Kehoe v. Commissioner of Internal Revenue

BUFFINGTON, Circuit Judge. This is a petition to review the decision of the United States Board of Tax Appeals. The Commissioner of Internal Revenue has assessed the petitioner, John Kehoe, with a deficiency in tax for 1925 of $208,043.36, plus a penalty of $108,803.-61. The Board of Tax Appeals confirmed the Commissioner and dismissed Kehoe’s appeal. The fact situation presents no dispute. The petitioner’s income tax for 1925 is involved. Twice he paid, without apparently any protest. His first return filed March 15, 1926, showed gross income of $27,865.61 and a net taxable income of $19,198.33 on which a tax of $194.56 was computed and paid. In September 1927 agents of the Commissioner made an examination and investigation of the petitioner’s income for 1925. As a result he was notified of an additional tax due of $9,563.86, based on an increase in taxable income of $53,990.46. At this point it is significant to note there is no evidence to indicate the basis for these figures, how they were arrived at, what was the source of income heretofore not reached or reported; nor is there evidence of the gross figures, such as receipts and disbursements or gross or net income. Moreover, the agent of the Revenue Department who made the examination was not called by the government. The petitioner, however, appeared satisfied with this additional assessment thus made which reached him October 20, 1927, and was by him paid. He also executed a waiver of appeal to the United States Board of Tax Appeals. Following this an agreement in writing under Section 1106(b) of the Revenue Act of 1926 was executed. It was approved by the Acting Secretary of the Treasury on January 27, 1928 and became final and conclusive on both taxpayer and Commissioner under the terms of the Act.1 Several years later, however, the Commissioner notified the petitioner that his return for 1925 would be re-examined. This was followed by a letter dated February 24, 1932, determining the deficiency — 554 — tax' :fbr T925 at $208,043.36, plus a fraud penalty.of $108,803.61, based on an alleged ihcóme of $890,000. The appeal of Kehoe, thék,petitioner, to the.United States Board tof-:Tkx .Appeals, and the -subsequent hearing ¡developed thé circumstances and facts responsible for this additional deficiency assessment. ,, We -here note that the Board was warranted. ip finding that Kehoe, the petitioner, had illegally operated a brewery known as Bartels, during the year 1925, through a permit .obtained by one P. F. ¡McGowan, who now informed against Keho.e, ,;McGowan was merely a straw-man for -the .illegal manipulations of Kehoe, '.and during the year 1925, he sold “high powtered” beer, exceeding the limitation of alcoholic content, amounting to $890,000, 'Concealing his own identity as the real operator. Proof by railroad records was produced to show illegal activity in sales of beer not covered by the permit of P. F. ¡McGowan. ■ ' Were the issue here involved the revocation of the permit to operate the 'brewery on ground of illegal activity, there could be' no hesitation • in saying that a case had been made out. Were the issue one of conspiracy between Kehoe and McGowan to violate the National Prohibition 'Act, the answer again would be that the ‘case against them was established. But •the issue here involved is altogether different. It is whether or not the closing agreement executed by the Commissioner ‘and the taxpayer and approved by the Acting Secretary of the Treasury on January 27, Í928- was procured by fraud or malfeasance-or misrepresentation of fact. The Revenue Act of 1926, c. 27, 44 Stat. 113, provides that a closing agreement shall be “final and conclusive” in the absence of fraud. The purpose of the statute is the commendable one of terminating disputes and settling controversy. Judge Woodrough in Wolverine Petroleum Corporation v. Commissioner of Internal Revenue, 8 Cir., 75 F.2d 593, 595, says: “The purpose of the statute authorizing closing 'agreements is to enable the taxpayer and the government finally and completely to settle all controversies in respect of the tax liability for any previous taxable period, and to protect the taxpayer against the reopening of the matter at-, a later date * * * to facilitate the settlement of many items affecting a taxpayer’s liability, the policy has been to broaden, rather than limit, the scope of these settlements.” ; ; Congress reenacted the provision of this section in subsequent revenue acts (See: 26 U.S.C.A. § 1660(b), realizing the wisdom of allowing and encouraging final compromises and settlements. This enactment should not lightly be disregarded by the courts since it has always been the policy of the law to encourage compromises and settlements. In Miller v. Pyrites Co., 4 Cir., 71 F.2d 804, 810 (certiorari denied, 293 U.S. 604, 55 S.Ct. 121, 79 L.Ed. 696), the court said: “Compromises of disputed claims are favored by the court and, when fairly entered into, are final.” Hennessy v. Bacon, 137 U.S. 78, 11 S.Ct. 17, 34 L.Ed. 605; Williams v. First National Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 54 L.Ed. 625. The Commissioner, therefore, had the burden of proof to show that the closing agreement was entered into either through fraud, malfeasance or misrepresentation of fact. This burden was affirmatively placed on the Commissioner by the Revenue Act of 1928, c. 852, § 601, 45 Stat. 872, 26 U.S.C.A. § 612, which reads: “In any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax, where no hearing had been held before May 29, 1928, the burden of proof in respect of such issue shall be upon the Commissioner.” The Commissioner at the hearing on the appeal before the Tax Board assumed the burden. As stated above, the proofs showed that the taxpayer, Kehoe, was part and parcel of a scheme to evade the National Prohibition Act in 1925. He showed that Kehoe was the actual operator of the brewery and large sums of money came into his hands through the sale of high-powered beer. But how does that prove that the closing agreement was entered into through the fraud of the taxpayer, Kehoe? The Commissioner took no steps to show that when the settlement was made the income from the illegal operation of the brewery was not taken into consideration. It was clearly within the power of the Commissioner to introduce evidence of the closing agreement and the nature of the income on which the additional tax was based. The failure to produce such testimony would clearly warrant the inference that if such testimony were produced it would be unfavorable to the — 555 — Commissioner. Runkle v. Burnham, 153 U. S. 216, 14 S.Ct. 837, 38 L.Ed. 694; Chicago & N. W. R. Co. v. Kelly, 8 Cir., 84 F.2d 569, 572; The Marsodak, 4 Cir., 94 F.2d 339, 343. In Mammoth Oil Co. v. U. S., 275 U.S. 13, 48 S.Ct. 1, 9, 72 L.Ed. 137, Mr. Justice Butler quotes Lord Mansfield , in Blatch v. Archer, (Cowper, 63, 65): “It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” And our Supreme Court has held, Runkle v. Burnham, 153 U.S. 216, 14 S.Ct. 837, 841, 38 L.Ed. 694: “The doctrine that the production of weaker evidence, when stronger might have been produced, lays the producer open to the suspicion that the stronger evidence would have been to his prejudice was expressly adopted in the case of Clifton v. United States, 4 How. 242 [11 L.Ed. 957].” Considering the policy of the law to favor compromises and settlements, it was incumbent on the Commissioner to show that the income from the operation of the brewery was not considered when the additional assessment was made. That an investigation of Kehoe’s liability was made, is the fact. That a written, statutory settlement was made, is also the fact. It follows, therefore, that the presumption is that all his tax liability was settled. That additional tax liability of some $53,000 was ascertained and settled, is a fact. There is no proof that other than the brewery, any other liability existed or was claimed. If this increased liability of $53,000 was not brewery liability, what was it? Moreover, there is nothing in the record to show that the income of which McGowan informed the government in 1930 was not considered in 1927, and paid for, and closed by agreement approved by the Secretary of the Treasury in 1928. Considerable income was considered by the government in the 1927 settlement to have warranted an additional assessment of $9,563.86 and an additional gross income of $53,000. The very most that can be said for the testimony produced before the Board of Tax Appeals is that it permits two inferences to be drawn; one, that income was fraudulently omitted from the deficiency assessment on which the closing agreement was based; secondly, that the income was considered at the time of the deficiency assessment and led to the figure of $53,990.46, additional taxable income on which an additional tax of over $9,000 was paid and closing agreement signed, executed and approved by the Secretary of the Treasury. The law is clear that if facts give equal support to each of two inconsistent inferences, judgment must go’ against the party that has the burden of proof. This principle is stated by Mr. Justice Sutherland in Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 339, 53 S.Ct. 391, 393, 77 L.Ed. 819, in commenting on the evidence of that case: “We, therefore, have a case belonging to that class of cases where proven facts give equal support to each of two inconsistent inferences; in which event, neither of them' being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one-of these inferences as against the other, before he is entitled to recover.” To the same effect is New York Life Ins. Co. v. King, 8 Cir., 93 F.2d 347, 353, where Judge Sanborn said: “* * * evidence which is equally consistent with two hypotheses, under one of which a defendant is liable, and under the other of' which it is not liable, supports neither' hypothesis.” National Bank v. American Surety Co., 4 Cir., 67 F.2d 131; Liggett & Myers Tobacco Co. v. De Parcq, 8 Cir., 66 F.2d 678. And this is particularly so in tax cases where, if there is doubt, such doubt should be resolved in favor of the' taxpayer. It is no answer to say that the taxpayer could have, called the government agent, for the burden is on the government to establish its case before the taxpayer is called on to answer. As the proofs stood, and now stand, we are of opinion the government has not made out its case. There is no ground of proven fact to support a finding that the now alleged brewery liability was not included in the settlement, in the $53,000 additional gross income of Kehoe. There is no proof of any other alleged liability on the part of Kehoe which led to this large addition. It will be noted that the Tax Board nowhere considered or discussed the two underlying, basic and important questions —first, what tax liability was considered'' and involved in the settlement made in ' pursuance- of the revenue officer’s examination. Second, on what liability, if not for the brewery, was the additional $53,000 predicated? And lastly, and all — 556 — important, the failure of the government to call its agent and show by him, if it could, that the brewery liability was not involved in the settlement. At best, the proof of the government leaves the- validity of the settlement in doubt, and where there is doubt, the law favors the taxpayer. We find no affirmative proof that at the time of the settlement, as also the closing agreement, no brewery income was disclosed, and the revenue agent who could have proven this was not called. If the government had this proof available, why was it not made? The pleadings were such as to require affirmative proof on its part. Thus the government’s averment that “said brewery by reason of the fact that said John Kehoe wilfully, knowingly and deceitfully withheld any and all information from the respondent concerning < the receipt of said gains, profits and income from the operation of said brewery misled the respondent by representing that he had no other income than that allegedly reflected in the so-called agreement as to final determination,” was traversed and denied under oath by Kehoe, as follows: “That at the time of the execution .of said final agreement, or prior or subsequent thereto, John Kehoe wilfully, knowingly and deceitfully withheld from respondent any information concerning income alleged to have been derived by him during the year 1925 from the operation of a brewery known as P. F. McGowan Brewery.” When the government is a litigant, it stands on the .same basis as any other litigant and it is clear to us that if this was a case between private persons and one party was seeking to set aside a settlement made by the parties, he could not succeed where the failure to furnish was such as in the present case. So regarding, the decree of the Tax Board is vacated.. Footnotes [1] “Sec. 1106(b). If after a determination and assessment in any case the taxpayer has paid in whole any tax or penalty, or accepted any abatement, credit or refund based on such determination and assessment, and an agreement is made in writing between the taxpayer and the Commissioner, with the approval of the Secretary, that such determination and assessment shall be final and conclusive, then (except upon a showing of fraud or malfeasance or misrepresentation of fact materially affecting the determination or assessment thus made) (1) the case shall not be reopened or the determination and assessment modified by any officer, employee, or agent of the United States, and (2) no suit, action, or proceeding to annul, modify, or set aside such determination or assessment shall be entertained by any Court of the United States.” 44 Stat. 113.