Respondent argues that the five conditions necessary for him to be collaterally estopped from denying that the MCLT is not a grantor trust have not been satisfied in these cases. More fundamentally, however, he argues, and we agree, that collateral estoppel does not apply to a trial court's conclusions of law or findings of fact where its judgment is vacated, reversed, or 2012 U.S. Tax Ct. LEXIS 43">*73 set aside by an appellate court. Hudson v. Commissioner, 100 T.C. 590">100 T.C. 590, 100 T.C. 590">593 (1993). The bankruptcy court's judgment was affirmed by the District Court for the Southern District of Florida, whose judgment was later affirmed by the Court of Appeals for the Eleventh Circuit. The U.S. Supreme Court, however, reversed the judgment of the Court of Appeals for the Eleventh Circuit. Holywell Corp., 503 U.S. 47">503 U.S. 47, 112 S. Ct. 1021">112 S. Ct. 1021, 117 L. Ed. 2d 196">117 L. Ed. 2d 196. With respect to the Supreme Court's reversal of the Court of Appeals, petitioners argue that the bankruptcy court's holding that the MCLT was a grantor trust survived that reversal. They assert that the Court did not address whether the MCLT was a grantor trust and that the Court "did not overrule the Bankruptcy Court with respect to its finding * * *, the Supreme Court merely said that Petitioner is not a 'grantor' in the classic sense of the term."

Petitioners are wrong. The Court effectively reversed the bankruptcy court's finding as it pertained to petitioner. The Court stated that it "fail[ed] to see how the respondents can characterize him [petitioner] as the grantor" under section 1.677(a)-1(d), Income Tax Regs., which implements section 677(a), the same provision under which the 2012 U.S. Tax Ct. LEXIS 43">*74 bankruptcy court found the debtors, including petitioner, to be grantors of the trust. 503 U.S. 47">Id. at 57. The Court found that petitioner had contributed nothing to the MCLT. Id. With respect to the property received from petitioner's bankruptcy estate, the Court treated the MCLT as a trust for which the fiduciary, Mr. Smith, had to make a return. 503 U.S. 47">Id. at 54. Whether the Court's opinion preserved the bankruptcy court's finding that the MCLT was a grantor trust to the extent of the other debtors' interests has no bearing on its reversal of the bankruptcy court's finding as it pertains to petitioner.

139 T.C. 418">*435 Petitioners cannot, as a basis for collateral estoppel, rely on the bankruptcy court's findings that the MCLT was a grantor trust since its finding, in that respect, did not survive the Supreme Court's reversal of the Court of Appeals.^{212012 U.S. Tax Ct. LEXIS 43">*75}

Section 671 provides that, where the grantor or another person is treated as the owner of any portion of a trust, he shall compute his taxable income and credits by taking into account "those items of income, deductions, and credits against tax of the trust which are attributable to that portion of the trust". A grantor or another person is treated as the owner of a portion of a trust upon satisfaction of any one of five conditions enumerated in sections 673-678. If the grantor is so treated, the trust is a grantor trust as to him and is not treated as a separate taxable entity for Federal income tax purposes to the extent of the grantor's retained interest. Seesec. 1.671-2(b), Income Tax Regs. The grantor, therefore, must report his portion of the trust's income and deductions on his personal Federal income tax return. Id.

Petitioners contend that Mr. Gould is entitled to claim on each of his 1995-2002 Forms 1040 an NOL deduction, consisting of NOL carryovers from 1985-91, because the MCLT constituted a grantor trust pursuant to the provisions of sections 671-677 from 1985-91 and is thus to be disregarded as a separate taxable 2012 U.S. Tax Ct. LEXIS 43">*76 entity to the extent of the grantor's retained interest. Although their briefs are unclear, we understand petitioners to support their contention with the following assertions: (1) Petitioner is the grantor^{222012 U.S. Tax Ct. LEXIS 43">*77} of the 139 T.C. 418">*436 MCLT with respect to the entire portion of trust income under section 1.671-2(e)(1), Income Tax Regs., because the trust was created and funded gratuitously on his behalf, or, alternatively, under section 1.671-2(e)(3), Income Tax Regs., because he acquired an interest in the trust from his bankruptcy estate upon its termination, and (2) petitioner is the owner of the entire portion of trust income under section 1.677(a)-1(d), Income Tax Regs., because the trust income was used to discharge his debt.^{232012 U.S. Tax Ct. LEXIS 43">*78} Petitioners conclude that they are, therefore, entitled to report on their 1995-2002 personal tax returns NOL carryovers attributable to the trust's 1985-91 NOLs. They argue that petitioner is grantor and owner of the entire portion of the trust income because, through his stock ownership and partnership interests, he owned in its entirety the MCLP, Chopin, MCC, and Holywell assets²⁴ and the 50% partnership interest in MCJV held by the MCLT.

The regulations upon which petitioners rely in claiming grantor status do not govern our analysis. In relevant part, section 1.671-2(e)(1), Income Tax Regs., defines a grantor as any person on whose behalf another person creates a trust or any person who directly or indirectly makes a gratuitous transfer of property to a trust. Section 1.671-2(e)(3), Income Tax Regs., includes as a grantor of a trust "any person who acquires an interest in a trust from a grantor of the trust if the interest acquired is an interest in * * * [among other types of trusts] liquidating trusts". The regulations, 2012 U.S. Tax Ct. LEXIS 43">*79 however, are effective for transfers to a trust, or a transfer of an interest in a trust, on or after August 10, 1999, well after October 10, 1985, the date on which the MCLT was funded. Sec. 1.671-2(e)(7), Income Tax Regs.

Petitioners assert that, although not effective at the time of the MCLT's creation and funding, the regulations were "not intended to change the result of existing law with respect to 139 T.C. 418">*437 trusts used for business purposes." They contend that, although not specifically identified, "it is clear from the examples that a liquidating trust" would qualify as a trust used for business purposes. They conclude that, because the MCLT, a liquidating trust, had a business purpose, the regulations "simply codified existing law" and, therefore, its definitions of "grantor" are applicable.

Before the regulations were promulgated, there existed no definition of "grantor" for purposes of sections 671-677. This Court had defined a settlor of a trust (i.e., grantor) generally as one who furnishes the major portion of consideration for the trust's creation. See, e.g., Bixby v. Commissioner, 58 T.C. 757">58 T.C. 757, 58 T.C. 757">791 (1972); Smith v. Commissioner, 56 T.C. 263">56 T.C. 263, 56 T.C. 263">290 (1971). Moreover, we stated: "In 2012 U.S. Tax Ct. LEXIS 43">*80 determining the settlors of a trust, we look beyond the named grantors to the economic realities to determine the true grantor." Zmuda v. Commissioner, 79 T.C. 714">79 T.C. 714, 79 T.C. 714">720 (1982), aff'd, 731 F.2d 1417">731 F.2d 1417 (9th Cir. 1984); CIM Trust v. Commissioner, T.C. Memo. 2001-172. Petitioner fails to qualify as a settlor of the MCLT. Petitioner did not furnish any, not to mention the major portion of, consideration for the MCLT's establishment. Indeed, the U.S. Supreme Court concluded, in Holywell Corp., 503 U.S. 47">503 U.S. at 57, that "Gould himself did not contribute anything to the trust". On August 22, 1984, petitioner filed a voluntary petition for protection under chapter 11 of the Bankruptcy Code, which created a bankruptcy estate, a separate entity from the individual debtor (i.e., petitioner) for bankruptcy purposes and a separate taxpayer for Federal income tax purposes.²⁵Sec. 1398; 11 U.S.C. sec. 541(a) (2006); Williams v. Commissioner, 123 T.C. 144">123 T.C. 144, 123 T.C. 144">148 (2004). On that date, all of petitioner's legal or equitable interests in property as of the commencement of the bankruptcy case were transferred to, and vested in, that separate taxable entity. See11 U.S.C. sec. 541(a)(1). Thus, petitioner's bankruptcy 2012 U.S. Tax Ct. LEXIS 43">*81 estate would take into account those items of income or loss attributable to the property received from him and disposed of by the estate. Seesec. 1398(e)(1), (g)(6). On October 10, 1985, pursuant to the confirmation plan, petitioner's bankruptcy estate transferred that property directly into the MCLT; we agree with the 139 T.C. 418">*438 Supreme Court in Holywell Corp., 503 U.S. 47">503 U.S. at 57, that the property did not revest in petitioner before its transfer to the MCLT.^{262012 U.S. Tax Ct. LEXIS 43">*82} Petitioner transferred no property to the MCLT.

Even if section 1.671-2(e), Income Tax Regs., applied to the situation herein, the regulations fail to support petitioners' claim. Section 1.671-2(e)(1), Income Tax Regs., provides that the term "grantor" includes persons creating a trust or directly or indirectly making a gratuitous transfer (i.e., a transfer other than for fair market value, seesec. 1.671-2(e)(2)(i), Income Tax Regs.) to a trust. If a person creates or funds a trust on behalf of another person, both persons are treated as grantors of the trust. Sec. 1.671-2(e)(1), Income Tax Regs. Petitioners argue that petitioner is included in that definition of a grantor because the trust was created and funded on his behalf since "The Plan specifically provided that '[a] Trust is hereby declared on behalf 2012 U.S. Tax Ct. LEXIS 43">*83 of the Debtors * * * '. (Emphasis supplied.)".

Petitioners state that, in order for the on-behalf-of rule found in section 1.671-2(e)(1), Income Tax Regs., to apply, "the funding of the trust must be gratuitous". The fact is, however, that neither the funding debtors nor petitioner's bankruptcy estate gratuitously funded the MCLT; they did so because they were compelled to under the plan. Nor can we say that the MCLT was formed on petitioner's behalf, as the term "on behalf of another person" is used in the regulations. Petitioners have identified no cases, nor have we found any, that support their argument that the trust was formed on petitioner's behalf because he, in some sense, might benefit from the trust; i.e., he might receive a portion of the residue of the trust after it liquidated its assets and paid the creditors. A trust is by definition "a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary)." Black's Law Dictionary 1647 (9th ed. 2009). If we were to take petitioners' 139 T.C. 418">*439 meaning for the term "on behalf of", the beneficiary of every trust would, at the same time, be its grantor, a conflation 2012 U.S. Tax Ct. LEXIS 43">*84 we reject. The regulations contain two examples indicating that the person creates or funds a trust on behalf of another when the former acts for the latter in establishing the trust. Seesec. 1.671-2(e)(6), Examples (3), (8), Income Tax Regs. That seems a better meaning. Petitioner reimbursed no one's contribution to the MCLT, nor did anyone act for petitioner in funding it; each of the other debtors and petitioner's bankruptcy estate acted for itself, as directed in the plan.

We similarly find that petitioner does not satisfy section 1.671-2(e)(3), Income Tax Regs. The regulations provide that a grantor of a trust includes "any person who acquires an interest in a trust from a grantor of the trust if the interest acquired is an interest in" certain trusts, including liquidating trusts. Sec. 1.671-2(e)(3), Income Tax Regs. We deduce from petitioners' briefs that they contend that petitioner acquired an interest in the MCLT from his bankruptcy estate pursuant to section 1398(i). Section 1398(i), however, addresses the debtor's succession to tax attributes of his bankruptcy estate, not the transfer of legal or beneficial interests in property.

Having found that petitioner was not a grantor 2012 U.S. Tax Ct. LEXIS 43">*85 of the MCLT, we need not address petitioners' argument that petitioner is the owner of a portion of the trust income. Even if we had found him to be a grantor, petitioners would not prevail on that argument. In support of their argument, petitioners rely on the same Code section, section 677, regulations, section 1.677(a)-1(d), Income Tax Regs.,²⁷ and case, In re Sonner, 53 B.R. 859">53 B.R. 859 (Bankr. E.D. Va. 1985), that were relied upon in Holywell Corp., 503 U.S. 47">503 U.S. at 56-57, and which the U.S. Supreme Court rejected. On brief, petitioners reiterate the same arguments that were rejected by the Court and offer no reason for us to deviate from the Supreme Court's analysis and conclusion.^{282012 U.S. Tax Ct. LEXIS 43">*86 2012 U.S. Tax Ct. LEXIS 43">*87}

139 T.C. 418">*440 Accordingly, we find that petitioner was not a grantor of the MCLT. Therefore, the MCLT did not with respect to him constitute a grantor trust such that a portion of its income and deductions must be reported on petitioners' personal tax returns. They, therefore, are not entitled to take into account in computing their taxable income NOLs belonging to the trust.

Next, petitioners argue that they are entitled to $18,180,307 in NOL carryovers that they claim passed to petitioner from his bankruptcy estate pursuant to section 1398(i). They assert that, upon the bankruptcy estate's termination on October 10, 1985, petitioner succeeded to its NOL carryovers, which consisted of (1) petitioner's NOLs of $11,722,009 to which, on August 22, 1984, the bankruptcy estate had succeeded and that remained unused at its termination, and (2) petitioner's bankruptcy estate's 1984 NOLs of $6,408,298.

Respondent disagrees, primarily contending that, notwithstanding section 1398(i), petitioners are not entitled to those tax attributes because the joint motion, which 2012 U.S. Tax Ct. LEXIS 43">*88 the bankruptcy court by order approved on September 30, 1993, expressly stated that no tax attributes of petitioner's bankruptcy estate survived upon its termination as of October 10, 1985. He further argues that, even if the joint motion did not extinguish the tax attributes of petitioner's bankruptcy estate, petitioners have not "1) shown how they could be used by petitioners; 2) proven that any allowable NOL carryovers did not expire either before or during the taxable years in question; or, 3) shown that the carryovers were not reduced 139 T.C. 418">*441 by any cancellation of indebtedness income exclusions under Code section 108."

As described supra section I.A.2.a.(1)(b) of this report, the filing of an individual's voluntary petition in a chapter 11 bankruptcy creates a new taxable entity (the bankruptcy estate) for Federal tax purposes, separate from the individual debtor. Sec. 1398. The bankruptcy estate succeeds to and takes into account certain tax attributes of the individual debtor (e.g., NOL carryovers) determined as of the first day of the individual debtor's taxable year in which the chapter 11 bankruptcy commences. Sec. 1398(g)(1). Thus, the bankruptcy estate succeeds only to those NOLs, 2012 U.S. Tax Ct. LEXIS 43">*89 as determined under section 172, generated before the year in which the individual debtor files for bankruptcy. Sec. 1398(g)(1); Williams v. Commissioner, 123 T.C. 144">123 T.C. 150. "The NOLs as determined by a calendar year individual debtor, as of January 1 of the year the debtor files a bankruptcy petition, go to the bankruptcy estate for its exclusive use for the benefit of the creditors on the commencement date." Benton v. Commissioner, 122 T.C. 353">122 T.C. 353, 122 T.C. 353">359 (2004).

Upon termination of the bankruptcy estate, the individual debtor succeeds to and takes into account, among other tax attributes, unexpired and unused NOL carryovers of the bankruptcy estate. Sec. 1398(i); Williams v. Commissioner, 123 T.C. 144">123 T.C. 151. That includes both remaining NOLs that the bankruptcy estate succeeded to under section 1398(g)(1) and unused tax attributes accumulated by the operation of the bankruptcy estate. See Benton v. Commissioner, 122 T.C. 353">122 T.C. 358. Before passing to the individual debtor, however, those NOL carryovers are reduced by the amount of discharge of indebtedness income excluded from the debtor's income under section 108(a). Sec. 108(b)(1), (2)(A), (d)(8). Income from discharge of indebtedness is excluded 2012 U.S. Tax Ct. LEXIS 43">*90 from gross income if "the discharge occurs in a title 11 case". Sec. 108(a)(1)(A).

Petitioners dismiss the joint motion on the grounds Mr. Gould was not a party to the agreement embodied therein, he did not sign it, "[i]t doesn't even mention [him]", and "[i]t likely wasn't even intended to apply to him." While, technically, those claims may be true, they are beside the point. The joint motion addresses the exhaustion of tax attributes of petitioner's bankruptcy estate (not the exhaustion of any of his tax attributes). The joint motion was not self-executing 139 T.C. 418">*442 but was put before the bankruptcy court, which, according to its order of September 30, 1993, approving the settlement embodied in the motion, notified all parties in interest of the motion, held a hearing on the motion, and "considered the objections of Debtor[] Theodore B. Gould". Petitioner appealed the order to the U.S. District Court for the Southern District of Florida and the U.S. Court of Appeals for the Eleventh Circuit, both of which affirmed. See Holywell Corp. v. Smith, 208 F.3d 1009">208 F.3d 1009 (11th Cir. 2000) (unpublished, table); see also Gould v. United States, 229 F.3d 1142">229 F.3d 1142 (4th Cir. 2000) (unpublished, table); Holywell Corp. v. Bank of New York (In re Holywell Corp.), 177 B.R. 991">177 B.R. 991 (S.D. Fla. 1995), 2012 U.S. Tax Ct. LEXIS 43">*91 aff'd without published opinion, 95 F.3d 57">95 F.3d 57 (11th Cir. 1996). Mr. Gould, as debtor, may succeed only to the tax attributes of his bankruptcy estate remaining in the estate at its termination. Seesec. 1398(i). And as of October 10, 1985,²⁹ according to the settlement embodied in the joint motion, approved by the bankruptcy court, the tax attributes of Mr. Gould's bankruptcy estate were exhausted. Petitioners have not showed us any ambiguity in the joint motion or in the bankruptcy court's order, nor have they convinced us that the bankruptcy court lacked authority to grant the motion, with its stated direct consequence for petitioner's bankruptcy estate and its unstated indirect consequence for him. There were, therefore, as of October 10, 1985, no tax attributes of his bankruptcy estate to which petitioner, as debtor, could succeed. He, therefore, succeeded to none; in particular, he succeeded to no NOL. We find accordingly.

Alternatively, respondent argues that petitioners 2012 U.S. Tax Ct. LEXIS 43">*92 have failed to prove that any available NOL carryovers existed as of October 10, 1985.³⁰ Petitioners argue that upon petitioner's bankruptcy estate's termination, petitioner succeeded to NOL carryovers of $18,180,307, which included $11,722,009 of his NOL carryovers to which his bankruptcy estate had succeeded on January 1, 1984, and $6,408,298 of NOLs generated during bankruptcy. Petitioners assert that petitioner 139 T.C. 418">*443 is therefore entitled to carry over $18,180,307 of NOLs to the years at issue, reducing his tax liability for those years accordingly.

The record contains no evidence reliably establishing the amounts of NOLs held by petitioner's bankruptcy estate or that the estate did not exhaust those losses as of October 10, 1985. The only documentary evidence is petitioners' self-prepared "Net Operating Loss Worksheet". The worksheet details petitioners' NOLs beginning in 1982 and ends in 2003, but petitioners acknowledge that it does 2012 U.S. Tax Ct. LEXIS 43">*93 not attempt "to obtain a precise figure" as to petitioner's losses for tax years 1985-2002. The worksheet indicates that "Petitioner NOL Carryovers to 1984" and "1984 NOL of Bankruptcy Estate" were $11,772,009 and $6,408,298, respectively, identifying as its source respondent's RAR issued to the bankruptcy estate for taxable years ending December 31, 1984, and October 10, 1985. That same RAR, however, indicated that the entire $18,180,307 of NOL carryovers was absorbed to offset taxable income in that later year and, therefore concluded: "There is no carryover to the debtor of any NOL from the estate". Petitioners have introduced no evidence, and indeed we find none in the record, proving otherwise. Petitioner's bankruptcy estate did not file a return for tax year ending October 10, 1985, and petitioners failed to proffer evidence as to income that the estate may have had during that taxable year.^{312012 U.S. Tax Ct. LEXIS 43">*94}

Petitioners have failed to prove that petitioner's bankruptcy estate had an NOL for its tax year ending on October 10, 1985, to which petitioner could succeed and which he could carry over to 1995-2002. Accordingly, petitioners have failed to prove that they are entitled to claim, on their 1995-2002 joint income tax returns, NOL carryovers of $18,180,307.

Petitioners next assert that they are entitled to claim capital loss carryover deductions of $3,000 for 1995-2002. They argue that, in 1991, petitioner incurred a $664,771 short-term bad debt capital loss and a $376,719 long-term capital 139 T.C. 418">*444 loss from investments in debt and common stock, respectively, in TBG Associates, Ltd. They contend that they (1) reported a net capital loss of $1,041,490 on the Schedule D, Capital Gains and Losses, attached to their joint 1991 Form 1040, (2) deducted $3,000 of that loss on their 1991 Form 1040, and (3) properly carried forward the excess capital loss, offsetting "$3,000 of the capital loss carryover from 2012 U.S. Tax Ct. LEXIS 43">*95 1991 against their taxable income for each year from 1992 through 2002." Finally, they argue that respondent examined their 1991 tax return and, on May 10, 1994, mailed to petitioners a "no adjustments letter" regarding that taxable year. Respondent argues that petitioners have provided "scant evidence" in support of their claimed capital loss deductions.³²

Generally, taxpayers may claim as a deduction "any loss sustained during the taxable year and not compensated for by insurance or otherwise." Sec. 165(a). Losses from sales or exchanges of capital assets, however, are allowed only to the extent prescribed in sections 1211 and 1212. Sec. 165(f). Under those limitations, noncorporate taxpayers must first offset capital losses against capital gains; if aggregate capital losses exceed aggregate capital gains, taxpayers may deduct up to $3,000 of the excess against ordinary income. Sec. 1211(b). Capital losses exceeding the section 1211(b) limitation may then be carried over to subsequent tax years. Sec. 1212(b).

There 2012 U.S. Tax Ct. LEXIS 43">*96 is nothing in the record, other than petitioners' 1991 Form 1040, on which they reported the capital loss, and petitioner's self-serving testimony, to substantiate that he incurred a capital loss for 1991 that could be carried to 1995-2002. A taxpayer's returns alone do not substantiate deductions or losses. Wilkinson v. Commissioner, 71 T.C. 633">71 T.C. 633, 71 T.C. 633">639 (1979); Thompson v. Commissioner, T.C. Memo. 2011-291. Absent corroborating evidence, petitioners' returns do not substantiate their entitlement to deduct the 1995-2002 capital loss carryovers.

On brief, petitioners state: "Respondent examined Petitioners' 1991 tax return. On May 10, 1994[,] Respondent mailed Petitioners a 'no adjustments letter' for their 1991 taxable year." To the extent that petitioners argue that the 139 T.C. 418">*445 letter indicates respondent's acknowledgment that the 1991 capital loss was proper, we disagree. The no-change letter did not contain a determination by respondent that petitioner's 1991 capital loss was properly reported, the basis of petitioners' claim to their entitlement to deduct capital loss carryovers for tax years 1995-2002. In the no-change letter, respondent merely notified petitioners that respondent had "examined 2012 U.S. Tax Ct. LEXIS 43">*97 your tax return for the above period and made no changes to the tax you reported." Petitioners have made no claim of estoppel with respect to the no-change letter. Nor have petitioners explained why respondent was barred from making changes with respect to 1991 after issuing the no-change letter for that year. See Opine Timber Co. v. Commissioner, 64 T.C. 700">64 T.C. 700, 64 T.C. 700">713 (1975) (Commissioner's letter accepting return does not bar later determination of a deficiency), aff'd without published opinion, 552 F.2d 368">552 F.2d 368 (5th Cir. 1977); Vlock v. Commissioner, T.C. Memo. 2010-3. Respondent is not bound by representations in the no-change letter. Gale v. Commissioner, T.C. Memo. 2002-54.

Because petitioners have not proffered evidence to substantiate their claimed 1991 long- and short-term capital losses, we find that petitioners are not entitled to the claimed 1995-2002 capital loss carryover deductions.³³

Respondent has 2012 U.S. Tax Ct. LEXIS 43">*98 shown by clear and convincing evidence that petitioners have underpayments of tax for 1995-2002. Petitioners' joint Federal income tax returns for those years show zero tax liability for each year in large part because of NOL carryovers that were sufficient to eliminate any tax that would otherwise be due. Respondent has proven that petitioners are not entitled to those NOL carryovers for 1995-2002. Moreover, petitioners make no argument that they have unclaimed deductions or credits that would reduce their tax liability for each of those years. Petitioners have not shown their entitlement to deduct any capital loss carryovers. To the extent we have jurisdiction to do so, we sustain respondent's adjustments resulting from his disallowance of the NOL and capital loss carryover deductions.

The second prong of the fraud test requires the Commissioner to prove that, for each year in issue, at least some portion of the taxpayer's underpayment of tax is due to fraud. Fraud for that purpose is defined as intentional wrongdoing, with the specific purpose of avoiding a tax believed to be owed. DiLeo v. Commissioner, 96 T.C. 858">96 T.C. 874. The Commissioner must thus prove that the 2012 U.S. Tax Ct. LEXIS 43">*99 taxpayer intended to evade tax believed to be owing by conduct intended to conceal, mislead, or otherwise prevent the collection of tax. Id. A fraudulent state of mind may be proved by circumstantial evidence because direct proof of the taxpayer's intent is rarely available. Id.

Courts have developed a nonexclusive list of factors that demonstrate fraudulent intent. Those badges of fraud include: (1) understating income, (2) maintaining inadequate records, (3) implausible or inconsistent explanations of behavior, (4) concealment of assets, (5) failing to cooperate with tax authorities, (6) engaging in illegal activities, (7) an intent to mislead, (8) lack of credibility of the taxpayer's testimony, (9) filing false documents, (10) failing to file tax returns, and (11) dealing in cash. Bradford v. Commissioner, 796 F.2d 303">796 F.2d 303, 796 F.2d 303">307-308 (9th Cir. 1986), aff'gT.C. Memo. 1984-601; Scott v. Commissioner, T.C. Memo. 2012-65. "Although no single factor is necessarily sufficient to establish fraud, a combination of factors is more likely to constitute persuasive evidence." Scott v. Commissioner, T.C. Memo. 2012-65. The taxpayer's intelligence, education, and tax expertise are also relevant in 2012 U.S. Tax Ct. LEXIS 43">*100 determining fraudulent intent. Id.

We find that, for 1995-2002, respondent has failed to provide clear and convincing evidence that petitioners filed fraudulent tax returns.

An understatement of income can be shown by an overstatement of deductions. E.g., Daoud v. Commissioner, T.C. Memo. 2010-282; see Hicks Co. v. Commissioner, 56 T.C. 982">56 T.C. 982, 56 T.C. 982">1019 (1971), aff'd, 470 F.2d 87">470 F.2d 87 (1st Cir. 1972). Petitioners claimed significant deduction overstatements, namely (1) NOL deductions of $188,305, $75,355, $39,848, $63,002, $97,478, 139 T.C. 418">*447 $351,331, $105,822, and $121,885 for 1995, 1996, 1997, 1998, 1999, 2000, 2001, and 2002, respectively, and (2) capital loss carryovers of $1,041,490 from which they claimed capital loss deductions of $3,000 for each year from 1995-2002. For those years, they understated their income.

Taxpayers are required to maintain records sufficient to establish the amounts of allowable deductions and to enable the Commissioner to determine the correct tax liability. Sec. 6001. Respondent disallowed the NOL and capital loss deductions for, among other reasons, lack of substantiation. The only records in evidence are petitioner's 2012 U.S. Tax Ct. LEXIS 43">*101 amended 1995 Form 1040 and 1996-2002 Forms 1040, on which they claimed those deductions, which as discussed supra, absent supporting evidence, provide insufficient substantiation. All but one of those Forms 1040 include a self-prepared schedule of NOLs carried over and NOLs used in prior taxable years. We have little confidence in the schedules' accuracy because they do not include supporting evidence as to the origin, or use in pre-1995 taxable years, of the NOL carryovers, they do not account for the expiration of the carryovers, and at least two of the schedules provide inconsistent amounts of NOLs and resulting cumulative carryovers. Although the record contains a copy of a letter from petitioner to the Appeals officer assigned to the deficiency case in which petitioner refers to "source documents from which [his] net operating losses and capital losses can be determined", petitioners neither introduced those documents at trial nor identified any of the stipulated exhibits as the documents referred to in the letter.

Petitioners attributed the NOL carryovers to losses incurred by Holywell, MCLP, MCJV, and Chopin. They introduced, however, only some of those entities' tax returns 2012 U.S. Tax Ct. LEXIS 43">*102 for some of the examination years, which provide insufficient substantiation.

Petitioner also testified that the capital loss carryover deductions of $3,000 for 1995-2002 arose from a 1991 $664,771 short-term bad debt capital loss and a $376,719 long-term capital loss from investments in debt and common stock, respectively, in TBG Associates, Ltd. He offered no records to support that testimony.

139 T.C. 418">*448 We find petitioners' failure to keep or produce adequate records to support their return positions to be an indicium of fraud.

We disagree, however, with respondent's argument that petitioner, in a further attempt to evade Federal income tax, failed to cooperate with tax authorities. Respondent asserts primarily that petitioner, in an effort to evade tax due, often sought retribution against Government employees who disagreed with him. Respondent specifically identifies, among other things, (1) petitioner's commencing an action in the U.S. District Court for the Western District of Virginia against Mr. Smith and BNY in which he sought damages, (2) petitioner's attempt to persuade the U.S. Department of Justice to prosecute BNY for fraud, and (3) petitioner's 2012 U.S. Tax Ct. LEXIS 43">*103 request that the IRS' criminal investigation unit investigate Mr. Smith and BNY.

The aforementioned efforts, however, were not directed towards Government employees and, more significantly, they were not directed against tax authorities. Thus, they do not furnish evidence of an attempt to prevent the collection of tax. Respondent does not allege, for example, that petitioner refused to comply with document requests or failed to attend scheduled meetings with respondent or otherwise actively impeded the audit. To the contrary, petitioner agreed with respondent's request to extend the period of limitations for assessment for taxable year 2002 so that a more complete audit could be performed.

We further disagree that petitioner made misleading statements to an investigating agent, an indicium of fraud. Respondent argues that petitioner filed "amended" Forms 1041 for the MCLT with the intent to mislead respondent into making tax assessments against the trust and "then [to] mislead respondent into thinking that any taxes collected in such manner would serve to eliminate his tax liability".

Respondent has not convinced us that petitioners fraudulently filed the 1997 and 2012 U.S. Tax Ct. LEXIS 43">*104 1998 Forms 1041. Petitioners argue that they filed amended returns because the original 1997 139 T.C. 418">*449 Form 1041 was inconsistent with MCJV's 1997 Schedule K-1, and the original 1998 Form 1041 failed to report discharge of indebtedness income arising from the discharge in that year of Mr. Smith's outstanding obligation on the trustee certificate. Respondent has provided no evidence to contradict petitioner's assertion. In addition, petitioner did not mislead respondent into accepting those assessments as estimated tax payments creditable on his personal tax returns. Even before respondent had assessed those amounts, petitioner disclosed to respondent his intention of claiming on his personal tax return taxes owed by, but not collected from, the MCLT for tax year 1997. To their 1998 Form 1040, petitioners attached a disclosure form. That disclosure form appears to reflect petitioners' belief, albeit erroneous, that they were entitled to credit on their personal return $22,871,042 for taxes that had not yet, but should have, been collected from the MCLT for tax year ended December 31, 1997. Disclosure forms attached to petitioners' 2000 and 2001 Forms 1040 appear to reflect petitioners' continuing 2012 U.S. Tax Ct. LEXIS 43">*105 belief that they were entitled to credit on their personal returns for taxes that had not yet, but should have, been collected from the trust.

Petitioner disclosed to respondent both his reason for filing the MCLT's amended Forms 1041 and that, although claimed as estimated tax payments, the resulting assessments against the MCLT had not yet been paid. Given the disclosure, we cannot say that petitioners misled respondent in order to lower their tax due.

Respondent alleges that petitioner "claimed that there was a new [Holywell] entity [when he filed Holywell's postliquidation tax returns]; however, he continued to use the same incorporation date and make claims to the $10 million paid by the trustee on behalf of Holywell corporation." Respondent concludes that "either petitioner continued to file returns for the Delaware-incorporated Holywell or petitioner claimed payments on the Virginia-incorporated Holywell that were not made and listed the wrong incorporation date for the Virginia-incorporated Holywell", either of which actions amounts to filing false documents.

139 T.C. 418">*450 We find that respondent has failed to prove by clear and convincing evidence that petitioner filed 2012 U.S. Tax Ct. LEXIS 43">*106 false documents with the purpose of avoiding his tax obligation. As stated supra, respondent must prove that, for 1995, 1996, 1997, 1998, 1999, 2000, 2001, and 2002, at least some portion of each of petitioners' underpayments of tax is due to fraud. Even if we were to find that petitioner falsely filed tax returns for Holywell after its liquidation or falsely claimed a refund for the Virginia-incorporated Holywell, such actions do not relate to petitioners' underpayments of tax for 1995-2002. In other words, petitioners' underpayments of tax are not due to the filing of false documents as alleged by respondent.

Respondent also asserts that, because he lacked the authority or fiduciary capacity to do so, petitioner filed false "amended" Forms 1041 on behalf of the MCLT. The filing of the Forms 1041 by themselves did not cause underpayments of tax for 1995-2002.

Respondent argues that petitioner's inconsistent explanations of behavior include: (1) filing post-1985 Federal tax returns for a Virginia-incorporated Holywell corporation but using the "incorporation date of the Delaware Holywell" on its tax returns and claiming refunds on 2012 U.S. Tax Ct. LEXIS 43">*107 behalf of Holywell, an entity that petitioner acknowledged is a separate taxable entity, (2) claiming that the MCLT is a grantor trust but reporting only losses and tax payments but not income attributable to the trust, and (3) providing contradictory statements as to his entitlement to MCJV's losses.

As explained supra, petitioners' 1995-2002 underpayments of tax are not due to the filing of those Federal tax returns. Thus, whether or not inconsistent, petitioner's explanations for his behavior do not factor into our analysis.

Most of the disallowed NOLs originate from petitioners' carryover of losses of the MCLT. Petitioner's explanations were not only implausible but nonexistent as to why, after taking the position that the MCLT was a grantor trust, petitioner claimed on his personal tax returns his portions of its losses but failed to report the trust's income. He did not attempt to explain this discrepancy. Petitioner has demonstrated 139 T.C. 418">*451 extensive knowledge of the grantor trust rules and is aware that a grantor of a trust must take into account items of both income and deduction. Petitioners' documents and attachments to their Forms 1040 have proved to us that petitioner is extremely 2012 U.S. Tax Ct. LEXIS 43">*108 wellversed in these rules and we cannot attribute his failing to include attributable income to a mistake of a question of law. We can only deduce from petitioner's implausible explanation (or lack thereof) that petitioners selectively reported only the tax benefits associated with a grantor trust in order to evade tax petitioner believed (incorrectly) to be due. We find that petitioner's implausible explanation of behavior is an indicium of fraud.

Although petitioner did provide inconsistent explanations as to his entitlement to deduct losses from MCJV, we do not find that those explanations are evidence of fraudulent intent. In a 1993 deposition in a previous proceeding, when asked about his 1989 tax return in which he listed on the Schedule E, Supplemental Income and Loss, losses from MCJV and MCLP, petitioner responded: "That's a return that has to be amended. * * * Because my limited partnership interests and my joint venture interests have been held by the courts to have been assigned to the Miami Center." The deposition continued as follows:

Q. So, in what way will you amend the return?

A. Eliminate the losses.

* * * *

A. What I am saying is we will amend the losses belonging to 2012 U.S. Tax Ct. LEXIS 43">*109 me as the beneficial owner of that property, of the joint venture interest. When the trust is dissolved, those losses will be available to me.

Q. But not in 1989?

A. But not in 1989.

We are thus faced with explanations of behavior that both evidence his fraudulent intent and do not. However, because of petitioner's demonstrated knowledge of the grantor trust 139 T.C. 418">*452 rules and his obvious selective reporting in order to obtain a substantial tax benefit, we conclude that, on the whole, petitioner provided implausible explanations of his behavior in order to evade tax known to be owing.

After considering the entire record and the factors discussed supra, 2012 U.S. Tax Ct. LEXIS 43">*110 we find that, for 1995-2002, respondent failed to provide clear and convincing evidence that petitioners filed fraudulent tax returns.^{342012 U.S. Tax Ct. LEXIS 43">*111} While petitioner's implausible explanation as to why he claimed losses but did not report income of the MCLT strongly indicates to us his intent to evade tax believed to be owed, no single factor is necessarily sufficient to establish fraud. Even when considered in combination with his understatements of his 1995-2002 income and his failure to maintain adequate records for those years, we cannot conclude that these indicia evidence fraud in the face of the aforementioned indicia that indicate otherwise. Specifically, petitioner's cooperation with tax authorities and his disclosure on his Forms 1040 of the reasons for claiming as estimated tax payments the unpaid assessments against the MCLT's 1997 and 1998 tax years lead us to conclude that, although incorrect in his tax positions, petitioner was not attempting to fraudulently lower his tax due.

Accordingly, the extended limitations period provided in section 6501(c) is inapplicable, and respondent's determinations and adjustments relating to taxable years 1995-2001 are barred.

Because of the absence of fraud that would extend the three-year period of limitations, pursuant to section 6501(c), respondent may not assess or collect deficiencies in petitioners' 1995-2001 Federal income tax. Respondent may, however, 2012 U.S. Tax Ct. LEXIS 43">*112 assess and collect any deficiency in petitioners' 2002 Federal income tax. Petitioners bear the burden of proof. SeeRule 142(a).³⁵

Respondent disallowed for lack of substantiation $121,885 and $3,000 deducted as net operating and capital losses, respectively, for 2002. As we found supra section I.A.2. of this report, petitioners have failed to establish: (1) their entitlement to deduct the NOLs of Holywell, MCC, MCLP, Chopin, MCJV, and petitioner's bankruptcy estate, (2) that they incurred a capital loss for 1991, and (3) the amount of any such loss that may be carried over to 2002.

Petitioners have failed to prove their entitlement to any of the disallowed deductions. Therefore, we sustain respondent's adjustments disallowing the claimed NOL deduction and the capital loss 2012 U.S. Tax Ct. LEXIS 43">*113 deduction of $121,885 and $3,000, respectively, for 2002.

Petitioners next argue that they are "entitled to a credit or a refund of [a $13,361,000] * * * overpayment of tax on income attributable to property held by the Liquidating Trust because the Liquidating Trust is a grantor trust and * * * [petitioner] is treated as the owner thereof". Petitioners claim that the $13,361,000 overpayment of tax consists of (1) $13 million in tax payments made, in 1992 and 1993, under the joint motion by the trustee to the IRS on behalf of the MCLT, and (2) $361,000 in additional payments made by the trustee to the IRS on behalf of Holywell for taxable 139 T.C. 418">*454 years after July 31, 1986, of which $327,000 was for taxable years covered under the joint motion. They assert that, although Mr. Smith remitted these payments, petitioner should be treated as the taxpayer who made payment because "Petitioner was the owner of the Liquidating Trust for tax purposes and, as such, was required to include items of income, deduction and credit of the Liquidating Trust on his personal tax return". They allege that the entire $13,361,000 in tax payments, which they reported as estimated 2012 U.S. Tax Ct. LEXIS 43">*114 tax payments on their tax returns, constituted an overpayment of tax because, for 1985-2002, they either incurred a loss or had unexpired NOL carryovers in excess of income. Petitioners conclude that they are thus entitled to a refund of the balance.³⁶

At trial, petitioner conceded that he is not entitled to a credit or refund of those payments if this Court concludes that he was not the grantor or the beneficial owner of the trust. Indeed, as detailed above, petitioners' arguments on brief rest upon the assertion that the MCLT was a grantor trust and petitioner its grantor such that items of income, deduction, and credit "passed through to Petitioner and Petitioner is entitled to a credit or a refund of amounts paid by the Liquidating Trustee to Respondent."

We accept petitioner's concession. Because of our finding that 2012 U.S. Tax Ct. LEXIS 43">*115 the MCLT is not a grantor trust as to petitioner, petitioner is not entitled to a credit or refund for $13 million in payments made, in 1992 and 1993, by the trustee to the IRS on behalf of the MCLT and for $361,000³⁷ in payments made by the trustee to the IRS on behalf of Holywell for taxable years after July 31, 1986.^{382012 U.S. Tax Ct. LEXIS 43">*116}

Finally, petitioners argue that respondent improperly abated assessments of income tax against the MCLT for taxable years 1997 and 1998. Upon receipt of the MCLT's amended 1997 and 1998 Forms 1041, respondent assessed MCLT's 1997 tax liability of $22,871,041, and its 1998 tax liability of $8,672,291. Petitioners reported those unpaid assessed amounts as estimated tax payments on their joint tax returns and applied a portion of those estimated tax payments to their 2002 Form 1040. Respondent later abated the assessments.

The Secretary is authorized to abate the unpaid portion of an assessment of any tax or liability in respect thereof that is, among other things, erroneously or illegally assessed. Sec. 6404(a)(3). If an assessment is properly abated, the abatement entirely extinguishes the assessment. Becker v. IRS (In re Becker), 407 F.3d 89">407 F.3d 89, 407 F.3d 89">97 (2d Cir. 2005). On brief, the parties focus their arguments primarily on whether respondent's abatement was of an erroneous assessment as defined under section 6404(a)(3).

We 2012 U.S. Tax Ct. LEXIS 43">*117 lack jurisdiction to determine the propriety of respondent's abatement of those assessments against the MCLT. Although it was not raised by either party, this Court may question jurisdiction at any time, even after the case has been tried and briefed. Smith v. Commissioner, 124 T.C. 36">124 T.C. 36, 124 T.C. 36">40 (2005). It is well settled that in a deficiency case this Court lacks jurisdiction to provide relief other than to "redetermine the correct amount of the deficiency", sec. 6214(a), and "may exercise jurisdiction only to the extent authorized by Congress", Estate of Gudie v. Commissioner, 137 T.C. 165">137 T.C. 165, 137 T.C. 165">170 (2011). Petitioners' abatement claim does not fall within our jurisdictional bounds. As we found supra section I.A.2.a.(1)(b) of this report, the MCLT is not a grantor trust as to petitioner; and therefore he is deprived of entitlement to report items of income, loss, and estimated tax payments on his personal tax returns. Even if we were to exercise jurisdiction and find the assessments proper, petitioners may not claim on their 2002 tax return, as estimated tax payments applied from previous tax returns, any assessed and collected income taxes against MCLT. Our determination regarding the propriety 2012 U.S. Tax Ct. LEXIS 43">*118 of the assessments of tax against 139 T.C. 418">*456 the MCLT would, therefore, not redetermine the correct amount of petitioners' 2002 deficiency. We decline to adjudicate the issue.

Section 6662(a) and (b)(1)-(3) imposes an accuracy-related penalty in the amount of 20% of the portion of an underpayment of tax attributable to, among other things, negligence or disregard of rules or regulations, any substantial understatement of income tax, or any substantial valuation misstatement. The accuracy-related penalty, however, does not apply to any part of an underpayment if it is shown that the taxpayer acted with reasonable cause and in good faith with respect to that portion. Sec. 6664(c)(1).

The Commissioner bears the burden of production with respect to penalties. Sec. 7491(c). To meet that burden, he must produce evidence regarding the 2012 U.S. Tax Ct. LEXIS 43">*119 appropriateness of imposing the penalty. Higbee v. Commissioner, 116 T.C. 438">116 T.C. 438, 116 T.C. 438">446 (2001). Once the Commissioner carries his burden, the burden of proof remains with the taxpayer, including the burden of proving that the penalties are inappropriate because of reasonable cause. Id.

In the notice of deficiency, as an alternative to the fraud penalty under section 6663(a), respondent determined the accuracy-related penalty for tax year 2002 upon the grounds of substantial understatement of income tax and negligence. Only one accuracy-related penalty may be applied with respect to any given portion of an underpayment, even if that portion is subject to the penalty on more than one of the aforementioned grounds. Sec. 1.6662-2(c), Income Tax Regs.

Section 6662(a) and (b)(2) imposes a 20% accuracy-related penalty on any portion of an underpayment of tax required to be shown on a return which is attributable to any substantial understatement of income tax. An "understatement of 139 T.C. 418">*457 income tax" generally means the excess of the amount of tax required to be shown on the return for the taxable year, over the amount of the tax imposed which is shown on the 2012 U.S. Tax Ct. LEXIS 43">*120 return. Sec. 6662(d)(2)(A). The understatement is deemed "substantial" if the amount of the understatement for the taxable year exceeds the greater of 10% of the tax required to be shown on the return for the taxable year or $5,000. Sec. 6662(d)(1)(A).

The amount of the understatement, however, is reduced by that portion of the understatement attributable to the tax treatment of any item (1) supported by substantial authority or (2) for which the relevant facts affecting the item's tax treatment are adequately disclosed in the return or in a statement attached to the return and there is a reasonable basis for the tax treatment of such item. Sec. 6662(d)(2)(B). Adequate disclosure has no effect, therefore, where the return position lacks reasonable basis. Sec. 1.6662-3(c)(1), Income Tax Regs. Reasonable basis is a "relatively high standard of tax reporting" and is "not satisfied by a return position that is merely arguable or that is merely a colorable claim." Sec. 1.6662-3(b)(3), Income Tax Regs.

We have sustained respondent's disallowance of the claimed NOL and capital loss deductions of $121,885 and $3,000, respectively, for tax year 2002. The resulting understatement of income tax 2012 U.S. Tax Ct. LEXIS 43">*121 exceeds the greater of 10% of the tax required to be shown on the 2002 return ($4,109) or $5,000. Respondent has met his burden of production regarding the existence of a substantial understatement.

Petitioners assert that they are not liable for the section 6662(a) penalty on the ground of disregard of rules or regulations because they adequately disclosed their return position and the position "was sound in all respects". In support of their argument, petitioners urge us to adopt the following proposed finding: "The disclosures attached to Petitioners' tax returns explained the tax credits, net operating losses and net capital losses to which Petitioner believed he was entitled as the beneficial owner of the Liquidating Trust under the Supreme Court's opinion in Holywell."

Although petitioners raise this argument as a defense against the section 6662(a) penalty on the ground of disregard 139 T.C. 418">*458 of rules or regulations,⁴⁰ we deem them to have raised it in defense of the section 6662(a) penalty on the ground of substantial understatement of income tax. Because petitioners refer only to those NOLs attributable to the MCLT and not to those petitioner claimed, for 1985, as successor to his bankruptcy 2012 U.S. Tax Ct. LEXIS 43">*122 estate, we assume that they argue for a partial reduction in the amount of the understatement for 2002.

We are unpersuaded by petitioners' argument that Holywell Corp. v. Smith, 503 U.S. 47">503 U.S. 47, 112 S. Ct. 1021">112 S. Ct. 1021, 117 L. Ed. 2d 196">117 L. Ed. 2d 196, provides a reasonable basis for their return position. As explained supra section I.A.2.a.(1)(a) of this report, the U.S. Supreme Court stated that it "fail[ed] to see how the respondents can characterize * * * [petitioner] as the grantor" of the MCLT, and the Court did not address whether petitioner was the trust's beneficial owner. 503 U.S. 47">Id. at 57. We cannot conclude that petitioners meet the relatively high standard of tax reporting demanded by reasonable basis when their position is based on an opinion that is silent as to the issue. Further, petitioners assert that they incurred the 1991 capital loss from which the capital loss carryover in issue resulted from an investment 2012 U.S. Tax Ct. LEXIS 43">*123 in TBG Associates, Ltd. We do not see, and petitioners have not explained, the relevance of Holywell Corp. to that tax position.

We find it curious that petitioners anchor their reasonable basis argument on a case that they assert holds that petitioner may claim deductions as beneficial owner of the MCLT when, in support of all other arguments made on brief, petitioners predicate their entitlement to those same loss carryovers on petitioner's status as grantor. It may be that petitioners use the term "beneficial owner" interchangeably with that of "grantor". If they are asserting a different argument, however, they have not shown any authority to support that new contention. In any event, given our finding and accompanying discussion supra section I.A.2.a.(1)(b) of this report, that section 1.671-2(e), Income Tax Regs., fails to support petitioner's tax position that he is grantor of the trust, we find that petitioners lacked a reasonable basis in reporting, on their joint 2002 Form 1040, an NOL deduction139 T.C. 418">*459 related to losses attributable to the MCLT and a capital loss carryover.

Consequently, we find that petitioners have failed to show that the substantial understatement should be reduced 2012 U.S. Tax Ct. LEXIS 43">*124 because they had a reasonable basis for reporting NOL and capital loss deductions on their joint 2002 tax return.⁴¹ Therefore, we need not address the adequacy of the disclosure of their tax position. Seesec. 1.6662-3(c)(1), Income Tax Regs.

Accordingly, petitioners are liable for the 20% accuracy-related penalty under section 6662(d) for tax year 2002 unless they meet the section 6664(c) exception for reasonable cause and good faith. Because of section 1.6662-2(c), Income Tax Regs., we need not address the applicability of the penalty based upon the ground of negligence.

A taxpayer may avoid the section 6662(a) penalty by showing that he had reasonable cause for a portion of the underpayment and that he acted in good faith with respect to that portion. Sec. 6664(c)(1). Reasonable cause requires that the taxpayer exercise ordinary business care and prudence as to the disputed item. United States v. Boyle, 469 U.S. 241">469 U.S. 241, 469 U.S. 241">246, 105 S. Ct. 687">105 S. Ct. 687, 83 L. Ed. 2d 622">83 L. Ed. 2d 622 (1985). That determination is made on a case-by-case 2012 U.S. Tax Ct. LEXIS 43">*125 basis, taking into account all pertinent facts and circumstances, including the taxpayer's knowledge and experience. Woodsum v. Commissioner, 136 T.C. 585">136 T.C. 585, 136 T.C. 585">591 (2011); sec. 1.6664-4(b)(1), Income Tax Regs. Generally, the most important factor is the extent of the taxpayer's effort to assess his proper tax liability. Sec. 1.6664-4(b)(1), Income Tax Regs.

A taxpayer may demonstrate reasonable cause through good-faith reliance on the advice of an independent professional, such as a tax adviser, lawyer, or accountant, as to the item's tax treatment. Boyle, 469 U.S. 241">469 U.S. at 251; Canal Corp. & Subs. v. Commissioner, 135 T.C. 199">135 T.C. 199, 135 T.C. 199">218 (2010). To prevail, the taxpayer must show that he: (1) selected a competent adviser with sufficient expertise to justify reliance, (2) supplied the adviser with necessary and accurate information, 139 T.C. 418">*460 and (3) actually relied in good faith on the adviser's judgment. See 106 Ltd. v. Commissioner, 136 T.C. 67">136 T.C. 67, 136 T.C. 67">77 (2011), aff'd, 684 F.3d 84">684 F.3d 84, 401 U.S. App. D.C. 288">401 U.S. App. D.C. 288 (D.C. Cir. 2012). The professional's advice must be based on all pertinent facts and circumstances; "if the adviser is not versed in the nontax factors, mere reliance on the tax adviser may not suffice." Todd v. Commissioner, T.C. Memo. 2011-123; 2012 U.S. Tax Ct. LEXIS 43">*126 see also Freytag v. Commissioner, 89 T.C. 849">89 T.C. 849, 89 T.C. 849">888 (1987), aff'd, 904 F.2d 1011">904 F.2d 1011 (5th Cir. 1990), aff'd, 501 U.S. 868">501 U.S. 868, 111 S. Ct. 2631">111 S. Ct. 2631, 115 L. Ed. 2d 764">115 L. Ed. 2d 764 (1991).

Petitioners claim that they acted with reasonable cause and in good faith in reporting the NOL and capital losses and related carryover deductions on their joint 2002 Form 1040 because (1) their "returns were carefully prepared, with the assistance of either or both a qualified certified public accountant or tax counsel", and (2) they "made a full and honest attempt to assess [their] tax liability".

Petitioners do not identify the aforementioned "qualified certified public accountant or tax counsel". After reviewing the record, we construe petitioners' argument to be that they relied on (1) Mr. Schumacher, a certified public accountant, to accurately prepare the Federal tax returns on which petitioners reported the NOLs and capital losses, and (2) their attorney, Mr. Musselman, to review petitioners' self-prepared 2002 Form 1040 and "the returns filed by Petitioner on behalf of the Liquidating Trust as its beneficial owner for taxable years 1997 and 1998."

Petitioners failed to prove that Messrs. Schumacher and Musselman were competent tax advisers with sufficient 2012 U.S. Tax Ct. LEXIS 43">*127 expertise to justify their reliance. Petitioners introduced no evidence regarding their particular expertise in analyzing grantor trust arrangements or bankruptcy law for Federal income tax purposes. See 106 Ltd. v. Commissioner, 136 T.C. 67">136 T.C. 77. Petitioners similarly failed to show that they provided either man with the necessary and accurate information to properly prepare or review their joint tax returns. Petitioners introduced no evidence that they provided Mr. Musselman with pertinent details underlying the tax items reported on their 2002 tax return or that they provided Mr. Schumacher with any information with which to properly prepare their Federal tax returns. For example, petitioners did not proffer evidence that they provided Mr. Schumacher with information as to petitioner's entitlement to succeed to the NOLs of 139 T.C. 418">*461 his bankruptcy estate or to the capital loss petitioner purports to have incurred in 1991. Although Mr. Schumacher prepared financial information for MCJV, MCLP, and Chopin from which the entities' Schedules K-1 were prepared, and prepared petitioners' 1991-94 Forms 1040 from those Schedules K-1, the record is silent as to petitioners' role in supplying to Mr. Schumacher 2012 U.S. Tax Ct. LEXIS 43">*128 all necessary information to ensure accurate preparation of those Forms 1040.

In addition, petitioners have not proved that they received or relied upon the advice of Mr. Schumacher or Mr. Musselman regarding the tax treatment of the NOL and capital losses and their entitlement to carry over those losses to their 2002 Form 1040. In order to constitute "advice" under section 1.6664-4(c)(2), Income Tax Regs., the communication must reflect the adviser's "analysis or conclusion." Woodsum v. Commissioner, 136 T.C. 585">136 T.C. 593 ("The taxpayer must show * * * that he 'relied in good faith on the adviser's judgment.'" (quoting Neonatology Assocs., P.A. v. Commissioner, 115 T.C. 43">115 T.C. 43, 115 T.C. 43">99 (2000), aff'd, 299 F.3d 221">299 F.3d 221 (3d Cir. 2002))). Petitioners proffer that Mr. Musselman reviewed petitioners' 2002 self-prepared return and that they relied on his advice; petitioners, however, did not specify the nature or substance of the advice. Petitioners similarly failed to establish that Mr. Schumacher exercised judgment or made a professional recommendation when preparing petitioners' 1991-94 Forms 1040. Reliance on the mere fact that a certified public accountant has prepared a tax return does not mean that he 2012 U.S. Tax Ct. LEXIS 43">*129 "opined on any or all of the items reported therein." Neonatology Assocs., P.A. v. Commissioner, 115 T.C. 43">115 T.C. 100.

We also find that petitioners failed to make a good-faith effort to assess their proper 2002 tax liability. Petitioners argue that petitioner "made a full and honest attempt to assess his tax liability, and fully disclosed his position to Respondent. * * * Respondent cannot use his disagreement with Petitioner's interpretation of the facts and the law as grounds for a penalty." In support of their contention, petitioners direct us to, among others, the following proposed findings: (1) petitioners disclosed to respondent, on their 1997 and 1998 Forms 1040, the amounts of taxes that the liquidating trustee had paid and that the assessed 1997 and 1998 taxes against the MCLT remained unpaid, and (2) petitioners' tax returns fully explained the tax credits, NOLs, and 139 T.C. 418">*462 net capital losses to which they believed they were entitled under Holywell Corp. v. Smith, 503 U.S. 47">503 U.S. 47, 112 S. Ct. 1021">112 S. Ct. 1021, 117 L. Ed. 2d 196">117 L. Ed. 2d 196.

Even assuming that we were to make those proposed findings, which we do not, they do not establish the steps taken to verify the accuracy of the purportedly disclosed tax positions. Petitioners presented no evidence 2012 U.S. Tax Ct. LEXIS 43">*130 that they researched or otherwise determined the proper tax treatment of the NOLs, both from the MCLT and petitioner's bankruptcy estate, and capital losses. As stated supra section I.C.2. of this report, we do not find that petitioner, an educated and successful businessman, could in good faith have reasonably based his tax position on the U.S. Supreme Court's decision in Holywell Corp. Finally, the record is devoid of any evidence of petitioners' attempts to ascertain the correctness of the 2002 capital loss carryover generated from an unsubstantiated 1991 capital loss.

Petitioners have not carried their burden of proving that they acted with reasonable cause and in good faith in claiming the NOL carryover deduction and the capital loss carryover on their joint 2002 Form 1040.

Petitioners are liable for the section 6662(a) penalty as applied to the underpayment of tax determined herein for taxable year 2002.

Finally, we decide whether: (1) respondent may proceed by levy with the collection of petitioners' self-reported self-employment taxes, accrued interest, and penalties, for tax 2012 U.S. Tax Ct. LEXIS 43">*131 years 1995, 1999-2003 and 2005-07 pursuant to section 6330, (2) Appeals abused its discretion in sustaining the filing of the notice of Federal tax lien for tax years 2000-2003 and 2005-07, and (3) Settlement Officer DeVincentz abused his discretion in refusing petitioners a face-to-face CDP hearing for tax years 2000-2003 and 2005-07.

Section 6321 imposes a lien for unpaid Federal taxes, which arises when an assessment is made. Sec. 6322. The Secretary must notify the taxpayer in writing of the filing of a notice of lien and, among other things, the taxpayer's right 139 T.C. 418">*463 to request a hearing on the matter. Sec. 6320(a). Section 6320(c) requires that that hearing be conducted pursuant to section 6330(c), "(d) (other than paragraph (2)(B) thereof), (e), and (g)".

Section 6331(a) authorizes the Secretary to levy upon property and property rights of a taxpayer liable for taxes who fails to pay those taxes within 10 days after notice and demand for payment is made. Section 6331(d) requires that the Secretary give written notice to the taxpayer of his intent to levy, and section 6330(a) requires the Secretary to send the taxpayer written notice of his right to a hearing before Appeals at least 2012 U.S. Tax Ct. LEXIS 43">*132 30 days before any levy begins.

If the taxpayer requests a hearing in response to either a notice of Federal tax lien or a notice of levy, he may raise at the hearing "any relevant issue relating to the unpaid tax or 139 T.C. 418">*464 the proposed levy". Sec. 6330(c)(2)(A). He may also challenge the existence or amount of the underlying tax liability if he did not receive a statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B).

We have jurisdiction over the determination made by Appeals, and our jurisdiction is defined by the scope of that determination. Sec. 6330(d)(1); Freije v. Commissioner, 125 T.C. 14">125 T.C. 14, 125 T.C. 14">25 (2005).

Petitioners filed hearing requests in response to the notices of levy and the lien notice challenging Appeals' determination on the ground that, in 1992 and 1993, the liquidating trustee "made payments to the Internal Revenue Service of $13,361,000⁴² for which * * * [petitioners] should receive a credit" and which offset their 1995, 1999-2003, and 2005-07 self-employment tax liabilities.⁴³ On brief, both parties raised the jurisdictional issue, specifically, whether, under Freije, petitioners' claim 2012 U.S. Tax Ct. LEXIS 43">*133 to credits against their 1995, 1999-2003, and 2005-07 tax liabilities for overpayments from non-CDP years is a "relevant issue relating to the unpaid tax or the proposed levy" for those years such that we have jurisdiction to review Appeals' determination.

We do not reach the issue of our authority under section 6330(d)(1) to decide petitioners' claim of overpayments from prior years because that claim is time barred.^{442012 U.S. Tax Ct. LEXIS 43">*134}

Section 6402(a) permits the Secretary to credit the amount of an overpayment, including any interest allowed thereon, against "any liability in respect of an internal revenue tax on the part of the person who made the overpayment". As we recently stated in Brady v. Commissioner, 136 T.C. 422">136 T.C. 422, 136 T.C. 422">427 (2011), in certain situations this Court has considered a taxpayer's claim that his liability for the year involved in a section 6330 collection proceeding should be offset by overpayments in other years.⁴⁵ We explained that the taxpayer's entitlement to credits against his unpaid tax for a determination year for an alleged overpayment in a prior year depends on whether he asserted his overpayment claim within the applicable period of limitations. 136 T.C. 422">Id. at 428 ("[I]f petitioner's overpayment claims are statutorily time barred (assuming arguendo that there was an overpayment), any claim that overpayments are available as a credit to offset the 2005 tax liability would also be time barred."). A claim for credit or refund of an overpayment must be filed "within 2012 U.S. Tax Ct. LEXIS 43">*135 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid." Sec. 6511(a).

Mr. Smith remitted $13 million to the IRS in 1992 and 1993⁴⁶ as estimated tax payments and advance payments on behalf of the MCLT and Holywell for taxable years 1985-91. 139 T.C. 418">*465 The MCLT and Holywell did not file Federal tax returns for those years. Petitioners, asserting that petitioner should be treated as the taxpayer who remitted the payments because the MCLT is a grantor trust as to him and because he "did not have taxable income for the applicable years", claimed a credit or refund of those alleged overpayments. Petitioner did so, at the earliest,^{472012 U.S. Tax Ct. LEXIS 43">*137} on September 25, 1997, the date on which he filed petitioners' amended 1995 joint Form 1040, claiming estimated tax payments of $3,103,406 and reporting an overpayment of $3,091,159. Petitioners' claim for a credit or refund of the 1992 and 1993 payments occurred more 2012 U.S. Tax Ct. LEXIS 43">*136 than two years after Mr. Smith had remitted the payments to the IRS. Petitioners, therefore, did not timely claim a credit or refund of those overpayments with respect to the nondetermination years. Their claim of credits against their 1995, 1999-2003 and 2005-07 self-employment tax liabilities for overpayments is time barred.

As to years 2000-2003 and 2005-07, petitioners also argue that they did not receive a CDP hearing and that Settlement Officer DeVincentz abused his discretion in failing "to grant the petitioner's statutory right to a face-to-face [CDP] hearing". Because this is not a challenge to the underlying tax liabilities, we review this issue for abuse of discretion. See Sego v. Commissioner, 114 T.C. 604">114 T.C. 604, 114 T.C. 604">610 (2000).

Although a CDP hearing may consist of a face-to-face conference, it may also be conducted by telephone, by correspondence, or by review of documents. Sec. 301.6330-1(d)(2), Q&A-D6, Proced. & Admin. Regs. There is sufficient evidence in the record to support a finding that, during the examination, petitioner spoke to, corresponded with, and sent documents to, Settlement Officer DeVincentz. We find that petitioner was afforded a CDP hearing. Settlement Officer DeVincentz did not abuse his discretion in refusing petitioner's request for a face-to-face CDP hearing at a specific location because such a hearing would have been futile. E.g., Busche v. Commissioner, T.C. Memo. 2011-285, 2011 WL 6089879">2011 WL 6089879, at *2011 WL 6089879">13 ("[A] face-to-face hearing may be granted only upon a showing 2012 U.S. Tax Ct. LEXIS 43">*138 that there is something to be accomplished at a face-to-face hearing."). First, as we found supra, petitioners' claim that the liquidating trustee's payments to 139 T.C. 418">*466 the IRS offset their 2000-2003 and 2005-07 self-employment tax liabilities is time barred. Even assuming that their claim was not time barred, considering the evidence and our finding that petitioner was not a grantor of the MCLT, petitioners' argument was groundless. Petitioners were not entitled to claim those credits on their tax returns and had made the same argument numerous times before both Appeals and other courts. Indeed, the notice of determination for 2000-2003 and 2005-07 stated that petitioners could not challenge the liabilities in their CDP hearing because "This issue [claim to credits] has been repeatedly challenged by the taxpayer and ruled against him." Petitioners did not propose any collection alternatives. Therefore, a face-to-face hearing would not have been productive. Under these circumstances, it was not an abuse of discretion for Settlement Officer DeVincentz to refuse to conduct a face-to-face hearing.

To reflect the foregoing,

Decisions will be entered under Rule 155.