COLONY LIVES

The United States Supreme Court, an exalted forum far above the Tax Court whence I customarily draw my blogposts, has affirmed Fourth Circuit, holding that overstating basis to minimize gain, even to the extent of gain greater than 25 percent of the amount of gross income stated in the return, does not invoke the six year statute of limitations. The standard three-year obtains, notwithstanding the understatement.

In short, don’t lower the bridge, raise the river.

The case is United States v. Home Concrete & Supply, LLC, No. 11-139, decided 4/25/12.

Harking back to The Colony, Inc. v. United States, 357 U.S. 28 (1958), Justice Breyer refuses to buy IRS’ argument that Reg. §301.6501(e)–1, which was promulgated in final form in December 2010, overturns Colony pursuant to Chevron and Mayo Clinic (see my blogpost “Carpenter, Colony, Chevron and Mayo”, posted 4/26/11).

Nope, says Justice Breyer: “We do not accept this argument. In our view, Colony has already interpreted the statute, and there is no longer any different construction that is consistent with Colony and available for adoption by the agency.”

Of course, this is a 5 to 4, with Justice Kennedy leading the dissenters. So there may be further developments.

Even though IRS agreed that Catherine Marie Nunez was an innocent spouse, Judge Haines didn’t, and thereby hangs the tale of Catherine Marie Nunez, f.k.a. Catherine Marie Uriarte, Petitioner, and Robert F. Uriarte, Intervenor, 2012 T.C. Mem. 121, filed 4/25/12.

Catherine Marie and spouse Fighting Bob ran a copying service. Fighting Bob did the client contact, sales and service. Catherine Marie “took care of the administrative side of the business. She entered data into Quickbooks, organized and filed receipts and invoices, answered phones, wrote up service calls, and paid bills.” 2012 T.C. Mem. 121, at pp. 2-3. Catherine Marie was a signatory on the business bank account, wrote and signed checks (including to herself and her daughter from a previous relationship), and was listed as co-owner on permits, certificates and State returns.

Though they filed income tax returns for the years at issue, they never did get around to paying the taxes. Ultimately they both filed bankruptcy, but they never completed their payment plan and their proceeding got tossed. Sounds like another busted Chapter 13, one of the many that litter the bankruptcy trail.

But the fallout of the bankruptcy was the fallout of the marriage, and Catherine Marie and Fighting Bob divorced. Bob filed bankruptcy again, but Catherine Marie didn’t. When IRS got around to pursuing the pair, Catherine Marie claimed she was innocent, and the only reason her name was all over the copying business was their State’s community property laws.

IRS first said no, but Catherine Marie appealed and won. However,  Fighting Bob never got the Appeals decision. So Fighting Bob gets to argue that Catherine Marie should remain aboard. Appeals agreed in part, applied the community property rationale, and gave Catherine a 50% bye. Catherine petitions, arguing inequitable to hold her in as she believed Fighting Bob would pay, and IRS concedes she should get 100% relief.

Fighting Bob says “no way, Harry A.”, meaning Judge Harry A. Haines, who sides with Fighting Bob and socks it to Catherine Marie 100%.

IRS has discretion in inequitables like this, and argues abuse of discretion is the test for review. No, says Judge Haines, it’s de novo because Fighting Bob never got his turn at bat, and Catherine Marie flunks under Rev. Proc. 2003-61, the old rule (see my blogpost “Innocence is Bliss”, 1/6/12). In any case, it probably it wouldn’t matter even with the new rule announced in Notice 2012-8, as abuse wasn’t raised seriously.

Catherine Marie claims she’s in this mess solely because of community property law. Otherwise, it would all be Fighting Bob’s problem. But Judge Haines dismisses that argument: “Petitioner and respondent argue that Alpha was intervenor’s business and that any item of Alpha’s income or expense attributable to her is solely due to the operation of California’s community property law. We disagree. The record is filled with evidence that petitioner coowned Alpha [the copycat business] during the years at issue and was heavily involved in its operations. Petitioner took care of the administrative side of the business. She entered data into Quickbooks, organized and filed receipts and invoices, answered phones, wrote up service calls, paid the company’s bills, and coordinated and provided the accountant with all the tax preparation information. Petitioner also drafted budgets, attempting to have her say in how the business was run.

“Additionally, State filings and business records show that petitioner was an owner of Alpha during the years at issue. Petitioner was listed as an owner of Alpha on its business license and on California payroll tax deposit coupons. Petitioner was also listed on Alpha’s fictitious business name statement, which states that the business is conducted by husband and wife. Further, the marital settlement agreement divided community property between petitioner and intervenor. As part of the division petitioner assigned to intervenor as his sole and separate property all of her rights, title, and interest in Alpha.” 2012 T.C. Mem. 121, at pp. 10-11.

Catherine Marie was in deep enough to forfeit her innocence, IRS discretion to the contrary notwithstanding. Her interest was not imputed solely by community property law nor was her ownership nominal. As for abuse, though Catherine Marie brought in some evidence that Fighting Bob did abuse her, she worked with their accountant to prepare the tax returns for the years at issue, so she was hardly terrorized into acquiescing.

Note that Fighting Bob was pro se. Not bad work for a copycat, this marshalling the arguments and selling them to Judge Haines. Many a lawyer could do worse.

The only cases other than run-of-the mill indocumentados today, April 23, were (1) a Section 1031 like-kind exchange (Patrick A. Reesink and Jill Mitchel Reesink, 2012 T.C. Mem. 118, filed 4/23/12) where the taxpayer’s witnesses were able to establish investment intent in the replacement property based on timing between purchase of replacement property and sale of principal residence, coupled with attempted rental activity of the replacement property before taxpayer took occupancy; strictly fact-driven; and (2) litigation delay never being a ground for abatement of interest under Section 6404 (Michael Coleman, 2012 T.C. Mem. 116,  filed 4/23/12), even when the tax matters partner in this phony shelter was under criminal investigation and ultimately went to jail.  As I’ve said before, partners beware; the tax matters partner holds your tax life in his hands.

Nothing really novel here, so I move to the announcement that Daniel A. “Yuda” Guy has been elevated from Tax Court General Counsel to Special Trial Judge.  A graduate of McDaniel College and the University of Baltimore Law School,  STJ Guy has been on the Tax Court team for more than twenty years. We look forward to many interesting opinions from STJ Guy.

Judge Kroupa blazes a trail through the tangle of Section 181 election to expense filmmaking costs in Lee Storey and William Storey, 2012 T.C. Mem. 115, filed 4/19/12. The decision is so fact-driven, with facts unlikely to be encountered by the average preparer-in-the-trenches that I won’t be going into much detail here. My interest stems from the buzz the case has gotten in the independent film production world as it wended its way to Tax Court.

A lot of the indie producers filed briefs amici, a thing rarely allowed in Tax Court. More usually, the amici are told to craft a joint brief with the taxpayer to raise whatever arguments they may have. See my blogpost “A Joy Forever”, posted 4/4/11.

Briefly, Lee worked her way up from a Detroit assembly line to a specialization in Indian water rights law, while directing community theater and sculpting bronze on the way. Her husband William was a member of the 1960s group Up With People, a counter to the counter-culture. When Lee found out about Will’s musical past, she decided to make a movie, and called it “Smile ‘Til It Hurts”. She did all the right things–took courses, consulted with experts, hired bookkeeping help to keep careful records, got tax counsel and campaigned her documentary at all the right festivals.

IRS called it a hobby or a labor of love to celebrate her husband’s youth (although he got a big 4 minutes out of the 79 in the final cut), and disallows Lee’s deductions.

Judge Kroupa blows off the hobby and labor of love arguments with a lengthy recounting of the facts and applying the Section 183 laundry list to show Lee’s serious moneymaking intention.

Now for the Section 181 election. The statute grew out of the runaway film producers who had to capitalize production expenses if they shot in the USA, but got favorable tax treatment and even subsidies if they shot overseas. To bring them back, Congress allowed them to expense production costs in the 2004 American Jobs Creation Act.

As usual, it took IRS a while to catch up with Congressional largesse, and IRS’ arguments ignored its own guidance and temporary regulations. IRS’ post-trial brief sported a 314-page appendix itemizing Lee’s variances from the substantiation requirements of the regulations, but Judge Kroupa doesn’t look at it, as “(S)tatements in briefs do not constitute admissible evidence and may not be considered by the Court. Respondent’s 314-page appendix, even if it were argument instead of evidence, causes the brief to exceed the page limits the Court established at trial. We will not consider respondent’s appendix as either evidence or argument and therefore we hold that respondent has not met his burden of proof on the substantiation issue.” 2012 T. C. Mem. 115, at p. 45. (Citations omitted.)

The point is substantial compliance. Lee’s paperwork meets the test of conforming to the statutory requirements, albeit without every last detail required by the regulations. “Close enough”  can apply to a Section 181 election as well as to horseshoes and hand grenades.

So Lee can smile, and feel good about it.

Takeaway- Sometimes close enough is good enough.

Or, There Goes the Neighborhood

The inventive James E. Rogers tries a longshot Rule 161 reargument and a Rule 162 vacatur to avoid the fallout from his cratered distressed asset/debt (DAD) non-partnership deals (see Superior Trading, LLC, Jetstream Business Limited, Tax Matters Partner, et al., 137 T.C. 6, filed 9/1/11 (Superior Trading I), and my blogposts “More Shell Games”, posted 9/2/11, and “Mr Rogers’ Neighborhood – The Adventure Continues”, posted 11/12/11”). The latest chapter in the story is Superior Trading LLC, Jetstream Business LLC Tax Matters Partner, 2012 T.C. Mem. 110, filed 4/17/12.

Judge Wherry disdainfully brushes off Mr. Rogers: “The motions before us to reconsider and vacate are a curious admixture of a regurgitation of unfounded assertions and half-baked theories soundly rejected in Superior Trading I, a disingenuous criticism of our holdings in that Opinion, and fanciful claims of newly discovered evidence that allegedly undermines our findings of fact supporting those holdings. Consequently, these motions merit no more than a summary denial.” 2012 T.C. Mem. 110, at p.8.

But TEFRA rears its ugly head. So Judge Wherry has to deal with the unfounded, the half-baked, the disingenuous criticisms, and the fanciful claims. Though the blown-up “partnership” is initially the promoter’s problem, the fallout affects the individual returns of the investor-partners.

“Yet we recognize that the dispute at the center of the consolidated cases could morph and present itself in other manifestations. Therefore, to provide additional guidance on our interpretation of the applicable law, we have set forth in some detail our reasons for denying the motions. In so doing, we have no illusions of persuading all moving petitioners. Instead, we write now for the benefit of the “silent waters that run deep”–the dozens of deep-pocketed investors who acquired ownership interests in the various holding companies, which in turn sought to exploit the inflated basis of the Arapua receivables. After all the linen is washed, these investors constitute the fonts whither the promised tax savings from chimeral losses would have drained and whence the required tax payments for determined deficiencies and accuracy-related penalties will flow.

“Under section 6231(a)(2)(B), ‘The term “partner” means * * * any * * * person whose income tax liability under subtitle A is determined in whole or in part by taking into account directly or indirectly partnership items of the partnership.’ As we described in Superior Trading I, the investors in the holding companies were never members in the same limited liability company as Arapua. Regardless, to the extent their income tax liability is affected by the basis of the Arapua receivables, a partnership item in these partnership-level proceedings, these investors are partners for purposes of these proceedings.

“Consequently, pursuant to section 6226(c)(1), each such investor ‘shall be treated as a party to such action’. And though it is already too late for these deemed parties to participate in these proceedings, it might not be too early for them to begin preparing for what is surely coming down the pike–computational adjustments by means of either direct assessment or partner-level deficiency proceedings. See generally Thompson v. Commissioner, 137 T.C. 220 (2011).” 2012 T. C. Mem. 110, at pp. 8-9.

Judge Wherry is here referring to the famous Thompson case, which features Judge Holmes’ famous dissent. See my blogpost “The Great Dissenter”, 12/28/11.

So for 39 pages, Judge Wherry slogs through Mr. Rogers’ smokescreen, with footnotes long enough to pass for decisions themselves. And having yet again deconstructed Mr Rogers’ cardboard neighborhood (the details of which I leave to law review writers and the terminally insomniac), Judge Wherry turns to the great defect in TEFRA.

“We are mindful of the fact that the ultimate burden of what we say and do here will be borne by those not before us–the individual investors in the various holding companies. That, however, is a necessary consequence of the essential design of TEFRA. TEFRA, quite perversely, hands the keys to the (sand) castle to those with everything to gain and nothing to lose. Nonetheless, our duty is to apply the law as written by Congress and reasonably interpreted by the Secretary. But even as we fulfill that obligation, we caution all unsuspecting taxpayers who have already been, or may in the future be, tempted to invest in such ‘too-good-to-be-true’ sheltering transactions, or to tie up this Court in TEFRA’s procedural knots. The wheels of TEFRA may grind slowly, but grind they will, and the grist they mill could have been the investors’ half a loaf.” 2012 T.C. Mem. 110, at p. 48-49.

Remember Beverly Bernice Bang,  2011 T.C. Sum. Op. 1, filed 1/4/11, and my blogpost “Bang – A Warning to Tax Matters Partners (and their advisors)”, posted 1/5/11.

The investors might give some serious thought to going after the tax matters partner.

School’s out at Tax Court for the weekend, as they fiddle with their telecom, so here’s something much more delightful:

My granddaughter Kathryn.

Robin S. Trupp was an Olympic equestrian prospect in his youth, but turned to practising law for a living. He never gave up his equestrian ambitions, developing a specialized practice in horse law. His son Austin carried on the dream, competing in equestrian events, at which Dad showed up to cheer on young Austin and incidentally promote his equestrian law practice, as the family cognomen blared from the loudspeakers.

Robin ran up $72K in equestrian-related expenses one year, didn’t file a return, and got a SFR and a SNOD. Robin sought redetermination, and Judge Goeke obliges, in Robin S. Trupp, 2012 T.C. Mem. 108, filed 4/12/12.

Robin loses his cellphone and travel deductions for the usual want-of-substantiation, but gets $2K for storing his files (his cheapskate firm won’t pay for that), and $78 for tax preparation services. Robin, don’t spend it all in one place. Now we come to the horses.

Robin claims that traditional advertising in the horsy set print media gets nothing, so he starts hanging around the horse shows when young Austin is saddled up, expecting the fans to hear the name “Trupp” and come at the gallop. He claims he got 35 clients that way, but produces no retainers and doesn’t show more than  $2K in horse-related income for that year. The rest of his hefty paycheck came from non-horse clients or from clients he picked up years before.

Now a taxpayer can combine horses (or any other hobby-type activity) with another real-live business activity, provided the combination is reasonable and not artificial. And getting business by showing up at equestrian events, without media advertising, can be reported as a combined business activity.  See Topping v. Com’r., 2007 T.C. Mem. 92.

Tracey L. Topping designed barns. Print advertising did nothing for her, so Tracey entered equestrian events, hired tables at events  at which she hobnobbed with potential customers, kept records and made money. And she beat IRS past the Tax Court finish line.

Judge Goeke: “Multiple undertakings of a taxpayer may be treated as one activity if the undertakings are sufficiently interconnected. Sec. 1.183-1(d)(1), Income Tax Regs. The most important factors in making this determination are the degree of organizational and economic interrelationship of the undertakings, the business purpose served by carrying on the undertakings separately or together, and the similarity of the undertakings. Id. The Commissioner generally accepts the taxpayer’s characterization of two or more undertakings as one activity unless the characterization is artificial or unreasonable. Id.

“Other factors considered in determining whether a taxpayer’s characterization is unreasonable include: (1) whether the undertakings are conducted at the same place; (2) whether the undertakings were part of the taxpayer’s efforts to find sources of revenue from his or her land; (3) whether the undertakings were formed as separate activities; (4) whether one undertaking benefited from the other; (5) whether the taxpayer used one undertaking to advertise the other; (6) the degree to which the undertakings shared management; (7) the degree to which one caretaker oversaw the assets of both undertakings; (8) whether the taxpayer used the same accountant for the undertakings; and (9) the degree to which the undertakings shared books and records.” (Citations omitted.)

And note the magic word “land” in item 2 on the Regulation laundry list; Robin argued his combined horse and legal experience was a capital asset that might increase in value, like land, but Judge Goeke wasn’t buying. The matrimonial judges around here seem to think a professional practice is a substantial capital asset.  For my part, I can only say that mine kept me and mine eating for 45 years–none too shabby, as they say.

But Robin’s horsey takings were a tiny fraction both of his overall income and of the expenses he wanted to deduct in furtherance of his horsing business. He produced no records, didn’t compete himself, and didn’t rent tables at events (Robin said that cost too much), so he didn’t show a sufficient profit motive and thus he can’t combine his law practice with anything equine.

Before heading for the barn, one more point. Robin didn’t represent himself (good move), but the marshalling of evidence wasn’t of the best. Trotting out some timesheets showing his weekend chat-ups with the dressage crowd at the show ring while Young Austin did his thing, and bringing in a few retainers he got during the year at issue (even if the billings didn’t show much that year, a few bills from the next ensuing years might show that mighty oaks from little acorns grow, and a lot of revenue doesn’t accrue to an attorney in Year One anyway; I’ll testify to that anywhere and everywhere), would have helped enormously. Judge Goeke dismissed Robin’s attempted Section 7491(a)(1) burden-of-proof shift with the usual “not enough, and anyway preponderance says you lose.” We see that story told again and again, so here’s a takeaway:

Beside wood-shedding the client, get the papers. And be a little outside-the-box when looking for evidence; remember that “And then what happened?” shouldn’t be relegated to bedtime stories.

Those words might have started a hit single for Otis Redding and Steve Cropper in 1968, but they don’t help Nelson Toshito Uyemura and Wendi Michiko Uyemura, 2012 T.C. Mem. 102, or Patrick T.W. Lum and Libby S. Lum, 2012 T.C. Mem. 103, or even Scott R. Wilson and Christine R. Yano, 2012 T.C. Mem. 101, all three filed 4/10/12, with Judge Cohen aboard for all three, as the facts are virtually identical.

All the taxpayers wanted solar hot water. None of them wanted to pay for the installation of the solar panels and concomitant electrical doodads. So they all went to Mercury Solar, yet another vendor of something-for-nothing. The deal was simple: buy one and get two free. Bring in another customer (known as a “ratepayer”), or let Mercury hook you up with one. Buy both installations on time. The ratepayer pays utility bills to a Mercury-provided entity, which entity pays State and local excise taxes, pays the debt service on both installations to Mercury, and remits any profit to the bringer-in.

The bringers-in claim they’re in the TOB of selling electrical power, take a Section 179 write-off for the installation and a Section 48 business activity energy credit. Mercury warns the bringers-in that they must (a) have some income tax liability and (b) “meaningfully participate” in the electric utility business.

Of course they don’t. Instead, in Otis’ immortal words, they’re just “sittin’ in the mornin’ sun, and they’ll be sittin’ there when evenin’ comes”, watching the deduction and credit roll in.

Except that, while they roll in, the bringers-in “watch  ’em roll away again”, as Section 469 passive loss rules wipe out deduction and credit.

Judge Cohen: “In general, a passive activity is a trade or business in which the taxpayer does not materially participate. Sec. 469(c)(1). A taxpayer materially participates in an activity when he or she is involved on a regular, continuous, and substantial basis. Sec. 469(h)(1). Participation generally means all work done in connection with an activity by an individual who owns an interest in the activity. Sec. 1.469-5(f), Income Tax Regs.” 2012 T.C. Mem. 102, at pp. 5-6.

So much for Nelson and Wendi. Also Patrick T. W. (Libby admits she did nothing). Patrick at least sold five other units for Mercury, but never looked at them.

Scott claims he did do something: “Petitioner visited his ratepayer’s residence at least monthly to inspect the solar equipment and consult with the ratepayer about the solar service. During these inspections, petitioner checked the solar roof panels and the inverter, which are components of the photovoltaic system. Petitioner tried to find other ratepayers, but was not successful. He did not refer any sales leads to Mercury Solar.” 2012 T. C. Mem. 101, at p. 5.

Judge Cohen does not let the sun shine in on Scott. “Petitioners have not proven or presented adequate evidence to shift the burden of proof that any of the material participation tests they rely upon are satisfied. Petitioner argues that, as the sole owner of the micro-utility activity, he performed all ‘tasks, functions and services of and for the business, including management’ with the exception of sending invoices to and collecting payments from his ratepayer. However, because individuals with … (Mercury’s recommended biller) collected payments, maintained records regarding the income, and made petitioner’s loan and State excise tax payments and individuals with Mercury Solar installed the equipment at his ratepayer’s home, petitioner’s participation did not constitute substantially all of the participation of any individual in the micro-utility activity.

“Petitioners also have failed to prove that petitioner participated in the micro-utility activity for more than 100 hours during each of the years in issue.” 2012 T.C. Mem. 101, at p. 7. (Footnote omitted.)

Even worse, Scott flunks the paper trail: “Petitioner maintained no business records such as appointment books, calendars, or logs. His testimony was based solely on his recollections and was completely lacking in detail with respect to dates and time spent performing specific tasks. While the regulations permit some flexibility regarding the records required to prove material participation, they do not allow this type of postevent ‘ballpark guesstimate’, and we are not bound to accept the unverified, undocumented testimony of taxpayers.” 2012 T. C. Mem. 101, at p. 8 (citations omitted.)

So the sun goes down on the bringers-in.

 Or, Agree With Thine Adversary Whilst Thou Art In the Way

It doesn’t matter if you’re below the settlement officer’s number, because if you’re below IRS’ final number when you submit your OIC at your CDP, you’re out. This is the lesson Judge Thornton has for B.M. Vanmali and Bhari Vanmali, 2012 T.C. Mem. 100, filed 4/9/12.

B.M. and Bhari were hit for $600K underpayment deficiency, asked for an OIC with their Form 12153, claiming collectibility, and offered less than fifty cents on the dollar.

The SO said they’d undervalued their takes from their seven Sub S corps, and claimed they had better than $1.3 million. The discrepancy came from the difference between what the tax returns showed as income from the Sub S corps and what B.M. and Bhari claimed they actually got.

The SO told B.M. and Bhari to up the ante, but they did nothing for 60 days, so the SO rejected the OIC, and sent a Notice of Determination. B.M. and Bhari petition.

The issue is abuse of discretion.

Judge Thornton: “…without conceding any error by the settlement officer, respondent [IRS] asserts that even if one were to assume, solely for purposes of his motion, the accuracy of ‘many’ of the items reflected in petitioners’ offer amount, their computation nevertheless contains ‘clear errors’. Respondent asserts that correcting these errors would indicate that, consistent with petitioners’ own assumptions, their offer should have been no less than $349,740, rather than the $295,805 they actually offered. Petitioners do not dispute this conclusion; to the contrary, they state that they will ‘assume Respondent’s changes are correct’. They observe, however, that “the difference between $349,740 and Petitioners’ offer of $295,805 is a lot less than the difference between $1,296,531 [their RCP as determined by the settlement officer] and $295,805.’ They assert that had the settlement officer determined their RCP to be $349,740, they would have been “ready, willing, and able to make a counter-offer in that amount.” Citing Lites v. Commissioner, T.C. Memo. 2005-206, they argue because the settlement officer’s alleged error was so central to his determination, he abused his discretion in rejecting their offer.

“Whatever error the settlement officer might have made in calculating petitioners’ RCP–and respondent does not expressly concede that the settlement officer made any error–the undisputed fact remains that petitioners could afford to pay significantly more than they offered. In these circumstances, notwithstanding alleged errors in the settlement officer’s calculation of petitioners’ RCP, he did not abuse his discretion in rejecting their offer.” 2012 T.C. Mem. 100, at pp. 8-9. (Citations omitted.)

“Petitioners assert that they would have counteroffered $349,740 if the settlement officer had properly advised them that this was the correct amount of their RCP. But petitioners have effectively conceded that it was their own errors that caused their offer to understate the amount they could afford to pay, even under their own financial assumptions. The settlement officer did not abuse his discretion in rejecting their admittedly too low offer.” 2012 T.C. Mem. 100, at pp. 10-11. (Footnote omitted.)

But one sentence from the omitted footnote says a lot.  “The record indicates that although the settlement officer raised this issue with petitioners and gave them an opportunity to respond, they never did so.” 2012 T.C. Mem. 100, at p.11, footnote 9.

Takeaway: Don’t wait until you get to Tax Court to raise the ante.

To all, litigants, judges, readers, best holiday wishes.

Off to visit new granddaughter in Houston, so I may be a day or two late with postings here.