TEMPLE v. COMMISSIONER

Docket No. 23071-96.

80 T.C.M. 611 (2000)

T.C. Memo. 2000-337

Robert M. Temple v. Commissioner.

United States Tax Court.

Filed November 1, 2000.


Attorney(s) appearing for the Case

Frank R. Bodor, for the petitioner. Carol A. Szczepanik, for the respondent.


MEMORANDUM FINDINGS OF FACT AND OPINION

RUWE, Judge:

Respondent determined deficiencies and additions to tax in petitioner's Federal income tax as follows:

                                                               Additions to Tax
                                                 -------------------------------------------
Year                                Deficiency   Sec. 6651(f)   Sec. 6653(b)(1)   Sec. 6654(a)

1988 ............................     $26,874         N/A         $20,156           $ 1,718
1989 ............................      29,683     $22,262             N/A             2,006
1990 ............................      25,383      19,037             N/A             1,671
1991 ............................       7,078       5,309             N/A               410
1992 ............................       4,572       3,429             N/A               200

After concessions,1 the issues for decision are: (1) Whether petitioner had unreported income from veterinary services, the sale of animals, and oil and gas royalties in the years in issue; (2) whether petitioner is liable for additions to tax for fraud under sections 6653(b)(1)2 and 6651(f); (3) whether petitioner is liable for failure to pay estimated tax under section 6654(a); and (4) whether petitioner is liable for the imposition of a penalty under section 6673 for taking a frivolous and groundless position in these proceedings.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. At the time the petition was filed, petitioner resided in Bristolville, Ohio.

During the years in issue, petitioner and his wife Catherine Temple (Mrs. Temple) lived at 5955 Stroups Hickox Road, Bristolville, Ohio (5955 property). The 5955 property was a country home with more than 300 acres.

During the years in issue, petitioner was a veterinarian, and he operated a veterinary clinic out of his residence. Petitioner performed services as a veterinarian for several clients including Sea World,3 Anheuser Busch, the Ohio Department of Wildlife, Canton Veterinary Hospital, Educational Zoological Programs, Inc., Constance A. Halle, Robert M. Sabo, and Wendy Arbogast. Petitioner also provided expert testimony for ITT Hartford.

Petitioner also had property located at 5501 Stroups Hickox Road (5501 property). Petitioner used the 5955 and 5501 properties for livestock breeding. Petitioner bred and sold llamas and birds during the years in issue. Petitioner sold llamas or birds to the following customers: John C. or Maria L. Gifford, Kerney L. and Ann R. Martini, Llamas of Michigan, Swan Lake Llamas, Avian Farms, Ronald G. and Carole L. DeRhodes, Sunny Hill Farms, William L. and Maureen F. Crawford, Fish and Feathers Intl., Ronald C. and Lisa Blider, Educational Zoological Programs, Inc.,4 Robert M. Sabo, Dennis Grodings, Jerome T. and Barbara A. Grone, Timothy L. Charles, William J. and Patricia M. Boever, Mary Z. Reed, and Wendy Arbogast.

During the years in issue, petitioner's gross receipts from services provided as a veterinarian and from the sale of animals were as follows:

Year                            Gross Receipts

1988 ........................      1$47,750
1989 ........................       288,404
1990 ........................       374,360
1991 ........................       416,059
1992 ........................       517,880
  Total .....................       244,453

1 See appendix F.

2 See appendix G.

3 See appendix H.

4 See appendix I.

5 See appendix J.

Approximately half of petitioner's receipts during 1988 were in the form of checks payable to Dr. Temple, while the remaining checks were payable to Plume Enterprises.5 Payments in 1989, 1990, 1991, and 1992 were almost exclusively made to Plume Enterprises, except for one check in the amount of $15,5006 in 1990,7 one check in the amount of $600 in 1991,8 and three checks totaling $1,410 in 1992.9

With the exception of one check issued in 1989 and seven checks issued in 1992, all checks payable to Plume Enterprises were deposited in an account with Bank One,10 account No. 400359855 (Bank One 855 account), held in the name of Plume Enterprises.11 Oxford Charter Corp. was listed as trustee on Plume Enterprises' Bank One 855 account. L. R. Mayer was the executive director of Oxford Charter Corp. during 1987.

Mrs. Temple had signatory authority over the Bank One 855 account, and the monthly bank statements were sent to petitioner's residence. During the years in issue, Mrs. Temple signed the following checks drawn on Plume Enterprises' Bank One 855 account:

Year            Payee            Amount

1989   Lets Go Travel              $240
1989   Lets Go Travel               480
1989   Cash                       1,000
1989   R&J Auto Services            404
1989   DS.BA                        625
1990   R&J Auto Services            814
1990   R&J Auto Services            169
1990   Action Travel                791
1990   Radisson Resort              497
1990   Action Travel                158
1990   Admiral Bendoro              144
1990   Trundle Management1        2,000
1990   Trundle Management2        1,500
1990   Trundle Management           500
1991   Action Travel                278
1991   Hotel Westcourt              162
1991   Action Travel                318
1991   Action Travel                296
1991   Greenbelt Holiday Inn         67
1992   Control Management Inc.      400
1992   Cash                         391
1992   McMeyers & Ford, Inc.        300
                                 ______
  Total                          11,534

1 These checks, totaling $3,500, were deposited in an
account with Second National Bank, account No.
1163506106. Mrs. Temple had signatory authority over this
account, and monthly bank statements were sent to
petitioner's residence.

2 These checks, totaling $3,500, were deposited in an
account with Second National Bank, account No.
1163506106. Mrs. Temple had signatory authority over this
account, and monthly bank statements were sent to
petitioner's residence.

The one check issued in 1989 that was not deposited into the Bank One 855 account was deposited in another Bank One account, account No. 400359863 (Bank One 863 account). The Bank One 863 account was held in the name of Galingale Group, Oxford Charter Corp., Trustee.12 L. R. Mayer was the executive director of Oxford Charter Corp. during 1987.

Mrs. Temple had signatory authority over the Bank One 863 account, and during the years in issue, she signed the following checks drawn on that account:

Year               Payee         Amount

1988   Lets Go Travel              $694
1988   Bavarian Manor                50
1988   Custom Parrot Network     10,000
1988   Bavarian Manor               133
1988   Sheraton Centre              531
1988   Custom Parrot Network      3,500
1988   Trundle Management1        2,000
1989   The Sheraton Greensboro      512
1989   DS.BA                      1,250
1989   Lets Go Travel               724
1989   Regal Travel                 138
1990   Trundle Management2        2,000
1990   Home Centers                 281
1991   Trundle Management3        2,000
1991   Trundle Management4        2,000
1991   Cash                         300
1991   Cash                         500
1992   Cash                         107
                                 ______
  Total                          26,720

1 These checks, totaling $8,000, were deposited in an
account with Second National Bank, account No.
1163506106. Mrs. Temple had signatory authority over this
account, and monthly bank statements were sent to
petitioner's residence.

2 These checks, totaling $8,000, were deposited in an
account with Second National Bank, account No.
1163506106. Mrs. Temple had signatory authority over this
account, and monthly bank statements were sent to
petitioner's residence.

3 These checks, totaling $8,000, were deposited in an
account with Second National Bank, account No.
1163506106. Mrs. Temple had signatory authority over this
account, and monthly bank statements were sent to
petitioner's residence.

4 These checks, totaling $8,000, were deposited in an
account with Second National Bank, account No.
1163506106. Mrs. Temple had signatory authority over this
account, and monthly bank statements were sent to
petitioner's residence.

The seven checks issued in 1992 that were not deposited in the Bank One 855 account were deposited in an account with Cortland Savings and Banking Co.13 held in the name of Plume Enterprises. These checks totaled $8,800, and they were deposited from August to December 1992 in the Cortland Savings account. Neither petitioner nor his wife was listed as having signatory authority over the Cortland Savings account, but monthly bank statements14 were sent to their residence, which was also the address listed on the signature card as the account owner's address.

During 1992, the following checks were drawn on the Plume Enterprises' Cortland Savings account:


Year               Payee           Amount

1992   Comfort Suites                $164
1992   L. R. Mayer1                   125
1992   Action Travel                  220
1992   Galt House                     386
1992   Piccolo Co.                  1,000
1992   Control Management, Inc.2      400
1992   McMyers & Ford3                300
1992   Piccolo Co.                  5,458
                                    _____
  Total                             8,053

1 L. R. Mayer was the executive director of Oxford Charter
Corp. during 1987. Oxford Charter Corp. was listed as
trustee on Plume Enterprises' Bank One 855 account and
for a Plume Enterprises' bank account with Society Bank of
Eastern Ohio.

2 Control Management had a contract with Plume
Enterprises with Pritchel & Pritchel as trustee. The
agreement stated, in part, that Control Management would
establish and maintain bank accounts for Plume
Enterprises.

3 The notation on this check indicates that it is payment for
trustee fees.

All the above-listed checks were written between September and December 1992. The two largest checks drawn on the Cortland Savings account, one for $1,000 and the other for $5,458, were payable to Piccolo Co. The check for $1,000 was written on October 29, 1992, and the check for $5,458 was written on December 31, 1992. Piccolo Co. had an account with Second National Bank of Warren,15 account No. 1163353006 (Second National 006 account).16

G. Bodor had signatory authority over Piccolo's account with Second National Bank.17 During the years in issue, G. Bodor signed the following checks, all of which were drawn on Piccolo Co.'s Second National 006 account:

Year       Amount     Payee

1988      $ 10,000   Purfle Co.
1988        14,000   Purfle Co.
1988        10,000   Purfle Co.
1988         7,630   Purfle Co.
1989        22,571   Purfle Co.
1989         5,000   Purfle Co.
1989         9,597   Purfle Co.
1990         5,000   Purfle Co.
1991         4,400   Purfle Co.
1991         4,479   Purfle Co.
1992        12,000   Purfle Co.
          ________
  Total     94,677

1 This check was issued in 1992 and signed by B.
L. Holtzhauer with what appears to be a
signature stamp.

The first seven checks listed above, totaling $78,798, were deposited into a Dollar Savings and Trust Co. account, account No. 218-000-827 (Dollar Savings 827 account). The Dollar Savings 827 account was held in the name of Purfle Co. with Eton Trust Co., Ltd., as trustee.18 Both petitioner and Mrs. Temple had signatory authority over the Dollar Savings 827 account.

Mrs. Temple signed checks payable to cash and drawn on the Dollar Savings 827 account during the years in issue as follows:

Year      Amount

1989      $4,000
1989       4,500
1989       4,500
1989       1,500
1989       2,000
1989       2,892
1989       4,833
1989       4,000
1989       4,500
1989       4,000
          ______
  Total   36,725

In addition to the above-listed checks payable to cash, Mrs. Temple withdrew $5,000 from the Dollar Savings 827 account in the form of a cashier's check payable to petitioner. Purfle Co. was remitter on another check drawn on a Dollar Savings bank account and payable to petitioner in the amount of $5,000.

The last four checks, listed on the previous page, and drawn on the Second National 006 account, totaled $15,879. All these checks were deposited into a second bank account with Dollar Savings and Trust Co., account No. 213-593-320 (Dollar Savings 320 account). The Dollar Savings 320 account was held in the name of Purfle Co. with Eaton Trust Co., Ltd., as trustee.19 Both petitioner and Mrs. Temple had signatory authority over this account.

Mrs. Temple signed checks payable to cash and drawn on the Dollar Savings 320 account during the years in issue as follows:

Year      Amount

1990      $1,500
1990         500
1990         500
1990       2,500
1991       3,000
1991       2,000
1991       2,000
1991       1,500
1991         200
1992       2,000
1992       2,500
1992       2,000
          ______
  Total   20,200

On May 26, 1992, B. L. Holtzhauer replaced petitioner and Mrs. Temple as the person authorized to sign checks on the Dollar Savings 320 account. The following checks payable to cash were signed by B. L. Holtzhauer:

Year      Amount

1992      $1,000
1992       1,000
1992       2,045
          ______
  Total    4,045

On December 7, 1992, the Dollar Savings 320 account was closed, and the proceeds were deposited into Barclays Bank, Nassau, Bahamas.

Prior to February 1985, petitioner was title owner of the 5501 and 5955 properties. On February 28, 1985, petitioner granted his interest in the 5501 and 5955 properties to Black Creek Management Co. with Nassau Life Insurance Co.,20 Ltd., as trustee21 by warranty deeds.

Oil and gas drilling sites were located on both the 5501 and 5955 properties. On February 1, 1985, petitioner executed an Exchange of Royalty Interest with Old Labrador Investment Co. with Nassau Life Insurance Co., Ltd., as trustee. The Exchange of Royalty Interest indicates that petitioner granted Old Labrador Investment Co. with Nassau Life Insurance Co., Ltd., as trustee his interest in the oil and gas leases for both properties for a stated consideration of $10. The Exchange of Royalty Interest was recorded in the Trumbull County Recorder's Office on February 28, 1985.

On January 25, 1988, Black Creek Management Co. with Nassau Life Insurance Co., Ltd., as trustee granted by warranty deed for a stated consideration of $1 the 5501 and 5955 properties to Trundle Management with Eton Trust Co., Ltd., as trustee22 by warranty deed.23 On the same day, Old Labrador Investment Co. with Nassau Life Insurance Co., Ltd., as trustee, granted for $1 in consideration its royalty interest in the oil and gas leases in both properties to Trundle Management with Eton Trust Co., Ltd., as trustee.

Petitioner and his wife continued to reside at the 5955 property. Petitioner continued to use the 5501 and 5955 properties for livestock operations and to operate a veterinary clinic. Petitioner continued to exercise dominion and control over the 5501 and 5955 properties.

Pennzoil Oil and Scavenger Oil paid royalties for use of the oil and gas wells located on both properties during the years in issue. Royalty payments from Pennzoil and Scavenger were as follows:


Year      Royalty Income

1990         1$2,789
1991          22,199
1992          32,203
             _______
  Total        7,191

1 See appendix H.

2 See appendix I.

3 See appendix J.

With the exception of one deposit, all checks were deposited into an account with the Second National Bank of Warren, account No. 1163506106 (Second National 106 account). The account was held in the name of Trundle Management, Eton Trust Co., Ltd., Trustee.24 Originally, Mrs. Temple and P. Evans had signature authority over the account. Petitioner's address was listed on the signature card. On July 7, 1992, B. L. Holtzhauer's name was added to the signature card. The address listed as B. L. Holtzhauer's address on the signature card was petitioner's residence. Bank statements were sent to petitioner's residence.

During the years in issue, Mrs. Temple signed checks drawn on the Second National 106 account as follows:

Year      Amount   Payee

1989      $  500   Cash
1989         500   Cash
1989         312   DS.BA
1990       1,000   Cash
1990       3,450   Sweda Heating & Cooling
1990       1,316   R. C. Drywall
          ______
  Total   17,078

1 B. L. Holtzhauer signed one check in the amount of
$60, payable to Universal Disposal in 1992.

Petitioner was in the process of remodeling and expanding his personal residence in 1989.

Petitioner made a $5,000 deposit into the Second National 106 account in 1988. The source of the $5,000 deposit was a bank check payable to petitioner drawn from one of the Dollar Savings and Trust accounts.

Petitioner filed Form 1040, U.S. Individual Income Tax Return, for the years 1975 through 1979. Petitioner did not file a Federal income tax return for 1980, and he has not filed a Federal income tax return for any year since 1980.

OPINION

I. Unreported Income

Petitioner failed to file Federal income tax returns for the years 1988, 1989, 1990, 1991, and 1992. Respondent determined that petitioner was engaged in the business activity of performing veterinary services and selling livestock during those years. Respondent computed petitioner's business gross receipts based on deposits made to bank accounts which petitioner controlled during those years, taking into account transfers and nontaxable items. Respondent also determined that petitioner received royalty income during the years 1990, 1991, and 1992.

Petitioner does not dispute the existence of the transactions that produced the income that respondent attributes to him. Rather, petitioner argues that the income was received by, and deposited into bank accounts of, valid irrevocable trusts. Petitioner asserts that respondent has improperly imputed gross income received by a trust to petitioner and has improperly failed to recognize the trust as a separate entity. We note, as a preliminary matter, that petitioner did not provide copies of any trust agreements, nor did he or his wife testify at trial.

Section 61(a) provides, in part, that "gross income means all income from whatever source derived, including (but not limited to)" compensation for services, gains derived from dealing in property and royalties. It is fundamental to our system of taxation that income must be taxed to the one who earns it. See Commissioner v. Culbertson [49-1 USTC ¶ 9323], 337 U.S. 733, 739-740 (1949); Lucas v. Earl [2 USTC ¶ 496], 281 U.S. 111, 114-115 (1930). Income can be attributed to an individual when the recipient has total control or dominion over the funds and uses the funds for personal purposes. See Davis v. United States [55-2 USTC ¶ 9685], 226 F.2d 331, 334 (6th Cir. 1955); Woods v. Commissioner [Dec. 46,150(M)], T.C. Memo. 1989-611, affd. without published opinion 929 F.2d 702 (6th Cir. 1991).

A. Veterinarian Services and the Sale of Livestock

Petitioner provided veterinarian services, and he bred and sold animals. As a result, petitioner received payments by checks totaling $47,750 in 1988,25 $88,404 in 1989,26 $74,360 in 1990,27 $16,059 in 1991,28 and $17,880 in 1992.29 In 1988, checks totaling $11,000 were payable to Dr. Temple, while the remaining checks totaling $36,750 were payable to Plume Enterprises and deposited into the Bank One 855 account. This account was fashioned as a trustee account, but all funds deposited in the account were based on payments petitioner received for veterinarian services that he provided and from the sale of animals that he sold. Mrs. Temple had signatory authority over the account.

In 1989, petitioner received checks totaling $88,404 for the services he provided as a veterinarian and from the sale of animals. Petitioner deposited checks totaling $87,804 in the Bank One 855 account, and the remaining check for $600 in the Bank One 863 account. Petitioner's spouse, Mrs. Temple, had signatory authority over both accounts.

In 1990, petitioner received checks totaling $74,360 for the services he provided as a veterinarian and from the sale of animals. Petitioner deposited checks totaling $74,360 into the Bank One 855 account, which Mrs. Temple had signatory authority over.

In 1991, petitioner received checks totaling $16,059 for the services he provided as a veterinarian and from the sale of animals.30 Petitioner deposited checks totaling $16,059 into the Bank One 855 account, which Mrs. Temple had signatory authority over.

In 1992, petitioner received checks totaling $17,880 for the services he provided as a veterinarian and from the sale of animals. Petitioner deposited checks totaling $7,670 in the Bank One 855 account and checks totaling $1,410 in the Bank One 863 account. Mrs. Temple had signatory authority over both accounts.

Amounts deposited into the Bank One 855 account in the name of Plume Enterprises and the Bank One 863 account in the name of Galingale Group constituted income of petitioner. Petitioner earned the income, he and his wife exercised total dominion and control over those funds, and they expended the funds for their personal expenses. From these two accounts alone, Mrs. Temple signed checks totaling $38,25431 for personal items, including cash, travel agencies, hotels, auto services and deposits to other accounts over which she had signatory authority.

The remaining payments received by petitioner in 1992, checks totaling $8,800, from services he provided as a veterinarian and animals that he sold were deposited into the Cortland Savings account between August and December 1992. Neither petitioner nor his wife was listed as having signatory authority over the Cortland Savings account; however, monthly bank statements were sent to petitioner's residence, and the signature card listed petitioner's address as the account owner's address.

During the period from September to December 1992, checks totaling $8,053 were drawn on the Cortland Savings account. A majority of those funds, checks totaling $6,458, were deposited in an account with the Second National Bank of Warren.32 G. Bodor had signatory authority over the Second National 006 account, and during the years in issue she wrote checks totaling $94,677 and deposited them into one of two Dollar Savings and Trust accounts. Petitioner and his wife had signatory authority over both Dollar Savings and Trust accounts. We find that the $8,800 was earned by petitioner and then funneled through the various accounts as part of petitioner's overall plan to conceal income. Once we view through the layers of nominee accounts through which the funds were channeled, petitioner remained in control of the funds.

B. Royalty Income

A fundamental principle of income tax law is that economic substance prevails over form. See Gregory v. Helvering [35-1 USTC ¶ 9043], 293 U.S. 465 (1935). "When the form of the transaction has not, in fact, altered any cognizable economic relationships, we will look through that form and apply the tax law according to the substance of the transaction." Zmuda v. Commissioner [Dec. 39,468], 79 T.C. 714, 720 (1982), affd. [84-1 USTC ¶ 9442] 731 F.2d 1417 (9th Cir. 1984). This rule applies regardless of whether the entity has a separate existence recognized under State law and whether, in form, it is a trust, a common-law business trust, or some other form of jural entity. See id.

We find the various transactions which purported to result in a transfer of petitioner's interest in the 5501 and 5955 properties and his royalty interest in those properties to be without economic substance. Petitioner always remained in possession of the properties, and he continued to control the properties as he had done before the transfers.

Petitioner and his wife continued to live in their residence located on the 5955 property. Petitioner continued to use the properties for livestock breeding, sale of livestock, and operation of a veterinary clinic. Petitioner, regardless of legal title, exercised dominion and control over the properties.

Payments of $7,191 were made for the use of oil and gas wells located on petitioner's properties during the years in issue. With the exception of one check for $1,800, payments totaling $5,391 were deposited into the Second National 106 account. Mrs. Temple had signatory authority over this account, petitioner's address was listed on the signature card, and bank statements were mailed to petitioner's residence.

Mrs. Temple signed checks totaling $2,000 payable to cash in 1989 and 1990 and checks totaling $4,766 in 1990 to contractors from this account. Petitioner was in the process of remodeling and expanding his personal residence in 1989.

The one check for $1,800 that was not deposited in the Second National 106 account was deposited into the Bank One 855 account. Mrs. Temple signed checks totaling $11,534 for personal items including, cash, hotels, several travel agencies, and an automobile service shop drawn on this account.

Petitioner argues that if the income items in appendixes F through J are attributed to him, then respondent has failed to subtract expenses or deductions from petitioner's gross receipts for each year in issue. However, petitioner did not provide any evidence regarding allowable expenses or deductions, and neither petitioner nor his wife testified.

Even in criminal tax evasion cases, where the Government bears the greater burden of proof beyond a reasonable doubt, it is well settled "that evidence of unexplained receipts shifts to the taxpayer the burden of coming forward with evidence as to the amount of offsetting expenses, if any." Siravo v. United States [67-1 USTC ¶ 9446], 377 F.2d 469, 473 (1st Cir. 1967); see also Franklin v. Commissioner [Dec. 49,008(M)], T.C. Memo. 1993-184. Where the taxpayer has failed to file a return, or his return shows no receipts from a particular activity, then the assumption that he, more readily than respondent, has access to evidence of deductions or other offsetting amounts makes the nonexistence of such amounts a fair presumption, at least as an initial matter and absent a satisfactory explanation of such nonexistence or the production of some probative evidence. See Franklin v. Commissioner, supra.

We hold that petitioner had unreported taxable income of $47,750 in 1988, $88,404 in 1989, $77,149 in 1990, $18,258 in 1991, and $20,083 in 1992. See appendixes F through J.

II. Additions to Tax for Fraud

The next issue is whether any part of the underpayment of income tax for each year in issue is due to fraud. Respondent's notice of deficiency determined that petitioner is liable for the addition to tax for fraud imposed under section 6653(b)(1)33 for the taxable year 1988 and for the addition to tax for fraudulent failure to file under section 6651(f)34 for the taxable years 1989, 1990, 1991, and 1992. Each section imposes an addition to tax equal to 75 percent of the portion of an underpayment that is attributable to fraud. Because these provisions are analyzed similarly as to the determination of fraudulent intent, we consolidate our discussion of respondent's fraud determinations. See Clayton v. Commissioner [Dec. 49,784], 102 T.C. 632, 653 (1994).

Respondent has the burden of proving by clear and convincing evidence that an underpayment exists for the years in issue and that some portion of the underpayment is due to fraud. See sec. 7454(a); Rule 142(b); Niedringhaus v. Commissioner [Dec. 48,411], 99 T.C. 202, 210 (1992). Consequently, respondent must establish: (1) Petitioner has underpaid his taxes for each year; and (2) some part of the underpayment is due to fraud. See DiLeo v. Commissioner [Dec. 47,423], 96 T.C. 858, 873 (1991), affd. [92-1 USTC ¶ 50,197] 959 F.2d 16 (2d Cir. 1992). Fraud is the intentional wrongdoing on the part of a taxpayer to evade a tax believed to be owing. See Petzoldt v. Commissioner [Dec. 45,566], 92 T.C. 661, 698 (1989). Where fraud is determined for each of several years, respondent's burden applies separately for each of the years. See Drieborg v. Commissioner [55-2 USTC ¶ 9632], 225 F.2d 216, 219-220 (6th Cir. 1955), affg. in part and revg. in part a Memorandum Opinion of this Court dated Feb. 24, 1954.

A. Underpayment of Taxes

Based on the evidence presented and our previous analysis, we find that respondent has clearly and convincingly established that petitioner understated his taxable income by $47,75035 in 1988, $88,40436 in 1989, $77,14937 in 1990, $18,25838 in 1991, and $20,08339 in 1992. Petitioner underpaid his taxes for each year in issue.

B. Fraudulent Intent

Respondent must prove that a portion of the underpayment is attributable to the fraudulent intent of petitioner. Fraud is the intentional wrongdoing motivated by a specific purpose to evade a tax known or believed to be owing. See Stolzfus v. United States [68-2 USTC ¶ 9499], 398 F.2d 1002, 1004 (3d Cir. 1968). The existence of fraud is a question of fact to be resolved upon consideration of the entire record. See Gajewski v. Commissioner [Dec. 34,088], 67 T.C. 181, 199 (1976), affd. without published opinion 578 F.2d 1383 (8th Cir. 1978).

Direct proof of a taxpayer's intent is rarely available; thus, fraud may be proven by circumstantial evidence, and reasonable inferences may be drawn from the relevant facts. See Spies v. United States [43-1 USTC ¶ 9243], 317 U.S. 492, 499 (1943); Stephenson v. Commissioner [Dec. 39,562], 79 T.C. 995, 1006 (1982), affd. [84-2 USTC ¶ 9964] 748 F.2d 331 (6th Cir. 1984). Any conduct, the likely effect of which would be to mislead or to conceal may establish an affirmative act of evasion. See Spies v. United States, supra at 499.

The courts have relied upon a number of indicia of fraud in deciding whether an underpayment of tax is due to fraud. While no single factor is necessarily sufficient to establish fraud, the existence of several indicia is persuasive circumstantial evidence of fraud. See Petzoldt v. Commissioner, supra.

Respondent argues that the following factors or "badges" of fraud are present in this case: (1) A substantial and consistent understatement of income; (2) extensive dealings in cash; (3) use of nominee accounts;40 (4) failure to cooperate with revenue agents; and (5) petitioner's level of education.

1. Substantial and Consistent Understatement of Income

Consistent failure to report substantial amounts of income over a number of years is, standing alone, highly persuasive evidence of fraudulent intent. See Kurnick v. Commissioner [56-1 USTC ¶ 9470], 232 F.2d 678 (6th Cir. 1956), affg. [Dec. 20,858(M)] T.C. Memo. 1955-31; Reash v. Commissioner [55-1 USTC ¶ 9156], 218 F.2d 954 (6th Cir. 1954), affg. per curiam a Memorandum Opinion of this Court dated Dec. 28, 1953. In this case, there is a substantial and consistent underpayment of tax for each of the years in issue.

2. Extensive Dealings in Cash

Dealing in cash to avoid scrutiny of one's finances is a badge of fraud. See Bradford v. Commissioner [86-2 USTC ¶ 9602], 796 F.2d 303, 307-308 (9th Cir. 1986), affg. [Dec. 41,615(M)] T.C. Memo. 1984-601. Petitioner made numerous and substantial cash transactions during the 5 years in issue.

During the years in issue, Mrs. Temple signed checks payable to cash totaling $59,223 that were drawn on four different accounts, all of which were fashioned as trust accounts. Mrs. Temple was not a named trustee on any of these accounts. For the short period of time that B. L. Holtzauer replaced petitioner and Mrs. Temple on the Dollar Savings 320 account, checks totaling $4,045 were issued payable to cash. The last check issued to cash in the amount of $2,045 was used toward the purchase of a bank check for $2,645. The Dollar Savings 320 account was closed, and the proceeds deposited into an account in Nassau, Bahamas.

Wendy Arbogast was one of petitioner's clients. Ms. Arbogast testified that she had purchased a bird from petitioner for $1,400 but paid $800 of the purchase price in cash. Ms. Arbogast testified that petitioner told her when she started going to him for veterinary services that he preferred cash payments.

3. Use of Nominee Accounts

Use of nominees to conceal assets that a taxpayer has unfettered control over is evidence of fraud. See Friedman v. Commissioner [Dec. 29,043(M)], T.C. Memo. 1968-145, affd. [70-1 USTC ¶ 9202] 421 F.2d 658 (6th Cir. 1970).

Petitioner received checks from various customers for providing veterinarian services, the sale of animals, and royalties and deposited them into various bank accounts fashioned as trustee accounts. These deposits were derived from income earned by and taxable to petitioner. The accounts were fashioned as trust accounts in an effort by petitioner to disguise the true ownership of the accounts.

4. Failure To Cooperate With Revenue Agents

Failure to cooperate with revenue agents during the audit phase of a case is an additional indication of guilty knowledge on a taxpayer's part. See Professional Servs. v. Commissioner [Dec. 39,516], 79 T.C. 888, 933 (1982).

Revenue Agent Gentile conducted the examination of petitioner for the years in issue. Mr. Gentile testified that as an initial step in his examination of petitioner, he sent petitioner two appointment letters. However, petitioner did not appear at either appointment and did not provide any books or records during the course of the examination.

5. Level of Education

A taxpayer's level of education and his prior history of filing proper Federal income tax returns are relevant. See Stephenson v. Commissioner [Dec. 39,562], 79 T.C. 995 (1982).

Petitioner is a doctor of veterinary medicine. A person with his level of education should know that he cannot escape liability from income taxation and still enjoy control and dominion over all the income he received by establishing nominee accounts. Petitioner filed Federal income tax returns for 1975, 1976, 1977, 1978, and 1979. His filing of proper returns for years prior to the years in issue demonstrates that he was aware of his income tax responsibilities.

C. Conclusion

The facts and circumstances of this case clearly and convincingly support respondent's determination of fraud for each year in issue.

III. Additions to Tax for Failure To Pay Estimated Tax

For 1988, 1989, 1990, 1991, and 1992, respondent determined additions to tax for failure to pay estimated tax under section 6654. If there is an underpayment of estimated tax for any of the years in issue, section 6654(a) imposes an addition to tax equal to the interest rate established under section 6621 applied to the amount of the underpayment for the period of the underpayment. This addition to tax is mandatory and, unless one of the exceptions in section 6654(e) applies, is imposed regardless of reasonable cause or extenuating circumstances. See Dodge v. Commissioner [Dec. 47,163], 96 T.C. 172, 183 (1991), affd. on this issue [93-1 USTC ¶ 50,021] 981 F.2d 350 (8th Cir. 1992); Grosshandler v. Commissioner [Dec. 37,317], 75 T.C. 1, 21 (1980).

The Commissioner's determinations of additions to tax under section 6654 are presumed to be correct, and the taxpayer bears the burden of proving that he is not liable for those additions. See Rule 142(a). Petitioner did not offer any evidence that he paid estimated tax for 1988, 1989, 1990, 1991, and 1992. Accordingly, we sustain respondent's determination.

IV. Penalty Pursuant to Section 6673

Under section 6673, this Court may award a penalty to the United States of up to $25,000 when the proceeding has been instituted or maintained by the taxpayer primarily for delay or if the taxpayer's position in such proceeding is frivolous or groundless. See sec. 6673. Based on the record, we conclude that such an award is appropriate in this case. Petitioner's argument that he can escape liability for income tax by purporting to assign earnings from his personal activities to a series of trusts is frivolous. Accordingly, a penalty is awarded to the United States under section 6673 in the amount of $5,000.

We have considered all arguments in this case. Those arguments not discussed herein are without merit or irrelevant. To reflect the foregoing,

An appropriate order will be issued granting respondent's motion for a penalty, and decision will be entered under Rule 155.

APPENDIX A

                    1988 Gross Receipts

As Stated in Notice of Decificiency1               

Payor                                         Amount   Concessions   Total

Sea World of Ohio                            $   500          0      $  500
Sea World of Ohio                                500          0         500
Sea World of Ohio                              1,000          0       1,000
Sea World of Ohio                              1,500          0       1,500
Swan Lake Llamas                               5,750          0       5,750
Sea World of Ohio                              1,500          0       1,500
Society Bank                                   5,750    ($5,750)          0
Bank One                                         200       (200)          0
Sea World of Ohio                              1,500          0       1,500

Sea World of Ohio                              1,500          0       1,500
Sea World of Ohio                              1,500          0       1,500
Sea World of Ohio                              5,000          0       5,000
Jerome T. Grone                                2,500          0       2,500
Sea World of Ohio                              1,500          0       1,500
Sunny Hill Farm                                1,500          0       1,500
John C. Gifford                                  100          0         100
Sunny Hill Farm                               13,500          0      13,500
Piccolo Company                               10,000    (10,000)          0
John C. Gifford                                1,100          0       1,100
John C. Gifford                                7,300          0       7,300
Custom Parrot Network                          3,500     (3,500)          0
Dollar Bank
Cashier Check                                 15,000    (15,000)          0
                                              ______    _______      ______
  Total                                       82,200    (34,450)     47,750

1 On some checks, more than one party is listed on a payor's check (i.e., John and Maria Gifford).
We note, that in some instances, respondent may list one payor (i.e., John Gifford) as the payor
when in fact it was the other party, presumably his spouse (i.e., Maria Gifford) who signed the
check. These differences have no impact on our decision, and for consistency, we use only the
name of the party used by respondent in the notice of deficiency throughout these appendixes.

APPENDIX B

                    1989 Gross Receipts

As Stated in Notice of Decificiency1               

Payor                                          Amount    Concessions   Total

Llamas of Michigan                            $  2,450          0      $2,450
Llamas of Michigan                              22,050          0      22,050
Dennis Grodings                                    900          0         900
Sea World of Ohio                                1,500          0       1,500
John C. Gifford                                  9,500          0       9,500
Sea World of Ohio                                1,500          0       1,500
Sea World of Ohio                                  105          0         105
Sea World of Ohio                                1,500          0       1,500
John C. Gifford                                  1,200          0       1,200
Sea World of Ohio                                1,500          0       1,500
State of Ohio                                    3,649          0       3,649
Valley Las Vegas                                 1,815    ($1,815)          0
Ronald G. DeRhodes                              22,000          0      22,000
Canton Veterinary Hospital                       5.000          0       5,000
Sea World of Ohio                                3,000          0       3,000
Wendy H. Arbogast                                1,800          0       1,800
Constance A. Halle                                 150          0         150
William C. Crawford                                200          0         200
William C. Crawford                              1,000          0       1,000
Sea World of Ohio                                1,500          0       1,500
Sea World of Ohio                                1,500          0       1,500
Sea World of Ohio                                1,500          0       1,500
Ronald C. Blidar                                 1,800          0       1,800
Ronald C. Blidar                                 1,000          0       1,000
Sea World of Ohio                                1,500          0       1,500
John C. Gifford                                    600          0         600
                                              ________    _______      ______
  Total                                         90,219     (1,815)     88,404

APPENDIX C

                    1990 Gross Receipts

As Stated in Notice of Decificiency               

Payor                                          Amount    Concessions   Total

John C. Gifford                               $  9,500          0      $9,500
Educational
Zoological
Programs, Inc.                                     100          0         100
Kerney L. Martini                                8,500          0       8,500
Scavenger Oil Corp.                              1,800    ($1,800)          0
Sea World of Ohio                                1,500          0       1,500
Kerney L. Martini                                7,500          0       7,500
Intuit                                               2          0           2
Sea World of Ohio                                1,500          0       1,500
Educational
Zoological
Programs, Inc.                                     350          0         350
Sea World of Ohio                                1,500          0       1,500
Sea World of Ohio                                1,200          0       1,200
Sea World of Ohio                                1,500          0       1,500
Wendy H. Arbogast                                  200          0         200
Educational
Zoological
Programs Inc.                                      100          0         100
Sea World of Ohio                                1,500          0       1,500
Sea World of Ohio                                1,500          0       1,500
Robert Sabo                                        145          0         145
Sea World of Ohio                                1,500          0       1,500
Ronald G. DeRhodes                               1,200          0       1,200
State of Ohio                                      728          0         728
Wendy H. Arbogast                                1,800          0       1,800
Sea World of Ohio                                1,500          0       1,500
Sea World of Ohio                                1,500          0       1,500
Robert Sabo                                        135          0         135
Robert Sabo                                        210          0         210
Sea World of Ohio                                1,500          0       1,500
Educational
Zoological
Programs, Inc.                                     100          0         100
William Boever                                  15,500          0      15,500
Robert Sabo                                         90          0          90
Sea World of Ohio                                1,500          0       1,500
Sea World of Ohio                                1,500          0       1,500
Sea World of Ohio                                9,000          0       9,000
                                              ________    _______      ______
  Total                                        176,160     (1,800)     74,360

1 In the notice of deficiency, the total is $74,360, however, this appears to be an adding error.
                    1990 Royalty Income

Payor                 Amount     Concessions    Total

Scavenger Oil Corp.   1$ 1,800     $     0     $1,800
Pennzoil Products          257           0        257
Pennzoil Products          289           0        289
Pennzoil Products          443           0        443
                       _______     _______     ______
  Total                  2,789           0      2,789

    Total Income2       78,949      (1,800)    77,149
                       -------     -------     ------

1 Respondent originally included payment from Scavenger Oil in its computation of petitioner's
gross receipts from the sale of animals and for royalty income. In respondent's concessions, the
double counting of this one check was eliminated. We note that the record is not clear on whether
the payment was for the purchase of an animal or for royalty payments. Nevertheless, it is clear
that petitioner received an $1,800 payment from Scavenger Oil in 1990. Whether the check
represents payment for the purchase of an animal or royalty income has no bearing on the
outcome of this case. In either case, it is taxable income to petitioner as ordinary income.

2 Includes totals from previous page.

APPENDIX D

                    1991 Gross Receipts

As Stated in Notice of Decificiency               

Payor                                          Amount   Concessions   Total

Robert Sabo                                   $    600           0     $  600
Robert Sabo                                         70           0         70
Robert Sabo                                         35           0         35
Fish and Feathers International                    250           0        250
Robert Sabo                                      1,000           0      1,000
Robert Sabo                                        500           0        500
Bad Film                                        10,500    ($10,500)         0
Educational Zoological Programs
Inc.                                               200           0        200
State of Ohio                                    1,000           0      1,000
Robert Sabo                                         35           0         35
Robert Sabo                                        123           0        123
Avian Farms                                      2,750           0      2,750
Mary Z. Reed                                       500           0        500
Avian Farms                                         35           0         35
ITT Hartford                                       595           0        595
Robert Sabo                                         66           0         66
Avian Farms                                      1.000           0      1,000
Sea World of Ohio                                1,800           0      1,800
Avian Farms                                      1,000           0      1,000
Mary Z. Reed                                     1,500           0      1,500
Sea World of Ohio                                1,800           0      1,800
Sea World of Ohio                                1,200           0      1,200
  Total                                         26,559     (10,500)    16,059
                                              --------    ---------    ------
                    1991 Royalty Income

Payor               Amount   Concessions   Total

Pennzoil Products   $  249    $     0      $  249
Pennzoil Products      209          0         209
Pennzoil Products      241          0         241
Pennzoil Products      337          0         337
Pennzoil Products      217          0         217
Pennzoil Products      578          0         578
Pennzoil Products      369          0         369
                    ______    _______      ______
  Total              2,199          0       2,199

    Total Income1   28,758    (10,500)     18,258
                    ------    -------      ------

1 There is a $1 difference in the totals due to rounding.

APPENDIX E

                    1992 Gross Receipts

As Stated in Notice of Decificiency               

Payor                                          Amount   Concessions   Total

Educational Zoological Programs,
Inc.                                          $   100         0       $   100
Anheuser-Busch                                  2,000         0         2,000
Anheuser-Busch                                  2,700         0         2,700
Anheuser-Busch                                  1,400         0         1,400

Timothy L. Charles                                500         0           500
Anheuser-Busch                                  1,400         0         1,400
Avian Farms                                       560         0           560
Avian Farms                                       350         0           350
Avian Farms                                        70         0            70
Anheuser-Busch                                  1,600         0         1,600
Anheuser-Busch                                  1,200         0         1,200
Anheuser-Busch                                  1,200         0         1,200
Anheuser-Busch                                  1,200         0         1,200
Cortland Savings Bank                             391    ($ 391)            0
Anheuser-Busch                                  1,200         0         1,200
Anheuser-Busch                                  1,200         0         1,200
Anheuser-Busch                                  1,200         0         1,200
                                             ________    ______        ______
  Total                                        18,271      (391)       17,880

                    1992 Royalty Income

Payor               Amount   Concessions   Total

Pennzoil Products   $  155   $     0       $  155
Pennzoil Products      281         0          281
Pennzoil Products      257         0          257
Pennzoil Products      332         0          332
Pennzoil Products      745         0          745
Pennzoil Products      432         0          432
                    ______    ______       ______
  Total              2,203         0        2,203

    Total Income1   20,474      (391)      20,083
                    ------    ------       ------

1 There is a $1 difference in the totals due to rounding.

APPENDIX F

                             1988 Gross Receipts

Payor               Amount    Payee              Deposited in Account No.

Sea World of Ohio   $  500   Dr. Temple
Sea World of Ohio      500   Dr. Temple
Sea World of Ohio    1,000   Dr. Temple
Sea World of Ohio    1,500   Dr. Temple
Swan Lake Llamas     5,750   Plume Enterprises           400359855
Sea World of Ohio    1,500   Dr. Temple
Sea World of Ohio    1,500   Dr. Temple
Sea World of Ohio    1,500   Dr. Temple
Sea World of Ohio    1,500   Dr. Temple
Sea World of Ohio    5,000   Plume Enterprises           400359855
Jerome T. Grone      2,500   Plume Enterprises           400359855
Sea World of Ohio    1,500   Dr. Temple
Sunny Hill Farm      1,500   Plume Enterprises           400359855
John C. Gifford        100   Plume Enterprises           400359855
Sunny Hill Farm     13,500   Plume Enterprises           400359855
John C. Gifford      1,100   Plume Enterprises           400359855
John C. Gifford      7,300   Plume Enterprises           400359855
                    ______
  Total             47,750

APPENDIX G

                            1989 Gross Receipts

Payor                 Amount    Payee              Deposited in Account No.

Llamas of Michigan    $2,450   Plume Enterprises          400359855
Llamas of Michigan    22,050   Plume Enterprises          400359855
Dennis Grodings          900   Plume Enterprises          400359855
Sea World of Ohio      1,500   Plume Enterprises          400359855
John C. Gifford        9,500   Plume Enterprises          400359855
Sea World of Ohio      1,500   Plume Enterprises          400359855
Sea World of Ohio        105   Plume Enterprises          400359855
Sea World of Ohio      1,500   Plume Enterprises          400359855
John C. Gifford        1,200   Plume Enterprises          400359855
Sea World of Ohio      1,500   Plume Enterprises          400359855
State of Ohio          3,649   Plume Enterprises          400359855
Ronald G. DeRhodes    22,000   Plume Enterprises          400359855
Canton Veterinary
Hospital               5,000   Plume Enterprises          400359855
Sea World of Ohio      3,000   Plume Enterprises          400359855
Wendy H. Arbogast      1,800   Plume Enterprises          400359855
Constance A. Halle       150   Plume Enterprises          400359855
William C. Crawford      200   Plume Enterprises          400359855
William C. Crawford    1,000   Plume Enterprises          400359855
Sea World of Ohio      1,500   Plume Enterprises          400359855
Sea World of Ohio      1,500   Plume Enterprises          400359855
Sea World of Ohio      1,500   Plume Enterprises          400359855
Ronald C. Blidar       1,800   Plume Enterprises          400359855
Ronald C. Blidar       1,000   Plume Enterprises          400359855
Sea World of Ohio      1,500   Plume Enterprises          400359855
John C. Gifford          600   Galingale Group            400359863
                      ______
  Total               88,404

APPENDIX H

                            1990 Gross Receipts

Payor                Amount    Payee              Deposited in Account No.

John C. Gifford      $9,500   Plume Enterprises           400359855
Educational
Zoological
Programs, Inc.          100   Plume Enterprises           400359855
Kerney L. Martini     8,500   Plume Enterprises           400359855
Sea World of Ohio     1,500   Plume Enterprises           400359855
Kerney L. Martini     7,500   Plume Enterprises           400359855
Intuit                    2   Plume Enterprises           400359855
Sea World of Ohio     1,500   Plume Enterprises           400359855
Educational
Zoological
Programs, Inc.          350   Plume Enterprises           400359855
Sea World of Ohio     1,500   Plume Enterprises           400359855
Sea World of Ohio     1,200   Plume Enterprises           400359855
Sea World of Ohio     1,500   Plume Enterprises           400359855
Wendy H. Arbogast       200   Plume Enterprises           400359855
Educational                   Plume Enterprises           400359855
Zoological
Programs Inc.           100   Plume Enterprises           400359855
Sea World of Ohio     1,500   Plume Enterprises           400359855
Sea World of Ohio     1,500   Plume Enterprises           400359855
Robert Sabo             145   Plume Enterprises           400359855
Sea World of Ohio     1,500   Plume Enterprises           400359855
Ronald G. DeRhodes    1,200   Plume Enterprises           400359855
State of Ohio           728   Plume Enterprises           400359855
Wendy H. Arbogast     1,800   Plume Enterprises           400359855
Sea World of Ohio     1,500   Plume Enterprises           400359855
Sea World of Ohio     1,500   Plume Enterprises           400359855
Robert Sabo             135   Plume Enterprises           400359855
Robert Sabo             210   Plume Enterprises           400359855

Sea World of Ohio     1,500   Plume Enterprises           400359855
Educational
Zoological
Programs, Inc.          100   Plume Enterprises           400359855
William Boever       15,500   Galingale Llamas1           400359863
Robert Sabo              90   Plume Enterprises           400359855
Sea World of Ohio     1,500   Plume Enterprises           400359855
Sea World of Ohio     1,500   Plume Enterprises           400359855
Sea World of Ohio     9,000   Plume Enterprises           400359855
                     ______
  Total              74,360

1 The deposit slip shows that Galingale Llamas belongs to Galingale Group.
                            1990 Gross Receipts

Payor                 Amount    Payee               Deposited in Account No.

Scavenger Oil Corp.   $1,800   Plume Enterprises           400359855
                               Trundle Management
                               Eton Trust Co.,
Pennzoil Products        257   Ltd. Trustee1              1163506106
                               Trundle Management
                               Eton Trust Co.,
Pennzoil Products        289   Ltd. Trustee               1163506106
                               Trundle Management
                               Eton Trust Co.,
Pennzoil Products        443   Ltd. Trustee               1163506106
                      ______
  Total                2,789

    Total Income2     77,149
                      ------

1 Petitioner's address is listed as the mailing address for all checks made payable to Trundle Management.

2 Includes totals from previous page.

APPENDIX I

                                    1991 Gross Receipts

Payor                                   Amount    Payee              Deposited in Account No.

Robert Sabo                             $  600   Wendy Arbogast              400359855
Robert Sabo                                 70   Plume Enterprises           400359855
Robert Sabo                                 35   Plume Enterprises           400359855
Fish and Feathers International            250   Plume Enterprises           400359855
Robert Sabo                              1,000   Plume Enterprises           400359855
Robert Sabo                                500   Plume Enterprises           400359855
Educational Zoological Programs, Inc.      200   Plume Enterprises           400359855
State of Ohio                            1,000   Plume Enterprises           400359855
Robert Sabo                                 35   Plume Enterprises           400359855
Robert Sabo                                123   Plume Enterprises           400359855
Avian Farms                              2,750   Plume Enterprises           400359855
Mary Z. Reed                               500   Plume Enterprises           400359855
Avian Farms                                 35   Plume Enterprises           400359855
ITT Hartford                               595   Plume Enterprises           400359855
Robert Sabo                                 66   Plume Enterprises           400359855
Avian Farms                              1,000   Plume Enterprises           400359855
Sea World of Ohio                        1,800   Plume Enterprises           400359855
Avian Farms                              1,000   Plume Enterprises           400359855
Mary Z. Reed                             1,500   Plume Enterprises           400359855
Sea World of Ohio                        1,800   Plume Enterprises           400359855
Sea World of Ohio                        1,200   Plume Enterprises           400359855
                                        ______
  Total                                 16,059

                           1991 Royalty Income

Payor               Amount    Payee               Deposited in Account No.

Pennzoil Products   $  249   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee1             1163506106
Pennzoil Products      209   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee              1163506106
Pennzoil Products      241   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee              1163506106
Pennzoil Products      337   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee              1163506106
Pennzoil Products      217   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee              1163506106
Pennzoil Products      578   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee              1163506106
Pennzoil Products      369   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee              1163506106
                    ______
  Total              2,199

    Total Income2   18,258
                    ------

1 Petitioner's address is listed as the mailing address for all checks made payable to Trundle Management.

2 There is a $1 difference in the totals due to rounding.

APPENDIX J

                               1992 Gross Receipts

Payor                    Amount    Payee              Deposited in Account No.

Educational Zoological
Programs, Inc.           $  100   Plume Enterprises          400359855
Anheuser-Busch            2,000   Plume Enterprises          400359855
Anheuser-Busch            2,700   Plume Enterprises          400359855
Anheuser-Busch            1,400   Plume Enterprises          400359855
Timothy L. Charles          500   Galingale Group            400359863
Anheuser-Busch            1,400   Plume Enterprises          400359855
Avian Farms                 560   Galingale Group            400359863
Avian Farms                 350   Galingale Group            400359863
Avian Farms                  70   Plume Enterprises          400359855
Anheuser-Busch            1,600   Plume Enterprises          23-043-10
Anheuser-Busch            1,200   Plume Enterprises          23-043-10
Anheuser-Busch            1,200   Plume Enterprises          23-043-10
Anheuser-Busch            1,200   Plume Enterprises          23-043-10
Anheuser-Busch            1,200   Plume Enterprises          23-043-10
Anheuser-Busch            1,200   Plume Enterprises          23-043-10
Anheuser-Busch            1,200   Plume Enterprises          23-043-10
                         ______
  Total                  17,880

                            1992 Royalty Income

Payor               Amount    Payee               Deposited in Account No.

Pennzoil Products   $  155   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee1              1163506106
Pennzoil Products      281   Trundle Management
                             Eton Trust Co.,
                             Ltd.,
                             Trustee                     1163506106

Pennzoil Products      257   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee               1163506106
Pennzoil Products      332   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee               1163506106
Pennzoil Products      745   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee               1163506106
Pennzoil Products      432   Trundle Management
                             Eton Trust Co.,
                             Ltd., Trustee               1163506106
                    ______
  Total              2,203

    Total Income2   20,083

1 Petitioner's address is listed as the mailing address for all checks made payable to Trundle Management.

2 There is a $1 difference in the totals due to rounding.

FootNotes


1. Respondent concedes the following amounts of income set forth in the computation of petitioner's gross receipts from veterinary services and the sale of animals in the statutory notice of deficiency: $34,450 in 1988 (see appendix A); $1,815 in 1989 (see appendix B); $1,800 in 1990 (see appendix C); $10,500 in 1991 (see appendix D); and $391 in 1992 (see appendix E).
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.
3. Anheuser Busch purchased Sea World in 1989.
4. Purchased a snake.
5. See appendix F.
6. All amounts throughout this opinion are rounded to the nearest dollar.
7. See appendix H. This check was payable to Galingale Llamas and deposited into a Bank One account, account No. 400359863 (Bank One 863 account). Mrs. Temple had signatory authority over this account.
8. See appendix I. This check was payable to Wendy Arbogast but deposited in Plume Enterprises' Bank One account, account No. 400359855 (Bank One 855 account). Mrs. Temple had signatory authority over this account.
9. See appendix J. These checks were payable to Galingale Group and deposited into the Bank One 863 account. Mrs. Temple had signatory authority over this account.
10. See appendixes F, G, H, I, and J.
11. For a period that included June 10, 1988, through Sept. 25, 1992.
12. For a period that included June 13, 1988, through Sept. 30, 1992.
13. Account No. 23-043-10. See appendix J.
14. For the period beginning Aug. 18 and ending Oct. 30, 1992.
15. For a period that included May 2, 1988, through Dec. 29, 1992.
16. Several substantial deposits were also made into Piccolo's account by Plume Enterprises, drawn on account No. 400359855 and by Trundle Management, drawn on account No. 1163506106. All these deposits were made by checks signed by Mrs. Temple in the years 1988-1992.
17. We note that petitioner's attorney Frank R. Bodor was the taxpayer, along with his wife Gina Bodor, in Bodor v. Commissioner [Dec. 49,313(M)], T.C. Memo. 1993-456, affd. without published opinion [95-1 USTC ¶ 50,283] 52 F.3d 324 (6th Cir. 1995). In that case, this Court found that Robert Temple signed checks for an entity created and operated by Mr. and Mrs. Bodor pursuant to a plan to create tiered structures of domestic and foreign trust shell entities to disguise the fact that Mr. and Mrs. Bodor or their minor children still owned property.
18. For a period that included Nov. 22, 1988, through Mar. 15, 1990.
19. For a period that included Mar. 15, 1990, through Dec. 7, 1992.
20. Nassau Life Insurance Co. was an entity which assisted taxpayers to avoid the payment and collection of their Federal income taxes. See Boyce v. Commissioner [Dec. 47,062(M)], T.C. Memo. 1990-658, affd. without published opinion 955 F.2d 47 (9th Cir. 1992); see also Para Techs. Trust v. Commissioner [Dec. 48,542(M)], T.C. Memo. 1992-575; and Johnson v. Commissioner [Dec. 46,124(M)], T.C. Memo. 1989-591. Due to illegal activities and a "tax situation", Nassau Life Insurance Co. ceased operations. See Bodor v. Commissioner [Dec. 49,313(M)], T.C. Memo. 1993-456.
21. The tax mailing address used by Nassau Life Insurance Co. on the warranty deeds was P.M.B. 11 Grand Turk, Turks & Caicos Islands, British West Indies.
22. The tax mailing address used by Eton Trust Co., Ltd., on the warranty deeds was Grant Petroleum Building, Providenciales, British West Indies.
23. The timing of the transfer is similar to the facts in Bodor v. Commissioner, supra. The taxpayer in that case was Frank R. Bodor. He is the attorney representing petitioner in the present case. In Bodor, we found that the taxpayer transferred his interest in eight properties by quitclaim to various foreign entities for which Nassau Life Insurance Co. served as trustee, that due to illegal activities in late 1986 or early 1987, Nassau Life ceased operations, and that Mr. Bodor knew that the problems stemmed from illegal activities and a "tax situation".
24. For a period that included June 9, 1988, through Jan. 8, 1993.
25. See appendix F.
26. See appendix G.
27. See appendix H.
28. See appendix I.
29. See appendix J.
30. One check for $600 was actually made payable to one of petitioner's customers, Wendy Arbogast, but deposited into the Bank One 855 account. See appendix I.
31. Consisting of checks totaling $11,534 from the Bank One 855 account and checks totaling $26,720 from the Bank One 863 account.
32. Additional checks totaling $825 were used to pay L. R. Mayer ($125), Control Management ($400), and McMeyers & Ford ($300). We believe these expenses were incurred, in part, to maintain the appearance of a valid trust arrangement. Most of the remaining funds were spent on travel expenses.
33. Sec. 6653(b)(1) provides, in part:

SEC. 6653(b) Fraud.—

(1) In General. — If any part of any underpayment * * * of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 75 percent of the portion of the underpayment which is attributable to fraud.

34. Sec. 6651(f) provides:

SEC. 6651(f) Increase in Penalty for Fraudulent Failure to File. — If any failure to file any return is fraudulent, paragraph (1) of subsection (a) shall be applied —

(1) by substituting "15 percent" for "5 percent" each place it appears, and

(2) by substituting "75 percent" for "25 percent".

Sec. 6651(a)(1) provides in relevant part:

SEC. 6651. FAILURE TO FILE TAX RETURN OR TO PAY TAX.

(a) Addition to the Tax. — In case of failure —

(1) to file any return required under authority of subchapter A of chapter 61 * * * on the date prescribed therefor (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return 5 percent of the amount of such tax if the failure is for not more than 1 month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate;

35. See appendix A or F.
36. See appendix B or G.
37. See appendix C or H.
38. See appendix D or I.
39. See appendix E or J.
40. Use of bank accounts fashioned as trust accounts to conceal assets.

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