UNITED STATES TAX COURT

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T.C. Memo. 2003-224

UNITED STATES TAX COURT

WALTER L. MEDLIN, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 2615-98.

Filed July 29, 2003.

David D. Fussell and Mark L. Horwitz, for petitioner.

James F. Kearney, Benjamin A. de Luna, and Robert W.

Dillard, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

CONTENTS

GENERAL FINDINGS OF FACT

. . . . . . . . . . . . . . . . .

6

General Legal Principles

. . . . . . . . . . . . . . . . .

20

. . . . . . . . . . . . . . . . . . .

21

Rents Received From Island Livings, Inc. in 1988 .

22

I.

Items of Income

A.

- 2 -

B.

FINDINGS OF FACT . . . . . . . . . . . . . . . .

OPINION

. . . . . . . . . . . . . . . . . . . .

22

22

Schedule C Gains From Property Sales

23

1.

2.

3.

4.

5.

6.

7.

8.

9.

. . . . . .

Florida Fruit Belt Subdivision (OS-06)

. . .

23

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION . . . . . . . . . . . . . . . . . .

23

24

Susan’s Lakefront Estate (OS-03)

. . . . . .

28

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION . . . . . . . . . . . . . . . . . .

28

29

High Plains Property (OS-35)

. . . . . . . .

30

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION . . . . . . . . . . . . . . . . . .

30

31

Silver Lake (OS-1.4)

. . . . . . . . . . . .

36

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION . . . . . . . . . . . . . . . . . .

36

37

East Lake Vista (OS-47)

. . . . . . . . . .

38

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION . . . . . . . . . . . . . . . . . .

38

42

Grissom Parcels (OS-1.3)

. . . . . . . . . .

52

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION . . . . . . . . . . . . . . . . . .

52

53

Arrowhead Lakes Subdivision (OR-2),

Angel-Royse Property (OS-39) . . . . . . .

58

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION . . . . . . . . . . . . . . . . . .

58

60

Prather Ranch Property (OR-01)

. . . . . . .

65

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION . . . . . . . . . . . . . . . . . .

65

68

Citrus County Property

75

. . . . . . . . . . .

- 3 FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION . . . . . . . . . . . . . . . . . .

C.

D.

E.

Miscellaneous Items of Schedule C Income

75

77

. . . .

81

FINDINGS OF FACT . . . . . . . . . . . . . . . .

OPINION

. . . . . . . . . . . . . . . . . . . .

81

82

Schedule E Income

. . . . . . . . . . . . . . . .

82

FINDINGS OF FACT . . . . . . . . . . . . . . . .

OPINION

. . . . . . . . . . . . . . . . . . . .

82

83

Unidentified Deposits

83

1.

2.

3.

4.

5.

. . . . . . . . . . . . . .

Deposit on March 12, 1985, of $59,000

. . .

84

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION

. . . . . . . . . . . . . . . . .

84

85

Deposit on September 16, 1986, of $84,521.63

88

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION

. . . . . . . . . . . . . . . . .

88

89

Deposit on April 9, 1987, of $67,740

. . . .

93

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION

. . . . . . . . . . . . . . . . .

93

95

Deposit on July 8, 1988, of $140,000

. . . .

96

FINDINGS OF FACT

. . . . . . . . . . . . .

OPINION

. . . . . . . . . . . . . . . . .

96

98

Other Deposits

. . . . . . . . . . . . . . . 103

FINDINGS OF FACT

. . . . . . . . . . . . . 103

OPINION

. . . . . . . . . . . . . . . . . 103

F.

Deductions Claimed by Petitioner

1.

. . . . . . . . 103

Schedule C Real Estate Business Deductions

. 103

FINDINGS OF FACT

. . . . . . . . . . . . . 103

OPINION

. . . . . . . . . . . . . . . . . 104

2.

Personal Residence Interest

. . . . . . . . 105

- 4 FINDINGS OF FACT

. . . . . . . . . . . . . 105

OPINION . . . . . . . . . . . . . . . . . . 105

3.

Orange Grove, Cattle, and Ferrari

Activities . . . . . . . . . . . . . . . . 106

FINDINGS OF FACT

. . . . . . . . . . . . . 106

OPINION . . . . . . . . . . . . . . . . . . 108

G.

Self-employment Tax

. . . . . . . . . . . . . . . 116

FINDINGS OF FACT

. . . . . . . . . . . . . 116

OPINION . . . . . . . . . . . . . . . . . . 116

II.

Additions to Tax for Fraud

A.

B.

C.

III.

. . . . . . . . . . . . . 118

Underpayment of Tax Required To Be Shown

on a Return . . . . . . . . . . . . . . . . . . 121

1.

Underpayment for 1985 . . . . . . . . . . . . 122

2.

Underpayment for 1986 . . . . . . . . . . . . 128

3.

Underpayment for 1987 . . . . . . . . . . . . 131

4.

Underpayment for 1988 . . . . . . . . . . . . 132

5.

Conclusion

Fraudulent Intent

. . . . . . . . . . . . . . . . . 135

. . . . . . . . . . . . . . . . 135

1.

Clear and Convincing Evidence of Fraud

2.

Portion of Underpayment Not Attributable

to Fraud

. . . . . . . . . . . . . . . . 145

Section 6653(b)(2) Addition to Tax for 1985

Statute of Limitations for Assessment

. . . 135

. . . 153

. . . . . . . 155

Appendix A

. . . . . . . . . . . . . . . . . . . . . . . . 157

Appendix B

. . . . . . . . . . . . . . . . . . . . . . . . 162

Appendix C

. . . . . . . . . . . . . . . . . . . . . . . . 164

Appendix D

. . . . . . . . . . . . . . . . . . . . . . . . 171

- 5 RUWE, Judge:

Respondent determined deficiencies in

petitioner’s Federal income taxes and additions to tax as

follows:

Additions to Tax

Sec.

Sec.

6653(b)(2)

6653(b)(1)(A)

Year

Deficiency

Sec.

6653(b)(1)

1985

$86,533

$43,736

1986

165,732

---

1987

309,456

---

---

232,092

1988

64,910

51,021

---

---

50% of the

Interest Due

on $87,471

---

Sec.

6653(b)(1)(B)

---

---

$124,340

50% of the

Interest Due

on $165,787

50% of the

Interest Due

on $309,456

---

After concessions,1 the issues for decision are:

(1) Whether

petitioner had unreported income from various real estate

transactions, from commissions, interest, rents, and unidentified

deposits for the years in issue; (2) whether petitioner is liable

for additions to tax for fraud under section 6653(b);2 and (3)

whether assessment of the alleged deficiencies is barred by the

statute of limitations.

For convenience and clarity, general

findings of fact are discussed first followed by a statement of

general legal principles applicable to this opinion; separate

1

The concessions of petitioner and respondent, as well as

the amounts which remain in dispute, are detailed in app. C.

Petitioner on brief adopts respondent’s statement of the issues

settled by the parties and the accompanying schedules thereto.

2

Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

- 6 findings of fact and opinion are then set forth for each item of

unreported income.

Finally, we discuss whether the additions to

tax for fraud apply and whether assessment is barred by the

statute of limitations.

GENERAL FINDINGS OF FACT

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.

At the time of filing the

petition, petitioner resided in Kissimmee, Florida.

Since the 1960s through the present, petitioner has been

engaged in the business of buying and selling real estate, as

well as real estate development.

Petitioner used Donna Allen

(Ms. Allen), Michael Johnson,3 and R. Stephen Miles, Jr. (Mr.

Miles), as trustees for the buying and selling of real estate.

Ms. Allen’s and Mr. Johnson’s only duties as trustees were to

hold title to the various properties in trust.

Petitioner met Ms. Allen in 1971, and since 1974, she has

worked for petitioner as a bookkeeper, secretary, and

housekeeper.

1982.

Petitioner and Ms. Allen had a child together in

The child lived with Ms. Allen from 1982 through 1990.

Petitioner agreed to pay child support of $50,000 per year to Ms.

Allen.

3

Since 1975, petitioner has given real property and two

Michael Johnson was petitioner’s cousin.

- 7 Ferrari automobiles to Ms. Allen.

Petitioner owed Ms. Allen

money for a number of different things, including child support.

Mr. Miles is an attorney in the State of Florida, and he has

known petitioner since 1959.

He has been petitioner’s real

estate attorney since 1975, and he started acting as a trustee

for petitioner at that time.

As trustee, Mr. Miles did whatever

petitioner instructed him to do.

Mr. Miles held the proceeds

from petitioner’s sales of real estate in his law firm’s trust

account.

Alana Goodman was a bookkeeper for Mr. Miles’s law

firm, and she maintained ledger cards which reflected the

identity of properties held in trust, the date that funds were

deposited or disbursed, and the amounts that were deposited and

disbursed from the law firm’s trust account.

On several occasions, petitioner instructed Mr. Miles or Ms.

Goodman to disburse his funds from the law firm’s trust account

for various payments:

(1) On December 23, 1985, a house payment

of $51,266.25 was paid to Walter E. and Maxine Melitshka from the

trust account with respect to petitioner’s personal residence;

(2) on May 15, 1987, a house payment of $71,266.25 was paid to

Mr. and Mrs. Melitshka with respect to petitioner’s personal

residence; (3) on May 21, 1987, petitioner’s accountant, John F.

Kelly, was paid $12,187.50; (4) on June 15, 1987, $32,500 was

- 8 paid for the purchase of a 1960 Ferrari;4 (5) on July 2, 1987,

Ms. Allen was paid $31,800; (6) on July 9, 1987, income taxes of

$8,472 were paid to the Internal Revenue Service (IRS); (7) on

July 28, 1987, $12,000 was paid to Mid America Exotic Auto Sales;

(8) on July 30, 1987, income taxes of $1,482 were paid to the

IRS; (9) on September 17, 1987, child support of $10,000 was paid

to Ms. Allen; (10) on October 9, 1987, a house payment of $30,000

was paid to Mr. and Mrs. Melitshka with respect to petitioner’s

personal residence; (11) on November 2, 1988, political

contributions of $2,800 were paid.

None of those payments from

the law firm’s trust account were reported as income by

petitioner.

Mr. Kelly prepared petitioner’s Forms 1040, U.S. Individual

Income Tax Returns, for 1983 through 1988.5

Petitioner provided

Mr. Kelly with spreadsheets which reflected deposits into, and

expenditures from, petitioner’s bank accounts for the years 1983

through 1988.6

Those spreadsheets provided the basis for

preparing petitioner’s tax returns for those years:

The income

4

The bill of sale and the application for a temporary tag

for the Ferrari were in the name of Mr. Miles’s law firm;

however, petitioner was its actual owner.

5

Mr. Kelly is a certified public accountant who has known

petitioner since 1975. Mr. Kelly and petitioner were members of

the Ferrari Club of America.

6

The spreadsheets were prepared by Ms. Allen at petitioner’s

request. Petitioner provided Ms. Allen guidance in preparing the

spreadsheets.

- 9 reported on the returns reflected deposits into petitioner’s bank

accounts, less any deposits that were classified as loan

proceeds.

Any amounts not deposited into petitioner’s bank

accounts were not reported as income.

Petitioner did not provide

Mr. Kelly with checks, real estate contracts, real estate closing

statements or any other books or records to prepare his income

tax returns.

Petitioner did not inform Mr. Kelly that the

proceeds from his real estate sales were deposited in Mr. Miles’s

law firm’s trust account, and those proceeds were not reflected

on the spreadsheets.

additional income.

Petitioner did not inform Mr. Kelly of any

Throughout the 1980s and 1990s, petitioner

asked Mr. Kelly questions about the requirements for like-kind

exchanges.

Petitioner requested extensions for the filing of his income

tax returns for 1985, 1986, 1987, and 1988.

Petitioner’s Form

2688, Application for Extension of Time to File U.S. Individual

Income Tax Return, for the 1985 tax year states as his need for

an extension:

“Client derived substantially all his income from

a bulk land transaction, which was extremely complex.

time is needed to analyze the transaction.”

Additional

Petitioner did not

provide any information to Mr. Kelly regarding any bulk land sale

transaction.

Petitioner requested an extension for tax years

1986, 1987, and 1988, because “Taxpayer has not received all

needed K-1's for 1065 & 1120 tax returns that represent a

- 10 substantial portion of his income.

Without these items a

complete and accurate return cannot be prepared.”

Petitioner

provided no Schedules K-1 to Mr. Kelly.7

On petitioner’s Form 1040, Schedule C, Profit or (Loss) From

Business or Profession, for 1985, petitioner listed his principal

business or profession as “Real Estate Development”.

Petitioner

reported no income from gross receipts or sales, but he did

report $160,363 as “Other income Commissions, Fees & Interest”

and claimed deductions of $152,481.

See appendix A.

Petitioner

reported a net profit from his real estate development business

of $7,882 on his Form 1040.

This was the only amount petitioner

reported as income for 1985.

Petitioner reported taxable income

of $5,802 and a tax of $426.

On petitioner’s Form 1040, Schedule C, for 1986, petitioner

listed his principal business or profession as “Real Estate

Development”.

He likewise reported no income from gross receipts

or sales, reported $119,772 as “Other income Commissions, Fees &

Interest”, and claimed deductions of $115,634.

See appendix A.

Petitioner reported a net profit from his real estate development

business of $4,138 on his Form 1040.

7

This was the only amount

Mr. Kelly discussed Schs. K-1 with Mr. Miles and Mr.

Miles’s accountant. However, the accountant informed him that

Schs. K-1 would not be provided and that any information that

would have been on those schedules should be put on petitioner’s

personal income tax returns.

- 11 petitioner reported as income for 1986.

Petitioner reported

taxable income of $2,058 and a tax of $0.

On petitioner’s Form 1040, Schedule C, for 1987, petitioner

listed his principal business or profession as “Real Estate

Development”.

He reported no income from gross receipts or

sales, reported $138,653 as “Other income * * * Fees, int, &

Sales”, and claimed deductions of $94,434.

See appendix A.

Petitioner reported a net profit from his real estate development

business of $44,219 on his Form 1040.

petitioner reported as income for 1987.

This was the only amount

Petitioner reported

taxable income of $37,879 and a tax of $7,515.

On petitioner’s Form 1040, Schedule C, for 1988, petitioner

listed his principal business or profession as “Developer/Real

Estate”.

Petitioner reported $61,921 as income from gross

receipts or sales, reported no “Other income”, and claimed

deductions of $43,713.

See appendix A.

Petitioner reported a

net profit from his real estate development business of $18,208

on his Form 1040.

This was the only amount petitioner reported

as income for 1988.8

Petitioner reported taxable income of

$5,206 and a tax of $784.

In 1985, petitioner purchased a ring, earrings, and two

necklaces for Ms. Allen as a gift.

8

Those items cost $14,540,

Petitioner claimed an S corporation loss from Frank’s

Corner, Inc., of $4,702 in 1988.

- 12 which petitioner deducted as commissions paid on Schedule C of

his 1985 tax return.

Petitioner deducted the costs of his

subscriptions to Playboy and Penthouse magazines on his 1986 tax

return as Schedule C business expenses.

The trusts that petitioner used did not file tax returns for

any of the tax years at issue.

During 1985-88, petitioner never

informed Mr. Miles that petitioner believed that he had no

obligations to report his earnings from the trust transactions,

because they supposedly involved tax free exchanges.

Petitioner used the fictitious names “John Waltin”9 and

“William R. Wright” in some of his real estate transactions

during the tax years at issue.

Petitioner signed various real

estate documents as “William R. Wright”.

Petitioner signed that

name as a notary public on real estate documents and on articles

of incorporation filed with the State of Florida.

Petitioner

used and signed the name “D.W. Davis” to purchase and sell real

estate.

He opened a bank account in that name without the

knowledge of Mr. Davis.

At one time, petitioner was a notary

public in the State of Florida; however, his license expired.

Petitioner continued to notarize documents after his license

expired.

9

At trial, petitioner claimed that the name John Waltin was

not a fictitious name because “there’s probably a John Waltin

somewhere.”

- 13 Mr. Miles held properties in land trusts, which we refer to

as the Mefford Property (OS-22) and Susan’s Lakefront Estate (OS03).

Mr. Miles, as trustee, applied for and received an employer

identification number for those land trusts.

Respondent

requested tax returns from Mr. Miles for the land trust holding

the Mefford Property for 1985, 1986, and 1987.

Respondent also

requested tax returns from Mr. Miles for the land trust holding

Susan’s Lakefront Estate for 1984, 1985, and 1986.

discussed with petitioner this latter request.

Mr. Miles

Mr. Miles

informed respondent that the trusts were not required to file

returns because each of the beneficiaries had filed a return and

reported his or her share of the income.10

In 1985-88, petitioner was a shareholder and officer in

Frank’s Corner, Inc., which operated a bar and lounge (Island

Living, Inc.), a furniture import business, and Waltin

Investments, Inc.

Petitioner was also a shareholder in Medlin

Investment Co., Michigan Avenue Car Wash, Majestic Oaks, and

Cheyenne Social Club.

During the tax years at issue, petitioner

owned approximately 25 Ferrari automobiles.

Petitioner did not

sell any of those Ferraris during 1985-88.

On December 17, 1985, petitioner sold a piece of property to

Fred Brunson for $5,000.

10

The quitclaim deed that petitioner or

Mr. Miles testified that he supposed that he got this

information from petitioner.

- 14 his agent filed with the Osceola County Recorders Office paid

documentary stamp taxes of only $.50, reflecting a reported sales

price of less than $100.

Petitioner maintained the following bank accounts during the

tax years at issue:

Account Number

Bank Name

Freedom Savings and Loan

(formerly Com Bank)

Tucker State Bank

Tucker State Bank

32-480-9

1089234

18066

Account Name

Walter L. Medlin

Trust Account 1

Walter L. Medlin

Walter L. Medlin

Trust Account 1

The accounts titled “Trust Account 1” were actually petitioner’s

personal bank accounts.

Petitioner was also the beneficiary of a

Cayman Islands trust account at Washington International Bank and

Trust, Ltd., which he had funded.

On a financial statement dated November 15, 1985, petitioner

represented that he had a net worth of $10,822,260, and he valued

his automobile collection at $2,717,000.

On a financial

statement dated June 1, 1988, petitioner represented that he had

a net worth of $7,121,800.

On a financial statement dated

September 20, 1989, petitioner represented that he had a net

worth of $8,837,000.11

Thomas Brooks, a certified public accountant, prepared

petitioner’s tax returns for the 1977-1982 tax years.

Petitioner

provided spreadsheets of his income and expenses to Mr. Brooks

11

The financial statements dated June 1, 1988, and Sept. 20,

1989, do not include a listing for petitioner’s automobile

collection.

- 15 for the preparation of his tax returns.

Mr. Kelly prepared those

spreadsheets using as their basis the deposits and disbursements

into, and from, petitioner’s bank accounts.

Petitioner did not

inform Mr. Brooks that the proceeds from his real estate

transactions were deposited into Mr. Miles’s law firm’s trust

account, that those proceeds were not accounted for on the

spreadsheets, that petitioner used trustees in his transactions,

or that petitioner had a Cayman Islands trust account.

Petitioner did not give to Mr. Brooks any books, records, or

closing statements from his real estate transactions.

Petitioner

did not file timely his Federal income tax returns for 1977,

1978, 1979, 1980, and 1981.

Petitioner did not file his Forms

1040 for those years until June 15, 1983.

Respondent audited petitioner for the 1977-1982 tax years,

and respondent issued a notice of deficiency for those years on

June 13, 1986.12

On September 12, 1986, petitioner filed a

petition with the Tax Court (docket No. 36958-86).

In January

1988, petitioner and his representative met with respondent’s

revenue agent for purposes of resolving that case.

took an active role in those meetings.

Petitioner

Most of the real estate

transactions which were at issue for the 1977-1982 tax years

12

Petitioner’s representative would not allow petitioner to

meet with respondent’s revenue agent assigned to examine his

returns or to extend the period of limitations, unless respondent

gave petitioner immunity from criminal prosecution.

- 16 involved the use of trustees, and petitioner agreed that those

particular transactions were taxable.

Petitioner did not inform

the revenue agent that proceeds from his real estate transactions

were deposited into Mr. Miles’s law firm’s trust account, nor did

he inform him of his belief that those proceeds were not subject

to taxation if not disbursed.

On April 27, 1988, this Court

entered a decision pursuant to a stipulation of the parties and

found the following deficiencies and additions to tax:

Additions to Tax

Sec.

Sec.

6653(a) 6653(a)(1)

Tax

Year

Deficiency

Sec.

6651(a)(1)

1977

1978

1979

1981

$1,082

22,213

63,533

7,110

$2,240

10,661

15,883

1,778

$54

1,161

3,177

n/a

n/a

n/a

n/a

$356

1982

37,921

3,792

n/a

1,896

Sec.

6653(a)(2)

Sec.

6661

n/a

n/a

n/a

50% interest

on $7,110

50% interest

on $37,921

n/a

n/a

n/a

n/a

$9,480

Petitioner did not file timely his Forms 1040 for 1983 and

1984.

Those tax returns were filed on January 30, 1986, and

March 7, 1986, respectively.

returns.

Respondent examined those tax

Petitioner told the revenue agent assigned to that

examination that he was not involved in any corporations,

partnerships, or trusts.

Petitioner’s income for 1983 and 1984

was determined on the basis of deposits and disbursements from

his bank accounts.

The revenue agent explained to petitioner

that simply analyzing deposits into his bank account was not the

proper way to report income and did not reflect the true

financial picture of his real estate transactions.

Petitioner

- 17 did not disclose all his installment sale activities to the

revenue agent during this examination.

Petitioner also informed

the revenue agent that his Cayman Islands trust account had been

closed in 1983.

However, petitioner received five checks

totaling $135,000 from the Cayman Islands trust in 1985.

On

October 21, 1988, petitioner agreed to income tax deficiencies of

$10,550 and penalties of $3,584 for those tax years.

Respondent received Forms 1040 for petitioner’s 1985 and

1986 tax years on November 29, 1988.

Those forms were not timely

filed.13

Petitioner’s Form 1040 for 1987 was received on October

17, 1988.

Petitioner was given an extension until October 16,

1989, to file his 1988 Federal income tax return.

Petitioner did

not file his Form 1040 for 1988 until April 26, 1990.

For each

of his Forms 1040 for 1985, 1986, 1987, and 1988, petitioner

listed his address as “P.O. Box 383, Lake Lure, NC 28746”.

However, petitioner actually resided in Kissimmee, Florida, at

the time he filed his returns.

Respondent examined petitioner’s 1985, 1986, 1987, and 1988,

tax returns.

As part of that examination, respondent’s revenue

agent spent several weeks researching courthouse records in seven

counties in order to identify petitioner’s real estate

13

Petitioner claims to have previously filed timely returns

for 1985 and 1986; however, respondent could not find those

purported returns. Petitioner did not produce copies of any such

returns, and he did not present any evidence or testimony on the

subject of those purported returns.

- 18 transactions for 1985-88.

Petitioner never informed the revenue

agent of his belief that funds from his real estate transactions,

which were held in trust, were not subject to taxation.

Respondent reconstructed petitioner’s income and expenses for

1985, 1986, 1987, and 1988.

On September 5, 1990, respondent served a third-party

recordkeeper summons on Mr. Miles, which requested information

pertaining to petitioner’s income tax liabilities for the 1985-88

tax years.

At the request of petitioner’s representative, Mr.

Miles did not provide the requested documents to the IRS.

On

March 7, 1991, the Government filed a petition in the U.S.

District Court for the Middle District of Florida, Orlando

Division, to enforce the summons issued to Mr. Miles.

On March

26, 1991, petitioner filed a motion to intervene in the

enforcement proceeding.

On September 17, 1992, the Government

filed a notice to dismiss, and, on September 18, 1992, the court

canceled a show cause hearing and dismissed the summons

enforcement proceeding.

On April 18, 1991, respondent served a

summons on petitioner.

Petitioner failed to comply with the

summons, and the Government filed a petition to enforce the

summons in the U.S. District Court for the Middle District of

Florida, Orlando Division.

On June 12, 1997, an information was filed in the U.S.

District Court for the Middle District of Florida alleging that

- 19 petitioner violated section 7206(4) in regard to his unpaid

income tax liabilities for 1977-82.

On November 13, 1997,

pursuant to petitioner’s plea of guilty, the District Court

entered a judgment convicting petitioner of a violation of

section 7206(4) and sentenced petitioner to imprisonment.

The

offense to which petitioner pleaded guilty occurred on August 9,

1990.

In the plea agreement, petitioner admitted:

WALTER L. MEDLIN, in an attempt to avoid the

collection of a previously assessed income tax

liability for which levy was authorized under 26 U.S.C.

§ 6331, placed three of his automobiles in a storage

facility, located on Michigan Avenue in Kissimmee,

Florida, in the Middle District of Florida, which

facility leased to an entity called Central Florida

Transportation Museum, Inc.

Specifically, the defendant MEDLIN, after

consenting to a United States Tax Court judgment

against him in the approximate amount of $400,000.00

for liabilities stemming from tax years 1977-1982,

misrepresented the nature and extent of his assets to

an IRS Revenue Officer. Further, after issuance of the

levy, defendant MEDLIN stored the automobiles in the

above-referenced storage facility and, when asked about

the case by and [sic] IRS Revenue Officer, stated that

he no longer owned the vehicles. MEDLIN knew this

statement to be false.

On November 14, 1997, respondent issued a notice of

deficiency to petitioner for 1985, 1986, 1987, and 1988.

On

February 11, 1998, petitioner filed his petition.

Petitioner testified on his own behalf at trial.

We find

that, generally, his testimony was self-serving, was not

credible, was at times inconsistent, and was at other times

confusing.

Petitioner did not satisfactorily answer many of the

- 20 questions that he was asked, and the questions that he did answer

he did not answer with any degree of specificity.

With respect

to the real estate transactions, he was evasive and did not

recall specific transactions.

Petitioner could not testify

whether his financial statements were accurate.

General Legal Principles

Respondent’s determinations of unreported income for the tax

years at issue are presumed correct, and petitioner bears the

burden of proving those determinations incorrect, arbitrary, or

erroneous.

Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1933);

Parks v. Commissioner, 94 T.C. 654, 658-659 (1990).

On the other

hand, respondent has the burden of proving by clear and

convincing evidence that some portion of an underpayment of taxes

by petitioner is due to fraud.

Sec. 7454(a); Rule 142(b).

Section 6001 requires taxpayers to keep adequate records.

The regulations promulgated under that section provide:

Records. (a) In general. * * * any person subject

to tax under subtitle A of the Code * * * or any person

required to file a return of information with respect

to income, shall keep such permanent books of account

or records, including inventories, as are sufficient to

establish the amount of gross income, deductions,

credits, or other matters required to be shown by such

person in any return of such tax or information. [Sec.

1.6001-1(a), Income Tax Regs.]

In Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158,

1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947), we stated:

The rule is well established that the failure of a

party to introduce evidence within his possession and

- 21 which, if true, would be favorable to him, gives rise

to the presumption that if produced it would be

unfavorable. This is especially true where * * * the

party failing to produce the evidence has the burden of

proof or the other party to the proceeding has

established a prima facie case. * * *

Also, the failure to present the testimony of available

witnesses, who purportedly possess knowledge about certain

relevant facts, provides sufficient basis to infer that the

testimony of those witnesses would not have been favorable.

Petzoldt v. Commissioner, 92 T.C. 661, 691 (1989); Pollack v.

Commissioner, 47 T.C. 92, 108 (1966), affd. 392 F.2d 409 (5th

Cir. 1968).

We are not required to accept incredible, implausible, or

biased testimony.

Fleischer v. Commissioner, 403 F.2d 403, 406

(2d Cir. 1968), affg. T.C. Memo. 1967-85; Parks v. Commissioner,

supra at 659; Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).

I.

Items of Income Determined by Respondent

Respondent prepared on brief a reconciliation of items which

are “in dispute” and concessions as to the adjustments in the

statutory notice of deficiency.

Appendix C of this opinion

reflects the reconciliation schedules that respondent prepared

and which petitioner stipulated in his answering brief.

We

discuss below those items of income that the parties represented

were still in dispute.

However, we point out that petitioner

does not contest on brief many of those items.

Instead, he

- 22 states “In addition, any issues not raised in Petitioner’s Brief

are also conceded by Petitioner.”

A.

Rents Received From Island Living, Inc. in 1988

FINDINGS OF FACT

In 1985, petitioner through Mr. Miles, as trustee, purchased

property located in Osceola County, Florida, the “Osceola County

Property” (OS-19).

On July 22, 1985, petitioner leased that

property to petitioner’s corporation, Island Living, Inc., for

$3,000 per month.

Petitioner concedes that he received rents of

$6,000 in 1985, $24,000 in 1986, $24,000 in 1987, and $12,000 in

1988 from Island Living, Inc.

OPINION

Petitioner did not address on brief whether he received the

additional amount of $12,000 that respondent determined as rent

in 1988.

We find that petitioner has conceded this matter.

We

find that he received $24,000 of rental income in 1988 and that

he is taxable on that amount.

B.

See sec. 61(a)(5).

Schedule C Gains From Property Sales

1.

Florida Fruit Belt Subdivision (OS-06)

FINDINGS OF FACT

On April 11, 1985, petitioner through Mr. Miles, as trustee,

sold three lots from the “Florida Fruit Belt Subdivision” located

in Osceola County, Florida, to Burl and Louise Mynhier for

$69,000.

Mr. and Mrs. Mynhier paid cash of $33,000 and issued to

- 23 petitioner, through Ms. Allen, a promissory note and mortgage for

$36,000.

Petitioner’s basis in the three lots was $9,316, and he

incurred selling costs of $412.

On May 20, 1985, petitioner through Ms. Allen, as trustee,

assigned the mortgage that the Mynhiers issued to his father,

Charles Medlin, for $36,000.

Petitioner instructed the mortgagor

to send the mortgage payments directly to Charles Medlin.

An

assignment of mortgage dated May 20, 1985, and signed by Ms.

Allen, was filed with the County of Osceola, Florida; it

provides:

That I, Donna L. Allen part[y] of the first part, in

consideration of the sum of Thirty-Six Thousand and

no/100 dollars, and other valuable considerations,

received from or on behalf of Charles B. Medlin party

of the second part, at or before the ensealing and

delivery of those presents, the receipt whereof is

hereby acknowledged, do hereby grant, bargain, sell,

assign, transfer and set over unto the said part[y] of

the second part a certain mortgage bearing date the

12th day of April A.D. 1985 made by Burl R. Mynhier and

Louise Mynhier, his wife in favor of Donna L. Allen and

recorded in Official Records Book 772; page 782, public

records of Osceola County, Florida, upon the following

described piece or parcel of land, situate and being in

said County and State, to wit:

[Description of OS-06]

*

*

*

*

*

*

*

Together with the note or obligation described in said

mortgage, and the moneys due and to become due thereon,

with interest from the 20th day of May 1985.

To Have and to Hold the same unto the said party

of the second part his heirs, legal representatives,

successors and assigns forever.

- 24 Petitioner did not report any income from the sale to the

Mynhiers on his Form 1040 for 1985.

OPINION

An installment sale is a disposition of property where at

least one payment is to be received after the close of the

taxable year in which the disposition occurs.

Sec. 453(b).

Income from an installment sale shall be taken into account under

the installment method.

Sec. 453(a).

Under the installment

method, the income recognized for any taxable year from a

disposition is that proportion of the payments received in that

year which the gross profit bears to the total contract price.

Sec. 453(c).

Respondent determined that petitioner recognized

$28,347 as income from the installment sale to the Mynhiers in

1985.14

Petitioner did not address this issue on brief, and he

conceded any arguments he might have made, but did not.

We hold

that petitioner recognized $28,347 as income from the installment

sale in 1985.

Under section 453B(a), gain or loss shall be recognized on

the sale or exchange of an installment obligation to the extent

of the difference between the basis of the obligation and the

amount realized.

14

The basis of an installment obligation shall be

Respondent computed the installment gain in 1985 as

follows: Gross profit ($59,272) = sales price ($69,000) minus

selling expenses ($412) minus basis ($9,316); gross profit

percentage (0.859014) = gross profit ($59,272)/contract price

($69,000); income from installment sale ($28,347) = payments in

1985 ($33,000) x gross profit percentage (0.859014).

- 25 the excess of the face value of the obligation over an amount

equal to the income which would be returnable were the obligation

satisfied in full.

Sec. 453B(b).

Any gain or loss recognized

shall be considered as resulting from the sale or exchange of the

property in respect of which the installment obligation was

received.

Sec. 453B(a) (flush language).

Respondent determined that the assignment by petitioner to

Charles Medlin was a sale of an installment obligation under

section 453B(a) and that petitioner recognized a gain of $30,925

in 1985.15

Petitioner argues that the assignment of the mortgage

to his father was not a sale but that it was pledged as

collateral for a loan.

At trial, petitioner testified as follows:

Q

All right. Would you explain what transpired in

relation to this mortgage and how you dealt with the

mortgage in relation to your father?

A

From the sale of the property, there was down

payment for cash. And then the mortgage, we took out

the mortgage. And the guy would make payments; I

believe they were annual payments, or maybe monthly;

I’m not sure. Anyway, he was going to make payments,

but I needed some money.

And my father, again, he was mainly a go-put-hismoney-in-the-bank; he wasn’t interested in real estate

deals or anything, and I was probably sitting around

moaning to him about the interest I was paying to other

people like Mr. Margolis and things like that; he

expressed an interest in--why didn’t I give him some of

15

Respondent computed the gain from the purported sale of

the installment obligation as follows: Gain from sale of

installment obligation ($30,925) = face value of the obligation

sold ($36,000) x gross profit percentage (0.859014).

- 26 that? And I was reluctant. He lived in Jacksonville

and didn’t know anything about my business or anything

else, so--but, anyway, this was something he could

relate to. It was a mortgage on a piece of property

and there were payments coming in and I went to him and

borrowed--I’d borrowed from him before, just smaller

amounts of money--some money from him against the

mortgage, and signed a note to him as collateral, and

proceeded to continue to collect the payments. Again,

trying to make him feel warm and fuzzy, instructed the

mortgagor to send the mortgage payments directly to my

dad. We stayed on top of it and if they were a day

late, he called, and we had to go round up the guy and

get it to him.

Basically, it was a loan from my dad and as I got

in my payments from the other guy, they were forwarded

either directly to him or I got the payments in and

forwarded them directly to my dad. Unlike where you

sell a mortgage without recourse and it’s gone, it’s

the other person’s mortgage and you get the money and

go home, I had to live with this. And, if he had quit

paying, my father didn’t want a piece of property in

Osceola County, at his age, his health, you know, I was

going to have to pay the mortgage.

Q

You were going--

A

Right. I was going to have to pay the loan in

lieu of the mortgage payments?

Q

So your position in relation to the handling of

that mortgage is that you did not sell the mortgage to

your father?

A

Correct. As collateral, though, it was assigned

to him. And that’s customary practice. I’ve borrowed

against mortgages, mortgage payments, from like Finance

America, Chrysler Financial Corporation, and stuff and

generally what you do is assign them a mortgage,

usually you assign them the mortgage and a portion of

the note. Say you only borrowed the next five

payments, say, you would assign them a portion of the

note.

Petitioner’s testimony is self-serving, is less than credible,

and it is not supported by the testimony of other witnesses or

- 27 evidence of record.

Indeed, on brief, petitioner states that

“Mr. Medlin’s testimony clouded by the passage of so many years

was not precise.”

We cannot accept petitioner’s unsubstantiated

testimony.16

If we were to accept petitioner’s unsubstantiated testimony

at face value that an installment obligation was pledged as

collateral for loan proceeds, section 453B would be largely

ineffective.

Where as here, no documentary proof has been

introduced to show that petitioner remained personally liable for

any failure of the mortgagor’s payment, we cannot accept that the

assignment was a pledge of collateral.

Certainly, the form of the assignment was a sale.

The

assignment of mortgage filed with Osceola County states that Ms.

Allen assigned the mortgage to Charles Medlin “in consideration

of the sum of” $36,000.

Moreover, petitioner’s instructions to

the mortgagor were that direct payments were to be made to his

father following the assignment.

Further, although petitioner

testified to his continued involvement in the collection of the

mortgage, he could not testify definitively as to whether he or

Charles Medlin received the mortgage payments.

Nevertheless,

petitioner claims that the assignment of the mortgage occurred

16

Petitioner testified that he signed a promissory note to

his father as collateral; however, he did not produce any such

note for the record. Petitioner relies solely on his testimony

and cites the fact that records and witnesses have been lost or

are unavailable.

- 28 without an assignment of the promissory note and that this

indicates the mortgage was assigned to Charles Medlin as

collateral for a loan.17

However, the assignment of the mortgage

states that the mortgage “Together with the note or obligation

described in said mortgage, and the moneys due and to become due

thereon” were transferred.

We hold that petitioner recognized

gain of $30,925 from the sale of an installment obligation in

1985.

2.

Susan’s Lakefront Estate (OS-03)

FINDINGS OF FACT

In 1970, Medlin Investment Co. purchased certain real

property in Osceola County, Florida, for $59,005.

This property

was subdivided as “Susan’s Lakefront Estate” and consisted of 30

lots (Lot 1, Lot 2, * * *, Lot 30) and one tract (Tract A).

On July 2, 1985, petitioner through Ms. Allen, as trustee,

sold Lot 1 for $22,000.

Petitioner did not report any income

from this sale on his 1985 Form 1040.

On June 12, 1986,

petitioner through Ms. Allen, as trustee, sold Tract A, for

$23,000.

Petitioner did not report any income from this sale on

his 1986 Form 1040.

17

On May 25, 1988, petitioner through Mr.

We note that a mortgage generally secures payment of the

underlying installment obligation and that an assignment of the

mortgage without an assignment of the note creates no right in

the assignee with respect to the note. See Vance v. Fields, 172

So. 2d 613, 614 (Fla. Dist. Ct. App. 1965).

- 29 Miles, as trustee, sold Lots 6 through 30, for $540,000.18

The

purchasers paid $89,077 in 1988 and issued a purchase money

mortgage for the remainder.

We are unable to locate this payment

on petitioner’s spreadsheets for 1988, and it does not appear

that he reported any amount of this payment as income on his

return for 1988.

OPINION

In computing petitioner’s gains from the sales in 1985,

1986, and 1988, respondent apportioned the cost basis of the

entire property equally among Lots 1 through 30 and Tract A, and

assigned a basis of $1,903 to each lot and tract.19

Respondent

determined that petitioner realized a gain of $20,097 from the

sale in 1985,20 a gain of $21,097 from the sale to Mr. Dugger in

1986,21 and installment gains of $77,298 from the sales in 1988.22

On brief, petitioner does not address the disputed gains

18

Petitioner incurred selling expenses of $23,831 for this

sale.

19

Cost basis for each lot and tract ($1,903) = cost of the

entire property ($59,005)/the number of lots and the tract (31).

20

Gain realized ($20,097) = amount realized ($22,000) adjusted basis ($1,903).

21

Gain realized ($21,097) = amount realized ($23,000) adjusted basis ($1,903).

22

Gross Profit ($468,594) = sales price ($540,000) - selling

expenses ($23,831) - total of the adjusted bases in lots 6-30

($47,575); gross profit percentage (0.867767) = gross profit

($468,594)/ contract price ($540,000); installment gain from sale

in 1988 ($77,298) = payments received in 1988 ($89,077) x gross

profit percentage (0.867767).

- 30 from the sales of the lots and the tract.

We find that

petitioner received the amounts determined by respondent as

income for the years in issue and they are taxable as gains

derived from dealings in property.

3.

See sec. 61(a)(3).

High Plains Property (OS-35)

FINDINGS OF FACT

On June 29, 1977, petitioner, as trustee, through Mr. Miles,

as trustee, purchased real property in Osceola County, Florida,

which we refer to as the “High Plains Property” (OS-35), from

William F. Mitchell, for $448,000.

The High Plains Property was

a large piece of property (a couple hundred acres) which was

divided into 5-acre tracts.

On May 30, 1985, petitioner through Ms. Allen, as trustee,

sold a lot (Lot 23) in the High Plains Property to Clarence L.

Bass for $27,000.

A gain of $19,699 was realized from the sale

of this lot in 1985.

Petitioner did not report any income from

the sale on his Form 1040 for any tax year.

Wayne Schoolfield and petitioner each originally owned a 50percent interest in the High Plains Property.

Indeed, a

declaration of trust dated April 11, 1977, provides:

MADE this 11th day of April 1977 by and between D.

L. Allen, hereinafter referred to as Allen and C. Wayne

Schoolfield and W. L. Medlin, Trustee as Beneficiaries.

NOW, THEREFORE, Allen, in consideration of $1.00

and other valuable considerations, hereby declares that

she as Trustee holds in trust (for the beneficiaries

herein named) that certain Offer to Purchase Contract

- 31 on property in Osceola County, Florida, presently owned

by William F. Mitchell, Trustee.

WHEREAS, the beneficiaries of this Trust and their

interest are as follows: C. Wayne Schoolfield - 50%

and W. L. Medlin, Trustee - 50%.

WHEREAS, Allen further declares she as Trustee

will own, possess and administer the same only in

keeping with the interest of the beneficiaries thereto

and they shall have sole discretion and authority to

sell, assign, transfer, and convey or otherwise dispose

of the aforesaid Offer to Purchase Contract and that

she will execute any and all necessary forms to

consummate a sale upon receiving notice from the

beneficiares [sic]. Allen shall account to and pay

over to the beneficiarie [sic] herein the proceeds

derived from their stated interest in that Receipt for

Deposit and Offer to Purchase contract dated April 7,

1977 and attached hereto.

AND WHEREAS: Allen shall not sell, convey or

exchange the property conveyed to her as Trustee with

herself as an individual without written consent of the

beneficiaries of this Trust Agreement and she shall

keep an accurate set of records regarding the above

property and render periodic accounting therefore to

the beneficiaries.

Mr. Schoolfield and petitioner’s joint ownership of the High

Plains Property terminated at some point in time.

OPINION

Respondent determined that petitioner was the sole owner of

Lot 23 and that he realized the entire $19,699 gain from the sale

of Lot 23 in 1985.

Petitioner contends that he was a half-owner

of the lot with Mr. Schoolfield when the property was sold and

that he received only half of the gain that respondent

determined.

- 32 At trial, petitioner testified that he was in a partnership

with Mr. Schoolfield with respect to the High Plains Property;

however, he could not testify definitively that he and Mr.

Schoolfield were still 50-50 owners at the time of the sale:

Q

What was your ownership interest in * * * [the

High Plains Lot]?

A

I was in a partnership. This is one of the pieces

I mentioned earlier that Wayne Schoolfield and I had

purchased from Mr. Green and Mr. Mitchell and developed

it, broke it up into these 5-acre tracts, and sold

them.

Q

What percentage interest did you have when OS-35

was sold?

A

I’m sorry. I don’t--Wayne and I, when we did this

development, were 50-50 and, I believe, that at this

time, we were still 50-50 owners in the property.

*

*

*

*

*

*

*

Q

Did that partnership ultimately end?

A

Yes, sir.

Q

Do you recall whether it ended before or after the

sale of the lots in OS-35?

A

I think we ultimately sold all the property out,

and, then, basically, took our money and went home.

Mr. Schoolfield testified that he was involved in a joint

venture with petitioner with respect to the High Plains Property.

However, when Mr. Schoolfield was shown a copy of the warranty

deed from Ms. Allen to Mr. Bass, he could not recall having ever

owned any interest in Lot 23, and he did not recall having ever

- 33 received any sale proceeds from Ms. Allen for this property.23

Mr. Schoolfield further testified that the joint ownership of the

High Plains Property may have terminated sometime prior to the

sale of Lot 23 to Mr. Bass, perhaps as early as the 1970s:

Q

Did you ever have any ownership interest in

property known as High Plains?

A

I had some--I ended up with some 5-acre tracts out

of that. Started off to joint venture, but ended up

with some 5-acre tracts out of it, yes.

Q

You say it was a joint venture with who?

A

Mr. Medlin.

Q

With Mr. Medlin?

And when did that joint venture break up?

A

I’m not sure I can give you a date there, it’s so

long. It’s in--back in the 70’s.

Q

It broke up sometime in the 70’s?

A

I think it occurred probably then, but you got to

remember, this stuff is going back so far. My hair was

black and I didn’t have a bald spot in the back of my

head.

23

And with respect to the declaration of trust, Mr.

Schoolfield testified:

Q

What property did this Declaration of Trust

pertain to?

A

There’s nothing attached to it. I--it could have

been this property or another piece, but-Q

Okay. Did this Declaration of Trust pertain

specifically to this Lot 23?

A

I--I don’t know. That’s--I don’t think so, but I

don’t know. It’s been too long for me. I don’t recall

ever owning this piece.

- 34 You know, it’s a long time. But I think it was in

the early stages, but I can’t, you know, I--my memory

is not that good.

Q

Did it occur before the date of this warranty

deed, which is May of 1985?

A

I certainly thought it would have.

Ms. Allen testified that petitioner and Mr. Schoolfield were

partners with respect to the High Plains Property and that they

had split up at some point in time.

She could not testify as to

when specifically they split up.

The evidence of record shows that at one point, Mr.

Schoolfield and petitioner held joint interests in the High

Plains Property, which may or may not have included Lot 23.

Neither petitioner’s, Mr. Schoolfield’s, nor Ms. Allen’s

testimony establishes that Mr. Schoolfield still possessed his

joint interest at the time of the sale of Lot 23 in 1985, or, for

that matter, whether he ever possessed any interest in Lot 23.

The testimony suggests that it was just as likely, if not more

probable, that Mr. Schoolfield and petitioner split up the

various tracts amongst themselves before 1985, that petitioner

was left as the sole owner of Lot 23, and that petitioner

proceeded to sell that lot in 1985 and collect the sales proceeds

therefrom.24

24

On recross-examination by petitioner’s counsel, Mr.

Schoolfield testified:

Q

Ultimately at some point in time, these various 5(continued...)

- 35 Petitioner relies on Mr. Schoolfield’s testimony that he

could not say for certain that he did not have a 50-percent

interest in Lot 23 at the time of its sale to Mr. Bass and that

he could not say for certain when the “ultimate division” of the

respective interests in the High Plains Property had occurred.

24

(...continued)

acre tracts, of which you and Walter were 50 percent

beneficial owner interest in, were sold and then also

you and he ultimately divided up what was left; is that

right?

A

I don’t know that that’s correct. What was left,

we--somewhere in there I said, “Here, look, let me have

X tracts and this is--and you take the rest of it. You

take it all.”

Q

And as you sit here today, you’re not sure when

that happened, what the date of that was.

A

That’s correct. I don’t know that I can give you

a date. I don’t think I could.

Q

So, am I correct in your testimony that if that

date happened, if you split up, and the document, the

deed on page 1 is one of the 5-acre tracts that Walter

got, then you would not have had any interest in it if

it went to Walter after you and he split up.

A

Yeah.

Q

And if it happened before the split-up, then you

would have had an interest in it.

A

I think that probably is correct.

Q

And as you sit here today, because of the number

of years that have gone by, in fact you don’t have your

tax returns anymore, you can’t specifically tell us for

sure when that happened in relation to this sale; is

that right?

A

Not sitting here today, I can’t.

- 36 We reemphasize that respondent’s determination of a deficiency is

presumed correct, and it is petitioner who bears the burden of

proving that determination incorrect.

Since petitioner bears the

burden of proof, he must also bear the onus of failed

recollection and the lack of documentary evidence.

Further,

petitioner has created the situation in which he now finds

himself by failing to document properly his various real estate

transactions, in failing to maintain and keep adequate records,

and by unnecessarily complicating those transactions.

We hold

that petitioner is responsible for 100 percent of the gain

realized on the sale of Lot 23 in 1985.

4.

Silver Lake (OS-01.4)

FINDINGS OF FACT

On September 30, 1975, petitioner, as trustee, purchased

property in Osceola County, Florida, which we refer to as “Silver

Lake” (OS-01.4).

In November 1978, petitioner, as trustee, sold

Silver Lake to L.R. Donnell, Jr., as trustee, for $70,000.

On

February 5, 1979, Mr. Donnell, as trustee, conveyed Silver Lake

to Mr. Miles, as trustee, for no consideration.

On October 31, 1980, Mr. Miles, as trustee, sold Silver Lake

to Don Prewitt, as trustee, for $220,600.

Mr. Prewitt issued a

purchase money mortgage for $180,000 to Mr. Miles and paid the

balance.

Mr. Miles, as trustee, received the following principal

and interest payments in 1985, 1986, and 1987:

- 37 Year

Principal

Interest

1985

1986

1987

$18,000

36,000

72,000

$13,545

11,610

10,976

Petitioner owned a 50-percent interest in Silver Lake at the time

of its sale in 1980, and his basis was $70,000.

OPINION

Respondent argues that petitioner realized installment gains

of $6,144, $12,288, and $24,577 in 1985, 1986, and 1987,

respectively, for the principal amounts paid to Mr. Miles.25

Petitioner, on brief, does not address the matter.

We find that

petitioner realized installment gains of $6,144, $12,288, and

$24,577 in 1985, 1986, and 1987, respectively.

Sec. 453(a).

Respondent originally determined that petitioner realized

interest income for the full amount of the interest payments made

to Mr. Miles.

Respondent now concedes that petitioner realized

only 50 percent of the original amounts determined.

Petitioner

does not address on brief his liability for half of the interest

income.

We hold that petitioner realized interest income of

$6,773, $5,805, and $5,488 in 1985, 1986, and 1987, respectively.

25

Respondent computed petitioner’s gross profit percentage

as follows: Gross profit ($150,600) = sales price ($220,600)

minus basis ($70,000); gross profit percentage (0.682684) = gross

profit ($150,600)/contract price ($220,600). Respondent then

applied the gross profit percentage to each of the principal

payments in 1985, 1986, and 1987, respectively, and divided the

result in half to account for petitioner’s 50-percent interest.

- 38 -

5.

East Lake Vista (OS-47)

FINDINGS OF FACT

On May 1, 1984, Mr. Miles, as trustee, purchased real

property consisting of approximately 156.65 acres in Osceola

County, Florida, which we refer to as “East Lake Vista” (OS-47),

from Reba Smith, for $500,000.

Part of the purchase price,

$125,000, was paid in cash, and Mr. Miles issued a purchase money

mortgage of $375,000 for the remainder.26

In May 1986, Mr. Miles sold approximately 31 acres of East

Lake Vista to Nicholas Pope, for $205,000.

On December 16, 1986,

Mr. Miles sold an additional 31.50 acres of East Lake Vista to

Mr. Pope for $215,181.

Petitioner did not report any income from

those transactions on a Form 1040 for any tax year.

On December 16, 1986, at the same time as the second sale,

petitioner and Dr. George Gant entered into a “Continuing and

Unconditional Guaranty of Performance and Payment” in favor of

Mr. Pope.

That document shows petitioner and Dr. Gant as

“Guarantors”, Mr. Miles, trustee, as “Seller”, and Mr. Pope as

“Buyer”:

WHEREAS, R. Stephen Miles, Jr., Trustee, as

Seller, and Nicholas A. Pope, as Trustee under that

certain unrecorded Trust Agreement dated December 16,

26

The mortgage provides for interest of 10 percent, per

annum, and requires “Three equal annual payments of $150,793.05

including principal and interest commencing one year from the

date hereof and continuing each year thereafter until the entire

balance plus interest is paid in full.” A satisfaction of

mortgage was issued by Reba Smith and was filed on Dec. 18, 1986.

- 39 1986, and/or Assigns, as Buyer, entered into that

certain Contract and Sale and Purchase dated May 2,

1986 (the “Contract”) with respect to the purchase of

approximately 31.50 acres, more or less, located in

Osceola County, Florida (the “Property”); and

WHEREAS, the terms of the Contract provide for

Seller’s obligation to complete construction of a road

to be known as “Dan Smith Road” adjacent to the

Property at Seller’s expense within one (1) year after

the date of closing, and further provide for Buyer’s

right to complete said construction and be reimbursed

by Seller in the event of Seller’s failure to complete

said construction in accordance with the Contract; and

WHEREAS, the Contract further calls for the

personal guaranty of Seller’s performance of said road

construction and payment for said road construction by

the undersigned;

NOW THEREFORE, as an inducement to the Buyer to

purchase the Property, and for good and valuable

consideration not herein recited but the receipt and

sufficiency of which is hereby acknowledged, the

undersigned, jointly and severally, give to Buyer, and

its successors and assigns, their continuing and

unconditional guaranty of performance and payment by

the Seller of the following described obligation, to

the same extent as if Guarantors were the named parties

identified as the Seller under the Contract:

*

*

*

*

*

*

*

The Guarantors hereunder also agree to pay all

costs (including attorneys’ fees whether incurred in

connection with collection, trail [sic], appeal or

otherwise) of collection against the Guarantors under

this Guaranty. The liability of Guarantors hereunder

is binding upon Guarantors and Guarantors’ successors

and assigns.

Petitioner and Dr. Gant signed the guaranty.

In August 1988, Mr. Miles, as trustee, sold approximately 10

acres of East Lake Vista for $80,000.

Petitioner, for Mr. Miles,

- 40 signed the sales contract.

Petitioner did not report any income

from this sale on his Form 1040 for 1988.

The record contains two personal financial statements for

petitioner.

The first is dated November 15, 1985, and lists as

an asset, East Lake Vista;27 a “160 acre parcel located on East

Lake North of Narcoossee being subdivied [sic] into 5 ac. tracts

and is encumbered by 2 mortgages totaling $386,000.00”.

listing states:

The

“I own 1/2 interest”, and values that interest

at $560,000, subject to liabilities of $193,000.

The second

financial statement is dated June 1, 1988, and lists as an asset,

East Lake Vista; a “100 acre parcel located on East Lake North of

Narcoossee being subdivided into 5 ac. tracts”.

That property is

listed under “Miscellaneous Lots & Acreage (Unencumbered)” and is

valued at $400,000.

Mr. Miles’s law firm maintained certain ledger cards,

numbers 70006 through 70008, which are entitled “Walter

Medlin/Reba Smith”, “Medlin

Re:

Smith, Reba”, and “Medlin,

Walter from Reba L. Smith”, respectively.

Those ledger cards

contain the following relevant entries:

27

Petitioner testified that East Lake Vista is also known as

the “Narcoossee property” and the “Dan Smith Road property”. The

parties also agree that the property was sometimes called the

“Reba Smith property”.

- 41 -

Ledger Card

Number/Line

Date

70008/1

70008/2

70008/3

5-1-84

5-1-84

5-1-84

70008/4

5-1-84

70008/5

5-2-84

70008/6

5-2-84

70008/9

5-14-85

70008/10

----

70008/11

70008/12

---5-14-85

70008/13

70008/16

70008/21

5-14-85

5-2-86

5-2-86

70007/4

5-2-86

70007/9

5-14-86

70007/11

70007/12

5-14-86

5-19-86

70007/13

5-19-86

70007/15

70007/16

70006/5

12-16-86

12-16-86

12-24-86

70006/6

8-8-88

70006/7

70006/8

8-8-88

8-8-88

70006/14

8-8-88

70006/15

8-8-88

70006/16

8-8-88

70006/22

?-27-89

70006/22

10-4-89

Name

Reba Louise Smith

H.R. Thornton

Allen’s Osceola

Realty, Inc.

Clerk of Circuit

Court

Transferred from

Medlin/Gant

George Gant

Memo

Trust Funds

Received

Disbursed

Medlin

Medlin

-------

$95,551.82

1,250.00

Medlin

----

25,000.00

Medlin

----

3,588.95

$62,873.61

----

62,867.16

----

61,646.52

----

1,950.00

----

---1,950.00

61,646.52

---189,922.60

---123,293.04

----

20,000.00

----

Medlin/

Smith R.

Moved from

Medlin/Tai

---Moved from

Medlin/Tai

---Johnston’s Eng.

Medlin/Smith

Moved from

Medlin/Tai

---Reba Smith

Medlin/Smith

Webb

Medlin/Smith

Lowndes,

Drosdick et al Medlin/Smith

H.R. Thornton,

Jr., Trustee

Medlin

Transfer to

Medlin/Gant card

---Walter L. Medlin Medlin/Smith

Freedom Financial

Center

Medlin

Walter L. Medlin

Trustee

---Wire-Transfer

Medlin/Smith

Reba Louise Smith Medlin/Smith

Transfered to

Medlin/Gant

---Walter T.

Rose, Jr

Medlin/Smith

Beverly L. Rose

‘’

ERA-Horacio

Toledo, Inc.

‘’

Moved to Medlin

Mefford

---Moved to Medlin/

Gant 1/2 proceeds ---Moved to Medlin/

Gant 1/2 proceeds ---Moved to Medlin/

General

---Moved to Medlin/

General

----

----

150,793.05

-------

14,740.92

3,768.93

----

6,602.74

---218,268.00

----

1,897.26

---145,722.80

----

55,094.55

40,000.00

39,000.00

-------

1,000.00

----

----

528.52

----

35,083.53

----

35,083.52

----

100.00

----

128.64

For each of the various sales transactions in 1986 and 1988, the

parties executed a closing statement.

The amounts listed in

- 42 those statements as deposits in escrow and as amounts due from

the buyer to the seller match amounts listed as deposits in the

ledger cards above, ledger card No. 70008 (lines 16 and 21), No.

70007 (line 15), and No. 70006 (lines 6-8).

Dr. Gant and petitioner each owned a 50-percent interest in

the “Mefford Property” (OS-22), which was sold on October 7,

1988, for $250,000.

sale.

A gain of $110,328 was realized from this

Respondent originally determined that petitioner was

responsible for the entire gain realized from this sale, but he

now concedes that petitioner is responsible for only half of that

amount ($55,164).

Dr. Gant and petitioner also each owned a 50-percent

interest in a piece of property which we refer to as the “Tai

Property”.

The Tai Property was sold in 1984 for $457,900, and

petitioner concedes that he is liable for 50 percent of the

installment gain ($50,863) from payments received in 1985.

See

appendix C.

OPINION

It is well established that income must be taxed to him who

earns it, United States v. Basye, 410 U.S. 441, 449 (1973), and

that income includes gains derived from dealings in property.

Sec. 61(a)(3).

Respondent determined that petitioner owned a 50-

percent interest in the portions of East Lake Vista sold in 1986

and 1988 and that he was responsible for 50 percent of the gain

- 43 realized from those transactions.28

Petitioner contends that Dr.

Gant owned 100 percent of East Lake Vista at the time of the

sales in 1986 and 1988.

Petitioner argues that he and Dr. Gant

originally agreed to be 50-50 partners with respect to East Lake

Vista, but that Dr. Gant contributed the entire purchase price

and thus acquired a 100-percent ownership interest in the

property.

At trial, petitioner testified that, initially, he was to

receive a 50-percent interest in East Lake Vista, but because Dr.

Gant “put up all the money and wanted all the interest in the

property”, Dr. Gant “essentially owned all of it”.

However,

petitioner’s testimony was not definitive and was indeed

speculative.

It was also self-serving, and we do not agree that

he owned no interest in East Lake Vista at the time of the 1986

and 1988 sales.

28

The documentary evidence of record shows that

Respondent allocated basis of $3,191.83 to each acre in

East Lake Vista: Basis per acre ($3,191.83) = purchase price

($500,000)/acres purchased (156.65). Respondent determined

$41,775 as petitioner’s gain from the May 1986 sale: Gain

realized ($83,550) = sales price ($205,000) - selling costs

($22,503) - basis ($98,947 = 31 acres x $3,191.83); petitioner’s

gain ($41,775) = gain realized ($83,550) x petitioner’s ownership

interest (50 percent). Respondent determined $50,726 as

petitioner’s gain on the Dec. 16, 1986, sale: Gain realized

($101,452) = sales price ($215,181) - selling costs ($13,187) basis ($100,542 = 31.5 acres x $3,191.83); petitioner’s gain

($50,726) = gain realized ($101,452) x petitioner’s ownership

interest (50 percent). Respondent determined $19,522 as

petitioner’s gain on the 1988 sale: Gain realized ($39,045) =

sales price ($80,000) - selling costs ($9,005) - basis ($31,950 =

10.01 acres x $3,191.83); petitioner’s gain ($19,522) = gain

realized ($39,045) x petitioner’s ownership interest (50

percent).

- 44 petitioner held an ownership interest in East Lake Vista at the

time of the sales in 1986 and 1988.

First, petitioner’s financial statements dated November 15,

1985, and June 1, 1988, show that he owned at least a 50-percent

interest in East Lake Vista at some point before the sales that

occurred in 1986 and 1988.

Petitioner contends that the November

15, 1985, financial statement is not inconsistent with his

testimony and Dr. Gant’s testimony that he was to originally own

a 50-percent interest in East Lake Vista, which subsequently

changed to no interest.

Petitioner has not presented any

evidence to establish when his and Dr. Gant’s original

understanding supposedly changed; however, if it did change, we

assume the change would have occurred either before or shortly

after May 1, 1984, when Dr. Gant purportedly “put up all the

money”, the $125,000 cash portion of the purchase price.29

The

financial statement is dated November 15, 1985, a full year and a

half after the purchase of East Lake Vista.

Petitioner offers no

explanation why he continued to represent himself as owning a 50percent interest in November 1985, if, in fact, he owned no

interest after Dr. Gant put up all the cash in May 1984.

Petitioner also contends that the June 1, 1988, financial

statement cannot be relied upon since it incorrectly shows that

29

Dr. Gant testified that he could not recall when the

parties original understanding changed, but he suggested that it

might have been in 1984.

- 45 he owned 100 percent of East Lake Vista and that the property

consisted of 100 acres when, in fact, it consisted of 84 acres.

We do not agree that these purported inaccuracies cause the June

1, 1988, financial statement to lose its persuasive value.

The

financial statement was prepared by or for petitioner, and

petitioner does not explain why those inaccuracies were reflected

on his financial statement, and why they invariably suggest that

he held no interest in East Lake Vista in 1988.

At the very

least, the June 1, 1988, financial statement shows that

petitioner perceived himself to own at least some interest in

East Lake Vista in 1988 and that he intended other persons who

might rely on the financial statement to recognize that

ownership.

The road construction guaranty also indicates that

petitioner had an ownership interest in East Lake Vista.

Petitioner, Mr. Miles, and Dr. Gant executed the guaranty on

December 16, 1986, the same date as the sale of the 31.50 acres

of East Lake Vista to Mr. Pope.

And, it specifically refers to a

contract for the sale of 31.50 acres that Mr. Miles and Mr. Pope

entered into on May 2, 1986.

Petitioner argues that this

guaranty originated in petitioner’s “working relationship” with

Dr. Gant and did not arise from any ownership interest in the

property.

However, petitioner did not present any evidence or

testimony to suggest that he was compensated for his real estate

- 46 services.

Also, we cannot accept that he was performing those

services for free.

Petitioner does not suggest that amounts he

received following the sales in 1986 and 1988 were, in fact,

compensation, and, indeed, petitioner claims those amounts were

loans.

It is more plausible that petitioner’s performance of

services and his guarantee for the road construction arose from

his ownership interest in East Lake Vista.

Under petitioner’s argument, we must assume that any

services that petitioner performed were for the benefit of Dr.

Gant, the purported 100-percent owner of East Lake Vista.

But,

Dr. Gant did not testify that petitioner performed services for

his benefit and that he compensated petitioner.

Dr. Gant’s

testimony, as a whole, indicates that petitioner performed the

real estate services for a 50-percent interest in East Lake

Vista.

Dr. Gant testified that he and petitioner started out 50-

50, with Dr. Gant putting up all the money30 and petitioner doing

all the work.

However, according to an “agreement” with Mr.

Miles, ownership of the property was “posted as 100 percent on my

part since I put up the money”.

Dr. Gant also testified:

Q

Did you pay anything for the additional 50 percent

interest from Mr. Medlin?

30

Dr. Gant testified that he gave petitioner $125,000 in

1984 for the purchase of East Lake Vista. This amount represents

the initial cash portion of the purchase price for the property.

Dr. Gant testified: “I didn’t pay any more. We paid it out of

operations at the time.”

- 47 A

As I tried to explain to you earlier, the 50

percent was a 50/50 ownership in property and a 50

percent in participation. I tried to explain that to

you, and I thought you understood it.

Q

I must not have, sir.

I apologize.

A

He did not put any money up. He didn’t put a dime

up to the best of my knowledge. I put the money up.

Q

But now, he purchased the property.

A

No.

Correct?

Q

In terms of the expertise--he selected the

property? Excuse me.

A

He selected the property.

Q

He selected the property?

A

I paid for the property.

Q

Okay. And so he just gifted his interest to you?

I mean, I understood the deal was 50/50 initially.

A

He didn’t have any interest.

the developing part of it.

*

*

*

*

*

His interest was in

*

*

Q

* * * On the Narcoossee property, if Mr. Medlin

had a financial statement that showed that he was a 50

percent interest or owned half of the Narcoossee

property, would you say that that was correct.

A

Sure. That was our understanding--I tried to

explain that--when we first started.

But to protect my interest it was necessary for me

to assume the 100 percent, as I had put the money in,

100 percent of the property.

Q

I understand, sir.

A

And all of the money he has taken out of it, the

original investment has never been paid back. I know

- 48 you haven’t asked this question, but it’s important for

you to know.

Dr. Gant’s testimony, as a whole, shows considerable confusion

regarding petitioner’s interest in East Lake Vista.

However, his

testimony indicates that he assumed 100-percent legal ownership

of East Lake Vista to protect his initial $125,000 contribution;

however, petitioner continued to possess an interest in the

property because of his contribution of services.

Dr. Gant did

not testify that the supposed agreement with Mr. Miles deprived

petitioner of a participation in any profits realized from the

property.

Petitioner’s execution of the sales contract for the August

1988 sale also indicates that he had more than just a working

relationship with Dr. Gant with respect to East Lake Vista.

It

shows that he had the legal capacity to sell the property.

This

denotes ownership.

In addition, the ledger cards maintained by

Mr. Miles’s law firm are essentially a record of the transactions

associated with East Lake Vista.

Those ledger cards show the

initial disbursement of approximately $125,000 to Reba Smith, the

annual payments on the mortgage issued to Ms. Smith, and the

amounts received from the sales in 1986 and 1988.

The ledger

cards each list petitioner’s name with respect to transactions

which occurred from 1984 to 1989.

The ledger cards contradict a

significant portion of Dr. Gant’s testimony and are certainly

inconsistent with petitioner’s contention that he owned no

- 49 interest in East Lake Vista.

Although Dr. Gant testified that he

did not put up any additional cash after his initial $125,000,

the ledger cards show that $62,867.16 was received from “George

Gant” on May 2, 1984.

Further, Dr. Gant testified that he was

the only cash person in the deal; however, the ledger cards show

that $62,873.61 was received on May 2, 1984, from the Medlin/Gant

ledger card.31

Also, the ledger cards show that matching

deposits of $61,646.52 were received on May 14, 1985, from the

Medlin/Tai card.

Since petitioner and Dr. Gant each owned a 50-

percent interest in the Tai Property, we assume that petitioner

contributed at least $61,646.52 with respect to East Lake Vista.

The ledger cards also show disbursements to petitioner’s

general ledger card.

Moreover, the pattern of duplicate

disbursements shortly after the 1986 and 1988 sales to ledger

cards in which petitioner and Dr. Gant presumably held equal

interests certainly supports respondent’s position that

petitioner and Dr. Gant each owned a 50-percent interest in East

Lake Vista.

Petitioner, on the other hand, argues that his and

Dr. Gant’s testimony shows that any amounts he received from the

1986 and 1988 sales were received as loans from Dr. Gant.

We

disagree.

31

According to petitioner, the Medlin/Gant ledger card

represents “an account in which both Medlin and Gant have an

interest.”

- 50 Dr. Gant testified that he did not have any records showing

loans to petitioner, that he did not receive a note from

petitioner, and that all records were maintained by Mr. Miles.

Petitioner did not submit any records to substantiate his and Dr.

Gant’s testimony that loans were made, and none of the records

from Mr. Miles’s law firm, including the ledger cards, show any

loans or their amounts.

At trial, petitioner and Dr. Gant testified that proceeds

from the sales of East Lake Vista were deposited into Mr. Miles’s

law firm’s trust account and that petitioner would then “borrow”

those proceeds for his own purposes.

However, it is not at all

clear from Dr. Gant’s testimony what he considers to be a

“loan”.32

It appears to us that Dr. Gant understood that upon

the receipt of any sale proceeds from East Lake Vista, and after

debt service on the note to Reba Smith, that he was to be repaid

his initial $125,000, but that petitioner instead borrowed those

proceeds, and that Dr. Gant has never been paid back his

$125,000.

However, those facts do not establish a loan, and, in

any event, they are not inconsistent with petitioner owning a 50percent interest in East Lake Vista.

There is no evidence in

this case that petitioner had an obligation to repay the amounts

32

The “hallmarks” of a loan are: (1) Consensual recognition

between the borrower and the lender of the existence of the loan,

i.e., the obligation to repay; and (2) bona fide intent on the

part of the borrower to repay the funds advanced. Inv. Research

Associates, Ltd. v. Commissioner, T.C. Memo. 1999-407.

- 51 “borrowed”, and there is no evidence that those amounts were

treated as a bona fide obligation or that Dr. Gant attempted to

collect the amounts supposedly borrowed.

At best, Dr. Gant’s

testimony indicates that petitioner made draws from Mr. Miles’s

trust account on the sale proceeds received from East Lake Vista

and that those draws caused Dr. Gant to fail to realize the full

extent of what he initially invested.

However, those facts do

not establish a loan or otherwise permit petitioner to escape

taxation on his share of the gains from East Lake Vista.

Petitioner also points to respondent’s concession that

petitioner owned only a 50-percent interest in the Mefford

Property, and he argues that this concession supports the

credibility of petitioner’s and Dr. Gant’s testimony with respect

to East Lake Vista.

We disagree.

The record contains numerous

concessions by both petitioner and respondent, and we are not

inclined to speculate as to the basis for those concessions.

In

any event, respondent notes that he conceded one-half of the

deficiency with respect to the Mefford Property, because there

was contemporaneous documentary evidence to support Dr. Gant’s

testimony.

Respondent contends, and we agree, that Dr. Gant’s

testimony lacks such support with respect to East Lake Vista.

Further, respondent’s position after concession with respect to

the Mefford Property would now appear consistent with the

position he has taken with respect to East Lake Vista, that

- 52 petitioner and Dr. Gant each owned a 50-percent interest.

It is

also consistent with their respective interests in another piece

of property, the Tai Property.

We hold that petitioner owned a 50-percent interest in East

Lake Vista, and we sustain respondent’s determination that

petitioner realized 50 percent of the gains from the sales in

1986 and 1988.

6.

Grissom Parcels (OS 1.3)

FINDINGS OF FACT

On April 15, 1985, petitioner purchased three parcels

(parcels 1, 2, 3) of real property in Osceola County, Florida,

which we refer to as the “Grissom Parcels”, for $47,000.

Parcel

1 is fronted by U.S. Highway 192, and it borders another road,

Rivers Road, on one side.

Parcels 2 and 3 do not border U.S.

Highway 192, are separated from parcel 1 by Rivers Road and

several smaller tracts of property, and border a road referred to

as “County Road”.

The relative sizes of the parcels are similar,

although the dimensions differ.

On November 5, 1985, petitioner transferred the parcels to

Ms. Allen, as trustee, for no consideration.

Petitioner was the

sole beneficiary of the parcels conveyed to Ms. Allen.

On

October 22, 1986, petitioner, through Ms. Allen, sold parcel 1

for $40,000.

- 53 For 1987, Osceola County assessed the values of the Grissom

Parcels as follows:

Parcel Number

Assessed Value

Parcel 1

Parcel 2

Parcel 3

Total Assessed Value

$12,500

14,955

11,228

38,683

OPINION

The parties agree that $40,000 was realized on the sale of

parcel 1 in 1986, and that petitioner is responsible for any gain

from that sale.

The issue that remains for decision is

petitioner’s basis in parcel 1.

The adjusted basis for

determining gain from the sale of property, whenever acquired,

shall be the basis determined under section 1012 and adjusted as

provided in section 1016.

Sec. 1011(a).

Under section 1012, the

basis of property shall be the cost of such property.

Under

section 1016(a)(1), the basis of property shall be adjusted for

expenditures, receipts, losses, or other items, properly

chargeable to capital account.

When a part of a larger property is sold, the cost or other

basis of the entire property shall be equitably apportioned among

the several parts, and the gain realized or loss sustained on the

part of the entire property sold is the difference between the

selling price and the cost or other basis allocated to that part.

Fasken v. Commissioner, 71 T.C. 650, 655 (1979); sec. 1.61-6(a),

Income Tax Regs.

An equitable apportionment of cost basis may

- 54 reflect the relative fair market values of the portions of the

larger property at the time of their purchase.

Example (2), Income Tax Regs.

Sec. 1.61-6(a),

Our determination of the

allocation of basis is a question of fact.

Sleiman v.

Commissioner, 187 F.3d 1352, 1360 (11th Cir. 1999), affg. T.C.

Memo. 1997-530.

Respondent relies upon the assessed values of the Grissom

Parcels in 1987 to determine the relative values of those parcels

when they were purchased in 1985.

Respondent allocated the

purchase price of $47,000 in 1985 to the parcels as follows:

Parcel

Number

Assessed

Value

Percentage

of Total

Assessed Value

Basis

Allocated1

Parcel 1

Parcel 2

Parcel 3

Totals

$12,500

14,955

11,228

38,683

32%

39

29

100

$15,040

18,330

13,630

47,000

1

The basis allocated equals the purchase price multiplied by the

percentage of the total assessed value of the parcels.

After accounting for selling expenses of $4,458, respondent

determined that petitioner realized a gain of $20,502.33

Petitioner contends that the methodology used by respondent to

allocate cost basis to the Grissom Parcels is arbitrary.

Petitioner argues that the cost basis should have been allocated

according to the relative fair market values of the parcels in

33

Gain ($20,502) = sales price ($40,000) - selling expenses

($4,458) - basis ($15,040).

- 55 1985 and that several factors show that parcel 1 was the most

valuable of the three parcels when they were purchased.

Generally, “We do not consider that the amount for which the

property was assessed for purposes of local taxation is

necessarily a reliable criterion to be used in estimating its

fair market value.”34

(1992).

Frazee v. Commissioner, 98 T.C. 554, 563

However, in appropriate circumstances tax-assessed

values can be useful as a guideline or as corroboration of other

evidence of fair market value.

Memo. 1999-210.

Kellahan v. Commissioner, T.C.

And, in the case that we are concerned with the

relative values of several parts of a larger piece of property,

local tax assessments may be relied upon to provide the correct

value of a particular parcel of real estate.

2554-58 Creston

Corp. v. Commissioner, 40 T.C. 932, 940 n.5 (1963).35

We are not

willing to conclude as a matter of law that because respondent’s

determination is based on local tax assessments, it is arbitrary.

And, indeed, respondent’s determination appears reasonable and

consistent with the relative sizes of the three parcels.

See

34

This is especially true when there is nothing in the

record indicating that the tax-assessed value was intended to

represent fair market value. Kellahan v. Commissioner, T.C.

Memo. 1999-210; Estate of Dowlin v. Commissioner, T.C. Memo.

1994-183; see also sec. 20.2031-1(b), Estate Tax Regs.

35

In 2554-58 Creston Corp. v. Commissioner, 40 T.C. 932, 940

n.5 (1963), we stated: “Although valuations for real estate

taxes may often be too low to be relied upon as furnishing the

correct value of a particular parcel of real estate as a whole,

we have no reason to reject the use of such valuations in

determining the relative value of land and buildings.”

- 56 Clayton v. Commissioner, T.C. Memo. 1956-21, affd. 245 F.2d 138

(6th Cir. 1957).

“When, as in this case, the Commissioner has determined an

allocation of basis, a taxpayer bringing a deficiency proceeding

bears the burden of proving by a preponderance of the evidence

that the Commissioner’s determination is erroneous.”

Sleiman v.

Commissioner, supra at 1359; see also Byram v. Commissioner, 555

F.2d 1234, 1236 (5th Cir. 1977), affg. T.C. Memo. 1975-135.

Petitioner argues that parcel 1 is fronted by U.S. Highway 192,

the main road through Osceola County to Walt Disney World,

whereas parcels 2 and 3 are on a dirt road, and that parcel 1 was

zoned commercial, whereas parcels 2 and 3 were zoned residential.

He also testified that parcels 2 and 3, at the time of their

purchase, were “in a real undesirable neighborhood.

down here, a lot of drug users and stuff.

shack here.”

As you get

There’s sort of a

Petitioner claims, on the sole basis of his

testimony, that one-half of the original $47,000 purchase price,

- 57 $23,500,36 should be allocated to the parcel sold in 1986 and

that he is responsible for $12,042 of gain.37

Petitioner is not a disinterested witness.

Further, his

opinion regarding the value of the Grissom Parcels is based on

his own subjective viewpoint about the desirability of those

individual parcels.

Petitioner presents no objective analysis to

support his valuation of parcel 1 to be “at least half of the

entire purchase”.

Petitioner presented no records that were

prepared at the time of the purchase or sale that reflected the

allocation in his testimony, and he completely failed to report

the sale on his income tax return.

We cannot accept petitioner’s

testimony to establish the relative values of the Grissom

Parcels, and he has failed to overcome the presumption of

correctness that attaches to respondent’s determination.

We hold

that petitioner’s basis in parcel 1 was $15,040 and that his gain

from its sale in 1986 was $20,502.

36

Petitioner testified:

Q

And what value do you place as to the basis when

you bought it--of the total purchase price, what value

do you attribute to the value of parcel 1?

A

I had figured that it was worth at least half of

the entire purchase, which would mean that it was

equivalent to the other two parcels put together.

37

Gain realized ($12,042) = amount realized ($40,000) selling expenses ($4,458) - basis ($23,500).

- 58 7.

Arrowhead Lakes Subdivision (OR-2), Angel-Royse

Property (OS-39)

FINDINGS OF FACT

In 1974, Roger McLaughlin, as trustee, purchased Lots 26,

27, and 28 in the Arrowhead Lakes Subdivision (OR-2), which was

located in Orange County, Florida.

In 1977, Mr. McLaughlin

conveyed those lots to Ms. Allen, as trustee, for no

consideration.

In 1979, Ms. Allen conveyed those same lots to

Mr. Miles, as trustee, for no consideration.

Petitioner owned

Lots 26, 27, and 28 in the Arrowhead Lakes Subdivision;

petitioner was the 100-percent beneficiary of the lots held in

trust by Mr. Miles.

In 1983, Mr. Miles, as trustee, purchased 40 acres of a

certain real property in Osceola County, Florida.

On January 31,

1983, Mr. Miles, as trustee, issued a mortgage deed (purchase

money note and first mortgage) of $70,200 with respect to this

purchase.

On February 24, 1983, Mr. Miles, as trustee, issued to

Mr. McLaughlin a mortgage deed (purchase money note and second

mortgage) of $30,500, which related to the 40-acre purchase.

On

March 25, 1983, petitioner entered into a contract to purchase an

additional 34 acres for $102,000.

Mr. Miles, as trustee, issued

a mortgage deed of $73,000 for part of the purchase price.

The

34 acres were conveyed to Mr. Miles, as trustee, on October 26,

1983.

Petitioner and Mr. McLaughlin were equal beneficiaries in

- 59 the 74 acres held in trust; we refer to the property held in

trust as the “Angel-Royse Property” (OS-39).

Petitioner’s financial statement dated November 15, 1985,

lists as an asset, “Angel-Royce Development”;38 a “74 Acre parcel

located on North side of Boggy Creek Road west of the Turnpike

and valued at $8,000 per acre.

There are several mortgages

covering the various parcels totaling $212,000 payable over 15

years I own 50%”.

The statement values petitioner’s interest in

the property at $300,000, subject to liabilities of $106,000.

In 1986, petitioner exchanged his ownership interest in Lots

26, 27, and 28 of the Arrowhead Lakes Subdivision for Mr.

McLaughlin’s ownership interest in the Angel-Royse Property.

In

exchange for the subdivision lots, Mr. McLaughlin forgave the

$30,500 of outstanding principal that petitioner owed to him from

the February 24, 1983, mortgage deed.

Mr. McLaughlin also

assumed the liability for real estate taxes on Lots 26, 27, and

28, which totaled $1,251 at the time of the exchange.

Petitioner

assumed Mr. McLaughlin’s share of the liabilities associated with

the Angel-Royse Property.

Those liabilities totaled $66,202 and

$71,042, respectively, at the time of the exchange.

basis in Lots 26, 27, and 28 was $40,300.

Petitioner’s

On November 23, 1986,

Mr. McLaughlin transferred his interest in the 74 acres of the

38

Petitioner referred to the Angel-Royse Property as the

“Angel-Royce [sic] Development”, the “Angel and Royce [sic]

Property” and the “pit piece”. Mr. McLaughlin also referred to

the Angel-Royse Property as the “Boggy Creek Road” property.

- 60 Angel-Royse Property to Michael D. Johnson, as trustee.

Petitioner was the 100-percent beneficiary of the Angel-Royse

Property held in trust.

Petitioner did not report any income

from the exchange on a Form 1040 for the tax years at issue.

On June 9, 1987, a final judgment was entered by the Circuit

Court of the Ninth Judicial Circuit of Osceola County, Florida,

in the case of South Fla. Water Mgmt. Dist. v. Walter Medlin,

Steven Miles, Tr., and Robert Adkins, Case No. 85-943.

The

judgment was entered into pursuant to a stipulation for consent

decree, which requires petitioner and Mr. Adkins to restore the

Angel-Royse Property and to plant cypress trees.

The consent

decree enjoins petitioner and Mr. Adkins from further excavation

or dumping activities on the property.

The record contains no partnership tax returns or Schedules

K-1, Partner’s Share of Income, Credits, Deductions, etc., and

there is no evidence that any such returns or schedules were

filed or distributed.

OPINION

Respondent determined that the value of the 74 acres of the

Angel-Royse Property was $312,600, the value which was assessed

by Osceola County for the two parcels of acreage.39

Respondent

determined that Mr. McLaughlin’s interest had a fair market value

39

Osceola County assessed a value of $180,000 for the 40

acres acquired in early 1983 and assessed a value of $132,600 for

the 34 acres acquired on Oct. 26, 1983.

- 61 of $156,30040 and that petitioner realized a gain of $60,709 from

the exchange in 1986.41

Petitioner contends that he and Mr. McLaughlin were partners

in a partnership with respect to the properties, that the AngelRoyse Property was distributed to him from the partnership, and

that this distribution did not result in the recognition of any

gain under section 731(a)(1).42

Respondent argues that section

731(a)(1) does not apply because:

(1) There was no distribution

from a partnership to a partner; petitioner simply exchanged his

100-percent interest in the Arrowhead Lakes Subdivision lots for

Mr. McLaughlin’s 50-percent interest in the Angel-Royse Property;

and (2) no partnership existed.

In order for petitioner’s partnership argument to work, that

supposed partnership would have had to own both the Angel-Royse

40

Value of Mr. McLaughlin’s interest in the Angel-Royse

Property ($156,300) = fair market value of the Angel-Royse

Property ($312,600) x Mr. McLaughlin’s interest (50 percent).

41

Amount realized ($101,009) = value of Mr. McLaughlin’s

interest in the Angel-Royse Property ($156,300) + discharge by

Mr. McLaughlin of petitioner’s debt ($15,250) + assumption by Mr.

McLaughlin of real estate taxes ($1,251) - petitioner’s

assumption of Mr. McLaughlin’s share of the liabilities

associated with the Angel-Royse Property ($68,622) - property

taxes ($3,170). Gain on exchange ($60,709) = amount realized

($101,009) - basis ($40,300).

42

Sec. 731(a)(1) provides that in the case of a distribution

by a partnership to a partner “gain shall not be recognized to

such partner, except to the extent that any money distributed

exceeds the adjusted basis of such partner’s interest in the

partnership immediately before the distribution”.

- 62 Property and the Arrowhead Lakes Subdivision lots.43

However,

the form of ownership of the Arrowhead Lakes Subdivision lots was

clearly a trust and not a partnership.

Moreover, petitioner

stipulated that he was the 100-percent beneficiary of the

Arrowhead lots held in trust by Mr. Miles, and he does not

dispute, and in fact incorporates, respondent’s requested finding

of fact that “Petitioner owned Lots 26, 27 and 28 in OR-2 (a.k.a.

Arrowhead Lakes Subdivision), which were held in trust by R.

Stephen Miles, Jr., Trustee.”

Petitioner is bound by the form of

ownership expressed in the stipulation and demonstrated by the

record, and he cannot now argue that the Arrowhead lots were in

fact held by a partnership.

We agree with respondent’s

characterization that petitioner exchanged his 100-percent

interest in the Arrowhead Lakes Subdivision lots for Mr.

McLaughlin’s 50-percent interest in the Angel-Royse Property and

that there was no distribution of those properties from any

partnership.44

We also agree that petitioner and Mr. McLaughlin

43

Mr. McLaughlin and petitioner testified that their

supposed partnership owned the Arrowhead Lakes Subdivision lots.

They testified that they were equal partners with respect to both

the Arrowhead Lakes Subdivision lots and the Angel-Royse

Property. Petitioner contends that the partnership was

terminated with the properties’ being distributed equally. He

claims that the properties exchanged were of equal value after

accounting for the environmental liabilities associated with the

Angel-Royse Property.

44

This finding is supported by a letter from Mr. Miles to

Mr. McLaughlin’s attorney; he states:

(continued...)

- 63 were not engaged in a partnership with respect to the Angel-Royse

Property.

A partnership is an organization for the production of

income to which each partner contributes one or both of the

ingredients of income, capital, or services.

Culbertson, 337 U.S. 733, 740 (1949).

Commissioner v.

In determining whether

there is a partnership, we consider the following factors:

The agreement of the parties and their conduct in

executing its terms; the contributions, if any, which

each party has made to the venture; the parties'

control over income and capital and the right of each

to make withdrawals; whether each party was a principal

and coproprietor, sharing a mutual proprietary interest

in the net profits and having an obligation to share

losses, or whether one party was the agent or employee

of the other, receiving for his services contingent

compensation in the form of a percentage of income;

whether business was conducted in the joint names of

the parties; whether the parties filed Federal

partnership returns or otherwise represented to

respondent or to persons with whom they dealt that they

were joint venturers; whether separate books of account

were maintained for the venture; and whether the

parties exercised mutual control over and assumed

mutual responsibilities for the enterprise. [Luna v.

Commissioner, 42 T.C. 1067, 1077-1078 (1964).]

In order for there to exist a partnership, the parties must

conduct some business activity.

44

Madison Gas & Elec. Co. v.

(...continued)

I trust you will recall that Walter and Roger discussed

with you and I a settlement of the existing dispute

over the Royse-Angell property by an even exchange of

Walter’s interest in the Arrowhead Lakes property for

Roger’s interest in the Royse-Angell property. Walter

apparently feels that he can salvage the Angell-Royse

property and has directed me to proceed with the

proposed settlement. * * *

- 64 Commissioner, 633 F.2d 512, 514-517 (7th Cir. 1980), affg. 72

T.C. 521 (1979); Frazell v. Commissioner, 88 T.C. 1405, 1412

(1987); Cusick v. Commissioner, T.C. Memo. 1998-286.

And, mere

coownership of property as tenants in common or otherwise does

not result in a partnership.

See Bergford v. Commissioner, 12

F.3d 166, 169 (9th Cir. 1993), affg. Alhouse v. Commissioner,

T.C. Memo. 1991-652; Cusick v. Commissioner, supra.

Petitioner

testified that when he initially invested in the acreage in the

Angel-Royse Property, it was “landlocked” and “it wasn’t

developable property.”

He also testified that Mr. McLaughlin

held an adjoining tract of land that could provide access to the

property and that Mr. McLaughlin’s ownership of this tract

prompted their entering into a “partnership”.

However, neither

petitioner nor Mr. McLaughlin testified as to any development

activity or plans for development on the Angel-Royse Property.

Neither testified regarding whether they had any expectation of a

profit from their activities and as to what kind of business

activity their partnership was to engage in; i.e., subdivision,

development, real estate sales, etc.

There is substantial

evidence of record that the property was not the subject of any

business activity, and, indeed, the record indicates that

petitioner and Mr. McLaughlin were allowing the property to

waste.45

45

There is no evidence of any partnership returns’ having

Petitioner testified that Mr. McLaughlin “let a guy come

(continued...)

- 65 been filed or any Schedules’ K-1 having been issued to petitioner

or Mr. McLaughlin.

Petitioner has submitted no evidence of any

partnership records, any partnership agreement, and he has not

provided any discussion regarding the operations of this supposed

partnership.

The record shows that petitioner’s and Mr.

McLaughlin’s relationship with respect to the Angel-Royse

Property never rose above mere coownership.

Petitioner has not

established that he and Mr. McLaughlin formed a partnership with

respect to the Angel-Royse Property, and we sustain respondent’s

determination that petitioner realized gain on the exchange of

properties.

8.

Prather Ranch Property (OR-01)

FINDINGS OF FACT

In 1978, petitioner and Wayne Schoolfield sought to acquire

certain property owned by the Bank of Palm Beach and Trust Co.,

located in Orange County, Florida, which we refer to as the

“Prather Ranch Property”.

Petitioner secured a contract with the

bank for the purchase of the property, and he then located other

45

(...continued)

in and cut all the trees on the property and start digging out

the dirt”, and that these operations resulted in considerable

environmental problems. The record also contains a letter from

Mr. Miles, in which he complains to petitioner and Mr. McLaughlin

that they had not paid their installments on the 1986 mortgages

associated with the property and that the mortgagees were

threatening foreclosure.

- 66 purchasers to facilitate its acquisition.46

On October 17, 1978,

the bank sold the Prather Ranch Property to Investors Realty of

Osceola, Inc., Agri-Land Corp., William L. Gibson, as trustee,47

Mr. Prewitt, as trustee, William R. Wright (i.e., petitioner), as

trustee,48 and Marlborough Investors, Inc.

At the time of its

purchase, the Prather Ranch Property consisted of 1500-1600 acres

and was generally flat pasture with a creek running through the

property; the property was zoned agricultural.

In 1981, Mr. Gibson sold a portion of the property that he

held in trust to third parties.

On June 7, 1985, Mr. Gibson

transferred the remaining property, which we refer to as “parcel

1”, to Mr. Miles, as trustee, for no consideration.

Petitioner

was the beneficiary of a 100-percent interest in parcel 1.

In March 1983, Mr. Schoolfield, Max Hagen, and petitioner

entered into an agreement to trade and to purchase certain

parcels of the Prather Ranch Property.49

Pursuant to this

46

Mr. Schoolfield was interested in the front piece of the

property, and petitioner was interested in the back piece.

47

Petitioner was the beneficiary of the property interest

held in trust by Mr. Gibson.

48

Petitioner and Agri-Land Corp. were originally the

beneficiaries of 50-percent interests, respectively, in the

property held in trust by “Mr. Wright” (parcel 3). Agri-Land’s

interest in this parcel subsequently terminated.

49

According to petitioner, he ended up with a piece of the

Prather Ranch Property in its southeast corner; Mr. Schoolfield

owned a piece in front of petitioner’s, which had “good access”;

and Mr. Hagen owned a 400-acre piece south of Mr. Schoolfield’s.

(continued...)

- 67 agreement, on April 22, 1982, Agri-Land conveyed its portion

(parcel 2) of the Prather Ranch Property to its shareholder, Mr.

Schoolfield, as trustee.

On May 10, 1983, Mr. Schoolfield sold

parcel 2 to Mr. Hagen, as trustee, and Mr. Hagen, in turn, sold

it to Mr. Miles, as trustee, for $356,400.

sole beneficiary of parcel 2.

Petitioner was the

On May 10, 1983, Mr. Wright, as

trustee, conveyed parcel 3 to Mr. Miles, as trustee.

On September 5, 1986, Mr. Miles, as trustee, entered into a

contract with Maury L. Carter to sell parcels 1, 2, and 3 for

$1,731,000.

Mr. Carter never saw an advertisement concerning the

sale of this property, and Mr. Carter initiated the sale

discussions with Mr. Miles.

Pursuant to this contract, Mr.

49

(...continued)

Petitioner testified that Mr. Schoolfield was interested in

purchasing Mr. Hagen’s piece, and according to petitioner:

And as part of an accommodation for him to buy the

Hagen piece, I was going to buy his piece that was next

to my portion of this 1,500 acres. So that would leave

me with Wayne’s piece and my piece, but to accomplish

that--I didn’t have the cash to give Wayne for it--so

we went, both jointly, went and sat down and worked out

a deal with Mr. Hagen.

And the end result of the deal was that Mr. Hagen

would, out of his 400 acres, would trade 240 acres, I

believe it was, with Wayne. So he and Wayne did a

trade of 240 acres. That meant that Hagen owned the

240 acres next to my piece and, at the same time, then

Wayne purchased the remaining portion of the 400 acres

from Mr. Hagen that was down in Osceola County. The

240 acres that Mr. Hagen now owns, up in Orange County,

next to my piece, I purchased from him. I added to my

holding by purchasing the property from Mr. Hagen, that

he’d acquired from Wayne.

- 68 Miles, as trustee, sold parcel 1 for $120,000 on October 13,

1986.

On May 13, 1987, Mr. Miles, as trustee, sold parcels 2 and

3 for $1,611,000.50

Petitioner realized a gain of $72,039 from

the sale of parcel 1 in 1986, and a gain of $823,079 from the

sale of parcels 2 and 3 in 1987.

Petitioner did not report those

gains on his Forms 1040 for 1986 and 1987.

At the time of the sales of petitioner’s interests in the

Prather Ranch Property, the property was raw land with no

improvements or site development.

OPINION

The only issue with respect to the Prather Ranch Property is

whether petitioner realized capital gains on the sales of the

parcels in 1986 and 1987, or ordinary income.

Respondent

determined that petitioner realized ordinary income.

In order for taxpayers to obtain preferential long-term

capital gains tax rates, the gain must arise from “the sale or

exchange of a capital asset”.

Sec. 1222(3).

The term “capital

asset” means “property held by the taxpayer (whether or not

connected with his trade or business)”, but does not include

“property held by the taxpayer primarily for sale to customers in

the ordinary course of his trade or business”.

50

Sec. 1221(1).

At the time of the sale, petitioner was the beneficiary of

a 90.689-percent interest in parcels 2 and 3, which interest was

held in trust by Mr. Miles.

- 69 In determining whether the gains that petitioner realized

from the sales of the three parcels of the Prather Ranch Property

were capital gains, we must ask three questions:

(1) Was

petitioner engaged in a trade or business, and, if so, what

business?; (2) was petitioner holding the property primarily for

sale in that business?; (3) were the sales contemplated by

petitioner “ordinary” in the course of that business?

Sanders v.

United States, 740 F.2d 886, 888-889 (11th Cir. 1984); Suburban

Realty Co. v. United States, 615 F.2d 171, 178 (5th Cir. 1980).51

The question whether property is held primarily for sale to

customers in the ordinary course of one’s business is “purely

factual”, Pritchett v. Commissioner, 63 T.C. 149, 162 (1974), and

51

The following factors are considered in answering those

questions:

(1) the nature and purpose of the acquisition of the

property and the duration of the ownership; (2) the

extent and nature of the taxpayer’s efforts to sell the

property; (3) the number, extent, continuity and

substantiality of the sales; (4) the extent of

subdividing, developing, and advertising to increase

sales; (5) the use of a business office for the sale of

the property; (6) the character and degree of

supervision or control exercised by the taxpayer over

any representative selling the property; and (7) the

time and effort the taxpayer habitually devoted to the

sales. [Sanders v. United States, 740 F.2d 886, 889

(11th Cir. 1984); United States v. Winthrop, 417 F.2d

905, 910 (5th Cir. 1969).]

The frequency and substantiality of sales is the most important

factor of those listed. Suburban Realty Co. v. United States,

615 F.2d 171, 176 (5th Cir. 1980); Biedenharn Realty Co. v.

United States, 526 F.2d 409, 416 (5th Cir. 1976); Hancock v.

Commissioner, T.C. Memo. 1999-336.

- 70 petitioner bears the burden of showing that the property was held

as a capital asset, Guardian Indus. Corp. & Subs. v.

Commissioner, 97 T.C. 308, 316 (1991), affd. without published

opinion 21 F.3d 427 (6th Cir. 1994).

See also Pritchett v.

Commissioner, supra at 164 (“Petitioner has the burden of proving

that when he dealt with the parcels of land here involved he was

wearing the hat of an investor rather than that of a dealer.”).

Respondent argues that petitioner was in the business of

buying and selling real estate at the time of the sales, that

“petitioner agrees that he is not entitled to capital gain

treatment for any of the numerous properties which he sold [in

that business] during the years at issue”, and that he has failed

to meet his burden of demonstrating that he held the parcels as

an investor, rather than a dealer.

Petitioner, on the other

hand, contends that he acquired the parcels with the intention of

holding them as long-term investments, that he did not develop

the parcels, did not advertise them for sale, did not attempt to

change the zoning of the property, and that it was Mr. Carter,

not petitioner, who initiated the discussions regarding the sales

of the parcels.

Petitioner stipulated that “Since the mid 1970s through the

present, the petitioner has been in the business of buying and

selling real estate and real estate development.”

Nevertheless,

petitioner contends that his ordinary course of business is “the

- 71 purchase, platting, subdividing, rezoning, and improvement of

property”, and since petitioner merely purchased and sold the

parcels of the Prather Ranch Property, he cannot be said to have

sold the property in the ordinary course of his trade or

business.

After examining the record, the stipulation provides

the proper characterization of petitioner’s business activity.

Petitioner was involved in real estate sales without development,

as well as real estate sales that involved varying degrees of

development.

Indeed, there are several examples of record

wherein petitioner did not engage in development prior to sale

and did not make an immediate sale following purchase, and those

properties were sold as part of his real estate business.

We

cannot find that the purchase and the sale of the Prather Ranch

Property were outside petitioner’s ordinary course of business.

However, we must decide whether the Prather Ranch Property was

held primarily for sale in that business.

The U.S. Supreme Court has defined “primarily” as used in

section 1221(1) to mean “principally” or “of first importance”.

Malat v. Riddell, 383 U.S. 569, 572 (1966).

“It is, of course,

well established that even though petitioner is a dealer in land,

he still has the right to acquire land and hold it for investment

purposes.”

Pritchett v. Commissioner, supra at 163; see also

Maddux Constr. Co. v. Commissioner, 54 T.C. 1278, 1286 (1970).

The taxpayer’s primary holding purpose must be determined by

- 72 reference to his purpose “at some point before he decided to make

the sale in dispute.”

Suburban Realty Co. v. United States,

supra at 182; cf. Guardian Indus. Corp. & Subs., supra at 316.

At trial, petitioner testified that he viewed the Prather

Ranch Property as a “long-term situation from a retirement

standpoint”.

Keeping in mind that it is petitioner’s burden to

show his entitlement to capital gains treatment, we are not

convinced that petitioner acquired the Prather Ranch Property as

a long-term investment.52

His purchase of this property was

similar in many respects to his acquisition of other properties

in his real estate business.

Petitioner did not offer any

evidence showing that this property, when acquired, was

exceptional.

The record reflects that like petitioner’s

acquisitions of other properties in the ordinary course of his

52

Petitioner also testified:

Q

When you say--was that something--did you intend

to deal with that property as you deal with most of

your other properties?

A

You’re meaning develop it and immediately sell it

and stuff like that?

Q

Right.

A

No.

We cannot accept petitioner’s testimony in and of itself that he

did not intend to resell the property on its acquisition.

Further, for reasons previously stated, we must reject

petitioner’s suggestion that his business was confined to the

development and immediate sale of properties. The record

suggests several properties were acquired, held for a

considerable length of time, and then sold without development.

- 73 real estate business, he intended to resell the acquired property

as soon as the circumstances permitted.53

We find, on the

record, and in the absence of proof to the contrary, that

petitioner acquired the property as part of his real estate

business.

However, we must decide whether petitioner’s

motivation in holding the property for some time after its

acquisition changed to an investment purpose.

At trial, petitioner testified that he became interested in

putting cows on the Prather Ranch Property, that his “ultimate

plan” was to move cattle to that property for grazing, and that

he had a cattle guard54 installed.

Petitioner’s testimony was

subjective and self-serving, and we cannot accept as true his

testimony that he “got in the cow business, because of this piece

of property”.

Further, petitioner never moved any cattle to the

Prather Ranch Property,55 and, indeed, he testified that he had

53

We also note that the 1982-1983 series of trades and

purchases orchestrated by petitioner and Mr. Schoolfield are

highly indicative of a business acquisition. Through that series

of maneuvers, petitioner was able to acquire a parcel of property

with “good access” and we suspect a property with a higher

probability of resale under favorable circumstances.

54

A cattle guard is “a device consisting of a shallow ditch

across which ties or rails are laid far enough apart to prevent

livestock from crossing that is often used instead of a gate at a

fence opening”. Webster’s Third New International Dictionary 354

(1986). Petitioner testified that the cattle guard he installed

was a “huge concrete thing”, which cost $1,600 and weighed about

5,000 pounds.

55

Petitioner testified that as he was preparing to move

cattle to the Prather Ranch Property, Mr. Carter “came along and

(continued...)

- 74 moved the cattle to another piece of property, which according to

his testimony, was only 2 miles from his house.56

Other than the

cattle guard, petitioner presented no evidence of any preparation

of the property for cattle grazing or that the property was even

suitable for grazing.

We cannot agree that petitioner’s

testimony alone establishes a change in his holding purpose to

investment.

We hold that petitioner has not established his

entitlement to capital gains treatment.

55

(...continued)

made me an offer I couldn’t refuse.”

56

Petitioner testified in relevant part:

Well, what I had done was I had, in the course of

doing this, I had investigated with him -- I'd known

Mike [Partin] for years -- getting into the cow

business, with just the piece I had. And then I get

tied up with acquiring this other Hagen piece.

Meanwhile, I had already started buying cows from

Mike and we had a piece of property nearby that I moved

the cows to and put them on. Well, they, you know,

same thing, you start buying too many cows and they

start having babies and you're trying to keep them all

as best you can and so I ended up kind of with too

many.

But just about the time I was getting ready to -I felt like I had enough cows -- to move up to this

piece of property, which was probably ten miles from my

house, where the other piece was probably two miles

from my house, that to get enough cows to put up there

on this piece of property, Mr. Maury Carter came along

and made me an offer I couldn't refuse. And by then I

was probably up to my eyeballs in something else and

was over my head in the cow business -- had more cows

that I could handle.

- 75 9.

Citrus County Property

FINDINGS OF FACT

On September 7, 1977, petitioner through Ms. Allen, as

trustee, purchased real property in Citrus County, Florida, which

we refer to as the “Citrus County Property”, for $1,837.54.

On

August 10, 1981, petitioner through Ms. Allen, as trustee,

transferred the Citrus County Property to Mr. Miles, as trustee.

Petitioner was the sole beneficiary of this property.

On July 2, 1982, Combank, the predecessors in interest of

Freedom Savings & Loan Association of Tampa, Inc. (Freedom), lent

$120,000 to Cramer, Hoffman & Haber, P.A.

On July 2, 1982,

petitioner guaranteed the $120,000 promissory note and pledged

the Citrus County Property (sometimes referred to as property) as

collateral.

In 1983, Freedom filed a mortgage foreclosure action

in the Circuit Court of Citrus County, Florida, Case No. 83-917CA (the foreclosure case) to foreclose its mortgage interest in

the property.

On March 26, 1984, the parties in the foreclosure

case, including petitioner as guarantor, filed a Joint Motion and

Stipulation for Rendition of Final Judgment wherein they asked

the court to render a final judgment of foreclosure regarding the

property pursuant to certain conditions.

Those conditions

included Freedom’s forbearance of its right to foreclose in

consideration for petitioner’s unconditional promise to perform

the terms of his guaranty and to make payments on the amounts due

- 76 Freedom.

Petitioner also agreed that if those payments were not

made as scheduled, then Freedom could proceed with the

foreclosure.

On October 11, 1985, Freedom filed a motion for

final judgment of foreclosure against the property averring that

the required payments had not been made in accordance with the

parties’ March 26, 1984, stipulation.57

On October 25, 1985,

pursuant to the stipulation, the court entered a Final Judgment

of Foreclosure.

Pursuant to the judgment, the property was sold

and title was conveyed to the purchaser, Freedom, on November 25,

1985.

In 1983, Freedom filed a separate action in the Circuit

Court for Orange County, Florida, Case No. 83-12119 (the judgment

case), for judgment against petitioner and two other guarantors

of the loan to Cramer, Hoffman & Haber, P.A.

On September 16,

1986, Freedom filed a Motion for Final Judgment against

petitioner seeking money judgment for the unpaid balance of the

note that he guaranteed.

In a pleading that petitioner filed on

October 8, 1986, petitioner represented that the only issue in

the judgment case that remained was the value of the property

that had been sold pursuant to the prior foreclosure action in

Citrus County.

On December 22, 1986, the Circuit Court for

Orange County rendered final judgment finding that petitioner

57

The Court’s final judgment recited that the outstanding

debt to Freedom consisted of $96,872.18 principal, together with

interest of $3,553.20 and attorney’s fees of $4,000.

- 77 should be given credit for the fair market value of the Citrus

County Property and found that the fair market value was $87,000.

The Circuit Court’s final judgment then determined that

petitioner owed a remaining $20,834 on his guaranty obligation.

On December 31, 1986, petitioner asked for rehearing claiming

that at the time of the foreclosure sale in 1985, the Citrus

County Property had a fair market value far in excess of $87,000.

Petitioner alleged that the Citrus County appraiser’s records

indicated a fair market value of $133,000 and that petitioner’s

testimony was that the property value was, at an “absolute

minimum”, at least $114,000.

Based on petitioner’s averments,

the Circuit Court for Orange County granted a rehearing as to the

fair market value of the Citrus County Property.

evidence that a rehearing ever occurred.

There is no

The parties eventually

reached a settlement, and on October 28, 1987, Freedom filed a

Satisfaction of Judgment stating that the $20,834 had been fully

satisfied.

Thus, petitioner’s remaining personal liability on

his guaranty was resolved approximately 2 years after the

foreclosure sale had become final.

Petitioner’s basis in the property at the time of the

foreclosure sale was $1,844.

OPINION

Respondent has raised as a new matter in his amendment to

answer an allegation that petitioner realized a gain of $112,156

- 78 from the foreclosure sale in 1985.58

Respondent agrees that he

bears the burden of proof on this issue under Rule 142(a).

The transfer of property in a foreclosure sale represents a

sale or exchange for tax purposes.

Helvering v. Hammel, 311 U.S.

504 (1941); 2925 Briarpark, Ltd. v. Commissioner, 163 F.3d 313,

318 (5th Cir. 1999), affg. T.C. Memo. 1997-298; Cox v.

Commissioner, 68 F.3d 128, 133 (5th Cir. 1995), affg. T.C. Memo.

1994-189; Yarbro v. Commissioner, 737 F.2d 479, 485 (5th Cir.

1984), affg. T.C. Memo. 1982-675; Aizawa v. Commissioner, 99 T.C.

197, 198 (1992), affd. without published opinion 29 F.3d 630 (9th

Cir. 1994).

Under section 1001(a), the amount of gain realized

from a sale or exchange is the excess of the amount realized over

the taxpayer’s adjusted basis in the property.

In the case of

recourse debt, the amount realized from the transfer of property

in a foreclosure sale is the fair market value of the property on

the date of the sale.

Frazier v. Commissioner, 111 T.C. 243, 245

(1998); Marcaccio v. Commissioner, T.C. Memo. 1995-174.

The

amount realized from a sale or other disposition of property

includes the amount of liabilities from which the transferor is

discharged as a result of the sale or other disposition.

2925

Briarpark, Ltd. v. Commissioner, supra at 317; sec. 1.10012(a)(1), Income Tax Regs.

58

Any unpaid portion of the recourse

Respondent originally determined that petitioner realized

cancellation of indebtedness income. Respondent now concedes

this determination.

- 79 debt in excess of the fair market value of the property is not

used to calculate the amount realized from a sale under section

1001(b).

See 2925 Briarpark, Ltd. v. Commissioner, supra at 318

n.2; Marcaccio v. Commissioner, supra.

Respondent contends that petitioner realized at least

$114,000 in the 1985 foreclosure sale of the Citrus County

Property.

He relies upon petitioner’s position in the deficiency

judgment proceedings that the fair market value of that property

was at least $114,000 at the time of the foreclosure sale.

We

cannot agree that respondent has established that the fair market

value of the Citrus County Property was at least $114,000 on the

date of the foreclosure sale.

The Orange County Circuit Court

found that the Citrus County Property had a fair market value of

$87,000 at the time of the foreclosure sale.

The court gave

petitioner credit for $87,000 and then entered a deficiency

judgment of $20,834 against petitioner, which represented

petitioner’s remaining personal liability as guarantor.

Although

final judgment was stayed for the introduction of additional

evidence as to fair market value, no such evidence appears to

have been submitted, and, in any event, the parties settled the

matter and Freedom filed a Satisfaction of Judgment stating that

the $20,834 deficiency judgment had been satisfied.

We find that

the fair market value on the date of the foreclosure sale was

$87,000, the amount determined by the Circuit Court.

- 80 We must also reject petitioner’s argument that he is not

required to recognize gain from the foreclosure sale, because he

was not the borrower of the original loan proceeds and received

no benefit therefrom.

Petitioner argues:

The law is clear that to realize gain based upon market

value of property transferred, the transfer must be in

consideration of the discharge or reduction of

indebtedness. This gain is not realized when the

indebtedness is based upon a guaranty and the taxpayer

received none of the loan proceeds.

Petitioner cites Landreth v. Commissioner, 50 T.C. 803 (1968);

Payne v. Commissioner, T.C. Memo. 1998-227, revd. on other

grounds 224 F.2d 415 (5th Cir. 2000); and Whitmer v.

Commissioner, T.C. Memo. 1996-83, in support of his position.

We

find those cases distinguishable in that they dealt with

discharge of indebtedness income of a guarantor, not gain

realized from the sale of the guarantor’s property at a

foreclosure sale.

In Frazier v. Commissioner, supra at 248, we achieved parity

between the tax results to a party owning property sold in a

foreclosure sale and the tax results to the willing seller who

sells the property in an arm’s-length transaction to a willing

buyer, “neither being under compulsion to buy or sell and both

having reasonable knowledge of relevant facts.”59

59

Applying that

A foreclosure, like a voluntary sale, is a disposition

within the scope of the gain or loss provisions of sec. 1001.

See Helvering v. Hammel, 311 U.S. 504 (1941); 2925 Briarpark,

Ltd. v. Commissioner, 163 F.3d 313, 318 (5th Cir. 1999), affg.

(continued...)

- 81 approach in this case, if petitioner sold the Citrus County

Property to a willing buyer for its fair market value of $87,000,

and then transferred the sale proceeds in partial satisfaction of

his personal liability as guarantor, he would have realized

$85,156 ($87,000 amount realized minus $1,844 basis).

On the

facts presented, we hold that petitioner realized $85,156 on the

foreclosure sale to Freedom.

C.

Miscellaneous Items of Schedule C Income

FINDINGS OF FACT

On February 6, 1985, petitioner deposited $37,500 into his

bank account with Freedom Savings & Loan Association.

The record

contains a check of $37,500 from Orange Valley Real Estate

Exchange, Inc., to the order of Metro Realty Association.

The

spreadsheets that petitioner used to complete his tax returns

list this amount under “Sales & Comm”.

Petitioner reported this

amount as a part of his gross profit from his real estate

business on Schedule C of his 1985 return.

Petitioner received net commission income of $598 from

National Land Commissions in 1986.

On July 1, 1985, petitioner deposited checks from Crazy

Commandos of $250 for rent from June 15 to 30, 1985, and $500 for

rent from July 1 to 31, 1985.

Petitioner also deposited $500 of

rent from Crazy Commandos into his Freedom account on September

59

(...continued)

T.C. Memo. 1997-298; Rev. Rul. 90-16, 1990-1 C.B. at 13.

- 82 3, 1985.

Petitioner received rents of $1,250 from Crazy

Commandos in 1985.

Petitioner received $400 in 1985 from the sale of 100 wax

myrtle trees.

OPINION

Gross income means all income from whatever source derived,

including compensation for services, commissions, gross income

derived from business, gains derived from dealings in property,

rents, etc.

Sec. 61(a).

Petitioner does not contest

respondent’s determinations in the notice of deficiency, his

requested findings of fact, or his arguments on brief with

respect to the amounts that petitioner received.

Petitioner has

abandoned any arguments he may have made with respect to those

amounts.

We hold that petitioner is taxable for the various

amounts described above as determined by respondent.

D.

Schedule E Income

FINDINGS OF FACT

Petitioner owned stock in Frank’s Corner, Inc., an S

corporation.

Frank’s Corner filed a Schedule K-1 (Form 1120S),

Shareholder’s Share of Income, Credits, Deductions, etc.,

relating to petitioner for 1987.

The Schedule K-1 reported

ordinary income of $4,492 and a section 179 deduction of $604.

Petitioner did not report any income from Frank’s Corner on his

1987 return.

Respondent determined that petitioner realized

- 83 income of $3,888 ($4,492 - $604) in 1987, which should have been

reported on Schedule E, Supplemental Income and Loss (from rental

real estate, royalties, partnerships, S corporations, estates,

trusts, REMICs, etc.).

On his 1988 return, petitioner reported a

loss of $4,702 from Frank’s Corner, which matches the loss

reported on the Schedule K-1 for that year.

OPINION

A shareholder in an S corporation must take into account, in

determining his tax, the shareholder’s pro rata share of the S

corporation’s “nonseparately computed income or loss”.

1366(a)(1)(B).

Nonseparately computed income or loss means gross

income minus the deductions allowed to the corporation.

1366(a)(2).

Sec.

Sec.

In other words, the taxpayer is responsible for his

distributive share of income realized by an S corporation in

which he is a shareholder.

See Ishler v. Commissioner, T.C.

Memo. 2002-79.

Petitioner presents no challenge to respondent’s

determination, and he has therefore abandoned any arguments he

might have presented.

We hold that petitioner realized Schedule

E income as determined by respondent and that petitioner should

have reported that amount on his 1987 return.

E.

Unidentified Deposits

Bank deposits are prima facie evidence of income.

DiLeo v.

Commissioner, 96 T.C. 858, 868 (1991), affd. 959 F.2d 16 (2d Cir.

- 84 1992).

“Where the petitioner has failed to maintain adequate

records as to the amount and source of his income, and the

Commissioner has determined that the deposits are income, the

petitioner has the burden of showing that the determination is

incorrect”, Estate of Mason v. Commissioner, 64 T.C. 651, 657

(1975), affd. 566 F.2d 2 (6th Cir. 1977), and he must prove by a

preponderance of the evidence that the deposits came from a

nontaxable source, Rule 142(a); Kudo v. Commissioner, T.C. Memo.

1998-404, affd. 11 Fed. Appx. 864 (2001).

All money deposited

into a taxpayer’s bank account is presumed to represent taxable

income, Price v. United States, 335 F.2d 671, 677 (5th Cir.

1964).

Except where he bears the burden of proof, e.g., fraud,

the Commissioner need not prove a likely source of the unreported

income.

Clayton v. Commissioner, 102 T.C. 632, 645 (1994);

Tokarski v. Commissioner, 87 T.C. at 77.

Also, he is not

required to prove that all deposits made by the taxpayer are

income.

Estate of Mason v. Commissioner, supra at 657; Gemma v.

Commissioner, 46 T.C. 821, 833 (1966).

1.

Deposit on March 12, 1985, of $59,000

FINDINGS OF FACT

On March 4, 1985, a $70,000 check from Washington

International Bank & Trust Ltd. (Washington International), was

deposited into petitioner’s Freedom bank account (account No.

0110324809).

Respondent did not determine that this deposit

- 85 represented unreported income.

On March 11, 1985, a check (No.

601) for $63,212.50 was drawn on petitioner’s Freedom account.

This check was payable to the order of “Freedom Financial Center”

and was endorsed by Ms. Allen.

The account balance was reduced

from $64,775.80 to $1,563.30 as a result of this check.

On March 11, 1985, petitioner purchased a cashier’s check

for $59,000 from Freedom.

remitter and the payee.

Petitioner was listed as both the

On March 12, 1985, petitioner deposited

the proceeds of this check into his Tucker State Bank account.

Respondent determined that the $59,000 deposit was taxable as

income to petitioner for 1985.

OPINION

Petitioner contends that the March 12, 1985, deposit of

$59,000 was traceable to the $70,000 check from Washington

International and that respondent did not determine that the

proceeds of this check represented unreported income.

Petitioner

argues that after the $70,000 check was deposited to his Freedom

account, Ms. Allen made a withdrawal of $63,212.50 in the form of

check No. 601 and used the proceeds to purchase the $59,000

cashier’s check payable to Mr. Medlin and deposited in his Tucker

bank account.

Petitioner did not question Ms. Allen at trial regarding her

endorsement on check No. 601 and whether she used that check to

purchase the $59,000 cashier’s check from Freedom.

Petitioner

- 86 could not establish at trial, and has not established on brief,

the appropriate link between the $59,000 deposit, the purchase of

the $59,000 cashier’s check, the $63,212.50 check signed by Ms.

Allen, and the $70,000 check from Washington International.

Petitioner has not explained why the cashier’s check and the

Tucker account deposit are for $59,000, while the check signed by

Ms. Allen is for $63,212.50, and where the $4,212.50 excess ended

up.

His explanation at trial was for the most part confusing.

Petitioner claims that since check No. 601 caused a decrease

of $63,212.50 in his Freedom account and that since check No. 601

is payable to the order of “Freedom Financial Center”, the

proceeds of that check must have been used to purchase the

$59,000 cashier’s check from Freedom.

much.

Petitioner assumes too

He assumes that he and Ms. Allen did not have other

accounts with Freedom, that he and Ms. Allen did not engage in

other transactions with Freedom, and, most importantly, that

“Freedom Savings and Loan Association” is the same entity as

“Freedom Financial Center”.60

establish, those matters.

Petitioner assumes, but fails to

In any event, petitioner’s claim fails

again to account for the $4,212.50 difference between the amount

of the cashier’s check and the amount of check No. 601.

60

At trial, petitioner cross-examined Revenue Agent Sherri

Blackton, but he failed to establish through that witness that

Freedom Savings & Loan Association was the same entity as Freedom

Financial Center. Indeed, Ms. Blackton testified that they might

be separate entities.

- 87 Even if we were to assume that the deposit of $59,000 is

traceable to the $70,000 received from Washington International,

petitioner has not established that this is a nontaxable source

of income.

Petitioner relies on the fact that respondent failed

to determine in the notice of deficiency that this amount

represented unreported income.

However, this alone does not

establish an income source to be nontaxable.

Respondent may have

had a wide range of valid reasons for not targeting this

particular item for an increased deficiency, including lack of

information and records.

Those reasons do not indicate that the

source is a nontaxable one, especially given the particular

circumstances of this case where moneys are being moved around

through a variety of entities, individuals, transactions, and

trust accounts.

Petitioner claims that the $70,000 check from Washington

International was a loan, because “The evidence as to Washington

International was that it loaned money secured by real estate

(TR-412, 453).”

At trial, John Kelly testified with respect to

petitioner’s Washington International account, i.e., the Cayman

Island account, that “it was basically a loan account.

He would

pledge property as collateral, and they would advance him funds

against his property.

And subsequently he would repay the loan

either from other funds or through sales of the property.”

Mr.

Kelly also testified that “Mr. Medlin would transfer title to

- 88 pieces of property--or a security interest in pieces of property

--not title--to the Cayman bank.

The Cayman bank would then

advance him funds using the property as a security.

Mr. Medlin

would then repay the loan in time.”

At best, John Kelly’s testimony provides a possible

explanation for what the $70,000 check represented.

Petitioner

has offered no additional evidence or testimony to establish his

claim that the check was a loan.

Importantly, he does not argue,

nor has he shown, that title to, or a security interest in,

property was ever transferred to Washington International for

what he purports to be $70,000 in loan proceeds.

Mr. Kelly’s

testimony that Washington International and Mr. Medlin were

generally involved in loan transactions does not establish that

this amount was a loan.

Indeed, his testimony was inconsistent

with petitioner’s testimony at trial that he used the Washington

International trust account as a vehicle for deferring income

from real estate sales.

Petitioner has not established a link

between the unreported deposit and a nontaxable source of income.

We sustain respondent’s determination that the $59,000 deposit is

taxable as income to petitioner.

2.

Deposit on September 16, 1986, of $84,521.63

FINDINGS OF FACT

On September 16, 1986, $84,521.63 was deposited into Mr.

Miles’s trust account.

Ledger card No. 70042 for that trust

- 89 account is entitled “Walter Medlin” and “Re $ Partin”.61

Lines 3

through 6 of that ledger card contain the following notations:

Date

Name

9-16-86

9-16-86

9-18-86

9-18-86

Michael Bast

Natl. Land & Inv. Inc

Transferred to Partin

Sybil card

Transferred to Partin

Sybil card

Memo

Received

Disbursed

Medlin/Partin

Medlin/Partin

$84,521.63

1,000.00

---

--

--

$84,521.63

–-

--

1,000.00

Respondent determined that the deposit of $84,521.63 was taxable

as income to petitioner for 1986.

OPINION

Petitioner contends that he did not receive the benefit of

the deposit of $84,521.63 on September 16, 1986, that the amount

deposited related to a transaction between Michael Bast and Sybil

Partin that did not involve petitioner, that the entry on the

ledger card was a mistake, and that this mistake was corrected 2

days later with a transfer to the correct ledger card.

At trial, petitioner testified that he did not receive any

of the proceeds of the $84,521.63 deposit and that he had no

interest in the sale of property from Ms. Partin to Mr. Bast.

Petitioner testified that the entry on the Medlin/Partin ledger

card must have been a mistake:

And because of my relationship with Mike and

having a real estate license and being interested in

real estate as well as his cattle business, I kind of

61

This ledger card relates to ledger card No. 70043, which

has its title line partially cut off. The title line does show

“Partin”, “P.O. Box 521 Kissimmee, FL”, and lists the “Adverse

Party” as “Partin Property”.

- 90 got first shot at buying a couple pieces of property.

And one of them was a Breckenridge piece that is

subject to this. I forget what the other piece was.

But because of my relationship with Mike, a couple

people had come to me. One of them was Mr.

Schoolfield. I believe he bought the parcel that Doc

Partin had gotten. I wasn’t interested in it.

And so Mike Bast had come to me and asked me if I

was trying to buy Sybil’s piece and/or if I could help

him buy it. And, basically, I, you know, told him I

wasn’t interested in it. I couldn’t--I had all I could

afford at the time. And, so I took him to Mike Partin

--they really knew each other--but I basically took him

to Mike Partin and said, Mike and Mike, why don’t you

all get together on Sybil’s behalf because Mike, Mr.

Mike Partin who was here, and his wife had been

handling his aunt’s, who is Sybil, handling all her

affairs and helping handle her cattle because she was a

widow. And I think she was the only sister in the

group, I believe, so she didn’t have any help. Anyway,

I kind of put the deal together for them, put the two

of them together, and recommended that Mike take Aunt

Sybil over to Steve Miles and have him do the closing

and so forth.

And, I think, because of my PR position in the

middle, dealmaker or whatever, it got put on one of my

cards by Alana, I think. Then, it appears, that a

couple days later, Mr. Miles--and again I’m guessing by

looking at this--had said, Wait a minute. This is not

Medlin’s deal. Start a card that says Sybil Partin and

transfer everything to Sybil Partin’s card. I’m

surmising this. I haven’t discussed this with Mr.

Miles. I’ve heard his testimony and Alana’s testimony

as to kind of how these things happen.

Mr. Miles referenced various checks accompanying ledger card No.

70042 and concluded that the references to “Partin” on that card

must refer to “Edward L. Partin”, known as “Geech Partin”, and

“Constance Partin”.

Mr. Miles testified that the property

referred to in ledger card No. 70042 “was known or later

- 91 developed as Anorada Subdivision”.

Mr. Miles then testified

about the entries at issue:

Q

Well, if you look at again 70042, you see this

Michael Bast payment of $84,521.

A

Yes.

Q

And then, the same amount, $84,521.63, was

transferred to, according to the notation there,

Partin, Sybil card. Do you see that?

A

That’s correct.

Q

And Partin, Sybil card is a card that you

apparently maintained for a Partin, Ms. Sybil Partin?

A

Yes.

Q

Was she also a client of yours that you performed

trustee activities for?

A

I don’t know that we ever held anything in trust

for Sybil Partin. We just represented her in

connection with the transaction with Mr. Bast, I

believe.

Q

Okay, So would it be fair to say that, from

looking at this, while Mr. Bast sent a check and it

originally got placed onto this card that relates to

Mr. Medlin, that the same amount of funds was then, two

days later, transferred over to the benefit of Sybil

Partin?

A

Yes. And it looks like it was just a mistake in

putting it on this card to start with, because to my

knowledge Mr. Bast did not have anything to do with the

property that Mr. Medlin acquired from Geech and Connie

Partin. Mr. Bast bought property from Sybil Partin.

And there’s a lot of Partins in Osceola County.

And when this check came in, it probably just said

Partin on it, and Alana put it on here. I don’t know.

Did you all ask her about it when she was here?

Q

No, I didn’t.

- 92 A

Oh. Okay.

than I could.

She could probably tell you better

Q

But that kind of a mistake would have been

corrected through the transfer that we see on there?

A

That’s correct.

Q

And that’s your memory of it now?

A

I don’t have any memory of it. Just looking at

that and knowing the cast of characters, I think that’s

what happened.

Mike Partin, who was personally involved with the Sybil

Partin/Michael Bast transaction, also testified that petitioner

had no ownership interest in the property sold to Mr. Bast, that

Sybil Partin was the owner of the property, and that Mr. Bast was

the purchaser.

Although petitioner did not question Ms. Goodman regarding

the deposit entry and the purported correction, Ms. Goodman was

questioned generally about the ledger system she maintained.

She

testified that the ledger system did not involve actual physical

transfers but was “simply a bookkeeping trace”.

Ms. Goodman

testified that when a transfer was made to another ledger card,

“I would write, Moved, on the card that it came from, and I would

write either Received or Transferred from the card that it came

from.”

On the basis of the testimony offered at trial, we are

satisfied that petitioner did not have an ownership or other

interest in the property sold by Sybil Partin to Michael Bast and

- 93 that the payment from Michael Bast was mistakenly entered on the

Medlin/Geech Partin ledger card, ledger card No. 70042.

Although

petitioner’s testimony was, as a general matter, self-serving and

less than credible at trial, his testimony regarding his

involvement in the Sybil Partin/Michael Bast property transaction

was detailed and supported by the testimony of Mr.

Mike Partin.

Miles and

Given that petitioner lacked any discernible

interest in that transaction, petitioner’s contention that the

entry on ledger card No. 70042 was a mistake is supported by the

record.

The ledger card shows a deposit of $84,521.63 followed 2

days later by a transfer in that same amount to the Sybil Partin

ledger card.

Mr. Miles confirmed that these entries were

consistent with the procedures he and his bookkeeper followed

with respect to a mistaken entry.

Ms. Goodman’s general

testimony establishes that the initial deposit of $84,521.63 was

indeed transferred to the Sybil Partin card given the notation

“Transferred to Partin Sybil card”.

We hold that the $84,521.63

deposit is not income to petitioner.

3.

Deposit on April 9, 1987, of $67,740

FINDINGS OF FACT

On April 9, 1987, petitioner deposited $67,740 into his

Tucker bank account No. 00018066.62

62

A memorandum dated October

The record contains a Tucker State Bank signature card,

which contains account information for account No. 00018066.

That record contains the signatures of petitioner and Ms. Allen,

(continued...)

- 94 19, 1993, from Revenue Agent Sherri Blackton to Special Agent

Linda Ford states with respect to the source of this deposit:

At 12:35 p.m. today, Mr. Larry Blackwater of

Community First Bank of Winter Garden returned my call.

I explained that I had a question regarding a deposit

made to Mr. Medlin’s account number 18066 on April 9,

1987 in the amount of $67,740. The deposited item we

received in response to the summons previously issued

to the bank indicated the money was transferred from

another account. (#1089234) I explained that I needed

to identify the originating account owner. * * *

*

*

*

*

*

*

*

At 1:08 p.m. Mr. Blackwelder called to report that

the originating account belonged to Mr. Medlin and that

he thought we were provided with copies of the

statements, etc. to that account. He stated his

research indicated that a $90,000 check from Orlando

Land and Investment, less a $22,260 cashier’s check,

was deposited to account number 1089234. The $67,740

was then immediately transferred to account number

18066.

A “Transfer of Funds” statement by Tucker State Bank states:

“On

the date indicated above [4/9/87], we made the following transfer

of funds between your accounts, according to your instructions

received by phone * * *.

We have charged your account for this

transfer From 1089234 to 00018066.”

The statement is to “Walter

L. Medlin” and shows an amount of “$67,740.00”.

Orlando Land & Investment Co. issued a check dated April 3,

1987, for $90,000, which is payable to the order of petitioner

and which contains the notation “FOR Loan”.

62

A deposit ticket for

(...continued)

shows the type of account as a trust with a “separate agreement”,

and states an initial deposit of $67,740 having been made on

“4/8/87”.

- 95 Mr. Medlin’s Tucker bank account No. 1089234 dated April 8, 1987,

shows the deposit of a check for $90,000 from “Orl. Land &

Investment”, “LESS CASHIERS CHECK in the amount of $22,260.00”;

this resulted in a net deposit of $67,740 to account No. 1089234.

On April 6, 1987, petitioner executed a promissory note for

the benefit of Don Henry and Sylvia Cohn, which provided:

4/6/1987

90,000.00

Ninty (90) days after date, the undersigned, for value

received jointly and severally promise to pay to the

order of Don Henry and/[illegible entry] Sylvia Cohn at

Ninty Thousand ($90,000) + Twenty

Orlando Fla.

Thousand ($20,000) dollars with interest from date at

the rate of ----% per annum until fully paid. Interest

payable ----. This note shall bear interest from

maturity at the rate of ----% per annum until fully

paid.

The promissory note is signed by petitioner.

Don Henry was the

president of Orlando Land & Investment Co.

Respondent determined that the deposit of $67,740 was

taxable as income to petitioner for 1987.

OPINION

Petitioner contends that the deposit of $67,740 on April 9,

1987, represents a portion of the loan proceeds received from Don

Henry of the Orlando Land & Investment Co.

Respondent agrees that “The source for the deposit was a

check for $90,000 from Orlando Land & Investment”.

Accordingly,

the April 9, 1987, deposit is not unidentified as respondent

originally determined.

Nevertheless, respondent argues that this

- 96 check was not a loan from Don Henry and Sylvia Cohn.

He argues

that the promissory note that petitioner relies upon shows Don

Henry and Sylvia Cohn as the obligees, not Orlando Land &

Investment Co., and that the check from that entity was not a

check from those obligees.

Since respondent has conceded the source of the formerly

unidentified deposit, we are concerned only with whether that was

a nontaxable source.

We note that respondent did not determine

an increased deficiency based on the $90,000 check, although his

failure to do so is not conclusive, see supra.

At trial,

petitioner testified that the deposit was attributable to

proceeds lent to him by Don Henry.

Respondent concedes that Don

Henry was the president of Orlando Land & Investment Co., and we

have found that as fact.

Although this fact alone does not

establish a connection between the check of $90,000 and the

promissory note of $90,000, we believe the evidence as a whole

shows a sufficient connection beyond mere coincidence.

We hold

that the deposit of $67,740 is not taxable as income to

petitioner.

4.

Deposit on July 8, 1988, of $140,000

FINDINGS OF FACT

On July 8, 1988, $140,000 was deposited into Mr. Miles’s law

firm’s trust account for petitioner.

Ledger card No. 70269 for

that trust account is entitled “Walter Medlin”, “Prather Ranch

- 97 Property”, and “see also Maury Carter”.

Line 21 of the ledger

card contains the following information:

Date

Name

Memo

Received

7-8-88

Walter Medlin

Medlin/Prather

$140,000

Line 22 of this same ledger card contains the following entry:

Date

Name

7-12-88

7-13-88

7-13-88

Memo

Disbursed

moved to Medlin/Partin

-$97,893.78

moved to Medlin/Malfa

(24,529.00 + 342.72) 24,871.72

moved to Medlin/general

17,234.50

Ledger card No. 70042, entitled “Walter Medlin” and “Re $

Partin”, contains the following entries on lines 10, 11, and 12,

which were related to the transfer to the ledger card noted in

line 13 below:

Line

Date

10

7-12-88

11

12

13

7-12-88

7-12-88

7-12-88

Name

Memo

Edward L. and

Constance A. Partin

Medlin/Partin

Mike Partin

Medlin/Partin

W.G. Boyd

Medlin/Partin

Rec from Medlin/Prather

--

Received

Disbursed

-$89,615.96

-5,094.04

-3,183.78

$97,893.78

--

The record contains a Dean, Witter, Reynolds, Inc. (Dean

Witter), check (No. 69566) dated July 7, 1988, for $140,000,

which is payable to the order of the “Stephen Miles Trust

Account”.

The stub to that check is signed as “RECD BY Richard

Margolis”.

A deposit statement for the “Miles & Cumbie P.A.

Trust Account”, dated July 8, 1988, lists check “1-23” for

$140,000.

This deposit statement was filled out by Alana

Goodman.

Ms. Goodman was Mr. Miles’s bookkeeper, and she made

the entries into the ledger cards.

Ms. Goodman matched the

- 98 number “1-23” listed on the deposit statement to the bank tracing

number “1-23” on the Dean Witter check.

Respondent determined that the deposit of $140,000 was

taxable as income to petitioner for 1988.

OPINION

Petitioner argues that the deposit on July 8, 1988, of

$140,000, was traceable to a loan from Richard Margolis, that the

loan proceeds were needed to make a mortgage payment on the

Partin property, and that “The loan was secured by being

structured as a sale and option to buy back from Margolis rather

than a mortgage to Margolis.”

Respondent agrees that $97,893.78

was transferred from the Medlin/Prather Ranch ledger card to the

Medlin/Partin ledger card and that checks were written for the

Medlin/Partin property on that same date; however, respondent

disagrees that the deposit for $140,000 and the subsequent

transfers establish that a loan was made.

We agree with

respondent.

We find that petitioner has established that the source of

the $140,000 deposit was the Dean Witter check of $140,000.

That

check was dated July 7, 1988, the day before the unidentified

deposit to the Medlin/Prather Ranch Property card.

Ms. Goodman

testified that she always used the bank tracing number for checks

when making deposits.

As such, she was able to match the bank

tracing number on the Dean Witter check to the bank tracing

- 99 number of a check listed on a deposit statement for the Miles &

Cumbie P.A. Trust Account.

The deposit statement is dated July

8, 1988, the check is in the amount of $140,000, and the deposit

slip was filled out by Ms. Goodman.

Petitioner has shown that

the issuance of the $140,000 Dean Witter check on July 7, 1988,

the deposit of $140,000 to Mr. Miles’s law firm’s trust account

on July 8, 1988, and the deposit entry of $140,000 on the

Medlin/Prather Ranch Property ledger card were more than mere

coincidences and that the source of the deposit entry was the

Dean Witter check.

Nevertheless, petitioner has not shown that

the Dean Witter check was a loan; i.e., that the check was a

nontaxable source of income.

See Polidori v. Commissioner, T.C.

Memo. 1996-514.

At trial, petitioner testified that he needed to make a

mortgage payment on what petitioner refers to as the Partin

property, that he called Richard Margolis up and told him he

needed some money, and that Mr. Margolis lent him the $140,000 at

issue.

Petitioner testified that Mr. Margolis’s representative

recommended:

rather than do a mortgage, have me deed them the

property, or deed or convey them the beneficial

interest in the property, if I only held the beneficial

interest, and then give me an option to buy it back at

this continually accelerating price, which was

reflective of the interest rate. And that’s what

happened here.

- 100 Petitioner claims that this recommendation was followed and that

the property he put up as collateral was the Partin property.

Petitioner also testified that he used some of the proceeds from

the Margolis “loan” to make his mortgage payment, and he also

described the various ledger entries:

Q

Okay. And did you use some of the proceeds of the

$140,000 loan, after you had conveyed the property to

Mr. Margolis, to make a payment on that very property,

on the mortgage already existing on that very property?

A

Yes, sir.

Q

R?

And is that reflected in 70042 ledger card of 93-

A

Yes, sir, but you sort of have to go back to

70501. And you can see where a portion on the next

line from the entry of the $140,000--you can see on

line 22, it says, 7/12/88, moved to Medlin/Partin,

$97,893.78.

And then you go to the--as Mrs. Goodman explained,

that was her way of getting the money out of, in this

case off the Prather Ranch card onto the Partin card.

So, I guess kind of an attempt to, all this gets very

confusing and we probably should have, somebody should

have done better--I didn’t keep these cards. They may

have been in worse shape. But just trying to keep

track of this stuff. But in this case, she moved it.

The $140,000 probably should have been put on the

Partin card to begin with. And it had nothing to do

with the Prather Ranch. But she put it there and we’ve

seen it before, and we’ll probably see it again, where

she put stuff on the wrong card. But it’s not the end

of the world. It’s correctable. She makes an entry

and says, I’m moving this over to the Partin card. It

was moved to the Partin card on line 13, same date

7/12/88, and it says, Received from Medlin/Prather

97,893.78.

Q

And did you then use that to make a payment out?

- 101 A

Yes, sir.

Q

Does that show there?

A

Yes, sir. Those are reflected in the columns

above, 10, 11, and 12.

Q

So then the source of this $140,000 unknown

deposit on ledger card 70501, on 93-R, is the loan from

Mr. Margolis?

A

Yes, sir.

Unlike petitioner’s testimony with respect to the deposit of

$84,521.63 on September 16, 1986, petitioner’s testimony with

respect to this deposit cannot be substantiated with the

testimony of other witnesses or with evidence of record.

Petitioner did not call Richard Margolis to testify, and he did

not submit any evidence or documentation to show that the

$140,000 Dean Witter check was a loan from Mr. Margolis.63

Accordingly, we find petitioner’s testimony to be self-serving

and of no assistance to him.

Petitioner expends considerable effort to establish that on

July 12, 1988, $97,893.78 was transferred from the Medlin/Prather

Ranch Property ledger card (no. 70501) to the Medlin/Partin

ledger card (no. 70042), and that on that same date, $97,893.78

was disbursed to Edward L. and Constance Partin, Mike Partin, and

63

Petitioner cites the testimony of Revenue Agent Sherri

Blackton that petitioner would at times borrow funds which were

secured by giving a deed to the property with an option to buy

the property back. However, this does not establish that

petitioner engaged in this type of transaction with Richard

Margolis on this particular occasion.

- 102 W.G. Boyd from the Medlin/Partin ledger card.

However, this has

little relevance in determining whether the $140,000 Dean Witter

check was a nontaxable source of income; i.e., a loan.

Moreover,

the considerable difference between the amount of the Dean Witter

check, $140,000, and the total amount of the disbursements,

$97,893.78, contradicts petitioner’s testimony that the purpose

of the loan was to make a mortgage payment.64

Also, we are not inclined to accept petitioner’s testimony

that the entries on the Medlin/Prather Ranch Property ledger card

were mistaken entries by Ms. Goodman that were subsequently

corrected.

Unlike the deposit in 1986, which we held was

attributable to a mistaken entry, the entry on the ledger card at

issue here was not simply corrected with a transfer in an

equivalent amount to another card.

offsetting entries:

Instead, there were three

(1) A transfer to the Medlin/Partin ledger

card on July 12, 1988, of $97,893.78; (2) a transfer to the

Medlin/Malfa card on July 13, 1988, of $24,871.72; and (3) a

transfer to the Medlin/general ledger card on July 13, 1988, of

$17,234.50.

We cannot conclude that the deposit entry on the

Medlin/Prather Ranch Property was necessarily a mistake and that

the $140,000 should have been transferred to the Medlin/Partin

64

And, indeed, it could indicate that the transaction was in

fact a sale of the property. Proceeds from a sale of property

would not be a nontaxable source of income.

- 103 ledger card.

We sustain respondent’s determination that the

$140,000 deposit represents taxable income to petitioner.

5.

Other Deposits

FINDINGS OF FACT

On May 6, 1986, petitioner deposited $300 into his Freedom

account.

On August 1, 1986, a deposit of $9,038.47 was made to

Mr. Miles’s law firm’s trust account.

On October 10, 1986, $300

was deposited into Mr. Miles’s law firm’s trust account for

petitioner.

Respondent determined that those deposits were

taxable as income to petitioner.

OPINION

Petitioner does not discuss on brief the deposit of $300 on

May 6, 1986.

We find that he received that item as income.

In respondent’s reply brief, he concedes that the deposit of

$9,038.47 on August 1, 1986, to Mr. Miles’s law firm’s trust

account was not income to petitioner.

Petitioner does not discuss on brief the deposit of $300 on

October 10, 1986.

F.

We find that he received that item as income.

Deductions Claimed by Petitioner

1.

Schedule C Real Estate Business Deductions

FINDINGS OF FACT

Petitioner claimed deductions on the Schedules C for his

real estate business on his returns for 1985 through 1988.

Those

deductions were claimed on the basis of the spreadsheets that

- 104 petitioner prepared for the deposits and disbursements from his

personal bank accounts.

Petitioner’s spreadsheets classified the

various disbursements as expenditures for automobiles, dues and

subscriptions, office, telephone, utilities, interest,

maintenance and repair, travel and entertainment, licenses and

taxes, commissions paid, insurance, and miscellaneous.

Those

disbursements were then claimed on the Schedules C as deductions

from the gross income he reported for his real estate business.

Respondent reconstructed petitioner’s expenses from buying and

selling real estate for 1985 through 1988.

See appendix A.

In

reconstructing petitioner’s expenses, respondent disallowed many

of the deductions petitioner claimed for a failure to

substantiate or a failure to show an ordinary and necessary

business expense for purposes of section 162.

Respondent allowed

deductions for petitioner’s real estate business in much larger

amounts than petitioner originally claimed on his returns.65

OPINION

Petitioner did not present any evidence that respondent

erred in reconstructing his Schedules C real estate expenses.

Petitioner does not present any arguments on brief relating to

his Schedules C real estate expenses or respondent’s

65

Of course, it is likely that many of these expenses were

related to properties that petitioner sold but failed to report.

We point out that the largest items of additional expense

deductions are interest and taxes which appear to be linked to

properties which petitioner sold as part of his real estate

business.

- 105 reconstruction of those expenses.

Petitioner’s only argument

relates to certain deductions he claims for alleged expenses from

his orange grove, cattle, and Ferrari automobile collection

activities.

We hold that petitioner has conceded any arguments

relating to respondent’s reconstruction of the allowable expenses

for his real estate business.

2.

Personal Residence Interest

FINDINGS OF FACT

On August 31, 1981, petitioner purchased his personal

residence in Osceola County, Kissimmee, Florida, from Walter E.

and Maxine J. Melitshka.66

Petitioner borrowed certain amounts

from the Melitshkas for the purchase of this residence.

The

amount of the loan, the interest rate, the repayment terms for

the loan, and the actual amount of interest petitioner paid

during tax years 1985, 1986, 1987, and 1988 were not established

on the record.

OPINION

Respondent determined that petitioner was entitled to

deductions for mortgage interest paid on his personal residence

of $24,957, $0, $41,759, and $16,249 for 1985, 1986, 1987, and

1988, respectively.

Petitioner does not challenge those

determinations on brief, and, accordingly, he has conceded the

66

The residence was originally titled in the name of Mr.

Miles, as trustee; however, on Aug. 10, 1990, Mr. Miles conveyed

title to the residence to petitioner.

- 106 matter.

We sustain respondent’s determination of the allowable

mortgage interest expenses.

3.

Orange Grove, Cattle, and Ferrari Activities

FINDINGS OF FACT

Petitioner had an orange grove of approximately 800 trees

near his personal residence, which covered approximately 17 to 18

acres.

When petitioner moved to his personal residence in or

about 1981, the orange grove was old with at least a portion of

it having been planted in the 1920s.

Petitioner was not in the

growing business, and he allowed the orange grove to deteriorate.

After a bad freeze in 1985, petitioner let the orange grove

go for a year without spraying it (without putting any herbicide

or fertilizer on the trees).

Petitioner replaced a considerable

number of old trees and dead trees with 690 new trees.

The

orange grove had an irrigation system which needed repairs, and

the orange grove required fertilizer and herbicide treatment.

Petitioner paid $10,000 on June 22, 1987, and $6,371.53 on June

1, 1988, to Irrigation Engineers for certain irrigation work done

on petitioner’s orange grove.

Petitioner did not maintain any

books or records for the orange grove, except for his checkbook.

Petitioner has never made a profit from selling oranges.

Petitioner also owned cattle during the tax years at issue.

Petitioner was advised by Michael Partin, a rancher, that the

- 107 cattle business could be profitable.67

Petitioner purchased a

herd of purebred Brahman cattle from Mr. Partin in or about 1982

or 1983.

Most of the cattle were midage to older-age cattle, and

a few were 1-2 year-old heifers.

Petitioner joined the American

Brahman Beef Association and registered a brand.

In 1989, petitioner returned the cattle back to Mr. Partin.

The market for cattle at this time was not good.

When Mr. Partin

took the cattle back in 1989, the cattle were in good condition.

Mr. Partin sold the cattle off over time.

Petitioner owned approximately 25 Ferrari automobiles in

1985 to 1988.

He did not sell any of the Ferraris in 1985

through 1988.

The Ferraris were damaged by vandals, and

petitioner went to a dealer to get the damages repaired.

Petitioner also had alternators replaced, carburetors cleaned

out, and timing belts changed, etc.

Petitioner was a member of

the Ferrari Club of America.

Petitioner did not maintain separate bank accounts for the

orange grove, the cattle, or the Ferraris.

Petitioner did not

report any business activities relating to the orange grove, the

cattle, or the Ferraris on any income tax returns for the

relevant tax years.

67

To the extent petitioner did report any

Mr. Partin testified that “the Brahman business was really

good. We had good foreign sales, good domestic sales. And I

just told him that I thought it would be a good business for him

to get into. He had some land he could put some cattle on.” He

also testified that “

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