UNITED STATES TAX COURT

T.C. Memo. 1999-381

UNITED STATES TAX COURT

FRANK W. GEORGE, Petitioner1 v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 20868-97.

Filed November 23, 1999.

Frank W. George, pro se.

Richard A. Rappazzo, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

COLVIN, Judge:

Respondent determined deficiencies in

petitioner's Federal income taxes of $24,295 for 1993 and $27,893

1

This case was previously consolidated with Arivada Health

Enters. Trust v. Commissioner, docket No. 20657-97. On the day

of trial, Arivada Health Enterprises Trust filed a petition in

bankruptcy. As a result, we stayed all proceedings in Arivada

Health Enters. Trust and severed the cases.

- 2 for 1994, and accuracy-related penalties under section 6662(a)

for negligence of $4,859 for 1993 and $5,578 for 1994.

In 1993, petitioner transferred his residence and medical

practice to the Arivada Health Enterprises Trust (Arivada).

Respondent determined that Arivada is a sham and lacks economic

substance.

On October 19, 1998, petitioner filed a petition in the U.S.

Bankruptcy Court for the District of Arizona.

On October 20,

1998, respondent filed a motion to lift the automatic stay of Tax

Court proceedings under 11 U.S.C. sec. 362(a)(8) (1994).

On

October 21, 1998, the bankruptcy court lifted the stay.

The issues for decision are:

1.

Whether we have jurisdiction to decide this case after

the bankruptcy court lifted the stay on proceedings in the Tax

Court.

2.

We hold that we do.

Whether income received by the trust in the amount of

$58,989 in 1993 and $78,772 in 19942 is included in petitioner's

income.

3.

We hold that it is.

Whether petitioner is subject to self-employment tax on

income in the amount of $58,989 in 1993 and $78,772 in 1994 which

he diverted to Arivada.

2

We hold that he is.

Respondent determined that petitioner failed to report in

income $62,989 for 1993, but now concedes that petitioner

reported $4,000 of this income for 1993.

- 3 4.

Whether petitioner is liable for penalties for

negligence under section 6662 for 1993 and 1994.

We hold that he

is.

Unless otherwise indicated, section references are to the

Internal Revenue Code in effect during the years in issue.

Rule

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

I.

A.

FINDINGS OF FACT

Petitioner

1.

Petitioner and Ms. Jones-George

Petitioner lived in Arizona when he filed his petition.

Petitioner and Jaye Jones-George (Jones-George) were married

from September 1989 to June 1994.

In 1993, they owned and lived

in a residence in Scottsdale, Arizona (the Scottsdale residence).

Petitioner was not married at the time of trial.

During 1993, petitioner had a personal bank account at the

Bank of America.

2.

Petitioner's Medical Practice

Petitioner has a bachelor of science degree in Zoology from

the University of Michigan and a Doctor of Osteopathy (D.O.)

degree from the Chicago College of Osteopathic Medicine.

He

completed a residency in Biomechanics at Michigan State

University.

At the time of trial, petitioner had been an osteopathic

physician for 15 years and a homeopathic physician for 4 years.

- 4 He is licensed as an osteopathic physician by the States of

Arizona and Ohio.

He is also licensed as a homeopathic physician

by the State of Arizona.

During the years at issue, petitioner

operated a medical practice at his Scottsdale residence and at

other locations.

3.

Petitioner's Post Office Box

During the years at issue, petitioner had a post office box

the address of which was 8711 E. Pinnacle Peak Road #121,

Scottsdale, Arizona (the Pinnacle Peak address).

Petitioner had

a key and access to the post office box at all times in 1993 and

1994.

Petitioner used the Pinnacle Peak address on his 1993 tax

return and on checks from his checking account.

B.

Stepping Stone Land Trust

On June 26, 1993, petitioner and Jimmy C. Chisum (Chisum)

formed the Stepping Stone Land Trust3 (Stepping Stone).

The

trust agreement stated that petitioner was to transfer the

Scottsdale residence to Stepping Stone.

He and Jones-George were

named as the beneficiaries of the trust.

However, Jones-George

did not participate in the trust and deeded her interest in the

trust to petitioner sometime before June 26, 1993.

3

Our use of the words "trust", "trust agreement",

"trustee", "transferor", and "form" in our findings of fact does

not necessarily indicate that we believe the transactions at

issue have substance.

- 5 On November 10, 1993, Jones-George deeded to petitioner her

one-half community property interest in the Scottsdale residence.

On November 27, 1993, petitioner deeded the Scottsdale residence

to Stepping Stone.

Petitioner received 100 capital units in

trust property for the residence.

Petitioner lived in the Scottsdale residence with JonesGeorge until she moved out late in 1993.

Petitioner lived in the

Scottsdale residence until it was sold after the years in issue.

He paid the monthly mortgage on the residence both before and

after he transferred the residence to Stepping Stone.

He did not

pay rent to, or have a lease or rental agreement with, Stepping

Stone for the use of the residence.

He did not use the

Scottsdale residence differently after he transferred it to

Stepping Stone.

C.

Arivada Health Enterprises Trust

1.

Formation of Arivada

Petitioner and Chisum met several times in 1992 and 1993.

Chisum gave petitioner information about forming and using

trusts.

Arivada was formed on June 26, 1993.

Chisum signed

documents naming him trustee of Arivada beginning in 1993.

Chisum was not an osteopathic or homeopathic physician.

Petitioner did not consult an accountant or attorney to

discuss the validity of the trust before he entered into the

trust agreement.

Jones-George did not participate in the trust

- 6 because she was concerned about its tax implications, she did not

trust Chisum, and she believed that Chisum would have control

over their assets if she and petitioner transferred their assets

to Arivada.

On August 5, 1994, petitioner assigned his interest in

Stepping Stone to Arivada.

Petitioner’s use of the Scottsdale

residence did not change after he transferred his interest in

Stepping Stone to Arivada.

2.

Operation of Arivada

Before Arivada was formed, petitioner operated a medical

practice at his Scottsdale residence.

After Arivada was formed,

petitioner continued to operate his medical practice there just

as he had done before Arivada was formed.

There was no written

employment contract between petitioner and Arivada.

Chisum did not make operational decisions for Arivada in

1993 and 1994.

He did not schedule patients and made no

decisions about petitioner's medical treatment of patients.

Arivada paid petitioner $4,000 in 1993 and $14,400 in 1994.

Chisum opened a checking account for Arivada at First

Interstate Bank of Arizona (now known as Wells Fargo Bank) on

July 14, 1993 (the “Arivada checking account” or “Arivada

account”).

Arivada used the Pinnacle Peak address on its checks.

Petitioner kept the checkbook for the Arivada account in his

briefcase.

Petitioner and Chisum each had a stamp bearing

- 7 Chisum’s signature.

Chisum had signature authority over the

Arivada account, but petitioner had Chisum’s permission to use

the signature stamp on checks petitioner wrote on the account.

Petitioner wrote all of the checks from the Arivada account

during 1993 and 1994.

He (and occasionally Chisum) signed them

with a stamp bearing Chisum's signature.

Petitioner paid

personal expenses such as his mortgage, home repairs, homeowners

security fees, auto registration, auto insurance, auto service,

tires, a magazine subscription, and utility bills from the

Arivada account.

Petitioner did not pay rent to Arivada to live in the

Scottsdale residence.

He had no lease or rental agreement with

Arivada to use the residence.

Before Arivada was formed, petitioner paid for water and

sewage expenses of the Scottsdale residence from his checking

account.

After Arivada was formed, petitioner paid for the water

and sewage expenses of the Scottsdale residence from the Arivada

account.

After Arivada was formed, petitioner told the clinics for

which he provided services4 and other payers to pay Arivada

rather than petitioner.

4

Chisum and petitioner testified that in 1993 Chisum

contacted two of the clinics for which petitioner provided

services purportedly to establish contracts between Arivada and

them. The payers testified, however, that petitioner told them

to pay Arivada. We find the payers’ testimony credible.

- 8 3.

Arivada’s Tax Returns

Arivada filed Forms 1041, U.S. Fiduciary Income Tax Return,5

for 1993 and 1994.

Arivada's 1993 and 1994 tax returns report

that Arivada was a simple trust.

Arivada used the Pinnacle Peak

address on its 1993 and 1994 trust returns.

Arivada reported

petitioner’s medical income and expenses on its 1993 and 1994

returns.

Arivada attached a Schedule K-1 to its 1993 trust return.

In it, Arivada reported that it had distributed $16,826 (all of

its distributable net income) to a beneficiary named East Point.

Arivada attached two Schedules K-1 to its 1994 trust tax return.

Arivada reported that it had distributed $32,000 (80 percent of

its distributable net income) to East Point, and $8,000 (20

percent of its distributable net income) to an entity called S A

Finance.

Arivada provided no employee identification number on

the Schedules K-1 for East Point or S A Finance.

Instructions

for Form 1041, Schedule K-1, state:

payers of income are “required under section 6109 to

request and provide a proper identifying number for

each recipient of income. Enter the beneficiary’s

number on the respective Schedule K-1 when you file

Form 1041.”

Arivada filed a petition in bankruptcy on the day the trial

in this case was set to begin.

5

The Form 1041 for 1994 was called U.S. Income Tax Return

for Estates and Trusts.

- 9 D.

Petitioner's Medical Employers in 1993 and 1994

1.

Clinic Physicians Group, P.C.

During 1993, petitioner was a doctor on the staff of Clinic

Physicians Group, P.C. (CPG).

office manager for CPG.

Peggy McGarey (McGarey) was the

She prepared and signed payroll checks

for CPG.

During the first part of 1993, CPG paid petitioner for his

services with checks payable to Frank W. George.

McGarey gave

the checks to petitioner by putting them in his desk drawer at

CPG.

Petitioner endorsed most of the checks and deposited them

in his bank account at the Bank of Arizona.

In the middle of 1993, petitioner told McGarey to make all

of petitioner's checks payable to Arivada.

McGarey did so.

The

checks were paid to Arivada to compensate petitioner for the

services he rendered for CPG.

Petitioner's services for CPG did

not change after CPG began making his checks payable to Arivada.

McGarey gave the checks to petitioner by putting them in his desk

drawer at CPG.

Petitioner endorsed most of the CPG checks made

payable to Arivada and deposited them in Arivada's checking

account.

2.

Accutrace Laboratories, Inc.

During 1993 and 1994, petitioner was a clinical consultant

for Accutrace Laboratories, Inc. (Accutrace).

(Eck) owns Accutrace.

Kenneth P. Eck

- 10 On February 15, 1993, petitioner and Eck entered into an

agreement under which Accutrace would pay petitioner $200 per

month for petitioner's clinical consulting services.

Early in

1993, Accutrace paid petitioner each month for his services by

mailing checks payable to petitioner at the Pinnacle Peak

address.

Petitioner endorsed and deposited them in his bank

account at the Bank of Arizona.

In the middle of 1993, petitioner told Eck to make the

checks payable to Arivada and to make any contractual

arrangements through Arivada.

From July 1993 to June 1994,

Accutrace paid petitioner for his services by mailing checks

payable to Arivada at the Pinnacle Peak address.

Petitioner

endorsed the Arivada checks by writing or stamping “for deposit

only, Arivada Health Enterprises”.

Petitioner then deposited

them in Arivada's checking account.

There were no changes in how Eck or Accutrace did business

with petitioner after Arivada was formed.

After Eck began making

Accutrace’s checks payable to Arivada neither petitioner nor

anyone acting for him or Arivada entered into a new agreement

with Accutrace or Eck.

The original agreement between petitioner

and Accutrace was never changed.

3.

DSD International

Dolores Eidenier (Eidenier) is the president and owner of

DSD International (DSD), a vitamins and supplements wholesaler.

- 11 During 1993 and 1994, petitioner did business with, and was

paid by, DSD.

Beginning in March 1993, DSD paid petitioner based

on the number of patients he referred to DSD.

DSD made checks

payable to petitioner, and he endorsed them and deposited them in

his bank account at the Bank of Arizona.

In the middle of 1993, petitioner called Eidenier and told

her to make his checks payable to Arivada.

From August 1993 to

July 1994, DSD paid petitioner for referring patients to DSD with

checks payable to Arivada.

Petitioner endorsed the DSD checks

made payable to Arivada and deposited them in Arivada's account.

4.

The Cave Creek Clinic

Petitioner opened a clinic in Cave Creek, Arizona, during

the years in issue.

Elaine Jones (Jones) worked for petitioner

at the clinic.

Arivada occasionally received mail at the Cave Creek clinic.

Jones opened it and put it on petitioner's desk.

the Cave Creek clinic and was there every day.

Petitioner ran

Chisum did not

run the clinic and was there only occasionally.

5.

Doctors on Call, Inc.

Petitioner performed medical services for, and was paid by,

Doctors on Call, Inc. (Doctors on Call), in Las Vegas, Nevada,

during the years at issue.

Dr. Tom Lodi (Lodi) was petitioner's

supervisor at Doctors on Call.

checks payable to Arivada.

Petitioner told Lodi to make his

- 12 E.

Petitioner's Income Tax Returns

Petitioner and Jones-George filed joint income tax returns

for 1991 and 1992.

They attached a Schedule C for petitioner's

medical practice to their 1991 and 1992 returns.

On it,

petitioner reported that his business address was located at the

Scottsdale residence.

Petitioner reported that his medical

income was self-employment income, and paid self-employment tax

with his 1991 and 1992 returns.

Petitioner filed his 1993 income tax return (Form 1040) on

August 11, 1994.

Petitioner and Jones-George filed separately

for 1993 because she believed that Arivada was not a valid trust.

Petitioner attached a Schedule C for his medical practice to

his 1993 return.

On it, he reported that he had $68,943 of gross

income, consisting of $900 from Accutrace, $14,138 from Clinic

Physicians Group, P.C., $49,905 from Doctors on Call, Inc., and

$4,000 from Arivada.

Petitioner filed his 1994 income tax return on July 18,

1995.

He attached a Schedule C for his medical practice.

On it,

petitioner reported that he had $15,136 of gross income,

consisting of the following:

$736 from Cigna Healthcare

Benefits, Inc., and $14,400 from Arivada.

F.

Notice of Deficiency

On July 15, 1997, respondent issued a notice of deficiency

to petitioner for 1993 and 1994.

Respondent determined that

- 13 Arivada was a sham and that it lacked economic substance, and

therefore that the amounts paid to Arivada of $62,989 for 1993

and $78,772 for 1994 are taxable income to petitioner.

II.

A.

OPINION

Procedural Issues

1.

Whether Petitioner Was Denied an Opportunity To Conduct

Discovery

Petitioner contends that he did not have enough time to

conduct discovery because the case was being considered by the

IRS Appeals Office until 20 days before the session for which the

case was set for trial.

We disagree.

The fact that petitioner’s

case was being considered by Appeals did not limit his ability to

seek discovery.

2.

Rule 70(a)(2).

Whether We Have Jurisdiction After the Bankruptcy Court

Lifted the Automatic Stay

On the first day of the session of this Court at which this

case was calendared for trial, petitioner filed a petition for

relief under chapter 13 of the Bankruptcy Code with the United

States Bankruptcy Court for the District of Arizona.

Once a

taxpayer files a petition in bankruptcy, the automatic stay of 11

U.S.C. section 362(a)(8) (1994) bars the commencement or

continuation of proceedings against the debtor in the Tax Court.

The bankruptcy court may lift the automatic stay of 11 U.S.C.

section 362(a)(8) (1994).

(f) (1994).

See 11 U.S.C. sec. 362(d), (e), and

The next day, respondent filed a motion to lift the

- 14 automatic stay.

One day later, the bankruptcy court lifted the

automatic stay.

Petitioner contends that we lack jurisdiction over this case

because the lifting of the stay by the bankruptcy court was void.

Petitioner contends that respondent lacked standing to seek the

lifting of the automatic stay, and that he had insufficient

service of respondent's motion in the bankruptcy court to lift

the stay.

We disregard petitioner’s arguments because petitioner

may not collaterally attack the bankruptcy court’s proceeding in

this Court.

See Shaheen v. Commissioner, 62 T.C. 359, 364-365

(1974); Roberson v. Commissioner, 41 T.C. 577, 581 (1964).

Petitioner's claim that we lacked jurisdiction to hold the trial

lacks merit.

See Noli v. Commissioner, 860 F.2d 1521, 1525 (9th

Cir. 1988) (the Tax Court may resume proceedings after the

bankruptcy court orders the lifting of the automatic stay).

B.

Whether Arivada Is a Trust for Federal Tax Purposes

1.

Whether Respondent Bears the Burden of Proof

Petitioner contends that respondent bears the burden of

proof because respondent’s determination was a “naked

assessment”.

Petitioner cites United States v. Janis, 428 U.S.

433, 441-442 (1976); Portillo v. Commissioner, 932 F.2d 1128,

1133 (5th Cir. 1991); and Weimerskirch v. Commissioner, 596 F.2d

358, 360 (9th Cir. 1979).

is misplaced.

Petitioner's reliance on these cases

The Courts in those cases held that the

- 15 Commissioner determined that the taxpayer had unreported income

without substantive evidence linking the taxpayer to the income.

See United States v. Janis, supra at 437, 441; Portillo v.

Commissioner, supra at 1133-1134; Weimerskirch v. Commissioner,

supra at 361-362.

Here, there is evidence clearly linking

petitioner to the income he diverted to Arivada.

Thus, the

notice of deficiency is presumed to be correct, and the burden is

on petitioner to rebut this presumption.

See Rule 142(a); Welch

v. Helvering, 290 U.S. 111 (1933).

2.

Whether Arivada Was a Sham and Lacked Economic

Substance

Respondent contends that Arivada should not be recognized

for Federal income tax purposes because it is a sham and lacked

economic substance.

Petitioner contends that Arivada is not a

sham.

A trust which lacks economic substance and has no purpose

other than tax avoidance is not recognized for Federal tax

purposes.

See Neely v. United States, 775 F.2d 1092, 1094 (9th

Cir. 1985); Zmuda v. Commissioner, 731 F.2d 1417, 1421 (9th Cir.

1984), affg. 79 T.C. 714 (1982); Markosian v. Commissioner, 73

T.C. 1235, 1245 (1980); Furman v. Commissioner, 45 T.C. 360, 364

(1966), affd. per curiam 381 F.2d 22 (5th Cir. 1967).

Petitioner

presented no credible evidence that Arivada had economic

substance or was formed for any reason other than tax avoidance.

- 16 The Courts generally will not recognize a trust for Federal

tax purposes if the grantor keeps substantially unfettered powers

of disposition or beneficial enjoyment of trust property.

See

United States v. Noske, 117 F.3d 1053, 1059 (8th Cir. 1997);

Paulson v. Commissioner, 992 F.2d 789, 790 (8th Cir. 1993), affg.

per curiam T.C. Memo. 1991-508; United States v. Buttorff, 761

F.2d 1056, 1061 (5th Cir. 1985); Schulz v. Commissioner, 686 F.2d

490, 495 (7th Cir. 1982), affg. T.C. Memo. 1980-568; Vnuk v.

Commissioner, 621 F.2d 1318, 1320-1321 (8th Cir. 1980), affg.

T.C. Memo. 1979-164.

Petitioner dealt with the alleged trust

property as if it were his own.

Scottsdale residence.

medical practice.

He continued to live in the

He did not change how he conducted his

He controlled Arivada’s checking account, kept

the checkbook, and wrote the checks on the account.

There is no

evidence that Chisum wrote or signed any checks on the account.

Petitioner contends that Chisum controlled Arivada and

managed the financial aspects of petitioner’s medical practice

during the years in issue.

We disagree.

Chisum’s testimony was evasive and vague.

Petitioner’s and

We need not accept

self-serving testimony if we find it to be unworthy of belief,

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).

Petitioner offered no documentary

evidence showing that Chisum provided services to Arivada.

- 17 Chisum did not schedule patients or decide how to treat them.

Petitioner and Chisum testified that Chisum changed the

philosophy of petitioner’s medical practice, but neither

identified any specific changes or decisions that Chisum made.

Petitioner and Chisum testified that Chisum met with Yuma Urgent

Care and Doctors on Call on behalf of Arivada.

However,

petitioner offered into evidence no contracts that Arivada had

with Yuma Urgent Care or Doctors on Call, and no representative

of either entity testified at trial.

Petitioner contends that he used Arivada checks only to pay

Arivada's expenses, that he did not use the stamp on checks for

personal expenses, and that his use of Chisum’s stamp and

possession of Arivada's checkbook does not mean he controlled the

income.

We disagree.

Petitioner paid personal expenses such as

his mortgage, home repairs, homeowners security fees, auto

registration, auto insurance, auto service, tires, a magazine

subscription, and utility bills from the Arivada account.

Petitioner contends that Arivada had economic substance

because he purportedly gave legal title to the Scottsdale

residence and petitioner’s medical practice to Arivada and Chisum

as its trustee.

We disagree.

The fact that petitioner put the

title to the Scottsdale residence in Arivada’s name does not

imbue Arivada with economic substance, particularly when

petitioner treated the residence as his own.

Also, we are not

- 18 convinced that Arivada or Chisum had legal title to petitioner's

business.

Petitioner contends that East Point and S A Finance are

beneficiaries of Arivada and that an economic interest passed to

them from Arivada.

The record does not support his contention.

Petitioner did not offer any credible evidence showing that East

Point had a beneficial or economic interest in Arivada in 1993 or

1994, that East Point's alleged beneficial interest in Arivada

changed from 100 percent in 1993 to 80 percent in 1994, that S A

Finance had a beneficial interest in Arivada in 1994, that East

Point and S A Finance had employer identification numbers, or

that Arivada distributed to East Point or S A Finance any money

or property as a result of this beneficial interest.

Jones-George believed that Chisum could control those assets

if she and petitioner transferred them to Arivada.

However, the

fact that she believed the trust would have substance does not

mean that it did.

3.

Whether Arizona Law Determines Whether Arivada Is a

Sham for Federal Tax Purposes

Petitioner contends that, under sections 643, 651, and 652

of the Internal Revenue Code, Arizona law controls whether

Arivada is a sham for Federal tax purposes.

Petitioner contends

that, under Arizona law, the person claiming that the trust or

other entity is not valid bears the burden of proof.

that Arizona law controls here.

We disagree

We need not recognize an entity

- 19 for Federal tax purposes even if it is valid under State law.

See Gregory v. Helvering, 293 U.S. 465, 469 (1935); Neely v.

United States, 775 F.2d at 1094; Zmuda v. Commissioner, 731 F.2d

1417, 1421 (9th Cir. 1984), affg. 79 T.C. 714 (1982).

4.

Petitioner's Other Contentions

Petitioner contends that he is not liable for tax on amounts

paid to Arivada unless respondent proves that Arivada is the

transferee of petitioner under section 6901.

Petitioner also

contends that we may consider whether, under the Federal Debt

Collection Act (FDCA), 28 U.S.C. sections 3001-3015, and the

Federal Fraudulent Transfers Act (FFTA), 28 U.S.C. sections 33013308, Arivada is a transferee of petitioner.

We disagree.

These

authorities are irrelevant to the issues before us.

Petitioner contends that Chisum had the only copy of the

Arivada trust instrument and that petitioner was prejudiced by

the Court's severing of petitioner's case from Arivada's on the

morning of trial and the day that Arivada filed a petition in

bankruptcy.

Petitioner contends that he could not have compelled

Chisum to produce the trust instrument absent a subpoena and that

he had insufficient time to do so after the Court severed the two

cases.

Petitioner’s contention assumes that Chisum would not

cooperate voluntarily with him; petitioner did not make that

showing.

On the contrary, it appears from the record that they

were cooperating fully.

- 20 Petitioner argues that his and Chisum’s testimony

establishes that the trust exists since they both testified that

it exists.

Our conclusion is not altered by that testimony

because petitioner’s operation of Arivada shows that it was a

sham.

Petitioner contends that respondent improperly determined

that both Arivada and petitioner had a deficiency based on the

same income.

We disagree.

The Commissioner may determine as

protective positions that the same income was received by

different taxpayers.

See

Malat v. Commissioner, 302 F.2d 700,

706 (9th Cir. 1962), affg. 34 T.C. 365 (1960); Doggett v.

Commissioner, 66 T.C. 101, 103 (1976).

5.

Conclusion

We do not recognize Arivada as a trust for Federal income

tax purposes.

The only purpose for the transfer of property to

the trust was tax avoidance.6

income to petitioner.

6

The money paid to it is taxable

See Rule 142(a).

Petitioner testified that he established Arivada to

benefit his disabled child, to protect assets, and to limit his

malpractice liability. Petitioner did not argue on brief that he

had nontax reasons for establishing the trust. We treat this as

petitioner’s abandonment of this contention. See Sundstrand

Corp. v. Commissioner, 96 T.C. 226, 344 (1991); Foil v.

Commissioner, 92 T.C. 376, 409 (1989), affd. 920 F.2d 1196 (5th

Cir. 1990). Petitioner’s testimony about the alleged bona fides

of Arivada was not credible in any event.

- 21 C.

Self-Employment Income

Respondent determined that petitioner is liable for self-

employment tax on the income petitioner diverted to Arivada in

1993 and 1994.

Section 1401 imposes a tax on an individual's

self-employment income.

Self-employment income is the net

earnings derived by an individual from any trade or business

carried on by that person.

See sec. 1402(a) and (b).

Petitioner contends that he had no self-employment income

because Arivada is a trust for Federal tax purposes.

We

disagree.

Petitioner earned income by providing services to

patients.

Petitioner treated the income from his practice as

self-employment income on his 1991 and 1992 returns.

He did not

substantially change how he conducted his practice after Arivada

was formed.

The payments that he diverted to Arivada are subject

to self-employment tax.

See sec. 1402(a).

Thus, petitioner is

liable for self-employment tax on income he diverted to Arivada

($58,989 in 19937 and $78,772 in 1994).

7

As a result of respondent’s concession that petitioner had

less income for 1993 than determined, petitioner’s selfemployment tax liability for 1993 will be less than determined in

the notice of deficiency.

- 22 D.

Whether Petitioner Is Liable for Accuracy-Related

Penalties for 1993 and 1994

Respondent determined that petitioner is liable for

accuracy-related penalties for negligence under section 6662(a)

for 1993 and 1994.

Taxpayers are liable for a penalty under section 6662 equal

to 20 percent of the part of the underpayment which is

attributable to negligence.

See sec. 6662(a).

For purposes of

section 6662(a), negligence is a failure to make a reasonable

attempt to comply with the Internal Revenue Code.

6662(c).

See sec.

The accuracy-related penalty under section 6662(a) does

not apply to any part of an underpayment if the taxpayer shows

that there was reasonable cause for that part of the underpayment

and that the taxpayer acted in good faith based on the facts and

circumstances.

See sec. 6664(c)(1).

A taxpayer may establish

that he or she had reasonable cause and was not negligent under

section 6662(a) by proving that he or she reasonably relied in

good faith on the advice of a competent, independent expert or

tax professional possessed of all the information.

See United

States v. Boyle, 469 U.S. 241, 250 (1985); Leonhart v.

Commissioner, 414 F.2d 749, 750 (4th Cir. 1969), affg. T.C. Memo.

1968-98; Ewing v. Commissioner, 91 T.C. 396, 423 (1988), affd.

without published opinion 940 F.2d 1534 (9th Cir. 1991).

Petitioner contends that he is not liable under section

6662(a) because he relied on Chisum.

We disagree.

Chisum claims

- 23 that he is a consultant on establishing and operating trusts.

Chisum is neither an attorney nor an accountant.

There is no

evidence that petitioner investigated Chisum’s qualifications.

A

taxpayer must make reasonable inquiry as to the legality of a tax

plan, including obtaining independent legal advice, when it is

common knowledge that the plan is questionable.

See Neely v.

United States, 775 F.2d at 1095; Hanson v. Commissioner, 696 F.2d

1232, 1234 (9th Cir. 1983), affg. T.C. Memo. 1981-675 (taxpayers

who established family trust that was lacking in economic

substance were negligent in putting their faith in “flagrant tax

avoidance scheme” repeatedly rejected by the courts).

negligently disregarded the tax laws.

Petitioner

We conclude that

petitioner is liable for accuracy-related penalties for

negligence under section 6662(a) for 1993 and 1994.

To reflect the foregoing,

Decision will be entered

under Rule 155.