Cannon v. C. I. R., s. 74-4150

• Decision Date: 21 June 1976
• Docket Number: 75-1143,Nos. 74-4150,s. 74-4150
• Citation: 533 F.2d 959
• Parties: 76-2 USTC P 9501 M. Ralph CANNON, Petitioner-Appellant, Cross-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee, Cross-Appellant. Idus P. ASH and Georgia L. Ash, Petitioners-Appellees, Cross-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 959

533 F.2d 959

76-2 USTC P 9501

M. Ralph CANNON, Petitioner-Appellant, Cross-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee,

Cross-Appellant.

Idus P. ASH and Georgia L. Ash, Petitioners-Appellees, Cross-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant,

Cross-Appellee.

Nos. 74-4150, 75-1143.

United States Court of Appeals Fifth Circuit.

June 21, 1976.

Lester L. May, Kenneth A. Herridge, Dallas, Tex., for petitioner-appellant.

Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Acting Chief, Appellate Section, Dept. of Justice, Bennet N. Hollander, Robert T. Duffy, Ernest J. Brown, Attys., Tax Div., U. S. Dept. of Justice, Meade Whitaker, Chief Counsel, I. R. S., Washington, D. C., W. John Howard, Jr., Tax Court Litigation, I. R. S., Dallas, Tex., for appellee.

Peter Winstead, W. Mike Baggett, Dallas, Tex., for petitioner-appellee.

Appeals from the Decisions of the Tax Court of the United States (Texas Cases).

Before TUTTLE, AINSWORTH and CLARK, Circuit Judges:

TUTTLE, Circuit Judge:

This is an appeal from a decision of the Tax Court which determined that each of the petitioners earned one-half of a total of $64,680 which it was stipulated had been turned over to one or both of them for wagering in the tax year 1967. The petitioners, neither of whom kept any records covering their extensive wagering operations, both claim that the Tax Court's Solomon-like decision, (I Kings 3:16-28) to cut the baby in half, was not supported by the evidence and must therefore be set aside.

It is undisputed that one Joe Hodges of Houston, Texas embezzled from a state bank, so far as is of importance in this litigation, the sum of $64,680 during the two months of October and November in 1967 and that he delivered that amount by means of six drafts or cash deliveries to petitioner Ash for betting on college football games during the 1967 Fall season. It is also undisputed that Ash delivered substantial amounts of this cash to petitioner Cannon. Ash represented to Hodges that he was placing the bets with Cannon as a bookmaker. Cannon acknowledged receipt of between $11,000 and $12,000 during this period of time from Ash. Cannon reported gambling net income of $15,040 for the year 1967 of which $7,000 was shown by his return to have been received prior to the two months in question. Cannon testified that all of the receipts which remained as net profits from his gambling during the year went into a shoe box and the sum of $15,040 was left in the shoe box at the end of the tax year or had been represented by cash deposits in the bank during the year. Cannon testified that he had voluntarily given to Hodges the sum of $5,000 in December 1967 when Hodges got in touch with him personally and made a plaint that he was in dire difficulties because of his embezzlements, and Cannon claims that this $5,000 should have been deducted from any amount which he otherwise would owe on his gambling receipts.

The Tax Court, very properly we think, after having read the testimony, stated in the following terms:

"The record in this case is unsatisfactory. Neither Ash nor Cannon had records to prove the amounts of cash they handled. The testimony of each was vague, unconvincing and entitled to little weight. The testimony of other witnesses lent little support to the contentions of either Ash or Cannon. The activities of both Ash and Cannon were illegal and the money that changed hands was embezzled from a bank. The $5,000 paid from Cannon to Hodges resembles hush money."

The Tax Court then without making specific findings, as it could not under the testimony then before it, made the following conclusion:

"Given such a record, we conclude that both parties failed to prove how much income they earned as a result of their illegal gambling activities with Hodges ill-gotten gains. Respondent admits an inconsistent position and acts as a stake holder. It would, therefore, seem inappropriate to tax both Ash and Cannon on the entire $64,680. Accordingly we hold that Ash and Cannon each earned one-half of the total sent from Hodges to Ash, or $32,340."

As conceded by counsel for one of the respondents:

"Of course, the Commissioner was always entitled to the presumption against both parties that his determination was correct."

This proposition has been clearly established since Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1934) when the Supreme Court stated:

"Unquestionably, the burden of proof is on the taxpayer to show that the Commissioner's determination is invalid." Citing Lucas v. Structural Steel Co., 281 U.S. 264, 271, 50 S.Ct. 263, 265, 74 L.Ed. 848, 849 and Wickwire v. Reinecke, 275 U.S. 101, 104, 48 S.Ct. 43, 44, 72 L.Ed. 184, 185 and Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212, 215.

Such a requirement is not met if the proof adduced before the Tax Court is insufficient to permit that Court to find that as to either or both of these petitioners the Commissioner's determination was erroneous. In dealing with this problem the Court of Appeals for the First Circuit, in United States v. Rexach had the following comment to make:

"First, language regarding the Commissioner's obligation to prove the existence and amount of the deficiency apparently stems from Helvering v. Taylor, supra, which held that once a taxpayer in a deficiency case has borne his burden of proving the Commissioner's determination invalid, he has no further obligation to show that no money is owed, or, if some, how much. But this happy state is reached only if the predicate is fulfilled, i. e., only if the taxpayer has carried his burden of persuading the factfinder that the deficiency was erroneous. 293 U.S. at 513, 514, 515, 55 S.Ct. 287, 79 L.Ed. 623. (Emphasis in original.) 482 F.2d 10, 17 n. 3 (1st Cir. 1973).

Since we conclude that the Tax Court was justified in not relying on the conflicting testimony of either of these petitioners in the two cases which were consolidated for hearings before that Court, this would justify the legal result of having the total amount taxed as income to both of the petitioners. The fact that the Tax Court ameliorated this condition by entering a decision for one-half of the amount as against each petitioner is certainly not a matter which either petitioner can here complain of.

Cannon asserts that even though the Tax Court could approve an assessment against him based upon receipt of income amounting to $32,340 this amount should be reduced by the sum of $15,040 already reported by him as income from gambling. The trouble with this is that the record clearly discloses that some $7,000 of the amount which he reported was represented by deposits in bank accounts made prior to the two months with which we are here concerned. Furthermore, Cannon's testimony is so vague and uncertain and unreliable that the...