UNITED STATES TAX COURT

T.C. Memo. 1997-153

UNITED STATES TAX COURT

CLINTON N. AND NAOMI K. BOHANNON, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 20925-92.

Filed March 26, 1997.

S. Joseph Piazza and David L. Schick, for petitioners.

Willie Fortenberry, Jr., for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

COLVIN, Judge:

Respondent determined deficiencies in

petitioners' Federal income taxes, an addition to tax, and a

penalty as follows:

Year

1988

1989

Deficiency

$198,163

241,943

Addition to Tax

Sec.

6661

$49,541

--

Penalty

Sec.

6662(d)

-$48,389

2

After concessions, the issues for decision are:

(1)

Whether petitioners had enough of a basis in Bob Wade

Ford, Inc. (Bob Wade Ford), to deduct losses of $256,752 in 1988

and $133,709 in 1989, as petitioners contend; had a zero basis,

as respondent contends; or had a basis of some other amount; and,

if petitioners establish that they had enough of a basis to

deduct losses, whether passive loss limitations apply.

We hold

that, after applying the passive loss limitations, petitioners

may deduct $50,000 in 1988 and $52,692 in 1989.

(2)

Whether petitioners' net capital gains were $227,720

for 1988 and $244,489 for 1989, as petitioners contend, or

$257,720 for 1988 and $274,489 for 1989, as respondent contends.

We hold that petitioners' net capital gains were $257,720 for

1988 and $274,489 for 1989.

(3)

Whether petitioners may carry forward net operating

losses of $2,512,307 for 1988 and $2,401,099 for 1989.

We hold

that they may not.

(4)

Whether petitioners may deduct expenses relating to a

dirt fill operation of $127,985 for 1988 and $135,824 for 1989.

We hold that they may not.

(5)

Whether petitioners may claim a general business credit

carryforward of $27,548 for 1988 and 1989.

We hold that they may

not.

(6)

Whether petitioners are liable for the addition to tax

for substantial understatement of income tax under section 6661

3

for 1988 and the accuracy-related penalty for substantial

understatement of income tax under section 6662(d) for 1989.

We

hold that they are.

The parties agree that computational adjustments will be

required for petitioners' medical expense deduction and Schedule

A miscellaneous deductions and for petitioners' self-employment

income for 1988 and 1989.

References to petitioner are to Clinton N. Bohannon.

Unless

otherwise indicated, section references are to the Internal

Revenue Code in effect for the years in issue.

Rule references

are to the Tax Court Rules of Practice and Procedure.

FINDINGS OF FACT

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

A.

Petitioners

Petitioners have lived in the Republic of Panama for 60

years, and they lived there when they filed the petition in this

case.

Petitioner worked for the Canal Authority for 18 years.

Petitioners' daughter is Gail Bohannon Wade (Gail Bohannon).

Their former son-in-law is Bob Wade.

The Wades lived in

Clermont, Florida, during the years in issue.

Scott Bohannon and

Clinton Wade are petitioners' grandsons.

B.

Bohannon, S.A.

When he stopped working for the Canal Authority in the mid-

1950's, petitioner formed Bohannon, S.A., a Panamanian

4

corporation, to engage in shipping.

Petitioner is the president

of and is now a consultant for Bohannon, S.A.

He has otherwise

retired from active participation in the corporation.

Petitioner became a minority shareholder in Bohannon, S.A.

in the mid-1960's.

He owned bearer shares in Bohannon, S.A. that

he later sold to the corporation.

Bohannon, S.A. owned ships.

It did business worldwide,

including hauling grain from Texas to Australia, hauling

wastepaper, and transporting dry cargo.

in Europe and North America.

It did business mainly

Company accountants kept records of

Bohannon, S.A.'s income.

Bohannon, S.A. had a bank account in Panama.

Petitioner had

signature authority on the account.

Petitioners first reported that they sold Bohannon, S.A.

stock on their 1982 return.

The United States invaded Panama on December 20, 1989.

C.

Bob Wade Ford, Inc.

1.

Organization and Ownership

Bob Wade Ford, Inc. (now South Lake Ford), a Ford dealership

in Clermont, Florida, was organized on December 1, 1970.

Clermont is about 20 miles west of Orlando.

new and used cars.

Bob Wade Ford sells

It opened used car lots in Bushnell, Florida,

in 1985, and Winter Garden, Florida, in 1986.

5

Bob Wade was the president of Bob Wade Ford at all times

relevant here.

Petitioner originally owned 80 percent of the

stock of Bob Wade Ford.

He became the 100-percent shareholder on

December 31, 1983.

Bob Wade Ford was a C corporation until the end of 1975.

became an S corporation in 1976.

It

Bob Wade Ford was an accrual

method taxpayer.

2.

Petitioners' Role in the Management of Bob Wade Ford

When petitioner traveled to the United States from Panama,

he visited Bob Wade Ford and occasionally attended car auctions

with Bob Wade.

Petitioner did not attend management meetings,

review the books, or do any work at the dealership.

Petitioner

was not knowledgeable about the automobile sales business.

Mrs.

Bohannon never worked at Bob Wade Ford.

3.

Petitioners' Capital Contributions to Bob Wade Ford

In 1988, petitioner contributed $125,000 to Bob Wade Ford.

His allocable share of its 1988 loss was $254,752.

He

contributed $275,000 in 1989, and his allocable share of the

corporate loss was $133,709.

Bohannon, S.A. provided $25,000 to

Bob Wade Ford in 1989.

Petitioners deducted losses from Bob Wade Ford of $214,530

on their 1988 return and $105,767 on their 1989 return.

4.

Bob Wade Ford's Tax Returns

No loans from shareholders were reported on Bob Wade Ford's

tax returns (Forms 1120S) for 1979, 1980, 1981, 1982, 1983, 1984,

6

1985, and 1986.

Loans from shareholders of $925,049 were

reported on the 1987 corporate return.

No loans from

shareholders were reported on the 1988 and 1989 corporate

returns.

Bob Wade Ford never made a profit.

Bob Wade Ford reported

losses on its Forms 1120S (S corporation tax returns) and

Schedule K-1 losses allocated to petitioner and Wade from 1976 to

1989 as follows:

Year

Losses per

tax return

K-1 losses were allocated to:

Petitioner

Wade

1976

1977

1978

1979

1980

1981

1982

1983

1984

1985

1986

1987

1988

1989

($114,476)

(118,690)

(191,025)

(734,701)

(474,239)

(347,016)

(467,196)

(159,044)

(942,985)

(642,216)

(322,096)

(122,976)

(256,752)

(133,709)

($91,581)

(90,204)

(145,179)

(587,761)

(379,391)

(312,315)

(420,476)

(143,140)

(942,985)

(642,216)

(322,096)

(122,976)

(256,752)

(133,709)

(5,027,121)

(4,590,781)

Total

-($146,940)

(94,848)

(34,701)

(46,720)

(15,904)

-------

Losses were allocated between petitioner and Wade on the

basis of the following ownership ratios:

Years

Petitioner

Wade

1976-81

1982-83

1984-89

80%

90

100

20%

10

0

Gary Kane (Kane), a certified public accountant (C.P.A.) for

24 years, prepared tax returns for Bob Wade Ford beginning in

7

1976 and for all years relevant here.

petitioners' amended 1981 return.

Kane also prepared

He was petitioners'

representative in two Internal Revenue Service audits.

Respondent audited Bob Wade Ford’s 1988 and 1989 tax returns

late in 1990 or early in 1991.

Kane prepared a schedule of

petitioner's basis in Bob Wade Ford from 1976 to the end of 1993

for that audit.

D.

Petitioners' Loans to the Wades

Gail Bohannon and Bob Wade gave promissory notes to

petitioners as follows:

Date

Jan. 21, 1985

Jan. 30, 1986

Feb. 1, 1986

Feb. 17, 1986

Mar. 14, 1986

Mar. 19, 1986

Apr. 21, 1986

May 7, 1986

May 16, 1986

June 6, 1986

June 11, 1986

July 1, 1986

July 29, 1986

July 30, 1986

Aug. 29, 1986

Sept. 3, 1986

Sept. 10, 1986

Sept. 27, 1986

Total

E.

Amount

$96,954.03

5,633.11

23,205.00

4,600.00

4,350.00

2,500.00

4,000.00

6,000.00

200,000.00

3,860.00

500.00

4,340.00

35,205.00

4,400.00

11,859.37

1,800.00

4,415.00

148,123.53

561,745.04

The Citrus Grove/Dirt Fill Operation

Petitioners reported expenses of $127,985 in 1988 and

$135,824 in 1989 from a dirt fill operation conducted on 112

8

acres of property owned by the Dennis Horton Trust 101 in

Clermont, Florida.

The land contained citrus groves when Bob

Wade bought an interest in it.

There was no citrus production

from the property after a freeze in 1983.

After citrus

production ceased, Wade sold dirt from the property to the State

of Florida for highway construction.

Petitioner invested in the Dennis Horton Trust 101 on

September 11, 1984.

The Dennis Horton Trust 101 balance sheet

for December 31, 1989, showed that the trust had given petitioner

notes payable in the amount of $2,211,268.84.

Petitioner occasionally visited the dirt fill operation with

Wade, but did not do any work for it in 1988 or 1989.

Wade

obtained the permits, arranged for design work, and did all of

the other work for the dirt fill operation.

Petitioner spent no

more than 30 hours at the dirt fill site in 1988 and 1989.

F.

Petitioners' Family Trips and Other Family Expenses

Petitioner often took his family on expensive trips.

They

went to Vietnam, Australia, New Zealand, South Africa, Hawaii,

Europe, Russia, China, and Hong Kong.

Petitioner took Gail

Bohannon to Australia, New Zealand, Samoa, Fiji, and Hawaii for

36 days in 1972.

Sometime between 1972 and 1990, he took Scott

Bohannon and Scott's girlfriend to China for a month. He paid for

Scott's and Scott's girlfriend's trip to South Africa.

He also

9

took his family (including the Wades) on a train trip from

Holland to Hong Kong.

From 1980 to 1989, petitioner paid his grandchildren's

private school expenses and paid for Scott's college, law school,

and other graduate work.

He also bought new cars for his

grandchildren.

G.

Petitioners' Tax Returns

Petitioners reported adjusted gross income/(loss), net

operating losses, and tax liability from 1973 to 1992 as follows:

Year

1973

1974

1975

1976

1977

1978

1979

1980

1981

1982

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

AGI per return

$17,839

14,769

22,503

(71,322)

Not in record

(262,837)

(794,993)

(1,023,618)

Not in record

(1,325,376)

(1,359,420)

(2,024,617)

(3,106,064)

(2,801,590)

(2,457,106)

(2,330,427)

(2,162,888)

(2,132,242)

(2,227,894)

(2,014,686)

NOL reported

on return

------($262,837)

(794,993)

-(1,342,640)

(1,325,376)

(1,325,376)

(1,821,448)

(2,818,172)

(2,479,613)

(2,512,307)

(2,401,099)

(2,242,047)

(2,216,612)

(2,308,249)

Tax

liability

$237

75

188

-0N/A

-0-0-0N/A

-0-0-0-0-0-0-0-0-0-0-0-

Petitioner reported wages of $89,765 for 1982, $90,438 for

1983, $86,965 for 1984, $87,845 for 1985, $88,764 for 1986, zero

for 1987 and 1988, and $94,915 for 1989.

He has no records

showing whether he received wages from Bohannon, S.A.

10

Petitioners reported income from the sale of Bohannon, S.A.

stock from 1973 to 1989 as follows:

Year

1973

1974

1975

1976

1977

1978

1979

1980

1981

1982

1983

1984

1985

1986

1987

1988

1989

Total

Income from Sale of Bohannon, S.A. Stock

Reported on Petitioners’ Return

-0-0-0-0Not in record

-0-0-0Not in record

$875,000

-0397,673

793,816

642,972

-0218,000

219,500

3,146,961

A general business credit was reported on petitioners' Forms

K-1 from 1976 to 1985.

Petitioners attached Forms 3800, General

Business Credit, to their 1988 and 1989 returns.

On them,

petitioners reported but did not claim a $27,548 carryforward of

the general business credit for 1988 and 1989.

Petitioners reported gains from the sale of stock of

Bohannon, S.A. ($875,000) and Hardwoods, S.A. ($287,100) on their

1982 return.

Hardwoods, S.A. was another Panamanian corporation

in which petitioner owned stock.

Petitioners made no section

172(d) computations on their 1982 return.

11

Kane and petitioner both prepared 1985 returns for

petitioners.

no wages.

The return Kane prepared showed that petitioner had

Petitioner received the return Kane had prepared, and

then prepared and filed a different tax return as petitioners'

joint return.

Petitioner reported wages of $87,845 and interest

income of $93,131 on the return he filed for 1985.

In 1985,

petitioner bought U.S. Treasury bonds that paid interest of

$79,375.

In 1988 and 1989, petitioner included parts of the

returns prepared by Kane in the returns he prepared and filed as

petitioners' joint returns.

On their tax returns for 1990, 1991, and 1992, petitioners

reported gains from the sale of Bohannon, S.A. stock of $219,500

for 1990, $109,500 for 1991, and $218,000 for 1992.

Petitioner gave Kane handwritten notes or oral information

about his basis in the Bohannon, S.A. stock that he reported he

sold on his 1988 return.

Petitioner did not give Kane a copy of

contracts of sale or income or expense statements showing that he

had bought or sold Bohannon, S.A. stock.

Petitioner gave Kane no

documents relating to the sale of Bohannon, S.A. stock in 1989,

1990, and 1991.

Petitioner gave Kane brokerage statements

showing that petitioner sold some publicly traded stocks.

Petitioner gave Kane no Forms W-2 or payroll records

relating to his salary from Bohannon, S.A.

12

OPINION

A.

Whether Petitioner Had A Sufficient Basis in Bob Wade Ford

To Claim Losses From the Corporation in 1988 and 1989

1.

Petitioner's Basis in Bob Wade Ford in 1988 and 1989

Petitioner was the sole shareholder of Bob Wade Ford, a

subchapter S corporation in 1988 and 1989.

Petitioners deducted

losses of Bob Wade Ford under section 1366(a).

To be entitled to

deduct the losses, petitioners must show that Bob Wade Ford

sustained losses in the relevant years and that petitioners had a

basis in Bob Wade Ford in 1988 and 1989 at least equal to the

amount of the losses.

Sec. 1366(d)(1).

A shareholder's deduction of losses from a subchapter S

corporation is limited to his or her adjusted basis in (a) stock

in the corporation and (b) debt owed by the corporation to the

shareholder.

Sec. 1366(d)(1).

A taxpayer's share of any S

corporation loss in excess of his or her adjusted basis may be

carried over indefinitely.

Sec. 1366(d)(1) and (2).

A loan from

a shareholder to an S corporation increases the shareholder's

basis if the shareholder makes an economic outlay and directly

incurs the indebtedness.

Sec. 1366(d)(1)(B); Harris v. United

States, 902 F.2d 439, 442-443 (5th Cir. 1990); Estate of Leavitt

v. Commissioner, 875 F.2d 420, 422-423 (4th Cir. 1989), affg. 90

T.C. 206 (1988); Hitchins v. Commissioner, 103 T.C. 711, 714-715

(1994); Underwood v. Commissioner, 63 T.C. 468, 476 (1975), affd.

535 F.2d 309 (5th Cir. 1976).

A loan from a shareholder's wholly

13

owned C or S corporation to a wholly owned S corporation does not

increase the shareholder's basis in the S corporation.

Meissner

v. Commissioner, T.C. Memo. 1995-191; Burnstein v. Commissioner,

T.C. Memo. 1984-74.

Respondent argues that petitioner has not proven the amount

of his basis in Bob Wade Ford.

part.

We agree in part and disagree in

We find that petitioner invested $125,000 in Bob Wade Ford

in 1988 and $275,000 in 1989.

Petitioner produced canceled

checks showing his contributions to the dealership in 1988 and

1989 and records of his Merrill Lynch money market account that

showed petitioner's contributions to Bob Wade Ford for 1988.

Petitioners reported gains from sales of Bohannon, S.A. stock on

their 1988 and 1989 returns exceeding the amount they invested in

Bob Wade Ford in those years.

However, petitioner did not prove that he had a basis in Bob

Wade Ford at the end of 1987.

Petitioner testified that he has

contributed his own funds to the dealership each year since 1970,

except in 1990.

He testified that he kept annual summaries of

his contributions and gave them to Kane.

Kane testified that

petitioner's basis in Bob Wade Ford was $1,079,854 in 1988 and

$1,272,953 in 1989.

Kane and Dan Gallogly, a certified public

accountant, both testified that they calculated petitioner's

basis in Bob Wade Ford.

Petitioner produced canceled checks and

records of his Merrill Lynch money market account showing that he

made some contributions to the dealership before 1988.

These

14

support petitioner's claim that he contributed to Bob Wade Ford

before 1988.

Although petitioner claims that he contributed

$5,763,262 to Bob Wade Ford from 1976 to 1989, his records such

as canceled checks and Merrill Lynch money market account

statements fall short of establishing that amount.

Bob Wade Ford

reported losses of $4,636,660 from 1976 to 1987 ($4,200,320 of

which was allocated to petitioner in those years); petitioner's

records do not establish that he contributed more than $4,200,320

from 1976 to 1987 such that he would have a basis in Bob Wade

Ford at the end of 1987.

Petitioner has not established that he

had any basis in the dealership at the end of 1987.

Since

petitioner did not establish that he had a basis in Bob Wade Ford

at the end of 1987, his share of the dealership's loss for 1988

is limited to the amount he contributed in 1988 ($125,000).

1366(d)(1).

Sec.

Petitioner's share of Bob Wade Ford's loss for 1988

in excess of his adjusted basis is carried over to 1989.

Sec.

1366(d)(2).

2.

Bob Wade Ford's Losses in 1988 and 1989

Bob Wade Ford reported losses of $256,752 in 1988 and

$133,709 in 1989.

Respondent contends that petitioners may not

deduct losses for 1988 based on journal entry No. 2 ($31,789),

journal entry No. 7 ($24,000), and check No. 20862 ($2,000).1

1

The item for 1989 is a timing adjustment. The parties

agree that, if journal entry No. 7 is disallowed for 1988, then a

$24,000 deduction is allowed in 1989.

15

a.

Journal Entry No. 2

Respondent contends that journal entry No. 2 is incorrect.

Journal entry No. 2 increased the cost of new cars by $10,000 and

used cars by $21,789 and credited the allowance for doubtful

accounts (a "contra account”)2 by $31,789.

Respondent argues

that petitioners have not shown that these amounts were correct.

Respondent contends that amounts in the contra account had

already reduced income, and that reducing this account at yearend

resulted in a double reduction of income.

Respondent contends

that this adjustment should have been made for 1987, not 1988.

We disagree.

Kane made journal entry No. 2 to correct an entry

erroneously made by the dealership's bookkeeper to a nonexistent

account called "allowance for doubtful accounts".

The bookkeeper

should have made the entry to the expense account.

Journal entry

No. 2 corrected this error.

It did not affect the dealership's

taxable income.

Respondent has offered no support for the contention that

journal entry No. 2 should have been made in 1987.

2

Bob Wade Ford

A contra account is the functional equivalent of a reserve

for a bad debt. See Thor Power Tool Co. v. Commissioner, 64 T.C.

154, 156 (1975), affd. 563 F.2d 861 (7th Cir. 1977), affd. 439

U.S. 522 (1979); Hutton v. Commissioner, 53 T.C. 37, 39 (1969).

16

had already included uncollected receivables in income, so

writing off the receivables reduced income only once.

b.

Journal Entry No. 7

Respondent contends that journal entry No. 7 (a $24,000

deduction) should be made for 1989 rather than 1988 because (1)

the adjustment is for an inventory item, which reduces the

beginning inventory for 1989 and the cost of goods sold for 1989

by a like amount; (2) petitioners did not establish the events

and nature of the transactions which necessitated the inventory

writedown at the end of 1988; and (3) the writedown is proper

under the cost method of inventory accounting.

We disagree.

Kane made journal entry No. 7 to reduce the fair market

value of 28 used cars to the lower of cost or market, which was

the dealership's method of inventory.

This adjustment properly

reduced the dealership's income by $24,000 in 1988 and increased

its income by that amount in 1989.

c.

Check No. 20862

Respondent contends that a deduction for check No. 20862 for

$2,000 should be disallowed because petitioners failed to

establish that Bob Wade Ford incurred the expense as an ordinary

and necessary business expense.

Petitioners offered a journal entry of $2,000 and Kane's

testimony.

Wade told Kane he had cashed check No. 20862 to pay

cash bonuses to employees at Christmas.

Petitioners point out

that Wade was called by respondent to testify and that although

17

his relationship to petitioners was adverse by the time of trial,

he did not dispute Kane's testimony.

Petitioners, however, bear

the burden of proving that the $2,000 expense was an ordinary and

necessary business expense, and they did not ask Wade about this

issue.

Kane testified that he did not know whether Bob Wade Ford

issued Forms W-2 to employees for the bonuses.

Petitioners have

not proven that Bob Wade Ford is entitled to deduct this amount

because petitioners had no Forms W-2 or other evidence

corroborating that Bob Wade paid the $2,000 to employees.

Bob

Wade Ford's loss for 1988 is thereby decreased by $2,000.

d.

Conclusion

We conclude that Bob Wade Ford had losses of $254,752 in

1988 and $133,709 in 1989.

3.

Passive Loss Limitations: Whether Petitioner

Materially Participated in the Management of Bob Wade

Ford

The next issue for decision is whether the losses

petitioners claimed from Bob Wade Ford are passive activity

losses under section 469.

More specifically, we must decide

whether petitioner materially participated in the business of Bob

Wade Ford.

Individuals generally may not deduct losses from a passive

activity.

Sec. 469(a).

A passive activity is a trade or

business in which the taxpayer does not materially participate.

Sec. 469(c)(1).

An individual materially participates in an

18

activity only if he or she is regularly, continuously, and

substantially involved in its operations.

Sec. 469(h)(1).

The

regulations contain seven safe harbors under which an individual

is deemed to materially participate in an activity.

Sec.

1.469-5T(a), Temporary Income Tax Regs., 53 Fed. Reg. 5725-5726

(Feb. 25, 1988).

A taxpayer materially participates in an activity if he or

she participates in the activity for more than 500 hours during

the year.

supra.

Sec. 1.469-5T(a)(1), Temporary Income Tax Regs.,

Petitioners contend that petitioner meets that test.3

Petitioner testified that he spent about 400-500 hours

participating in the operations of the corporation.

Larry Ragar

(Ragar), the used car manager at Bob Wade Ford in 1988 and 1989

and now at South Lake Ford, testified that petitioner worked more

than 500 hours at the dealership in each of the years 1988 and

1989.

Petitioner’s and Ragar's testimony that petitioner worked as

much as 500 hours at the dealership during the years at issue is

not credible.

Wade, the president of Bob Wade Ford during the

years in issue, testified that petitioner had no duties or

responsibilities at the dealership.

Panama for more than 60 years.

Petitioner has lived in

Petitioner never managed the

dealership or did any selling or buying, bookkeeping, payroll, or

3

Petitioners concede that Mrs. Bohannon did not materially

participate in the operations of Bob Wade Ford in 1988 and 1989.

19

supervisory work.

Petitioner said that he was primarily an

investor in Bob Wade Ford and that he attended board meetings.

His testimony that he worked 400-500 hours each year at the

dealership was not credible.

We conclude that petitioner did not materially participate

in the management of Bob Wade Ford in 1988 and 1989.

However,

under the phase-in provided by section 469(m)(2), he may deduct

$50,000 in 1988 (40 percent of his share of the dealership's loss

in 1988 ($125,000))4 and $52,692 in 1989 (20 percent of his share

of the dealership's loss in 1989 ($133,709) plus the section

1366(d)(2) carryover from 1988 ($129,752)).

B.

Petitioners' Deductions From the Dirt Fill Operation

Petitioners reported losses of $127,985 for 1988 and

$135,824 for 1989 from a dirt fill business conducted on property

owned by the Dennis Horton Trust 101.

Petitioners contend that

they offered credible evidence to support their claimed losses

and that respondent offered no contrary testimony or evidence.

We disagree.

A taxpayer must keep records that are

sufficient to enable the Commissioner to determine his or her

correct tax liability.

See sec. 6001; sec. 1.6001-1(a), Income

Tax Regs. A taxpayer who claims a deduction bears the burden of

4

As discussed at par. A-1, above, this amount takes into

account that petitioner's share of the dealership's loss for 1988

is limited to $125,000, the amount he contributed in 1988.

Petitioner's share of the dealership's loss in excess of that

amount ($129,752) is carried over to 1989. Sec. 1366(d)(2).

20

substantiating the amount and purpose of the item claimed.

Sec.

1.6001-1(a), Income Tax Regs.

Petitioners did not have books and records to support their

deduction of these expenses.

Petitioners have not proven that

they paid the expenses or that the expenses were made for a

business purpose.

Interest expenses make up $108,576 of the

$127,985 claimed for 1988 (84 percent) and $96,693 of the

$135,824 claimed for 1989 (71 percent), yet petitioners provided

no evidence that they had any indebtedness relating to the dirt

fill operation.

Kane obtained the amounts to report as income and deductions

from the dirt fill operation from the trustee's listing of cash

receipts and disbursements; however, those records are not in

evidence.

Petitioners produced no bills or checks to

substantiate the claimed expenses.

Petitioners offered no credible evidence to substantiate

their claimed expenses from the dirt fill operation for 1988 and

1989.

Thus, we sustain respondent's disallowance of these

expenses.

C.

Capital Gains From Sales of Stock in Bohannon, S.A.

Petitioners claimed that their basis in the Bohannon, S.A.

stock they sold in 1988 was $30,000, and $30,000 for the stock

they sold in 1989.

Respondent disallowed petitioners' claimed

bases in their Bohannon, S.A. stock because petitioners did not

substantiate these amounts.

21

Petitioner maintains that his Bohannon, S.A. investment

records were destroyed in the riots following the United States'

invasion of Panama in December 1989.

Clinton Wade testified that

petitioner told him (in a phone call during the riots) that the

floor where petitioner's office was located had been ransacked.

Petitioner also contends that his testimony is sufficient since

it is uncontroverted and is supported by respondent's handling of

earlier audits.

We disagree.

We are not convinced that petitioner's records

were destroyed in riots after the December 1989 U.S. invasion of

Panama.

Petitioner offered no corroboration such as photographs

of damaged premises.

More importantly, petitioner apparently did

not try to reconstruct his records from other sources.

A

taxpayer's inability or refusal to produce records does not

relieve him or her of the burden of proof.

Figueiredo v.

Commissioner, 54 T.C. 1508, 1511-1512 (1970), affd. per order 732 USTC par. 9713 (9th Cir. 1973).

When a taxpayer's records have

been lost or destroyed, the taxpayer may substantiate deductions

through other credible evidence.

E.g., Williams v. Commissioner,

T.C. Memo. 1994-275; Thorpe v. Commissioner, T.C. Memo. 1992-160.

Petitioners apparently did not try to do so.

Finally,

petitioners first reported that they had sold Bohannon, S.A.

stock in 1982.

The earlier audits were of their 1976 and 1980

returns, so those earlier audits do not support this claim.

22

Petitioner testified that he initially invested $10 per

share, and that he did not know how much he invested or where he

got the funds to invest.

Petitioner's testimony was evasive,

vague, and not credible.

He seemed to have selective recall.

He

was inexplicably unable to remember basic details about his

investment in Bohannon, S.A., when it was incorporated, the

identity of its initial shareholders,5 and how he set the selling

price of his stock.

Petitioner testified that he did not know

where Bohannon, S.A. is located or how the corporate bills were

paid, despite the fact that he said he incorporated it and that

he is president of the corporation and was a major shareholder

until the mid-1960's.

We need not accept self-serving testimony.

Geiger v. Commissioner, 440 F.2d 688, 689-690 (9th Cir. 1971),

affg. per curiam T.C. Memo. 1969-159; Tokarski v. Commissioner,

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

Kane saw no records of petitioner's stock

sale or basis in the stock; he saw only petitioner's handwritten

notes.

Petitioners submitted no documentary evidence at trial to

establish their basis in Bohannon, S.A.

Under these

circumstances, we do not consider petitioner's estimate of basis.

5

Bob Wade testified that petitioner incorporated Bohannon,

S.A. with Mrs. Bohannon's father and brother. We find it

incredible that petitioner cannot remember with whom he

incorporated the corporation.

23

We find that petitioners have not established their basis in the

Bohannon, S.A. stock they sold in 1988 and 1989.

We sustain

respondent on this issue.

D.

Net Operating Loss Carryforward

Respondent determined that petitioners may not deduct net

operating losses carried forward to 1988 and 1989 because

petitioners did not establish the amount of the losses or that

the losses had not been absorbed in prior years.

Petitioners

bear the burden of proving that they had net operating losses

from 1982 to 1987.

Rule 142(a); United States v. Olympic Radio &

Television, Inc., 349 U.S. 232, 235 (1955).

Petitioners must

prove the amount of the net operating loss carryforward and that

the losses were not absorbed by their gross income in those

years.

Sec. 172(c); Jones v. Commissioner, 25 T.C. 1100, 1104

(1956), revd. and remanded on other grounds 259 F.2d 300 (5th

Cir. 1958); Vaughan v. Commissioner, 15 B.T.A. 596, 600 (1929).

Respondent contends that petitioners had unreported income

before 1988, that petitioners may not deduct a casualty loss in

1985, and that petitioners may not exclude income under section

911 from 1982 to 1989.

Petitioners argue that because respondent

first raised these issues at trial, we should not consider them.

We need not decide this issue because petitioners did not prove

that they had deductions in excess of their reported income from

1982 to 1987, even if we do not consider whether they had

24

unreported income before 1988 and even if we assume that they

could deduct a casualty loss and exclude income under section

911.

Petitioner testified that petitioners' returns for 1982 to

1989 were true and correct.

His testimony does not convince us

that petitioners are eligible for net operating loss

carryforwards to 1988 and 1989.

A tax return does not establish

the correctness of the facts stated in it.

Seaboard Commercial

Corp. v. Commissioner, 28 T.C. 1034, 1051 (1957); see Wilkinson

v. Commissioner, 71 T.C. 633, 639 (1979); Roberts v.

Commissioner, 62 T.C. 834, 837 (1974).

As we stated above,

petitioner's testimony was often evasive, vague, and not

credible, yet petitioners ask us to accept (without any records)

his testimony that their tax returns for 10 to 15 years were true

and accurate.

We are not bound to accept the testimony of a

taxpayer under these circumstances.

Hradesky v. Commissioner, 65

T.C. 87, 90 (1975), affd. per curiam 540 F.2d 821 (5th Cir.

1976).

Kane testified that petitioners' net operating loss

carryover was $1,706,535 at the end of 1988 and $1,555,655 at the

end of 1989.

He did not testify about the net operating loss

carryover available at the end of 1987.

The only indication of

the net operating loss carryforward to 1988 is the amount

petitioners claimed on their 1988 return.

Kane's worksheets

25

regarding the net operating loss carryovers were not offered into

evidence.

We have only his testimony about the net operating

loss calculations.

He did not explain how he computed

petitioners' net operating loss carryforward, or why he computed

net operating loss carryforwards different from those claimed

($2,512,307 for 1988 and $2,401,099 for 1989) on petitioners'

returns for 1988 and 1989.

His general testimony that

petitioners' and Bob Wade Ford's returns are true and correct

does not establish that petitioners had net operating loss

carryforwards for 1988 and 1989.

We agree with respondent on this issue because petitioners

did not show that they had net operating losses from 1982 to 1987

or that those losses were not absorbed in prior years.

See

McWilliams v. Commissioner, T.C. Memo. 1995-454 (Court rejected

taxpayers' claimed carryover losses since they did not show that

the losses were not absorbed in prior years).

E.

General Business Credit

Petitioners reported but did not claim a $27,548

carryforward of the general business credit on their 1988 and

1989 returns.

Kane testified that the general business credit

reported on petitioners' 1988 and 1989 returns was a carryforward

of petitioners' distributive share of investment tax credits

reported by Bob Wade Ford.

26

Petitioners argue that they established that the general

business credit arose from Bob Wade Ford's purchase of assets

qualifying for the investment tax credit.

We disagree;

petitioners have not identified the property for which the credit

was claimed or established that the property was qualified

property.

F.

Sec. 38(a).

We sustain respondent on this issue.

Substantial Understatement of Income Tax

The next issue for decision is whether petitioners are

liable for the addition to tax under section 6661(a) for 1988 and

the accuracy-related penalty under section 6662(d) for 1989 for

substantial understatement of income tax.

Section 6661(a)

imposes an addition to tax equal to 25 percent of the amount of

any underpayment attributable to a substantial understatement of

income tax.

The accuracy-related penalty equals 20 percent of

any part of an underpayment attributable to a substantial

understatement of income tax.

Sec. 6662(a) and (b)(2).

An understatement is the amount by which the correct tax

exceeds the tax reported on the return.

Sec. 6661(b)(2)(A).

An

understatement is substantial if it exceeds the greater of 10

percent of the tax required to be shown on the return or $5,000.

Secs. 6661(b)(1)(A) and 6662(d)(1)(A).

Petitioners bear the

burden of proving that they are not liable for the addition to

tax under section 6661(a) and the accuracy-related penalty

27

imposed by section 6662(a).

Rule 142(a); Tweeddale v.

Commissioner, 92 T.C. 501, 506 (1989).

Petitioners argue that they are not liable for the addition

to tax under section 6661(a) and the accuracy-related penalty

under section 6662(d) because they did not understate their tax

on their 1988 and 1989 returns.

We disagree for reasons given

above.

Petitioners argue that section 6662 was first effective for

tax years beginning after December 31, 1989.

We disagree.

Section 6662 applies to returns due after December 31, 1989.

Omnibus Budget Reconciliation Act of 1989, Pub. L. 101-239, sec.

7721(a), 103 Stat. 2106, 2395.

This includes petitioners' 1989

return.

If a taxpayer has substantial authority for the

tax treatment of any item on the return, the understatement

is reduced by the amount attributable to it.

6661(b)(2)(B)(i).

Sec.

The amount of the understatement is reduced

for any item adequately disclosed on the taxpayer's return or in

a statement attached to the return.

Sec. 6661(b)(2)(B)(ii).

The

accuracy-related penalty does not apply to any part of an

underpayment for which there was reasonable cause and with

respect to which the taxpayer acted in good faith.

Sec. 6664(c).

Petitioners do not contend that these exceptions apply here.

conclude that petitioners are liable for the section 6661(a)

We

28

addition to tax for 1988 and the section 6662(d) accuracy-related

penalty for 1989.

Decision will be entered

under Rule 155.