T.C. Memo. 1999-343

UNITED STATES TAX COURT

MICHAEL F. LAMBAISO AND JODY D. LAMBAISO, Petitioners v

. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 11489-98. Filed October 14, 1999.

Mario A. Venditti , for petitioners.

Dustin M. Starbuck , for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

JACOBS, Judge : Respondent determined the following

deficiencies and accuracy-related penalties with respect to

petitioners' Federal income taxes:- 2 -

Accuracy-Related Penalty

Year Deficiency Sec. 6662

1991 $600 $120

1992 20,285 4,057

1993 20,919 4,170

F ollowing concessions by each party, the primary issue for

decision is whether petitioners understated their 1991, 1992, and

1993 income by $2,165, $69,187, and $54,661, respectively.

Resolution of this issue turns upon the correctness of respondent's

revenue agent's use of the markup method to reconstruct the gross

sales of alcoholic beverages of a bar/restaurant (Classic Pub) in

Virginia Beach, Virginia, operated by Classic Pub, Inc., an

electing S corporation, during the 3 years in question.

Petitioners owned 28.98 percent of Classic Pub, Inc .'s stock in

1991 and all of its stock in 1992 and 1993.

In computing Classic Pub's gross sales of alcoholic beverages,

the revenue agent first determined the potential number of drinks

that could be sold from the amount of liquor available for

consumption. Petitioners agree with the revenue agent's

computation of Classic Pub's potential gross sales of alc oholic

beverages before an allowance for drinks sold at discount prices,

as well as his computation for spillage, breakage/waste, and theft

of alcoholic beverages. However, they posit that (1) the revenue

agent arbitrarily and erroneously used the markup method to

reconstruct Classic Pub's income for the years in issue, and (2)- 3 -

the revenue agent erred in computing the amount of sales of

alcoholic beverages sold at discounted prices during "happy hours".

The other remaining i ssues are (1) whether petitioners are

entitled to deduct 1991 unreimbursed automobile expenses allegedly

incurred in connect ion with Classic Pub's operation, and (2)

whether petitioners are liable for the sectio n 6662(a) accuracyrelated penalty for 1991, 1992, and 1993.

All section references are to the Internal Revenue Code in

effect for the years under consideration. All Rule references are

to the Tax Court Rules of Practice and Pr ocedure. All dollar

amounts are rounded.

FINDINGS OF FACT

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

stipulation of facts and the at tached exhibits are incorporated

herein by this reference.

Background

At the time Michael F. and Jody D. Lambaiso (petitioners),

husband and wife, filed their petitio n, they resided in Virginia

Beach, Virginia . They filed joint Federal income tax returns for

all years in issue.

Classic Pub

Classic Pub, Inc. is a Virginia corporation. In 1990, it

elected S corporation status for Federal tax purp o ses;- 4 -

1 During the years at issue, the actual number of seats

was for 130 persons. consequently, its income and losses passed through to its

shareholders during each of the years at issue.

Michael Lambaiso (petitioner) owned 200 shares of Classic Pub,

Inc. stock, while Jenro and Evelyn Lambaiso, petitioner's parents,

each owned 400 shares. On November 22, 1991, petitioners purchased

Jenro and Evelyn Lambaiso's 800 shares of Classic Pub, Inc. stock.

Accordingly, the parties have stipulated that the income and losses

from Classic Pub should be allocated to petitioners as 28.98

percent for 1990, 100 percent for 1991, and 100 percent for 1992.

Classic Pub was licensed to serve alcohol by the Virginia

Alcoholic Beverage Control Board (VABCB). It operated 16 hours a

day, from 10 a.m. to 2 a.m., 7 days a week. Classic Pub ran some

form of discounted beverage specials each day of th e week. The

greatest number of discounted beverage sales occurred during the

Wednesday and Friday night "happy hours" from 7 p.m. to 9 p.m. It

had a maximum seating capacity of 144 persons

. 1 Classic Pub

usually had two bartenders tending the bar at any given time and a

"bar back" person in order to re lieve the bartenders from

miscellaneous t asks. Sales were rung up on the bar/restaurant's

cash register.

Classic Pub submitted Mixed Beverage Annual Review (MBAR)

reports to VABCB, indicating the dollar amounts of its sales of- 5 -

food, mixed alcoholic beverages (mixed drinks), beer, and wine.

Petitioners recorded Classic Pub's sales of food, beer, wine, and

mixed drinks in handwritten monthly sales journals. These monthly

sales journals were provided to p etitioners' accountant, who

prepared monthly profit and loss statements.

Tax Returns

Petitioners filed joint Federal income tax returns for the

years in issue reporting the following:

Classic Pub

Year Wages Sch. E Loss Taxable Income

1991 $31,119 1 $6,673 $10,024

1992 30,200 3,104 20,471

1993 37,800 2 23,056 41,507

During these years, Classic Pub, Inc. filed U.S. Income Tax Returns

for an S Corporation (Forms 1120S), reporting the following:

Cost of Total Total Ordinary

Year G ross Sales G oods Sold I ncome D eductions I ncome (Loss)

1991 $294,214 $147,167 $147,276 $180,643 1 ($33,367)

1992 403,214 228,603 175,076 171,972 3,104

1993 414,649 203,864 226,633 205,677 2 20,956

1 For 1991, petitioners reported 20 percent of Classic Pub,

Inc.'s losses. The record does not reveal why petitioners reported

20 percent rather than 28.98 percent of Classic Pub Inc.'s losses.

2 The record does not reveal why for 1993 petitioners reported

$23,056 of income, rather than $20,956, as reflected on the K-1

from Classic Pub, Inc.

These amounts were based upon the bar/restaurant's monthly profit

and loss statements of income and expenses, which, in turn, were

based upon Classic Pub's handwritten sales journals.- 6 -

The Audit and Respondent's Reconstruction of Gross Sales

R evenue Agent William Bixler was assigned to audit

petitioners' 1991, 1992, and 1993 tax years. During that audit, he

discovered that for 1991 Classic Pub's monthly gross sales reported

on its MBAR were less than the State average for similar

establishments. Further investigation by Revenue Agent Bixler

revealed that Classic Pub, Inc. reported differing amounts of gross

sales on its Federal income tax returns, MBARs, State sales tax

returns, and profit and loss statements, and that none of the

reported gross sales were consistent with Classic Pub's daily sales

journals. The varying amounts of gross sales as reported in these

documents are reflected in the following table:

Documents on Which Gross Sales Were Reported

State Profit & Monthly Journals

Form Sales Tax Loss S ale s Including Sales

Without Year 1120S MBAR Return Statement 9% Sales Tax 9 %

Sales Tax

1991 $294,214 $313,667 $296,132 $291,656 $314,682 $288,699

1992 403,213 418,213 388,387 400,249 416,928 382,503

1993 414,649 441,717 --- 414,649 --- ---

Because of the lack of internal controls for income reporting

purposes and the inconsistencies between Classic Pub, Inc.'s Forms

1120S, MBARs, State sale s tax returns, and profit and loss

statements, Revenue A gent Bixler decided to reconstruct Classic

Pub's sales of mixed drinks, beer, and wine. In doing so, he

employed an indirect method to determine Classic Pub's gross sales,

utilizing information and calculations provided to him by

petitioners, including Classic Pub's purchases of alcohol, prices- 7 -

2 Revenue Agent Bixler considered the entire week's

discounted beverage prices (rather than solely the Wednesday and

Friday happy hours) in formulating a discount allowance for mixed

drinks, wine, and beer. and content of mixed drinks, beer, and wine, happy hour and

promotional prices, and hours of operation. 2 Revenue Age nt Bixler

subsequently subtracted the gross sales reported on Classic Pub

Inc.'s tax returns from the figures he determined Classic Pub, Inc.

sho uld have reported on the returns; the difference represented

Class ic Pub's understated sales for each year in issue.

Specifically, Revenue Agent Bixler computed C lassic Pub's total

gross sales of mixed drinks for 1992 and 1993 by: (1) Determining

the potential number of drinks that could be sold from the amount

of liquor available for consumption based upon Classic Pub's

documented liquor purchases; (2) reducing the potential number of

drinks sold by 10 percent to allow for spillage; (3) multiplying

the adjusted potential number of drinks sold by Classi c Pub's

published price list in a ratio of 69 percent for the lower day

prices and 31 percent for the higher evening prices (the lower day

prices were in effect for 11 of Classic Pub's 16 hours of operation

while the higher evening prices were in effect for the remaining

hours of operation) to arrive at tentative gross sales; (4)

increasing the tentative gross sales to reflect beverages that were

sold for an extra charge; (5) reducing the tentative gross sales by

20 percent to account for discounted mixed drink prices (happy hour- 8 -

3 This reconstruction involved: (1) Determining the

potential amount of beer and wine that could be sold based upon

Classic Pub's documented purchases of beer and wine; (2) reducing

the potential draft beer and wine sold by 10 percent to allow for

spillage, and bottled beer by 5 percent for breakage; (3)

multiplying the adjusted potential amount sold by Classic Pub's

published prices in a ratio of 69 percent for the lower day

prices and 31 percent for the higher evening prices to arrive at

a tentative gross sales figure; (4) reducing the tentative gross

sales by 10 percent to account for discounted wine and beer

prices (happy hour and other drink specials); and (5) subtracting

an additional 6 percent to account for losses due to theft.

(Step (4) of his computation is at issue.) and other drink specials); and (6) subtracting an additional 6

percent to account for losses due to theft. Using this method, he

calculated that Classic Pub's gross sales frommixed drink sales

for 1992 an d 1993 were understated by $21,888 and $28,313,

respectively. (Step (5) of his computation is at issue herein.)

Revenue Agent Bixler reconstructed the gross sales of Classic

Pub's beer and wine in a manner similar to his reconstruction of

mixed drink sales, with a few modifications. 3 He reduced the

tentative gross sales by 10 percent to account for discounted wine

and beer prices. Utilizing this method, he calculated that Classic

Pub's income from beer and wine sales for 1991, 1992, and 1993, was

understated by $6,361, $33,257, and $38,147, respectively.

In determining an appropriate discount to apply to gross sales

for mixed drinks, wine, and beer sold at discount prices, Revenue

Agent Bixler discovered that in VABCB's audits of bars/restaurants,

VABCB discounted drink prices by reducing gross sales by 5 percent.- 9 -

Initially, he relied upon VACBC's 5-percent allowance in

reconstructing the gross sales of Classic Pub's mixed drinks, beer,

and wine. However, after learning from petitioners that Classic

Pub ran more discounted drink spe cials than an average

bar/restaurant, he raised the allowance to 20 percent for

di scounted mixed drinks, and 10 percent for discounted beer and

wine sales.

In light of Classic Pub, Inc.'s status as an S corporation,

respondent determined that Classic Pub's un derstatement of mixed

drinks, beer, and wine sales for the years in issue flowed through

to petitioners as unreported taxable income as follows:

1991 1992 1993

Classic Pub's

income on Form ($33,367) $3,104 $20,956

1120

Classic Pub's

mixed drink

understatement --- 21,888 28,313

Classic Pub's

beer & wine

understatement 6,361 33,257 38,147

Adjustments/

concessions 11,449 14,042 (9,699)

Corrected income/loss

available for distribution (15,557) 72,291 77,717

Allocation of

income/losses 28.98% 100% 100%

Corrected Classic Pub

income/loss distributed to

petitioners (4,508) 72,291 77,717

Income/losses from

Classic Pub reported on

Form 1040 (6,673) 3,104 23,056

Petitioners' understatement 2,165 69,187 54,661- 10 -

4 A higher discount percentage for items sold at

discounted prices benefits petitioners because it results in

lower total gross sales. Automobile Expenses

Petitioners maintain that they are entitled to deduct $1,581

in unreimbursed automobile expenses incu rred during 1991 in

connection with Classic Pub's operation. These expenses were not

claimed on their tax return.

Notice of Deficiency

In the notice of deficiency mailed to petitioners r egarding

their 1991, 1992, and 1993 tax years, respondent revised

petitioners' allowable losses and income from Classic Pub, as

described above. Respondent also determined a section 6662(a)

accuracy-related penalty for each of the years in issue.

OPINION

Issue 1. Determination of Classic Pub's Gross Sales

The primary issue before us is whether petitioner s had

unreported income arising from Classic Pub during the years in

issue. In resolving this issue, we must determine whether Revenue

Agent Bixler's use of the percentage markup method in

reconstructing Classic Pub's gross sales was prope r and whether

discounts 4 he applied in computing the amount of sales of

discounted mixed drinks, wine, and beer were correct.- 11 -

5 Even if a taxpayer's books and records appear adequate,

the Commissioner may test the adequacy of the information

contained therein by any reasonable method which properly

reflects the taxpayer's income. See, e.g., Michas v.

Commissioner , T.C. Memo. 1992-161. Section 6001 requires taxpayers to maintain adequate records

t o determine their correct tax liabilities. Absent adequate

records, or if the records that are kept do not accurately reflect

income, the Commissioner may determine the existence and amount of

a taxpayer's income by using any method that clearly reflects

income. 5 Sec. 446(b); U nited States v. John son , 319 U.S. 503

(1943); Burka v. Commissioner

, 179 F.2d 483 (4th Ci r. 1950).

Petitioners bear the burden to prove that respondent's method does

not clearly reflect income. Rule 142(a); see sec. 446.

The indirect method used to calculate income must be

reasonable. See, e.g., H olland v. United States

, 348 U.S. 121

(1954). The percentage markup method is well recognized as a

reasonable means of reconstructing income, see Bollella v.

Commissioner , 374 F.2d 96 (6th Cir. 1967), affg. T.C. Memo. 1965-

162, particularly when cash businesses are involved, see W ebb v.

Commissioner

, 394 F.2d 366 (5th Cir. 1968), affg. T.C. Memo. 1966-

81; Edgmon v. Commissioner

, T.C. Memo. 1993-486. Pursuant to this

method, gross sal es are determined by adding a predetermined

percentage to cost of goods sold. See, e.g., C ebollero v.

Commissioner

, 967 F.2d 986 (4th Cir. 1992), affg. T.C. Memo. 1990-- 12 -

618; Bernstein v. Commissioner

, 267 F.2d 879, 880 (5th Cir. 1959),

affg. T.C. Memo. 1956-260.

Because Classic Pub's records reflected inconsistent amounts

of gross sales for the years in issue, Revenue Agent Bixler

reasonably and justifiably reconstructed the bar/restaurant's gross

receipts using a form of the percentage markup method. See, e.g.,

Rungrangsi v. C ommissioner , T.C. Memo. 1998-391; D iLando v.

Commissioner

, T.C. Memo. 1975-243; Jurkiewicz v. Commissioner

, T.C.

Memo. 1955-318. In performing this reconstruction, he used

petitioners' own records and calculations regarding liquor

purchases, prices, and quantities. See, e.g., G asper v.

Commissioner

, 225 F.2d 284 (6th Cir. 1955). Petitioners failed to

present any competent evidence that would cause us to question

Revenue Agent Bixler's reconstruction.- 13 -

6 We mention two additional arguments made by

petitioners. First, petitioners contend that they overstated

Classic Pub's 1991 and 1992 gross sales (on the Forms 1120S) by

erroneously including State sales tax. Although respondent

acknowledges that, for income tax purposes, State sales tax

should not be includable in gross sales, petitioners have not

established that they actually overstated Classic Pub's gross

sales by including State sales tax. Petitioners failed to

reconcile the amounts of State sales tax allegedly included in

reported gross sales with the stipulated amounts reflected in

Classic Pub's various records.

Moreover, petitioners posit that two bartenders can pour

2,880 shots of liquor during a 2-hour period. In attempting to

prove this point, petitioners played a videotape (that they

prepared the night before trial) for the Court, in which two

Classic Pub bartenders poured shots of liquor. However, no

evidence was presented as to how many shots of discounted liquor

were actually poured and served on any given night. We are unpersuaded by any of petitioners' arguments. 6

Petitioners argue that the notice of deficiency was arbitrary

because of Revenue Agent Bixler's purported inaccurate conclusions

about Classic Pub's business and record keeping. We disagree. Not

only did petitioners fail to prove that Revenue Agent Bixler's

conclusions (which are the basis of responden t's determinations)

are arbitrary, but on the basis of the record before us, we are

satisfied that they are " reasonable in light of all surrounding

facts and circumstances". See, e.g., S chroeder v. Commissioner

, 40

T.C. 30, 33 (1963). We found Revenue Agent Bixler's testimony

credible. We therefore conclude that the reconstruction of Classic

Pub's income through the use of the percentage markup method was

proper and that the allowance for alcoholic beverages, wine, and

beer sold at discount prices was realistic.- 14 -

Petitioner testified that based upon an examination of Classic

Pub's cash register tapes, the bar/restaurant sold an average of

700 drinks/shots during the Wednesday and Friday happy hours.

However, petitioners neither introduced th e cash register tapes

into evidence nor quantified how selling 700 drinks/shots during a

Wednesday or Friday happy hour would alter th e reasonableness of

respondent's reduction for discounted mixed beverage sales.

In sum, we sustain respondent's use of the percentage markup

method and respondent's determination of a 20-percent discount with

regard to Classic Pub's discounted mixed drink sales and a 10-

percent discount for discounted beer and wine sales. Petitioners

offered no reliable evidence to contradict respondent's

determinations. We conclude that Classic Pub's gross sales of

mixed drinks during 1992 and 1993 were understated by $21,888 and

$28,313, respectively, and that its gross sales of beer and wine

during 1991, 1992, and 1993, were understated by $6,361, $33,257,

and $38,147, respectively. Consequently, we hold that petitioners

understated their 1991, 1992, and 199 3 taxable income by $2,165,

$69,187, and $54,661, respectively.

Issue 2. Business Automobile Expenses

The next issue is whether petitioners are entitled to deduct

$1,581 of unreimbursed automobile expenses they purportedly

incurred during 1991 in operating Classic Pub.- 15 -

Deductions are a matter of legislative grace. See N ew

Colonial Ice Co. v. Helvering

, 292 U.S. 435, 440 (1934). Taxpayers

bear the burden of establishing that they are entitled to the

claimed deductions. See Rule 142(a); W elch v. Helvering

, 290 U.S.

111, 114 (1933). This includes the burden of substantiating the

amount and purpose of the item claimed. See sec. 6001; H radesky v.

Commissioner

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

(5th Cir. 1976); sec. 1.6001-1(a), Income Tax Regs.

Petitioners failed to substantiate the amount o r business

purpose of the automo bile expenses. The only evidence presented

was a list of automobile expenses prepared by petitioners' counsel

on the basis of petitioner's memory a nd not prepared

contemporaneously with the use of the automobile. Accordingly, we

sustain respondent on this issue.

Issue 3. Section 6662(a) Accuracy-Related Penalty

The final issue is whether petitioners are liable for the

section 6662(a) accuracy-related penalties for the years in issue

for negligence or disregard of rules or regulations or substantial

understatement of tax. Petitioners generally assert a reasonable

cause defense.

Section 6662 imposes a penalty equal to 20 percent of the

amount of the underpayment attributable to negligence or disregard

of rules or regulations or substantial understatement of tax.

"Negligence" means any failure to make a reasonable attempt to- 16 -

comply with the provisions of the Internal Revenue Code, and

"disregard" means any careless, reckless, or intentional disregard.

See sec. 6662(c). A substantial understatement of tax means an

understatement of tax that exceeds the greater of 10 percent of the

tax required to be sho wn on the tax return or $5,000. See sec.

6662(d)(1)(A).

No accuracy-related penalty is imposed with respect to any

portion of the understatement as to which the taxpayer acted with

reasonable cause and in good faith. Sec. 6664(c)(1).

Petitioners failed to establish that they were not negligent

in preparing their returns. In fact, the record establishes that

petitioners failed to maintain adequate books and records for their

bar/restaurant. Revenue Agent Bixler's reconstruction establishes

that Classic Pub's books and records were unr eliable and

understated its income.

In sum, we hold that petitioners failed to exercise reasonable

care both in reporting Classic Pub's gross sales and in ensuring

the accuracy of their individual tax returns. Accordingly, we

sustain the section 6662(a) accuracy-related penalties with respect

to the years in issue.

In reaching our conclusion, we have considered all of

petitioners' arguments and, to the extent not discussed, conclude

that each of them is without merit.- 17 -

To reflect the foregoing and the concessions of the parties,

Decision will be entered

under Rule 155

.