Fuller v. Commissioner of Internal Revenue

• Decision Date: 29 April 1954
• Docket Number: No. 4740.,4740.
• Citation: 213 F.2d 102
• Parties: FULLER et al. v. COMMISSIONER OF INTERNAL REVENUE.
• Court: U.S. Court of Appeals — Tenth Circuit

213 F.2d 102 (1954)

FULLER et al. v. COMMISSIONER OF INTERNAL REVENUE.

No. 4740.

United States Court of Appeals Tenth Circuit.

April 29, 1954.

John E. Marshall, Washington, D. C., for petitioners.

S. Walter Shine, Washington, D. C. (H. Brian Holland, Ellis N. Slack and George F. Lynch, Washington, D. C., on the brief) for respondent.

Before BRATTON, MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

This is a petition for review of the decision of the Tax Court, affirming a determination of the Commissioner, that deficiencies exist in petitioners' income tax returns for the years 1948, 1949 and 1950, in the amounts of $2,634.26, $15,573.54 and $2,973.68, respectively. During the years involved, G. E. Fuller, hereafter referred to as petitioner, was engaged in the business of buying taxpaid intoxicating beverages outside of Oklahoma and selling it at wholesale and retail to customers in and around Oklahoma City, in violation of the laws of Oklahoma. The two questions presented here are whether the Tax Court erred in sustaining the Commissioner's determination increasing gross profits of the petitioner during the year 1949; and holding that he was not entitled to deduct as a business loss the cost of whiskey seized and confiscated by law enforcement agencies during the years 1948 and 1950.

The joint income tax return for petitioner and his wife for the year 1949 reflected gross profits of $46,865.36 on gross sales of $393,469.72, arrived at by the inventory method with opening and closing inventories at the beginning and end of the year. Pursuant to an audit by revenue agents, the Commissioner increased the gross profit for 1949 by $40,006.73. The books and records of the petitioner were unreliable for this year, and the deficiency was determined on the basis of sales of 7,182 cases of whiskey at wholesale and retail, at a mark-up over invoice costs. In the main, the information contained in the deficiency notice was obtained from (1) somewhat illegible carbon copies of Form 52-B, required to be filed by petitioner as a wholesale liquor dealer, showing the names of buyers and number of cases purchased by them; (2) the selling price of the whiskey as disclosed by the records of buyers; and (3) an affidavit executed by the taxpayer showing his mark-up over invoice costs.¹ After arriving at the amounts of whiskey sold during 1949 to the specific purchasers shown on Form 52-B, the Commissioner determined the gross profit on such sales by applying the amount of the mark-ups shown in the taxpayer's affidavit, and also by the testimony of some of the retail liquor dealers as to amounts paid by them for whiskey purchased from petitioner.

It is first contended by petitioner that the Tax Court erred in admitting in evidence his affidavit, which, in some respects, conflicted with his testimony; that it "flowered from an investigative demand not authorized by law," and was not entitled to any probative effect. In that connection, it is said that the petitioner signed the affidavit because he "got tired of answering questions" and wanted them to stop bothering him; that the manner in which it was procured resulted in taxpayer's entrapment since he was not advised at the time that it would be used as evidence against him; and that no court would have compelled him to sign the affidavit against interest.

In the first place, the affidavit was admitted in evidence without objection, and its admissibility may not be challenged for the first time on appeal. Secondly, it was on cross-examination that petitioner was asked to read the affidavit, whereupon his own counsel suggested that it be put in evidence rather than have him read it, and counsel for the Commissioner then offered it in evidence. The petitioner also testified that he knew what was in it and signed it voluntarily. It certainly cannot be said that the Tax Court erred in considering and relying upon the contents of this affidavit. It was admissible as evidence of the prices received for the whiskey and also for impeachment of the petitioner as a witness.

The proof adduced before the Tax Court varied slightly from the explanatory statements made in the schedule accompanying the deficiency notice, and the taxpayer argues that this amounted to a repudiation of the formal deficiency notice, resulting in a shifting of the burden of proof to the Commissioner. The slight variance of which the taxpayer complains between the number of cases of whiskey sold and the amount of gross profit realized in particular instances resulted generally from the fact that petitioner's records were inadequate; that some of the carbon copies of his Form 52-B records were in part illegible, and were corrected by proof at the time of trial. It is sufficient to say that explanations given in a deficiency notice do not frame the issues of a tax controversy, and moreover, any inconsistency between the evidence and the deficiency notice was not prejudicial to the petitioner.

The petitioner further complains that in arriving at the gross profit derived from sales made by him to a customer, the Tax Court failed to take into account a $3 discount per case on such purchases. The agent testified, however, that the customer's books showed the amount actually paid to the petitioner for the whiskey, and that any discounts given would not affect his computations. Also, it is contended that the Court failed to take into consideration the number of cases transferred back into wholesale after they had been previously shown on Form 52-B as being transferred into retail; and that while petitioner kept his accounts and reported his income on an accrual basis, the determination of the Commissioner was erroneously based upon cash sales. It is sufficient to say that the record shows that any transfers of whiskey from retail to wholesale were...