Kelvin & Jacqueline Burley, Petitioner

T.C. Memo. 2011 262 UNITED STATES TAX COURT KELVIN AND JACQUELINE BURLEY, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent .

Docket No. 27528-09.

Filed November 7, 2011.

Alvaro G. Velez, for petitioners .

Archana Ravindranath, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

CHIECHI, Judge: Respondent determined deficiencies in,· and an addition under section 6651(a) (1)1 tc, petitioners' Federal income tax (tax) as follows:

All section references are to the Internal Revenue Code (Code) to the Tax Court Rules of Practice and Procedure.

in effect for the years at issue. All Rule references are SERVED N0y , 7 2011 Year 2005 2006 2007 _ 2 - Deficiency $64,646 1,855 58,693 .

Addition to Tax Under Section 6651(a) (1) $3,158.25 -- -- The issues remaining for decision are:

(1) Do petitioners have unreported income of $100,809.88, $2,637.06, and $5,720.93 for their taxable years 2005, 2006, and 2007, respectively? We hold that they do.

(2) Are petitioners entitled to deduct certain car and truck expenses of $74,737 for their taxable year 2005 and $72,517.59 for their taxable year 2007 in excess of the deductions for those expenses that respondent allowed for each of those years? We hold that they are not.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

Petitioners resided in Ohio at the time they filed the petition.

Since 1987 until at least 2007, petitioner Kelvin Burley (Mr. Burley) was the owner and sole proprietor of a trucking broker business known as Burley Trucking. At all relevant times, Burley Trucking hauled broken concrete, soil, asphalt, gravel, and other debris for various companies.

During at least 2005, Burley Trucking owned seven or eight trucks.² At all relevant times, Mr. Burley's trucks required repairs on a regular basis as a result of the rough work condi- tions in which those trucks were operated.

.Petitioners did not maintain adequate books and records for Burley Trucking for any of the taxable years at issue.

During at least 2006 and 2007, petitioner Jacqueline Burley (Ms. Burley) provided certain services to Burley Trucking, including occasionally purchasing and picking up certain parts and certain supplies from certain vendors.

At certain times during the years *at issue, Dennison Truck- ing, which was owned and operated by Charles E. Dennison, Jr.

(Mr. Dennison) , provided certain haul rkg services as a subcon- tractor of Burley Trucking. At certain other times during those years, Mr. Dennison performed certain:repairs on some of the trucks that Burley Trucking owned.

In connection with making some of those repairs, Mr. Dennison purchased on behalf of Mr.

Burley with cash that Mr. Burley provided to Mr. Dennison certain unidentified parts for certain unidentified costs. After com- pleting each such purchasevon behalf of Mr. Burley, Mr. Dennison gave Mr. Burley a receipt from the vendor.

2The record does not establish how many trucks Burley Truck- ing owned during each of the years 2006 and 2007.

During "2005, 2006, and 2007, petitioners maintained the following bank accounts (collectively, petitioners' bank accounts) at the financial institutions indicated:

Year 2005 2005 2005-07 2005-07 2005-07 2005-07 2005-07 2005-07 2005-07 2007 2007 2007 Institution Hancock Bank Hancock Bank U.S. Bank U.S. Bank . U.S. Bank U.S. Bank National City Bank National City Bank National City Bank National City Bank National City Bank National City Bank .

Account No. Ending 0823 1622 9039 6737 9109 7447 3396 0337 8695 0030 0589 .

On a date in 2005 not established by the record, petition- ers deposited a check for $8,170 into an unidentified bank account.

That check was an "official check"3 for $8,170 dated July 8, 2005, which was issued by National City Bank and made payable to Burley Trucking.

The front side of that check bore the notation "PERFORMANCE PAVING INC." on the line marked "Remitter".

On August 15, 2005, petitioners withdrew $22,006 from their U.S. Bank account with account number ending 6737.

On August 16, 2005, petitioners deposited $22,000 into that same account.

3Although it is not altogether clear, it appears that an official check is a cashier's check, certified check, or other similar check issued by a bank.

On October 24, 2005, petitioners. (1) withdrew $10,000 from their U.S.. Bank account with account number ending 6737 and (2) deposited $10,000 into their U.S. Bank account with account number ending 1622.

On December 15, 2005., petitioners deposited a total of $42,222 into their U.S. Bank account with account ·number ending 9109. Of that $42,222 total deposit, $'40,000 consisted of a check dated October 20, 2005 (October 20, 2005 check), which was issued by Union National Fire Insurance Co.

(Union National Insurance) and made payable to Gretta M. Buckley and Luther Burley.

The front side of that check bore the notation "POLICY

NUMBER 7517423175".

The October 20, 2005 check was endorsed on the back by the payees, Gretta M. Buckley and Luther Burley, and reendorsed by Mr. Burley.

Petitioners filed Form 1040, U.S.

Individual Income Tax Return, for each of their taxable years 2005 (2005 return), 2006 (2006 return), and 2007 (2007 return).h Petitioners attached to each of the 2005 return, the 2006 return, and the 2007 return I Schedule C, Profit or Loss From Business (Schedule C), for Burley Trucking. · In Schedule C that petitioners attached to the 2005 return, Mr. Burley reported "Gross receipts orisales" of $585,042 and deducted, inter alia, "Car and truck expenses" of $283,392.

In Schedule C that petitioners attached to the 2006 return, Mr. Burley reported "Gross receipts or sales" of $520,000 and deducted, inter alia, "Car and truck expenses" of $262,013.50.

In Schedule C that petitioners attached to the.2007 return,.

Mr. Burley reported "Gross receipts or sales" of $604,379 and deducted, inter alia, "Car and truck expenses" of $228,676.17.

Att a time not established by the record, respondent assigned Brian Kimmel (Mr. Kimmel), one of respondent's revenue agents, to examine the respective returns that petitioners had filed for their taxable years 2005, 2006, and 2007 (respondent's examina- tion).

As part of that examination, Mr. Kimmel asked petitioners to provide him with all documents that Burley Trucking maintained during each of those years. Mr. Kimmel also asked petitioners to provide him with all bank statements relating to Burley Trucking for each of the years at issue.

(We shall refer to Mr. Kimmel's requests for documents and bank statements relating to Burley Trucking as Mr. Kimmel's requests.)

Around October 2008, petitioners hired an accountant, Ralph Krasik ·(Mr. Krasik), to represent them in connection with respon- dent's examination. Mr. Kimmel discussed with Mr. Krasik, inter alia, the types of documents and records that Burley Trucking was required under section 6001 to maintain and to provide to respon- dent.

In response to Mr. Kimmel's requests, petitioners provided Mr. Kimmel with only a limited number of documents consisting of certain bank statements and certain receipts and invoices that were presented to him in a disorganized^ manner. Petitioners did not provide Mr. Kimmel with any books of account of Burley Trucking, such as general ledgers with respect. to each of Burley Trucking's taxable years 2005, 2006, an'd 2007.

Mr. Kimmel reviewed the limited number of documents provided to him and found those records to be inadequate in order to complete respondent's examination. Consequently, Mr. Kimmel issued summonses on behalf of respondent (respondent's summonses) to the banks at which petitioners had baintained petitioners' bank accounts during each of the years 2005, 2006, and 2007.

Pursuant to respondent's summonses, the banks provided Mr.

Kimmel with the respective bank statements for petitioners' bank accounts (petitioners' bank statements).

.Mr. Kimmel examined those bank statements and prepared a bànk deposits analysis for II each of petitioners' taxable years 2005, 2006, and 2007 on the basis of that examination (bank deposits analysis).

The bank deposits analysis showed for each of those years the amount of each deposit into each of petitioners'ibank accounts, the date of each such deposit, and the type of each such deposit (e.g., teller deposit, opening deposit, etc.).

In preparing the bank deposits analysis, Mr. Kimmel attempted to ascertain whether any of the deposits into petitioners' bank accounts during each of the years at issue is nontaxable because, for example, a deposit had been made as a result of a transfer of funds from one of petitioners' bank accounts to another of those accounts. Mr.

Kimmel reduced the total deposits during each taxable year at issue by (1) all deposits during each such year that he deter- mined to be nontaxable and (2) all amounts that petitioners had reported in Schedule C as gross receipts in the return that they filed for each such year. Mr. Kimmel determined that the balance of the total deposits during each of the years at issue consti- tutes unreported Schedule C gross receipts of Burley Trucking for each such year.

Respondent issued to petitioners a notice.of deficiency with respect to their taxable years 2005, 2006, and 2007 (notice).

In that notice, respondent determined, inter alia, that petitioners have unreported Schedule C gross receipts for their taxable years 2005, 2006, and 2007 of $116,809.88, $22,637.06, and $85,506.55, respectively.

In making those determinations, respondent relied on the bank deposits analysis that Mr. Kimmel had prepared.

In the notice, respondent also determined to disallow Schedule C car and truck expenses that petitioners claimed for their taxable years 2005, 2006, and 2007 of $157,444.48, $141,381.95, and $103,955.25, respectively.

OPINION

f Petitioners bear the burden of pré)ving that the determina- tions in the notice that remain at issue are erroneous.4. See Rule 142(a); Welch v. Helvering, 290 Ui.S. 111, 115 (1933).

Before turning to the two issues remaining for decision, we shall first evaluate the testimonial evidence on which petition- ers rely to support their position with respect to each of those issues.⁵ At trial, petitioners .called1Mr. Burley, Ms. Burley, Mr. Kimmel, Mr. Dennison, and Anthony Page (Mr. Page) as wit- I nesses.

With respect to the testimony .of Mr. Burley, based upon our observation of Mr. Burley at trial, including our observation of his demeanor, we did not f ind him to b credible .

In addition, we found his testimony to be in certain material respects vague, general, conclusory, self-serving, anci/or contradicted by other evidence in the record.

With respect to the testimony of Ms. Burley, we found her testimony to be in certain material respects general, vague, conclusory, and/or self - serving .

4Petitioners do not claim that the burden of proof shifts to respondent under sec . 7491 (a) .

sPetitioners introduced certain documentary evidence with respect cussed below) . that issue.

to their claimed car and truck expense deductions (dis- We shall address that .evidence when we consider With respect to the testimony of Mr. Dennison, we found his testimony to be in certain material respects general, vague, conclusory, and/or serving the interests of his customer, Mr.

Burley, who operated Burley Trucking·.

With respect to the testimony of Mr. Page, based upon our observation of Mr. Page at trial, including our observation of his demeanor, we did not find him to be credible..

In addition, we found his testimony to be in certain material respects gen- eral, vague, conclusory, and/or inconsistent.

We shall not rely on the respective testimonies of Mr.

Burley, Ms. Burley, Mr. Dennison, and Mr. Page to establish petitioners' position with respect to each of the issues remain- ing for decision.

See, e.g., Tokarski v. Commissioner, 87 T.C.

74, 77 ·(1986).

Unreported Schedule C Gross Receipts In the notice, respondent determined on the basis of the bank deposits analysis that petitioners have unreported Schedule C gross receipts for their taxable.years 2005, 2006, and 2007 of $116,809.88, $22,637.06, and $85,506.55, respectively.

Taking into account the parties' stipulations and respondent's conces- sions on brief, the amounts of petitioners' unreported Schedule C gross receipts for 2005, 2006, and 2007 that remain in dispute are $100,809.88, $2,637.06, and $5,720 93,. respectively.'

We address initially petitioners' position that respondent's bank deposits analysis for each of thet years at issue is inher- ently flawed and therefore should be disregarded in its entirety.

Where a taxpayer has failed to maintain sufficient records under section 6001, as is the case here, the Commissioner of Internal Revenue may rely on the bank deposits method in order to deter- mine the taxpayer's income. Nicholas v. Commissioner, 70 T.C.

1057, 1064 (1978) . Respondent was required in performing respon- dent's bank deposit analysis to take into account any nontaxable source or deductible expense of which respondent had knowledge.

See Clayton v. Commissioner, 102 T. C. 632, 645-646 (1994) .

"A bank deposit is prima facie evidence of income and respondent need not prove a likely source of that income."

Tokarski v. Commissioner, supra at.77. , Petitioners bear the burden of proving that respondent's determinations of income based on the bank deposits method are erroneous.

See Clayton v.

Petitioners and respondent stipulated that deposits . total- respectively, ing $16, 000 and $2, 000 for 2005 and 2007, respondent had determined in the notice constitute unreported gross receipts are nontaxable transfers. Nonetheless, on brief respondent fails, presumably inadvertently, tive amounts of bank deposits at issue for those two years by those stipulated amounts . remain in dispute for 2005 and 2007 a e $100,809.88 and $5,720.93, respectively, as respondent erroneously asserts on brief .

respectively, and not $116,809.88 and $7,720.93, The correct ' amounts of deposits that that to reduce the respec- Commissioner, supra at 645. Petitioners may satisfy that burden by establishing that the deposits at issue are derived from a nontaxable source.

See Nicholas v. Commissioner, supra at 1064.

In support of petitioners' position that respondent's bank deposits analysis for each of the years at issue is inherently flawed, petitioners argue that, in addition to the deposits during each of the years at issue that the parties stipulated in the stipulation of facts are not taxable, (1) $100,809.88 of deposits during 2005, (2) $2,637.06 of deposits during 2006, and (3) $83,506.55 of deposits during 2007 are not taxable. Respon- dent concedes on brief that, in addition to the deposits during each of the years at issue that the parties stipulated are not taxable, deposits totaling $77,785.62 during 2007 are nontaxable.

Respondent's concesslons in the.stipulation of facts and on brief do not invalidate the bank deposits analysis on which respondent relies.

See Marcello v. Commissioner, 380 F.2d 494, 497 (5th Cir. 1967), affg.

in part, revg.

in part, and.remanding T.C.

Memo. 1964-302.

It is also significant that during respondent's examination petitioners provided Mr. Kimmel with only a limited number of documents consisting of certain bank statements and certain receipts and invoices that were presented to him in a disorga- nized manner. Petitioners did not provide Mr. Kimmel with any books of account of Burley Trucking, such as general ledgers with -.13 - respect to each of Burley Trucking's taxable years 2005, 2006, and 2007.

Mr. Kimmel reviewed the limited number of documents provided to him and found those records to be inadequate in order to complete respondent's examination. Consequently, Mr. Kimmel issued summonses on behalf of.respondent to the banks at which petitioners had maintained petitioners bank accounts during each of the years.2005, 2006, and 2007.

Pursuant to respondent's summonses, the banks provided Mr.

Kimmel with petitioners' bank statements. Mr. Kimmel examined petitioners' bank statements and prepared the bank deposits analysis for each of the taxpayers' taxable years 2005, 2006, and 2007 on the basis of that examination.

The bank deposits analy- sis showed for each of those years the amount of each deposit into each of petitioners' bank accounts, the date of each such deposit, and the tmpe of each such de osit (e.g., teller deposit, opening deposit, etc.).

In preparing the bank deposits analysis, Mr. Kimmel attempted to ascertain whether any of the deposits into petitioners' bank accounts duringteach of the years at issue is nontaxable because, for example, a|deposit had been made as a result of a transfer of funds from one of petitioners' bank accounts to another of those accounts Mr. Kimmel reduced the total deposits during each taxable year at issue by (1) all deposits during each such year that he determined to be .

nontaxable and (2) all amounts that petitioners had reported in Schedule C as gross receipts in the return that they filed for each of the years at issue. Mr. Kimmel determined that the balance of the total deposits during each of the years at issue constitutes unreported Schedule.C gross receipts of Burley Trucking for each such year.

Based upon our examination of the entire record before us, we reject petitioners' argument that respondent's bank deposits analysis for each of the years at issue is inherently flawed.

2005 We now consider petitioners' argument that the following deposits that remain at issue for their taxable year 2005 are not taxable:

(1) A deposit of $40,000 made on December 15, 2005, into petitioners' U.S. Bank account with account number ending 9109 ($40,000 deposit); (2) a deposit of $8,.170 made on a date not established by the record into an unidentified U.S. Bank account ($8,170 deposit); (3) a deposit of $22,000 made on August 16, 2005, into petitioners' U.S. Bank account with account number ending 6737 ($22,000 deposit); and (4) a deposit of $10,000 made on October 24, 2005, into petitioners' U.S. Bank account with account number ending 1622 ($10,000 deposit).'

Petitioners make no argument with respect to a total of $20,639.88 of deposits made on various dates during 2005 except that those deposits are not analysis is inherently flawed. We have rejected that argument.

taxable because the bank deposits We turn first to the $40,000 deposit.

On December 15, 2005, petitioners deposited a total of $42,222 into their U.S. Bank account with account number ending 9109. Of that $42,222 total deposit, $40,000 consisted of the October 20, 2005 check, which was issued by Union National Insurance and made payable to Gretta M. Buckley and Luther Burley. Petitioners argue that the pro- ceeds of the October 20, 2005 check arei not taxable to them because they constituted insurance pro eeds, which are generally not taxable to the recipient .

In support of that argument, petitioners rely on Mr. Burley's testimony on which we are unwilling to rely. Petitioners also rely on the October 20, 2005 check.

The front side of that check bore the notation "POLICY

NUMBER 7517423175" .

The October 20, 2 05 check was endorsed on the back by the payees, Gretta M. Buckley and Luther Burley, and reendorsed by Mr. Burley, We are satisfied from the October 20, 2005 check on which petitioners rely that that check represented insurance proceeds that Union National+Insurance paid to Gretta M. Buckley and Luther Burley. . We are not satisfied from that check that Union National Insurance pàid or intended to pay those proceeds to petitioners.

On the reco d before us, we find that petitioners have failed to carry their burden of establishing that the $40, 000 deposit is not taxabl to them for their taxable year 2005.

We turn next to the $8,170 deposit.

On a date in 2005 not established by the record, petitioners deposited a check for $8,170 into an unidentified bank account.

That check was an "official check" for $8,170 dated July 8, 2005, which was issued by National City Bank and made payable to Burley Trucking (July 8, 2005 check). Petitioners argue that the proceeds of the July 8, 2005 check are not taxable to them because those proceeds represented a partial repayment of a $25,000 loan that Burley Trucking had made to another business known as Performance Paving, Inc.

(Performance Paving).

In support of that argument, petitioners rely on Mr. Burley's testimony on which we are unwilling to rely. Petitioners also rely on the July 8, 2005 check.

The front side of that check bore the notation "PERFOR- MANCE PAVING INC." on the line marked "Remitter".

We are satis- fied from the July 8, 2005 check on which petitioners rely that that check was a check purchased by Performance Paving and payable to Burley Trucking.

We are not satisfied that the purpose of Performance Paving, a customer of Burley Trucking, in issuing the July 8, 2005 check to Burley Trucking was to make a partial repayment of an alleged loan to Burley Trucking.

On the record before us, we find that petitioners have failed to carry their burden of establishing that the $8,170 deposit is not taxable to them for their taxable year 2005.

We turn next to the $22,000 deposit.

On August 15, 2005, petitioners withdrew $22,006 from theirsU.S. Bank account with account number ending 6737.

On August 16, 2005, petitioners deposited $22,000 into that same account. Petitioners argue that the $22,000 deposit is not taxable to them because the deposit was made with funds that petitioners withdrew from the same account on August 15, 2005.

In support!of that argument, peti- tioners rely on Mr. Burley's testimony on which we are unwilling .

I to rely.

On the record before us, we find that petitioners have failed to carry their burden of establishing .that the $22,000 deposit is not taxable to them for their taxable year 2005.

We turn finally to the $10,000 .deposit.

Ön October·24, 2005, petitioners.(1) withdrew $10,000.;from their U.S. Bank account with account number ending 6737, and (2) deposited $10,000 into their U.S. Bank account with accoÜnt number ending 1622.

Petitioners argue that the $10,000 deposit is not taxable to them because it represented a transfer of their funds from their U.S.

Bank account with account number ending 6737 into their U.S. Bank account with account number ending 1632.

In support of that argument, petitioners rely on Mr. Burley's testimony-on which we are unwilling to rely.

On the record before us, we find that petitioners have failed to carry their burden of establishing that the $10,000 deposit is not taxable to them for their taxable year 2005.

Based upon our examination of the entire record before us, we find that petitioners have failed to carry their burden of establishing that the deposits totaling $100,809.88 that remain at issue for their taxable year 2005 are not taxable to them for that year.

2006 .

We turn now to petitioners' argument that a total of $2,637.06 of deposits made on various dates during 2006 are not taxable to them for their taxable year 2006 because the bank deposits analysis is inherently flawed.

We have rejected that argument.

Based upon our examination of the entire record before us, we find that petitioners have failed to carry their burden of establishing that.the deposits totaling $2,637.06 that remain at issue for their taxable year 2006 are not taxable to them for that year.

2007 We turn finally to petitioners' argument that a total of $5,720.93 of deposits made on various dates during 2007 are not taxable to them for their taxable year 2007 because the bank deposits analysis is inherently flawed.

We have rejected that argument.

Based upon our examination of the entire record before us, we find that petitioners have failed to carry their burden of establishing that the depósits totaling $5,720.93 that remain at .issue for their taxable year 2007 are not taxable tó them for that year.

Claimed Schedule C Car and Truck Expense Deductions We now -address petitioners' position that, in addition to the respective amounts of Schedule C c r and truck expense deductions that respondent conceded for 2005 and 2007, they are entitled to deduct $74,737 and $72,517.59 of Schedule C car and truck expenses for the~ir taxable years 2005 and 2007, respec- tivel'y.

Section 162(a) generally allows a deduction for ordinary and neces'sary expenses paid during the ta able year in carrying.on a trade or business. Deductions are a atter of legislative grace, and petitioners ,bear the burden of proving entitlement to any deduction claimed for each óf the years at.issue.

See,INDOPCO, Inc. v: Commissioner, '503 U.S. 79, 84 (1992)..

The Code and -the regulations thereunder' requi_red=petitióners to maintain records sufficient' to establish the amount of any deduction.claimed for 8Before trial, petitioners conceded that they are not enti- the $141,381.95,of Schedule C car and truck tled'to deduct any of expenses that respondent disallowed i taxaÙle year 2006. not entitled to deduct Schedule C cariand truck expenses of (1) $24,416.58 of expenses that'respondent disallowed fòþ their taxable year 2005 and (2) $15,767 of expenses that respondent disallowed for their taxable year 2007.

On brief, petitioners concede that they are the $103,955.25 of Schedule C car and truck the $157,444.48 of (cid:0)540cheduleC car and truck the notice for their each of the years at issue.

See sec. 6001; sec. 1.6001-1(a), Income Tax Regs.

In support of their position that they are entitled to deduct the respective Schedule C car and truck expenses that they are claiming for their taxable years 2005 and 2007, petitioners rely on the respective testimonies of Mr. Burley, Ms. Burley, Mr.

Dennison, and Mr. Page.

We are unwilling to rely on those testimonies.

In further support of their position that they are entitled to deduct the respective Schedule C car and truck expenses that they are claiming for their taxable years 2005 and 2007, peti- tioners rely on certain documents (petitioners' documents) that petitioners introduced into the record at trial, to which respon- dent objected on the ground of authenticity.' We find those documents, which consist primarily of various purported invoices, purported purchase orders, and purported receipts relating to certain purchases that petitioners claim Burley Trucking made during each of the years 2005 and 2007, to be inadequate to establish petitioners' entitlement to the car and truck expense deductions that they are claiming for each of their taxable years 2005 and 2007.

'We overruled respondent's objections and indicated that we would give whatever weight that we consider appropriate to petitioners' documents, to which respondent objected.

By way of illustration of the inadequacies of petitioners' documents, petitioners introduced, inter alia, 13 purported invoices in an effort to document certain purchases that they claim Burley Trucking made during 2005 from a business known as Brock Tire Resale.

Each of those purported invoices shows the quantity of the items allegedly purchased and the price of each item allegedly purchased.

Those purported invoices do not identify the nature of the item allegedly purchased.

In addi- tion, none of those purported invoices shows the identity of the purported purchaser. Although many of petitioners' documents contain a signature line for both the purchaser and the seller, those lines are blank on most of petitioners' purported invoices.

Moreover, nowhere in petitioners' documents is there an indica- tion that the amount shown as the purported purchase price was in fact paid by petitioners during their taxable year 2005 or their taxable year 2007.

We shall not rely on petitioners' documents to establish petitioners' position that they are entitled to deduct the respective Schedule C car and truck expenses that they are claiming for their taxable years 2005 and 2007.

Based upon our examination of the entire record before us, we find that petitioners have failed to carry their burden of establishing that they are entitled for their taxable years 2005 and 2007 to car and truck expense deductions under section 162 (a) of $74 , 737 and $72 , 517 . 59, respectively .

We have considered all of the contentions and arguments of the parties that are not discussed herein, and we find them to be without merit, irrelevant, and/or moot.

To reflect the foregoing and the concessions of the parties, Decision will be entered under Rule 155.