T.C. Memo. 1995-456

 UNITED STATES TAX COURT 

WORLD OF SERVICE, INC., Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

FEELIN' GREAT, INC., Petitioner v. 

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 4338-87, 4341-87. Filed September 26, 1995.

Chris H. Johnson, an officer, for petitioners.

Michael A. Pesavento, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

GERBER, Judge: Respondent determined deficiencies in and

additions to petitioners' corporate income tax as follows:
- 2 -

1 Unless otherwise indicated, section references are to the

Internal Revenue Code in effect for the years in issue. Rule

references are to this Court's Rules of Practice and Procedure.

2 The parties' stipulation of facts and exhibits are

incorporated by this reference. 

World of Service, Inc.--Docket No. 4338-87

 Additions to Tax 

 Sec. Sec. Sec. 

Year Deficiency 6653(a)(1) 6653(a)(2) 6661 

1982 $21,848 $1,092 1 $5,462

1983 79,134 3,957 1 19,784

1984 88,404 4,420 1 22,101

1 50 percent of the interest due on the deficiency.

Feelin' Great, Inc.--Docket No. 4341-87

 Additions to Tax 

 Sec. Sec. Sec. 

FYE Deficiency 6653(a)(1) 6653(a)(2) 6661 

1983 $160,895 $8,045 

1 $40,224

1984 74,039 3,702 

1 18,010

1 50 percent of the interest due on the deficiency.

After the parties' concessions, the issues remaining for our

consideration are: (1) Whether petitioners have shown that they

are entitled to various deductions in excess of the amounts

allowed by respondent; and (2) whether petitioners are liable for

additions to tax under sections 6653(a)(1) and (2) and 6661.1

FINDINGS OF FACT2

Petitioners, World of Service, Inc. (Service), and Feelin'

Great, Inc. (Great), are Florida corporations, and Chris H.

Johnson (Mr. Johnson) was president of each corporation at all

relevant times. At all relevant times, Mr. Johnson and his wife,
- 3 -

3 We assume this was a 2-year, rather than a 4-year, college

degree.

Vickie L. Johnson, jointly owned 100 percent of the stock of

Service. Personal Elegance (Elegance) was 100 percent jointly

owned by the Johnsons, and Elegance, in turn, owned 100 percent

of Great. Each petitioner had its principal place of business in

Florida at the time of the filing of the petition. Mr. Johnson

had earned an associate's degree3 in tax and accounting.

Great provided educational services and seminars about

nutrition. Service provided business and computer services to

Great and to a related corporation. Service was on the accrual

method of accounting for Federal tax purposes and filed on a

calendar year basis. Great was also on the accrual method of

accounting for Federal tax purposes, yet filed on the basis of a

fiscal year ending (FYE) July 31.

Mr. Johnson had been associated with Glen Turner (Turner), who,

through seminars, promoted self-improvement. Turner also

promoted and franchised his operations during the 1960s and

1970s. After Turner had legal difficulties, Mr. Johnson

continued on his own in the same field, beginning around 1975. 

Mr. Johnson established Elegance, a company that marketed

specialty gifts. That operation developed into the 1980

formation of Great, which held seminars on "self-improvement" and

marketed vitamins, nutritional products, health care products,

exercise programs, and the like.
- 4 -

In the early 1980s, Great's business area covered the States of

Florida, Georgia, and Alabama. By 1982, Great was operating

(i.e., holding seminars) in about 26 States. Throughout the

years in controversy, Service's principal place of business was

in the Johnsons' residence. The Johnsons' residence, a threebedroom condominium, contained 1,600 square feet of usable space,

of which 320 square feet was used exclusively for Service's

business purposes. In addition, the Johnsons' two-car garage

contained 300 square feet, with an equal amount of attic storage

area above the garage. Of the 600 total square feet of combined

garage area, 400 square feet was used exclusively for business

purposes. The Johnsons' residential telephone was listed in

Service's name. Service's checks contained the Johnsons'

residence address. During this period, Great had a separate

principal place of business and office in a commercial location

outside of the Johnsons' residence.

Service paid the Johnsons' residential mortgage payments of

$5,043 and $5,400 during 1982 and 1983, respectively. Service

deducted $1,443 and $1,800 on its 1982 and 1983 income tax

returns for use of the Johnsons' residence. For those same

years, the Johnsons reported $3,600 in income for Service's use

of the residence, because the mortgage was paid by Service. 

Respondent determined that only 10 percent of the residence was

used for business purposes and disallowed the mortgage and other
- 5 -

deducted expenditures related to the condominium in excess of 10

percent.

Service also deducted $2,101, $2,178, and $5,018, and

respondent disallowed $1,284, $1,362, and $3,403 for 1982, 1983,

and 1984, respectively. These deductions were for utilities,

trash removal, pest control, telephone, etc. The largest portion

of these amounts was attributable to telephone expenses.

Service made the following expenditures, which were deducted in

the tax year paid and were disallowed by respondent as being

without a business purpose:

Date Payee Amount

 05/19/82 Baby Safety Industries $225 

 10/03/82 Dicker & Dicker of Beverly Hills 1,915

 11/08/83 Dicker & Dicker of Beverly Hills 115,020 

1 Only $14,154 of this amount was included in Service's cost

of goods sold.

Four different styles of mink coats had been purchased from

Dicker & Dicker of Beverly Hills, a furrier. Some of the fur

coats were used by Great for business purposes; however,

petitioners have failed to show that the coats purchased during

1982 or 1983 were used for business purposes. A "Wanda chair"

had been purchased from Baby Safety Industries to be given, as

a gift, to the owner of a company from which Service was to

obtain technology for its computer operations.

Service leased a Mercedes-Benz automobile, paying $915 per

month. During 1983 and 1984, Service deducted, and respondent
- 6 -

disallowed for lack of a business purpose, the auto lease

payments in the total amounts of $11,347 and $11,151,

respectively. This automobile was used, in part, for business

and, in part, for personal purposes. For 1982, 1983, and 1984,

Service deducted, and respondent disallowed for lack of

business purpose, $2,631, $2,513, and $8,717 of expenditures in

connection with the maintenance and operation of a 1977

Eldorado. During the period under consideration, three

automobiles were used by the Johnsons in connection with the

businesses: The 1977 Eldorado, the leased Mercedes-Benz, and a

1980 Buick. The automobiles were used for both business and

personal purposes.

During 1983, Service purchased a beach condominium (beach

condo) for about $140,000. Improvements and furnishings of

approximately $20,000 to $22,000 were added. The Johnsons

occasionally used the beach condo for personal use. Service

claimed $1,057 for 1983 as "Mortgage Service Expense", and the

claimed amount consisted of loan prepayments, transfer stamp

tax, and related fees in connection with the purchase of the

beach condo. Respondent disallowed the amount for lack of a

business purpose. Service, in connection with the beach condo,

deducted $7,186 and $410 for 1983 and 1984, respectively, for

decorating. Of the $7,186, $1,904 was allowed by respondent

because it was for decorating corporate offices, and the

remainder of these amounts, which involved the beach condo,
- 7 -

were disallowed for lack of a business purpose. Service, for

1984, paid and deducted other amounts connected with the beach

condo, which respondent disallowed. For 1984, Service deducted

$1,362 as association fees, part of which was for the beach

condo and part of which was for the Johnsons' residence.

Respondent allowed $57, representing 10 percent business use of

the residence, and the remainder was disallowed for lack of a

business purpose.

For 1982, Service deducted the amount of certain MasterCard

charges that were designated as "Seminar Training Program

Costs" and disallowed by respondent for lack of a business

purpose. For 1982, 1983, and 1984, Service deducted $2,172,

$2,008, and $1,797 for dues, subscriptions, and memberships,

including the annual condominium fee of $720 for the Johnsons'

residence. Respondent, asserting the lack of a business

purpose, disallowed $2,076, $1,903, and $1,732 of the these

amounts (10 percent of the condominium fees were allowed).

Service deducted $6,891, $8,800, and $7,694 for automobile

insurance expenses, and respondent disallowed, for lack of a

business purpose, $6,801, $8,470, and $7,609 (10 percent of the

fees that related to the condominium were allowed).

Service also deducted for the years 1982, 1983, and 1984

travel, meals, lodging, convention, and entertainment expense

amounts totaling $8,671, $6,276, and $19,443, and respondent

disallowed, for lack of a business purpose, all but $180 for
- 8 -

the 1984 year. Mr. Johnson did extensive traveling on behalf

of the corporations in connection with the promotional

activity. He would travel, entertain, and incur expenses that

were paid with either a credit card or cash. After 1, 2, or

sometimes 3 months' accumulation of receipts, Mr. Johnson would

go through the receipts and mark their purpose. All of the

Johnsons' bills, both personal and business, were paid by the

corporations. At the end of each year, the amount for a

particular category (e.g., gasoline) would be totaled, and Mr.

Johnson would make a judgment call about the percentage of

business and personal use of that item.

Service deducted and respondent disallowed for lack of a

business purpose $858 and $2,222 for 1982 and 1983 as medical

expenses and insurance for the Johnsons. For 1984, Service

deducted (as a bonus) and respondent disallowed (for lack of a

business purpose) the purchase of 30,000 shares of stock in the

name of the Johnsons' minor child for $4,500. Mr. Johnson

testified that the $4,500 was part of reported compensation

from Service to him, yet no substantiation was provided to

support Mr. Johnson's testimony.

For 1984, Service deducted, as a bad debt, $56,000, which

amount comprised loans to Linda Krabill, Kent Oaks, and Ed

Rector. Some of the loans had been made in 1984 and some in

1985, but all were claimed to have been made in 1984. Linda

Krabill was an interior decorator who worked for the Johnsons
- 9 -

when they decorated the beach condo. The Johnsons lent her

approximately $45,000 of corporate funds because she was having

financial difficulties. Mr. Johnson's instructor-trainer

(personal trainer), Kent Oaks, was also having financial

difficulties, and Mr. Johnson lent him about $2,500. Finally,

Ed Rector was a person Mr. Johnson had met in connection with

Glen Turner's activities. Mr. Rector, who was then involved in

litigation, borrowed over $10,000 from Mr. Johnson. No efforts

were made to collect these loans during the years under

consideration. Respondent disallowed these items due to Mr.

Johnson's failure to show that they were debts and that they

became worthless.

For 1982, Service deducted $7,190 for fees incurred in

representing the Turner family children's trust, of which Mr.

Johnson was trustee, before the Internal Revenue Service. 

Respondent disallowed the deduction for lack of a business

purpose. For 1983, Service deducted $5,194 for fees, of which

$2,777 was disallowed for lack of business purpose because it

represented fees for a partition suit by Mrs. Johnson. For

1984, Service deducted $32,185 of legal fees, and respondent

disallowed $14,988, as representing some personal legal matters

of Mrs. Johnson and Ed Rector.

Service, for 1982, 1983, and 1984, deducted depreciation

totaling $7,130, $11,773, and $25,197, and respondent

disallowed $5,430, $10,073 and $24,397 as attributable to
- 10 -

nonbusiness property (including a General Motors Corp. (GMC)

truck, 1980 Buick, copper sculpture, and the beach condo). The

GMC truck had been purchased with the intent to use it in the

Service and Great businesses; however, it was not suitable. 

Mr. Johnson allowed the GMC truck to be used on a farm by his

father, which was not shown to be for a business purpose of

Service. Mr. Johnson's father purchased gasoline with an AMOCO

gasoline credit card in the general vicinity of his home in

Dunn, North Carolina, for personal use of the GMC truck.

Service, for 1982, 1983, and 1984, claimed net operating loss

carryover deductions from 1981 in the amounts of $143,814,

$134,401, and $30,851, respectively, and respondent disallowed

them because the 1981 tax year, after controversy and

settlement by the parties, resulted in an income tax deficiency

and no amount of carryover loss. Service, for 1984, claimed

investment tax credit carryovers from 1982 and 1983 in the

amounts of $659 and $2,226, respectively, which respondent

disallowed as being attributable to nonbusiness property (a GMC

truck and beach condo furniture).

Great, for its FYE July 31, 1983, treated $5,000 as part of

its cost of goods sold for the purpose of making copies of 24

promotional tapes. The old tapes had become worn from use. 

Great, for 1982, included $39,627 as part of its cost of goods

sold, for convention expenses, and respondent disallowed $158

as not being an ordinary and necessary business expense.
- 11 -

Great deducted $166,162 and $105,905 for its FYE July 31,

1983 and 1984, for film and video fees. These deductions were

allegedly for inspirational films that had been made by

individuals, such as Vince Lombardi. Great's deduction was

based on an alleged agreement, under which Great was to pay 3

percent of sales for the rental of the films. Because Great

was on the accrual method of accounting, the amounts were

projected, and deductions were taken on Great's tax returns. 

Some of the films were otherwise available and were in the

public domain. Rights to the films were allegedly in a company

in Barbados. Great did not make any payments with regard to

the alleged film rentals. Respondent disallowed these amounts

because they were not incurred. Great, for its years ended

July 31, 1983 and 1984, deducted $330,536 and $529,321 for

seminars, and respondent disallowed $10,907 and $17,468,

respectively. Respondent's agent was not provided with any

documentation for the seminar deductions for the years at

issue. The agent concluded that 96.7 percent was allowable in

each year based on prior years' audit experience where

documentation was provided and audited. Petitioners did not

provide documentation at trial that would show that

respondent's determination was in error.

Great, for its FYE July 31, 1983, deducted $170,147 for

travel, meals, and entertainment. Respondent reviewed

$65,298.85 of the claimed amount and disallowed $19,382.46, or
- 12 -

about 30 percent of the sample reviewed. Respondent overlooked

the travel deduction for the FYE July 31, 1984, and made an

error with respect to the FYE July 31, 1983, travel adjustment. 

Respondent's agent sampled or reviewed $65,298.85 of the

$170,147 deducted for travel. The review resulted in a 30-

percent disallowance rate, which the agent mistakenly applied

to the $65,298.85 sample rather than the $170,147 amount

claimed. For its FYE July 31, 1983 and 1984, Great deducted

interest expenses in the amounts of $60,101 and $40,474, and

respondent disallowed $56,516 and $28,800, respectively. The

majority of the disallowance was attributable to a transaction

involving Tipuani Limited Partners (Tipuani). Petitioners did

not show that interest was paid in connection with the Tipuani

transaction. The remainder of the claimed interest was

attributable to payments on debt secured by the company

airplane, which respondent allowed. Great had reported income

in connection with Tipuani, and respondent reduced the $212,000

reported to $125,000. The income was attributable to

forgiveness of indebtedness regarding promissory notes to

Tipuani.

For its FYE July 31, 1983, Great deducted $9,654 as bad

debts, and respondent disallowed $4,800 as already having been

deducted as professional fees, insurance, etc. For its FYE

July 31, 1983 and 1984, Great deducted $126,771 and $227,915

for airplane and pilot fees, and respondent disallowed $812 of
- 13 -

the 1983 amount for lack of substantiation and business

purpose. For 1982 and 1983, Great deducted $530,667 and

$351,983 in net operating loss carryover deductions from the

FYE July 31, 1982. Respondent disallowed the claimed loss

deductions because Great had been the subject of an audit for

years prior to those now before the Court. In a case involving

the prior years which was pending before this Court, the same

net operating losses were eliminated due to the parties' agreed

settlement. Great had agreed to an income tax deficiency,

rather than a loss, in the earlier case.

ULTIMATE FINDINGS OF FACT

1. Service, for each of its 3 taxable years, is entitled to

deduct 20 percent of the costs and expenses connected with the

business use of the Johnsons' residence (condo) including the

utilities, with the exception of the cost of telephone service,

for which Service is entitled to deduct 75 percent for 1982 and

1983 and 100 percent for 1984. Service is also allowed to

deduct 20 percent of the condominium association fees, rather

than the 10 percent allowed by respondent.

2. Service is not entitled to deduct any expenses,

depreciation, or other claimed amounts connected with the beach

condo, including decorating and furnishing expenditures and

association and condo fees. The $1,057 that Service claimed

for 1983 as "Mortgage Service Expense" for closing costs on the

beach condo is not deductible.
- 14 -

3. The Mercedes-Benz, Buick, and Eldorado automobiles were

used one-half for business and one-half for personal purposes

during the years in controversy. One-half of the amounts

claimed by Service for depreciation, gasoline, and repairs and

maintenance of those automobiles is deductible. It has not

been shown that any portion of disallowed claimed foreign

travel was deductible for business purposes of Service or

Great.

4. The GMC truck was not used for business purposes during

the years in controversy. No depreciation or tax credits are

allowable for the GMC truck. Gasoline purchased with the AMOCO

credit card within North Carolina is not deductible because it

was purchased for the personal use of the GMC truck by Mr.

Johnson's father.

5. Service purchased a Wanda chair from Baby Safety

Industries for $225 as a gift for a business purpose. That

amount is deductible for Service's 1982 tax year.

6. It has not been shown that the fur coats purchased from

Dicker & Dicker of Beverly Hills during 1982 or 1983 were for a

deductible business purpose.

7. Petitioners have not shown that they are entitled to any

of the claimed net operating loss deductions or tax credit

carryovers for the taxable years under consideration.
- 15 -

8. It has not been shown that the $4,500 that Service

deducted for stock purchased in the name of the Johnsons' minor

child was purchased for a business purpose.

9. The $56,000 that Service paid to Linda Krabill, Kent

Oaks, and Ed Rector, claimed as bad debts for 1984, were all

nonbusiness personal loans. It has not been shown that those

loans were uncollectible as of the end of the taxable year

1984. No part of the $56,000 is deductible for the 1984 tax

year.

10. It has not been shown that the legal fees claimed by

Service are allowable in amounts greater than those allowed by

respondent.

11. Service has not shown that it is entitled to the $1,063

deduction for "Seminar Training Program Costs" during 1982.

12. Service has not shown that it is entitled to the

deductions of $2,172, $2,008, and $1,797 claimed for 1982,

1983, and 1984 for "Dues & Subscriptions and Memberships and

Tuitions".

13. Of the $6,891, $8,800, and $7,694 claimed for

"Automobile and Automobile Insurance" for 1982, 1983, and 1984,

Service is entitled to deduct 20 percent of the homeowner's

insurance on the Johnsons' residence and an additional $1,000

each year for auto insurance.

14. Service has not shown that it is entitled to any portion

of the $8,671, $6,276, and $19,264 of the expenses for "Travel
- 16 -

Meals & Lodging and Convention and Entertainment" disallowed by

respondent for 1982, 1983, and 1984, respectively.

15. Service has not shown that it is entitled to deduct $858

and $2,222 for 1982 and 1983 for "Medical Benefits Insurance".

16. Great is entitled to deduct the $5,000 incurred in

making copies of promotional tapes.

17. Great is not entitled to deduct the $166,162 and

$105,905 for its FYE July 31, 1983 and 1984, claimed for film

rentals.

18. Great has not shown that it is entitled to deduct

seminar expenses for its FYE July 31, 1983 and 1984, in amounts

greater than $319,629 and $511,853, respectively.

19. Great has not shown that it is entitled to deduct

travel expenses for its FYE July 31, 1983, in excess of the

$150,764.54 allowed by respondent.

20. Great has not shown that it is entitled to deduct, for

its FYE July 31, 1983 and 1984, interest expense in excess of

$3,585 and $11,674, respectively.

21. Great, for its FYE July 31, 1983, is not entitled to

deduct bad debts in excess of the $4,854 allowed by respondent.

22. Great has not shown that it is entitled to deduct in

excess of the $39,469 that it claimed for its FYE July 31,

1983, for "Convention Expenses".
- 17 -

23. Great has not shown that it did not realize income from

forgiveness of indebtedness due to the cancellation of

promissory notes due to Tipuani.

24. Great has not shown that it is entitled to the $812 of

aircraft and pilot fees disallowed by respondent for the FYE

July 31, 1983.

25. Petitioners failed to keep adequate records of their

deduction items.

OPINION

Regarding those items on which the parties could not settle,

the trial of this case covered 5 taxable years of the two

corporate petitioners. Numerous deduction items were in

controversy, and we have reviewed the record with respect to

each of them and made specific and ultimate findings for each. 

In this portion of the opinion, we express the standards under

which petitioners' controverted items were judged, and we

analyze and make additional ultimate findings regarding the

additions to tax with respect to both petitioners.

Petitioners bear the burden of proving that they are entitled

to the deductions claimed, or of showing that respondent erred

in the determination. Rule 142(a); New Colonial Ice Co. v.

Helvering, 292 U.S. 435, 440 (1934). In addition, petitioners

are required to maintain adequate records to substantiate their

claimed deductions. Sec. 6001. Petitioners were closely held

corporations owned and operated by the Johnsons. The
- 18 -

4 The U.S. Court of Appeals for the Eleventh Circuit has

adopted, as binding precedent, decisions of the U.S. Court of

Appeals for the Fifth Circuit issued prior to Oct. 1, 1981. 

Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981). 

businesses marketed and promoted family seminars about "selfimprovement", vitamins, nutritional products, health care, and

exercise programs. There was a substantial amount of travel

involved. Petitioners, for one reason or another, did not have

complete documentation on numerous items. For example, a

receipt that shows the purchase of gasoline might not indicate

whether the expenditure was one for business or personal. 

Compounding these problems was the practice of causing

petitioner corporations to pay both their business and the

Johnsons' personal expenditures, which were accumulated and

divided by estimations at yearend.

The trial evidence consisted of two major components: (1)

The documentation used by respondent's agent during the audit,

and (2) Mr. Johnson's testimony (which petitioners offered to

expand on situations where the documents fell short). Mr.

Johnson was, in several instances, unable to distinguish items

in the available documentation without further information;

this information was not forthcoming. In this regard,

testimony of a controlling shareholder involving corporate

activities has been carefully scrutinized. Alterman Foods,

Inc. v. United States, 505 F.2d 873, 877 (5th Cir. 1974).4
- 19 -

Most of the claimed deductions were disallowed by respondent

due to petitioners' lack of business purpose. In that regard,

section 162 governs the deductibility of business expenses. It

allows a deduction for "all the ordinary and necessary expenses

paid or incurred during the taxable year in carrying on a trade

or business". To be "ordinary" the expense must have a

reasonably approximate relationship to the operation of a

taxpayer's trade or business. Challenge Manufacturing Co. v.

Commissioner, 37 T.C. 650, 660 (1962). To be "necessary" the

expense must be appropriate or helpful. Commissioner v.

Heininger, 320 U.S. 467, 471 (1943). A shareholder's personal

expenses are not ordinary and necessary expenses of the

corporation. Pantages Theater Co. v. Welch, 71 F.2d 68 (9th

Cir. 1934); Challenge Manufacturing Co. v. Commissioner, supra

at 650.

It was argued that petitioners' and the Johnsons' expenses

were properly segregated and that the corporations did not

deduct the Johnsons' personal items, which were "backed-out"

and which the Johnsons reported as income. References were

made to worksheets containing the segregations, but none were

offered or received in our record.

Respondent raised the question of whether Service met the

requirements for both section 280A (business use of home) and

the holding of Commissioner v. Soliman, 506 U.S. __, 113 S. Ct.

701 (1993). However, we have found that Service's principal
- 20 -

place of business was in the Johnsons' residence. Service is

not an S corporation and, accordingly, it is unnecessary to

analyze this matter under the standards of section

280A(c)(1)(A).

With respect to petitioners' claims for bad debts, section

166 permits a deduction for a debt that becomes worthless

during the taxable year. Zimmerman v. United States, 318 F.2d

611, 612 (9th Cir. 1963). Only a bona fide debt, arising from

a "debtor-creditor relationship based upon a valid and

enforceable obligation to pay a fixed or determinable sum of

money", qualifies for a deduction under section 166. Sec.

1.166-1(c), Income Tax Regs. Whether a bona fide debtorcreditor relationship exists is a question of fact to be

determined after consideration of all the facts and

circumstances. Fisher v. Commissioner, 54 T.C. 905, 909

(1970).

Although notes were executed in connection with the amounts

given to various individuals, petitioners have not shown that a

genuine debtor-creditor relationship existed between Service

and any of the alleged borrowers. In most instances, the loans

were made through the corporation to friends or acquaintances

of the Johnsons. When the amounts were not repaid, even though

there was "evidence of indebtedness", Mr. Johnson did not want

to pursue collection from friends. Under those circumstances,

where the sole shareholder(s) of a corporation cause a
- 21 -

corporation to give corporate funds to the shareholder's

friend(s) from whom they would not seek formal collection, it

is difficult to find that there was a true debtor-creditor

relationship. Just as significantly, petitioners have failed

to show that the advances were worthless during the years the

bad debt deductions were claimed.

Respondent determined additions to tax under section

6653(a)(1) and (2) and section 6661 for each taxable year in

issue. Section 6653(a)(1) provides for a 5-percent addition on

the entire underpayment if any part of the underpayment is due

to negligence or intentional disregard of rules or regulations. 

Section 6653(a)(2) provides for an additional amount equal to

50 percent of the interest payable with respect to the portion

of the underpayment attributable to negligence.

Negligence is the lack of due care or failure to do what a

reasonable and ordinarily prudent person would do under the

circumstances. Neely v. Commissioner, 85 T.C. 934, 937 (1985). 

Petitioners have the burden of showing that their underpayment

was not due to negligence or intentional disregard of rules or

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

(1933); Bixby v. Commissioner, 58 T.C. 757, 791-792 (1972).

Both petitioners failed to maintain adequate records. The

failure to properly segregate personal and business

expenditures and the method of yearend allocation further

exacerbate the inadequacy of petitioners' records. It was the
- 22 -

Johnsons' and petitioners' choice to mix personal and business

records, and their failure or inability to properly show the

division is of their own making and was clearly negligent. 

Stovall v. Commissioner, 762 F.2d 891, 895 (11th Cir. 1985),

affg. T.C. Memo. 1983-450; Crocker v. Commissioner, 92 T.C.

899, 917 (1989).

Further, petitioners claimed, up until the eve of trial,

amounts which had been conceded in prior proceedings. Claiming

hundreds of thousands of dollars in net operating loss

deductions, when those matters had been finally settled in

earlier years' litigation, cannot be considered reasonable or

what an ordinarily prudent person would do. Although

petitioners' returns were prepared by accountants, the Johnsons

made all judgments regarding personal or business decisions,

and they labeled various amounts for inclusion in the corporate

returns. We also note that Mr. Johnson has an associate's

degree in tax and accounting.

Under these circumstances, petitioners have failed to show

that respondent's determination was in error; hence, we find

that petitioners are liable for additions to tax under section

6653(a)(1) and (2).

Respondent determined that petitioners are liable for an

addition to tax under section 6661 for all taxable years in

dispute. Section 6661(a) provides for an addition to tax in

the amount of 25 percent of any underpayment attributable to a
- 23 -

substantial understatement of income tax. An understatement is

substantial if it exceeds the greater of 10 percent of the

correct tax or, in the case of a corporate taxpayer, $10,000.

If an item is not attributable to a tax shelter, then any

understatement may be reduced by amounts attributable to items

for which a taxpayer had substantial authority or which were

adequately disclosed in the return (e.g., by attaching a

statement thereto). Sec. 6661(b)(2)(B)(i) and (ii).

Petitioners have not shown that there was substantial

authority for their tax treatment of any of the adjustments

determined by respondent. In addition, we find that

petitioners did not adequately disclose any of the adjusted

items on the returns for the period in controversy. 

Accordingly, to the extent that petitioners' understatement,

for any taxable period under consideration, is substantial

within the meaning of section 6661, petitioners are liable for

the addition to tax under section 6661. To reflect the

foregoing and to reflect concessions and agreements of the

parties, 

Decisions will be entered

under Rule 155.