and supporting Schedule A. The Schedule A references an attachment that

is not in the record.

- 16 Respondent disallowed each of the foregoing itemized.deductions and allowed in

lieu thereof the standard deduction for each year.

C.

Deputy Aginaga

Mr. Kern prepared, and Deputy Aginaga filed, Federal income tax returns

for 1999 through 2002. Those returns claimed, in addition to others the following

itemizeddeductions:

Item

1999

2000

2001

2002

Weapon and ammunition

Uniforms and cleaning

$984

614

$1,025

575

$1,124

-0-

$1,016

-0-

Protective equipment

Uniforms and protective

-0-

612

-0-

-0-

clothing

Cell phone and pager

Boots and shoes

Union and/or professional dues

Mileage

Education

Professional subscriptions

Charitable contributions

-0-0314

660

458

230

-0985

-0965

214

371

471

-0-01,295

1,866.

1,017

-0487

-0-0210

1,725 .

1,712

1,194

-0492

-0-0195

2,085

On audit of these returns, respondent disallowed each ofthe foregoing itemized

deductions, except that respondent allowed a charitable contribution deduction of

$250 for each of the years 1999 through 2002.

D.

The Hardins

Mr. Kern prepared, and thè Hardins filed, Federal income tax returns for

2000 through 2002. Those returns claimed as itemized deductions, in addition to

other items, the following deductions:

Item

2000

2001

2002

Weapon and ammunition

Uniforms and cleaning

Protective equipment

Uniforms and protective clothing

Cell phone and pager

.

Boots and shoes

Union and professional dues

Mileage

Professional subscriptions

$1,744

1,261

592

-01,018

465

371

1,137

-0-

$1,226

-0-01,028

1,085

-0474

316

180

$1,365

1,123

300

-01,245

150

474

765

250

Charitable contributions

1,125

1,385

1,915

250

125

-0-

Tax preparation fees

.

On audit of the Hardins' 2000 through 2002 returns, respondent disallowed each

of the foregoing itemized deductions, except that he allowed unreimbursed

employee expenses of $474 for each of the years 2001 and 2002 and charitable

contribution deductions of $250 for each of the years 2000 through 2002.1

1°Respondent disallowed the Hardins' claimed itemized deductions for 2000

and allowed in lieu thereof the standard deduction for that year.

- 18 E.

The Kesselrings

The.Kesselrings filed Federal income tax returns for 2001 and 2002. Mr.

Kern prepared the Kesselrings' 2001 return, and Mr. Redinger reviewed and

signed their 2002 return, though he did not prepare it. Each of those returns was

selected for audit. The Kesselrings claimed, .in addition to other deductions, the

following itemized deductions on their 2001 and 2002 Federal income tax returns:

Item

Weapon and ammunition

Uniforms, boots, and

maintenance

Cell phone and pager

Union and professional dues

Mileage

Charitable contributions

. 2001

2002

$985

$1,025

515

365

414

961

965

510

365

414

975 945

Respondent disallowed each of the foregoing deductions, except that he allowed

the Kesselrings deductions for unreimbursed employee expenses of $414 for each

of the years 2001 and 2002, and a $250 charitable contribution deduction for each

of those years. Finally, the.Kesselrings claimed a deduction for real estate taxes of

$7,039 for 2001, of which respondent disallowed $1,942.

VI.

Petitions, Trial, and Petitioners' Oral Motion for Summary Judgment

Petitioners petitioned the Court in response to the notices of deficiency, and

a trial was held in Detroit, Michigan. Petitioners moved for summary adjudication

- 19 after the presentation of evidence closed, and the Court took that motion under

advisement. We will deny petitioners' motion because, as we find, the outcome of

these cases turns on whether respondent has proven fraud and not on any legal

issue in controversy. See Rule 121(a).

.

OPINION

I.

Statute of Limitations

We begin with an overvi¢w of the limitations period for assessment of

income tax. The Commissioner generally must assess any income tax within the

three-year period after a taxpayer files his or her return. Sec. 6501(a). The statute

of limitations in section 6501(a) may be tolled, however, in the case of a false or

fraudulent return with the inten to evade tax. Sec. 6501(c)(1). Tax determined to

be due on a false or fraudulent return may be assessed, or a proceeding in court for

collection of the tax may be be un, at any time. Id. In Allén v. Commissioner,

128 T.C. at 42, we held that section 6501(c) indefinitely extends the period of

limitations on assessment in thë case of a false or fraudulent return, even though it

is the preparer and not the taxpayer who intended to evade tax. As we recognized

in Colestock v. Commissioner, 102 T.C. 380, 385 (1994): "[W]here fraud is 042

alleged and proven, respondent is free to determine a deficiency with respect to all

items for the particular taxable year without regard to the period of limitations;"

- 20 Respondent asserts in his pretrial memorandum of law that the instant cases

are identical to Allen and that the period of limitations is open." There are

certainly similarities between Allen and the instant cases, but the two.are

fundamentally at odds. Like the return preparer in Allen, Messrs. Kern and

.

Redinger were convicted of violating section 7206(2). Similar to the returns at

issue in Allen, petitioners' returns were not identified in the criminal case against

Mr. Kern or Mr..Redinger. As in Allen, each notice of deficiency in these cases

was issued after expiration of the three-year period of limitations in section

6501(a). Both Allen and the instant cases concern claimed itemized deductions.

The parallels between Allen and the instant cases mostly end there.

Unlike these cases, Allen was submitted to the Court for decision without

trial under Rule 122. Id. at 37. Among the stipulated facts agreed to by the Allen

parties was that Mr. Allen's returns were false and fraudulent and that the return

preparer falsified the returns with intent to evade tax. Id. at 38. The absence of a

stipulation that petitioners' returns were prepared with intent to evade tax

distinguishes Allen from the instant cases in a key respect. When Mr. Allen

stipulated that his returns were fraudulent, the issue for decision shifted from

"The Court directed the parties to file before trial a memorandum of law as

to whether the period of limitations remains open on the basis of the Court's

holding in Allen v. Commissioner, 128 T.C. 37 (2007).

- 21 whether the returns were fraudulent (a factual determination) to whether section

6501(c) held open the period of[limitations on assessment (a legal determination).

The stipulated false or frauduletit returns became the direct evidence necessary to.

prove fraud by clear and convincing evidence. Petitioners have made no such

concessions of fraud here. To t e contrary, they profoundly challenge that

allegation. Respondent is corre t that Allen is relevant insofar as section 6501(c)

tolls the statute of limitations

false or fraudulent returns, but that fraud must be

clearly and.convincingly proven.

II.

Parties'Arguments

The point of contention etween the parties is whether any return at issue

was falsely or fraudulently pre ared. Petitioners assert that their returns were not

false or fraudulent and that sect on 6501(c) is inapposite. To support their claim,

petitioners maintain that deductions claimed on the returns in question were for

ordinary and necessary expenses of their business as OCSD employees and that

any deductions claimed later determined to be nondeductible were claimed in good

faith. Implicit throughout petitioners' argument is that the returns at issue may

have been negligently preparedibut were not fraudulent. On the other hand,

respondent relies on Allen to support his allegation that the return preparers

- 22 prepared petitioners' returns fraudulently and that the statute of limitations on

assessment is tolled under section 6501(c).

III.

Whether Any of Petitioners' Returns Were Fraudulent

A.

Overview

Respondent, if he is to prevail, must prove by clear and convincing evidence

that each return at issue was false or fraudulent. See secs. 6501(c), 7454(a); Rule

142(b). A mere preponderance of the evidence will not sustain a finding of fraud-what is needed is clear and convincing evidence of fraud. Gano v. Commissioner,

19 B.T.A. 518, 532-533 (1930). Clear and convincing evidence is

"that measure or degree of proof which will produce in the mind of

the trier of facts a firm belief or conviction as to the allegations

sought to be established. It is intermediate, being more than a mere

preponderance, but not the extent of such certainty as is required

beyond a reasonable doubt in criminal cases. It does not mean clear

and unequivocal." * * *

Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 516 (1990) (quoting Cross v.

Ledford, 161 Ohio St..469 (1954)); see also Hobson v. Eaton, 399 F.2d 781, 784

n.2 (6th Cir. 1968).

Fraud is the intentional commission of an act or acts for the specific purpose

of evading tax believed to be due and owing. Petzoldt v. Commissioner, 92 T.C.

661, 698 (1989). Fraud may not be imputed or presumed but must always be

- 23 established by independent evidence of fraudùlent intent to evade tax. Id. at 699.

Negligence, either general or gioss, is not synonymous with fraud because fraud

requires scienter. Webb v. Conhmissioner, 394 F.2d 366, 377-378 (5th Cir. 1968),

af['g T.C. Memo. 1966-81; Bruce Goldberg, Inc. v. Cominissioner, T.C. Memo.

1989-582, 58 T.C.M. (CCH) 519, 530 (1989). Whereas negligence or gross

negligence bespeaks breach of uty of care, "[fJraud implies bad faith, intentional

wrong doing and a sinister motive." Davis v. Commissioner, 184 F.2d 86, 87

(10th Cir. 1950), remanding a1 040Iemorandum

Opinion of this Court. The existence

of fraud is a factual determinati n to be gleaned from the entire record. Gajewski

v. Commissioner, 67 T.C. 181, 199 (1976), aff'd without published opinion, 578

F.2d 1383 (8th Cir. 1978).

A fraud determination fo purposes of the section 6501(c) period of

limitations on assessment is the same as assessing a taxpayer's liability for the

section 6663 fraud penalty. Rhone-Poulenc Surfactants & Specialties, L.P. v.

Commissioner, 114 T.C. 533, 548 (2000). Thus, respondent must prove for each

return at issue that (1) an underpayment of tax exists, and (2) the return preparer

intended to evade taxes known to be owing by conduct intended to conceal,

mislead, or otherwise prevent the collection of tax. See Parks v. Commissioner,

94 T.C..654, 660-661 (1990). We consider each element in turn.

- 24 B.

Underpayment of Tax

Each petitioner or couple concedes liability for respondent's determined

deficiencies if we conclude that the period of limitations is open under section

6501(c). Petitioners argue that the mere fact that they stipulated respondent's

deficiency determinations does not satisfy respondent's burden of proving an

underpayment of tax for each year at issue. Specifically, petitioners rely on Parks

v. Commissioher, 94 T.C. at 661, in which we cautioned against bootstrapping a

finding of fraud upon a taxpayer's failure to prove the Commissioner's

determinations erroneous. Petitioners cite Parks out of context.

In Parks we stated that "[w]here * * * respondent has prevailed on the issue

of the existence of a deficiency by virtue of a taxpayer's failure to carry his burden

of proof, respondent cannot rely on that failure to sustain his burden of proving

fraud. We must be careful in such cases not to bootstrap a finding of fraud upon a

taxpayer's failure to prove respondent's deficiency determinations erroneous." Id.

at 660-661 (citations omitted). Petitioners' deficiencies do not result from a

failure of proof but from the parties' stipulations that petitioners are liable for the

deficiencies if the period of limitations is open under section 6501(c). These

stipulations are binding on the parties by virtue of Rule 91(e) and prove by clear

and convincing evidence that an underpayment of tax exists with respect to each

-.25

-

petitioner or couple and for each year at issue. Cf. Gold Bar, Inc. v.

Commissioner, T.C. Memo. 2000-211, 80 T.C.M. (CCH) 33, 35-36 (2000)

(taxpayer's concession that it o erstated business expense deductions and omitted

income satisfied the underpayment prong of the fraud penalty).

C.

Fraudulent Intent

1..

Overview

Since fraudulent intent is rarely confirmable with direct evidence, courts

have distilled fraudulent intent y viewing circumstantial evidence in the light of

certain indicia of fraud. Among the factors to be evaluated in determining whether

a return preparer acted with frau ulent intent are: (1)Understatements of tax; (2)

inadequate books and records; (3) implausible or inconsistent explanations of

behavior; (4) failure to cooperatë with, or failure to provide access to records to,

tax authorities; (5) making false entries or alterations; (6) keeping a double set of

records; and (7) any other condyct the likely effect of which is to mislead or to

conceal. See Spies v. United Stätes, 317 U.S. 492, 499 (1943) (criminal tax

evasion); Bradford v. Commissioner, 796 F.2d 303, 307-308 (9th Cir. 1986) (civil

fraud penalty), aff'g T.C.. Memoi. 1984-601; Solomon v. Commissioner, 732 F.2d

145.9, 1461-1462 (6th Cir. 1984) (civil fraud penalty), a_f£g T.C. Memo. 1982-603.

When balancing these factors, we look to evidence that is "so strong" that fraud is

- 26 -

the most manifest explanation. Biggs v. Commissioner, 440 F.2d 1, 5 (6th Cir.

1971), aff'g T.C. Memo. 1968-240; see also Richardson v. Commissioner, 509

F.3d 736, 743-745 (6th Cir. 2007), aff'g T.C. Memo. 2006-69.

2.

Respondent's Theory of Fraud

Respondent submits that Mr. Kern or Mr. Redinger prepared petitioners' tax

returns fraudulently by claiming fabricated itemized deductions and understating

petitioners' income. To carry his burdenirespondent relies on the general practice

of Messrs. Kern and Redinger to claim deductions on the basis of client responses

to questions without supporting records. Respondent infers from this course of

conduct, as well as the trial testimony of Deputy Kyriakides and Deputy Summers

and the proffered testimony of 150 fact witnesses, that each return at issue in these

cases was prepared with the intent to evade tax. Respondent persuasively argues

that some law enforcement officers acted fraudulently, but the generalizations on

which he relies to meet his burden are neither clear nor convincing evidence that

petitioners' returns were fraudulent. On the other hand, petitioners' testimony

raises a suspicion of fraud in the cases of Deputy Eriksen, the Hardins, and the

Kesselrirígs or presents an overt admission of fraud in the case of Deputy Aginaga

We consider each petitioner or couple in turn.

3.

Deputy Eriksien the Hardins, and the Kesselrings

When taken as a whole, the testimony of Deputy Eriksen, the Hardins, and

the Kesselrings undercuts respoädent's theory that their returns were false or

fraudulent. Preliminarily, we note that petitioners were not named in the criminal

informations filed in the District Court, and they were not listed among the clients

for whom Mr. Redinger prepare false or fraudulent returns. As far as the record

is concerned, petitioners' returns were first implicated during CID's investigation,

though CID never conclusivelylletermined the retums to be false or fraudulent.

Respondent's theory is further called into doubt given Mr. Kern's plea allocution

in which he stated that of the 1, 00 or so returns he prepared annually, between 30

and 40, or between 1.6% and 2. %, were false or fraudulent. We also view

respondent's theory with heightened skepticism in view of statements Mr. Kern

made to the District Court that the IRS challenged legitimate deductions.

At the same time, the fact that Mr. Kern's and Mr. Redinger's application of

Federal income taxation law was amiss cannot plausibly be denied. They enabled

clients to claim deductions on the basis of responses to questions targeting alleged

cash outlays but did not require records substantiating those expenses. Taxpayers

must maintain records substantiating deductions claimed. See sec. 6001; sec. .

1.6001-1(a), (e), Income Tax Regs. Messrs. Kern and Redinger wrongfully relied

- 28 on estimates to prepare many of their clients' tax returns. Taxpayers are generally

prohibited from estimating vehicle expenses and expenses covered by section

274(d). Sanford v. Commissioner, 50 T.C. 823, 828 (1968), aff'd, 412 F.2d 201

(2d Cir. 1969). Messrs. Kern and Redinger claimed deductions for petitioners for

uniform cleaning and mileage even though the county reimbursed such expenses.

Trade or business. deductions are not allowed for reimbursable expenses. Lucas v.

Commissioner, 79 T.C. 1, 7 (1982); see also Coplon v. Commissioner, 277 F.2d

534, 535 (6th Cir. 1960), a_fff'g T.C. Memo. 1959-34. Messrs. Kern and Redinger

concluded that clients' expenses for weapons, ammunition, protective gear, cell

. phone, and clothing were deductible. They did not analyze whether those

expenses were nondeductible personal expenses, see sec. 262, or whether they

were ordinary and necessary expenses related to deputy petitioners' trade or

business as OCSD employees, see sec. 162(a). We conclude that these methods

connote negligence but are not clear and convincing evidence of fraud.

Deputies Eriksen, Hardin, and Kesselring testified to purchasing weapons,

ammunition, protective equipment, flashlights, handcuffs, and cold weather gear.

They likewise testified to donating cash, clothing, and household items to various

charitable organizations, including churches, the Salvation Army, Goodwill, the

.

.

- 29 -

USO, Ducks Unlimited, and Trout Unlimited, among others." We found this

testimony general, vague, and perhaps coordinated, yet respondent did not

examine Deputy Eriksen, Hardin:or Kesselring to such a degree as to destroy his

credibility. As to claimed deductions for weapons, ammunition, protective

equipment, and professional subscriptions, respondent did.not offer evidence that

Deputies Eriksen, Hardin, and Kesselring did not purchase such items. Such an

allegation might have been easily proven by, for example, introducing bank

records, credit card statements, and/or gun records as to whether each deputy

petitioner purchased the claimed items. See 18 U.S.C. sec. 923(g)(1)(A) (2012)

(requiring firearms dealers to maintain records of firearms sales ). Respondent

introduced no such evidence.

Respondent misplaces re iance on petitioners' inability to substantiate the

expenses claimed on their returis to prove fraud." The Court of Appeals for the

"Although we seriously question whether these charitable contributions

were made, respondent did not :learly and convincingly sustain his burden of

proof on this issue. If the contributions were never made, as respondent suggests,

he could have met his burden by summoning records from the organizations to

which the donations were allegédly made or by offering bank records showing a

lack of conforming proof. See sec. 7602(a)(2). No such evidence was presented.

"Respondent asserts that petitioners ignored "trial subpoenas" issued before

trial, which we understand to refer to subpoenas duces tecum directing petitioners

to produce certain documentarý evidence. Relying on Wichita Terminal Elevator

(continued...)

- 30 Sixth Circuit, the court to which an appeal of these cases would most likely lie,

has cautioned that '"Failure to contest an adjustment made in determining the

deficiency is not proof of fraud. The Commissioner cannot sustain his burden of

proof on a fraud issue by statements made in his notice of deficiency.'" Drieborg

k Commissioner, 225 F.2d 216, 218-219 (6th Cir. 1955) (quoting.Joseph v.

Commissioner, 32 B.T.A. 1192, 1204 (1935)), aff'g in part a Memorandum .

Opinion of this Court; see also Parks v. Commissioner, 94 T.C. at 660-661. We

are careful to not condition a f'mding of fraud.on petitioners' lack of substantiation

because respondent bears the burden of producing affirmative evidence of fraud.

The criminal convictions of Messrs. Kern and Redinger, the implausibility

and inconsistency of their testimony, and the testimony of Deputies Summers and

Kyriakides each weigh in favor of fraud. But those general factors, absent a more

direct link to petitioners, merely heighten our suspicion of fraud. A suspicion of

fraud, no matter how strong, is insufficient to sustain a finding of fraud. See

Drieborg v. Commissioner, 225 F.2d at 219-220; Katz v. Commissioner, 90 T.C.

"(...continued)

Co. v. Commissioner, 6 T.C. 1158 (1946), aff'd, 162 F.2d 513 (10th Cir. 1947),

respondent claims that petitioners' failure to produce such records gives rise to a

presumption that those documents would be unfavorable to them. We decline to

draw such an inference. The record does not include copies of the trial subpoenas

and it does not specify the scope of documents requested.

- 31 1130, 1144 (1988); Shaw v. Co missioner, 27 T.C. 561, 569-570 (1956), aff'd,

252 F.2d 681 (6th Cir. 1958); Rinehart v. Òommissioner; T.C. Memo. 1983-184,

45 T.C.M. (CCH) 1185, 1195 (1983). Respondent has not proven by clear and

convincing evidence that the returns of Deputy Eriksen, the Hardins, or the

Kesselrings were prepared with the intent to evade tax.P Accordingly, we hold

that assessments of Deputy Erikäen's, the Hardins', and the Kesselrings' tax are

time barred. Given that holding we need not and do not address Deputy

Eriksen's, the Hardins', or the Kesselrings' liability for the deficiencies and

accuracy-related penalties

4.

.

Deputy Agin ga

Respondent asserts, and we agree, that Deputy Aginaga testified honestly

.

and crédibly. Her testimony, however,^serves as the direct evidence that each of

her returns for 1999 through 2002 was false and fraudulent.. Deputy Aginaga's

trial testimony establishes that she "never" purchased a gun or ammunition during

any year at issue and that she exþlained as much to Mr. Kern. Deputy Aginaga's

statements on brief are consister t on this point in that she stated that "she did not

"Our result in these cases would not change even if respondent was allowed

to call each of the 150 witnesses whose testimony he proffered. Circumstantial

evidence of this nature, without more direct link to the taxpayers' returns, is not

necessarily sufficient to sustain a finding of fraud.

- 32 actually purchase a gun or ammunition during the years at issue." Yet each return

claimed as an unreimbursed employee expense deduction amounts for weapons

and ammunition. By Deputy Aginaga's admission, therefore, each of her returns

at issue contained false or fraudulent deductions for a weapon and ammunition.

We regard Deputy Aginaga's admissions as direct evidence of Mr. Kern's

willingness to commit fraud with intent to evade tax as it relates to each of her

returns.

.

When viewed against the other indicia of fraud exhibited by Mr. Kern, the

preparer who prepared each of Deputy Aginaga's returns, we are convinced that

each of Deputy Aginaga's returns at issue was false or fraudulent. To be sure, Mr.

K.ern prepared Deputy Aginaga's 1999 through 2002 Federal income tax returns

and claimed deductions for weapon and ammunition thereon even though he was

forewarned that such purchases had not been made. Such misconduct resulted in

understatements of income tax on each of Deputy Aginaga's 1999 through 2002

Federal income tax returns. The entries were admittedly fictitious and obviously

not able to be substantiated with supporting records. We infer from this course of

conduct, as well as Deputy Aginaga's admissions, that Mr. Kern intended to evade

taxes known to be owing·from Deputy Aginaga by conduct intended to conceal,

mislead, or otherwise prevent the collection of tax. On the basis of the foregoing,

- 33 we conclude that respondent has clearly and convincingly proven that deductions

for a weapon and ammunition for each year at issue were claimed with fraudulent

intent.

Once respondent has produced sufficient evidence to establish that a portion

of Deputy Aginaga's underpayment was attributable to fraud, and we conclude he

has, section 6501(c)(1) holds open the periods of limitations for those years. See

Allen v. Commissioner, 128 T.C. at 42; Rhone-Poulenc Surfactants & Specialties,

L.P. v. Commissioner, 114 T.C. at 548. In view of our holding that the period of

limitations is open on account of the false or fraudulént nature of each of Deputy

Aginaga's 1999 through 2002 Federal income tax returns, Deputy Aginaga

concedes the deficiencies respoüdent determined for each of those years.

Accordingly, we hold that there are respective deficiencies in Deputy Aginaga's

1999 through 2002 Federal income taxes of $495, $675, $803, and $825.

IV.

Deputy Aginaga's Liability for Accuracy-Related Penalties

Respondent also contend that Deputy Aginaga is liable for accuracy-related

penalties for each.of the years 1999 through 2002 for negligence or disregard of

rules or regulations, substantial understatements of income tax, or substantial

valuation misstatements. See sec. 6662(a) and (b)(1), (2), and (3). .Because only

one accuracy-related penalty miy be imposed with respect to any given portion of

.

- 34 an underpayment, see sec. 1.6662-2(c), Income Tax Regs., we construe

respondent's position as stating alternate grounds for the accuracy-related

penalties. Our query focuses on whether Deputy Aginaga acted with negligence or

disregard of rules or regulations.

Pursuant to section 7491(c), respondent bears the burden of production with

respect to Deputy Aginaga's liability for the section 6662(a) penalties. This

means that respondent "must come forward with sufficient evidence indicating

that it is appropriate to impose the relevant penalty." Higbee v. Commissioner,

116 T.C. 438, 446 (2001). Deputy Aginaga testified that she claimed deductions

which she did not incur and filed her Federal income tax returns for each of the

years at issue without reviewing them. Consequently, we conclude that

respondent has met his burden of production for determining accuracy-related

penalties due to negligence or disregard of rules or regulations.

For purposes of section 6662, the term "negligence" includes any failure to

make a reasonable attempt to comply with the income tax provisions of the Code.

Sec. 6662(c). Disregard of rules or regulations includes any careless, reckless, or

intentional disregard of rules or regulations. Id. Deputy Aginaga admitted at trial

that she did not review any of her 1999 through 2002 Federal income tax returns,

and she admitted to signing those returns without reviewing them. She accepted

- 35 that expenses claimed for weap ns and ammunition were false and incorrect. The

record as a whole establishes th t Deputy Agiiiaga filed each of her tax returns

with reckless disregard for rules and regulations. The false deductions claimed on

Deputy Aginaga's returns are as much attributable to her failure to review those

returns as they are to Mr. Kern' fraudulent preparation of them. Accordingly, we

conclude that the accuracy-related penalties apply absent a mitigating affirmative

defense.

Deputy Aginaga claims on brief that the accuracy-related penalties do not

apply because she meets the reasonable cause defense of section 6664(c)(1). We

are not persuaded. As support for her position, Deputy Aginaga generally relies

on section 1.6664-4, Income Tax Regs. (and the included examples). That section

states as a general rule that the most important factor to be evaluated in deciding

whether the a taxpayer acted with reasonable cause and.in good faith is the extent

to.which the taxpayer sought to assess his or her proper tax liability. Sec. 1.66624(b)(1), Income Tax Regs. Deputy Aginaga goes on to state that she "missed" the

falsely claimed deductions for t weapon and ammunition "because she didn't not

[sic] review her tax returns."

A taxpayer is charged wi h knowledge and awareness of and responsibility

for the items reported on his or her Federal tax returns. Allen v. Commissioner,

- 36 -

128 T.C. at .41 (citing Magill v. Commissioner, 70 T.C. 465, 479-480 (1978),

aff'd, 651 F.2d 1233 (6th Cir. 1981)).. Where an individùal cláims ignorance of an

item leading to an understatement of tax, the taxpayer must prove (at a minimum)

that he or she fulfilled a duty of inquiry with respect to whether the correct

liability was reported on the return. Cf. Stevens v. Commissioner, 872 F.2d 1499,

1505 (11th Cir. 1989) (duty of inquiry in innocent spouse cases), aff'g T.C.

Memo. 1988-63. Deputy Aginaga acknowledged on brief that she neglected her

duty of inquiry by not reviewing her 1999 through 2002 Federal income tax

returns. We refuse to excuse such neglect on the grounds of reasonable cause.

Accordingly, we hold that Deputy Aginaga is liable for accuracy-relåted penalties

under section 6662(a) of $99, $135, $161, and $165 for 1999 through 2002,

respectively.

In reaching our decision, we have considered all arguments made, and to the

extent that we have not specifically addressed them, we conclude they are moot,

irrelevant, or without merit.

To give effect to the foregoing,

Appropriate orders and decisions

will be entered.