KINDRED v. COMMISSIONER

Memorandum Findings of Fact and Opinion

FEATHERSTON, Judge:

Respondent determined the following deficiencies in petitioner's Federal income taxes and additions to tax:

                           Section    Section
Taxable                    6651(a)     6654
  Year       Deficiency   Addition   Addition

  1967 ..... $2,642.75     $660.69    $83.13
  1968 .....    950.57      237.64     29.91
  1969 .....  2,512.63      628.16     79.05
  1970 .....  1,482.22      370.56     46.25
  1971 ..... $  993.93     $248.48    $31.27
  1972 .....    697.68      174.42     21.95
  1973 .....    844.96      211.24     26.58
  1974 .....  1,024.81      256.20     32.23
  1975 .....    970.18      242.55     41.66

Four issues are presented for decision:

1. Whether petitioner received taxable income in the amounts determined by respondent or in any amounts during 1967 through 1975.

2. Whether petitioner is liable under section 14011 for self-employment taxes for 1967 through 1975.

3. Whether petitioner is liable under section 6651(a) for the addition to tax for failure to file an income tax return for each of the years 1967 through 1975.

4. Whether petitioner is liable under section 6654 for the addition to tax for underpayment of estimated tax for 1967 through 1975.

Findings of Fact

At the time the petition was filed in this case, petitioner was a legal resident of Pinckney, Michigan. For the taxable years 1967, 1968, and 1969, petitioner filed Forms 1040 which contained no information from which a tax liability could be computed. Across the face of the Form 1040 for 1967 the following was written:

Statements of similar import were inscribed on the Forms 1040 filed for 1968 and 1969. Petitioner filed no income tax returns for 1970, 1971, 1972, 1973, 1974, and 1975.

During the taxable years 1967 through 1975, petitioner was self-employed. During 1967 and 1968, petitioner was paid $14,094.85 and $2,955.44, respectively, by Rose Hill Realty, Inc. During 1968, 1969, and 1970, petitioner was paid $1,035, $12,589.05, and $9,281.70 by Howell Town & Country Realty. In 1968, petitioner received $3,000 from Jack Stastuk of Jack Stastuk Associates (Associates); this sum was advanced to petitioner on the understanding that it would be repaid from earnings with Associates.

During the course of an examination with respect to petitioner's income tax liability for 1968 through 1975, petitioner failed or refused to provide the examining agent with any information as to the amount or source of his income for those years. He maintained no checking, savings, or other bank accounts. He conducted all of his financial transactions by use of currency or money orders. Petitioner received no inheritances during 1967 through 1975.

During 1967 through 1975, petitioner, his wife, and three children lived on a small farm near Pinckney, Michigan. In 1968, petitioner purchased this farm on a sales contract on which he paid $180 per month. In addition, he paid taxes on the farm; the taxes, which were increasing, amounted to $1,000 per year at the time of the trial. He also paid heating and other utility bills. On this farm, petitioner raised food crops and chickens. Part of the food for his family was derived from these crops, from eggs laid by the chickens, and from chickens butchered for table use. Some of the produce grown on the farm was exchanged with neighbors for other food items.

During this period, petitioner was actively engaged in what has been called a tax revolt movement. He spent approximately 6 months in prison in 1971 on a charge of contempt for refusal to obey a court order directing him to disclose his income records to the Michigan State income tax authorities. Following his release, he traveled to numerous places throughout the United States to attend tax revolt meetings where he made speeches on the Constitution and its relationship to the tax laws and on the growing power and extent of the government. In these speeches, he described how some individuals were filing income tax returns which contained no information with respect to their income and others were refusing to file any income tax returns at all.

At each of these meetings, a hat or other receptacle was placed on a table or was passed through the crowd, and contributions were given petitioner. Also, at these meetings, printed literature, at least some of which was furnished to petitioner without cost, was distributed. Individuals who took the literature made contributions. Petitioner also received contributions through the mails. The contributors of all these funds made the donations to petitioner primarily in order to enable him to carry on his tax revolt activities. Petitioner maintained no records with respect to either these donations or income of any sort which he received.

During 1971 through 1975, petitioner made tax revolt speeches and received moneys at various locations throughout the United States, including cities in New York, Illinois, Missouri, and California, and in Washington, D.C., as well as in numerous cities in Michigan nearer his home, such as Lansing, Muskegon, Howell, Grand Haven, Allegan, and Detroit.

In estimating the amounts of petitioner's taxable income for 1967, 1968, 1969, and 1970, respondent determined that petitioner received commission income in the amounts of $14,094.85, $6,990.44, $12,589.08, and $9,281.70, respectively. For 1971 through 1975, the examining agent used information obtained from the Department of Labor, Bureau of Labor Statistics (hereinafter Labor), for certain categories of expenses incurred by a four-member family in the lower income level, nonmetropolitan area of the north-central region. From the figures published by Labor, the examining agent subtracted the amounts included for taxes to derive a base total income figure, which he adjusted to compute a figure applicable to a family of five.

Opinion

1. Income Tax Liability

Petitioner disputes respondent's determination for the entire period at issue. In the petition, he alleges that he had no income during 1971 through 1975 but subsisted "off the land, and by reason of God, Yahweh, Jesus Christ's Blessings, and by virtue of savings and frugality, and via the charity of family and friends." He characterizes respondent's determination for that period, which was based on Labor's statistics, as erroneous and arbitrary; the nature of the determination, in his view, shifts the burden of proof to respondent.

There is no merit to petitioner's contentions. As to 1967 through 1970, the parties stipulated that petitioner received payments from Rose Hill Realty, Inc., in the amounts of $14,094.85 in 1967 and $2,955.44 in 1968. The parties further stipulated that petitioner received commissions from Howell Town & Country Realty in the amounts of $1,035 in 1968, $12,589.05 in 1969, and $9,281.70 in 1970. Except for an additional $3,000 discussed below, these are the precise amounts of income which respondent determined that petitioner received in 1968, 1969, and 1970. As to these amounts, respondent's determination must be sustained.

In 1968, petitioner received $3,000 from Associates. In his reply to respondent's interrogatories, which was admitted in evidence, petitioner characterized this $3,000 as an amount loaned to petitioner, a portion each week, which "was to have been paid back out of an commissions Petitioner had coming." Petitioner testified that, after he left its employ, Associates tried to collect the funds advanced to him. In the light of all the evidence, we have concluded that this $3,000 was a loan to petitioner and is not taxable to him in 1968. Cf. Beaver v. Commissioner [Dec. 30,380], 55 T.C. 85, 91-92 (1970).

As to 1971 through 1975, petitioner filed no income tax returns. On audit, he failed or refused to furnish any information to the examining agent on which an estimate of his income could be based. An investigation by the Internal Revenue Service revealed no bank accounts or other bank or business transactions which would reflect the source or amount of his taxable income. Testimony at the trial confirmed that petitioner had no bank accounts and that he paid all his bills by use of currency or money orders.

The examining revenue agent was aware of petitioner's speechmaking activities which, as described in our Findings, included collections of funds and of his open and flagrant defiance of the government and its taxing authorities. Because the agent could locate no evidence which would indicate the amount of petitioner's income, he determined the deficiencies on the basis of Labor's statistics showing the amount of income required for the support of lower income families with four members in a nonmetropolitan area in the north-central region of the United States and adjusted those figures to derive the amount of income required to support a family of five.

In circumstances of this case, we think the procedure followed by the examining agent was reasonable. In Gliddio v. Commissioner [Dec. 30,254], 54 T.C. 1530 (1970), an individual who had been arrested for accepting wagers filed no income tax returns. Sustaining a determination of the amount of the taxpayer's income based on a table furnished by Labor, the Court stated in part (supra at 1533):

In this case, as in Giddio v. Commissioner, supra, use of Labor's statistics was a reasonable method to estimate expenses for a taxpayer supporting himself, his wife, and three children. During the period in issue, petitioner was paying not only ordinary living expenses for himself and his family but also approximately $180 per month on a contract for the purchase of his farm and home together with local taxes on that property. According to petitioner's testimony, those taxes, which approximated $1,000 per year at the time of trial, were increasing. Quite clearly, petitioner was receiving and using funds from some source.

The testimony of petitioner's own witnesses shows the source of the funds used to defray these expenses in each of the years 1971 through 1975. The witnesses testified that petitioner conducted numerous tax revolt meetings in cities throughout the United States and that money was collected at these meetings to support petitioner's tax revolt work. Furthermore, testimony established that petitioner made available at these meetings printed material given to him and suggested that contributions would help pay its cost.2 Contributors mailed money to him as well. Since petitioner did not show that he had any other income source, it is reasonable to infer that at least part of these receipts was used to support petitioner and his family.

Petitioner offered no evidence, in the form of records or oral estimates, as to the amount of funds he collected; what portion of the funds he used to defray his travel and related expenses; or what portion he used to cover his home mortgage, tax payments, and other living expenses. In fact, he denied that he kept any records of the amounts of these collections or his expenditures. Thus he failed to carry his burden of proving that he had less taxable income than the amounts determined by respondent. We must, therefore, sustain respondent's determination.

Petitioner argues that use of Labor's statistics as a basis for estimating his taxable income was so arbitrary as to shift the burden of proof to respondent. We do not agree. Giddio v. Commissioner, supra at 1533. Such statistics reflect the average living costs of similar families in the same locality, thus providing a basis for an estimate as accurate as could be made without some disclosures from petitioner as to his living costs. And he failed or refused to make any such disclosures.

When reconstructing income according to the net worth increase, bank deposits and cash expenditures, or cash disbursements methods, an estimate of nondeductible personal living costs is almost invariably taken into account. See Holland v. United States [54-2 USTC ¶ 9714], 348 U.S. 121, 125 (1954), reh. denied 348 U.S. 932 (1955) (net worth method); Viles v. Commissioner [56-1 USTC ¶ 9539], 233 F.2d 376, 378-379 (6th Cir. 1956), affg. a Memorandum Opinion of this Court [Dec. 21,037(M)] (cash disbursements method); Taglianetti v. United States [68-2 USTC ¶ 9479], 398 F.2d 558, 562 (1st Cir. 1968); Burgo v. Commissioner [Dec. 34,979], 69 T.C. 729, 738-742 (1978). The correctness of that estimate, as in the case of the determined net worth increases or other expenditures, becomes a factual issue on which the taxpayer has the burden of showing error. Toledano v. Commissioner [66-1 USTC ¶ 9476], 362 F.2d 243, 246 (5th Cir. 1966). In the instant case, the Commissioner determined deficiencies based solely on an estimate of the amount of petitioner's personal living expenses. We think such determination was sufficient to cast the burden of proof upon petitioner as to the correctness of that determination.

Petitioner has not carried that burden. He did not show that he had an accumulation of funds which was used to pay his living expenses during the period in issue. Further, it was stipulated that he received no inheritances during that period. Petitioner offered testimony that he and his family were in dire financial straits at certain times, particularly during and immediately after his 1971 stay in jail, and that his neighbors made gifts of food and cash during that period. Gifts to petitioner and his family which proceeded from a detached and disinterested generosity or "out of affection, respect, admiration, charity or like impulses" would be nontaxable. Robertson v. United States [52-1 USTC ¶ 9343], 343 U.S. 711, 714 (1952); Commissioner v. Duberstein [60-2 USTC ¶ 9515], 363 U.S. 278 (1960); Commissioner v. LoBue [56-2 USTC ¶ 9607], 351 U.S. 243, 246 (1956). But petitioner also offered the testimony of a large number of witnesses who testified that they donated funds to petitioner to enable him to carry on his tax revolt activities.3

Gross income as defined by section 614 encompasses all income "from whatever source derived" except as excluded by other Code provisions. Sec. 1.61-1(a), Income Tax Regs. Congress, as the Supreme Court has stated, used that language in order to exert the full measure of its taxing power. Commissioner v. Glenshaw Glass Co. [55-1 USTC ¶ 9308], 348 U.S. 426, 429 (1955). We must, therefore, construe the statute to promote that purpose. Helvering v. Clifford [40-1 USTC ¶ 9265], 309 U.S. 331, 334 (1940). Funds collected as political or similar contributions and used by petitioner for the support of himself and his family are gross income rather than nontaxable gifts. And, as noted above, petitioner failed to show what part of the contributions he received was charity and what part was given to him to promote a tax revolt and diverted to his own use.

Numerous court decisions hold that a taxpayer who has received political or similar contributions, faced with a determination that he received taxable income, may have the burden of showing whether he used those contributions to cover personal expenses. Some cases involve campaign contributions given to elected public officials who failed to show that such funds were used for political purposes, and such failure was held to support an inference that the funds were used for personal purposes. O'Dwyer v. Commissioner [59-1 USTC ¶ 9441], 266 F.2d 575, 585-586 (4th Cir. 1959), affg. [Dec. 22,434] 28 T.C. 698 (1957), cert. denied 361 U.S. 862 (1959); United State v. Jett [65-2 USTC ¶ 9706], 352 F.2d 179, 182 (6th Cir. 1965), cert. denied 383 U.S. 935 (1966). A similar conclusion has been reached when funds controlled by a church's unsalaried minister were diverted to his personal use. Potito v. Commissioner [76-2 USTC ¶ 9494], 534 F.2d 49 (5th Cir. 1976), affg. per curiam a Memorandum Opinion of this Court [Dec. 33,264(M)], cert. denied 429 U.S. 1039 (1977). In sustaining the Commissioner's determination in Potito, the court found that the taxpayer had personal living expenses in excess of the amount of disposable income he reported to the Internal Revenue Service, that he had received income in the form of cash or the use of certain property which was given in consideration for his services as a minister, and that he had not established certain claimed business deductions which would offset that income.

The principle enunciated in these cases applies here. Although not an established political party, the movement led by petitioner has a political purpose, that of undermining the local, State, and Federal revenue systems. Petitioner received funds to finance his tax revolt and other activities, and at least a part of those funds were diverted to his own use. He is taxable on the amounts so diverted, and he has not shown that such amounts were less than the amounts of taxable income determined by respondent.

2. Liability for Self-Employment Tax

Section 1401 imposes a tax on "the self-employment income" of every individual. In general, self-employment income consists of "the net earnings derived by an individual (other than a nonresident alien) from a trade or business carried on by him as sole proprietor," less allowable deductions and certain exclusions. Sec. 1.1401-1(c), Income Tax Regs.; sec. 1402(a). As used in section 1402, the term "trade or business" has the same meaning as when used in section 162. Sec. 1.1402(c)-1, Income Tax Regs. Under section 162, the issue as to whether a taxpayer is engaged in a trade or business is a factual one. Petitioner has not shown error in respondent's determination that he is subject to the self-employment tax for 1967 through 1975.

Petitioner offered no evidence of the terms of the arrangement pursuant to which he received commissions from real estate companies during 1967 through 1970. Depending upon the facts, one may work as a real estate agent in the capacity of an employee or in that of an independent contractor. Cf. Bell v. Commissioner [Dec. 17,192], 13 T.C. 344, 350 (1949). The real estate companies that paid money to petitioner during these years did not report the payments as the wages of an employee. Since petitioner offered no substantial, credible evidence to show the terms of his employment with the real estate companies, we have no alternative but to sustain respondent's determination.

As to the period 1971 through 1975, petitioner's business was attempting to promote a tax revolt. To this cause he devoted his time and his efforts. He had no other employment or business pursuit. He traveled throughout the United States making speeches protesting the income tax, arguing that it violated the Constitution. At each meeting collections of funds were made, and he received contributions by mail. As discussed above, in this manner he earned a livelihood for himself and his family. We think such continuous activity constitutes self-employment in a trade or business engaged in for profit. The self-employment tax applies.

3. Additions to Tax under Sections 6651(a) and 6654

Section 6651(a)5 imposes an addition to tax for failure to file a return "unless it is shown that such failure is due to reasonable cause and not due to willful neglect." Since the Forms 1040 filed by petitioner for 1967, 1968, and 1969, contained no financial information from which a tax liability could be computed, they were not "returns" within the meaning of this section. United States v. Johnson [78-2 USTC ¶ 9642], 577 F.2d 1304, 1310-1311 (5th Cir. 1978); United States v. Porth [70-1 USTC ¶ 9329], 426 F.2d 519, 522-523 (10th Cir. 1970), cert. denied 400 U.S. 824 (1970). For 1970 through 1975, petitioner filed nothing in the way of an income tax return. Since petitioner has not shown reasonable cause for his failure to file returns, we must sustain the section 6651(a) addition to tax.

Section 6654(a)6 provides for an addition to tax if estimated taxes are underpaid. Section 6015(a) provides that every individual shall make a declaration of estimated tax if gross income can reasonably be expected to exceed a stated amount ($200 in 1967 through 1971 and $500 in 1972 through 1975) from sources other than wages. Section 6153 provides that the amount of the estimated tax is to be paid during the taxable year; failure to pay such estimated tax results in liability for the section 6654(a) addition to tax. The statute does not provide relief due to extenuating circumstances. Estate of Ruben v. Commissioner [Dec. 24,109], 33 T.C. 1071, 1072 (1960). Imposition of the addition to tax, therefore, must be sustained.

Petitioner advances a series of constitutional arguments: (1) That "income" as used in the Sixteenth Amendment was not intended to include "a wage, salary, fee, first-time commission, or compensation for any kind of labor"; (2) that Federal Reserve notes not being lawful money, his receipts in such notes do not constitute taxable income; (3) that imposition of the income tax on him restricts his free exercise of religion under the Constitution; and (4) that the Ninth Amendment to the Constitution indicates that the people have retained "the right to not be taxed except by consent."

All these arguments are frivolous. Section 61 defines "gross income" as encompassing "all income from whatever source derived" including but not limited to "compensation for services, including fees, commissions, and similar items." Basically similar language in every Revenue Act since 1913 has been sustained by the courts. See Eisner v. Macomber [1 USTC ¶ 32], 252 U.S. 189, 207 (1920); Commissioner v. Glenshaw Glass Co., supra at 429-430. Federal Reserve notes are taxable income. United States v. Daly [73-2 USTC ¶ 9574], 481 F.2d 28, 30 (8th Cir. 1973), cert. denied 414 U.S. 1054 (1973). The income tax does not interfere with petitioner's First Amendment right to exercise his religion. Autenrieth v. Cullen [69-2 USTC ¶ 9724], 418 F.2d 586, 588-589 (9th Cir. 1969), cert. denied 397 U.S. 1036 (1970). Consent to imposition of the income tax is reflected in the Sixteenth Amendment and in the numerous revenue laws enacted since adoption of that amendment.7

To reflect the foregoing,

Decision will be entered under Rule 155.