I’ve often lauded Judge David Gustafson as the epitome of The Obliging Jurist. See my blogpost “I’ll Help You Try Your Case,” 12/15/15, wherein I said: “I’ve told how he’ll visit you in the Stony Lonesome to hear your case, if need be. He designates his orders, making light the task of the hard-laboring blogger racing a deadline. He does everything but bring coffee and Krispy Kremes to calendar call, to help out hapless petitioners. As I said before, ‘He’ll tell you what you meant to allege, but didn’t, and let the other parties know as well.’ And he’ll let petitioners know that ex parte communications with the Court don’t cut it.”

And STJ Lewis (“Oh The Grandeur of that Name!”) Carluzzo’s obliging nature is well-known to my longer-suffering readers. See my blogpost “Tax Court As Preparer?”, 9/17/12.

Judge Gustafson’s helpful nature spread to other Judges. See my blogpost “Obliging May Be Contagious,” 4/7/16, where it looked like even then-Ch. J Michael B (“Iron Mike”) Thornton had caught the Gustafson obliging bug.

Well, I’m happy to report that the good spirit has reached even Ch. J L. Paige (“Iron Fist”) Marvel.

Here’s Ch. J. Iron Fist aiding Timothy J. McLaughlin & Tamara L. McLaughlin, Docket No. 27750-15, filed 7/14/16.

Tim and Tam were told to amend their petition, but sent a letter to Ch. J Iron Fist that bespoke confusion with Tax Court and conflation with IRS.

So in addition to attaching a second Form 2 to her order (apparently the first one sent to Tim and Tam back in June elicited the confusion and conflation elsewhere hereinabove referred to, as my high-priced colleagues would say), Ch. J Iron Fist shows the gentler side of her formidable persona.

“Please note that this Court is not part of the Internal Revenue Service (IRS) and has no information about petitioners’ case except the information which is provided by petitioners. (For this reason, the Court also has no information regarding account balances and payments, which are matters handled by the IRS, not the Court.) It is therefore suggested that petitioners attempt to fully complete each blank of the Amended Petition.” Order, at p. 1.

A good first mile, we’ll all of us agree, but Ch. J Iron Fist goes the twain.

“In paragraph 1, check the appropriate box for the type of IRS notice petitioners are disputing, which here would appear to be the notice of deficiency that comprises the earlier imperfect/incomplete petition. In paragraph 2, set forth the date of the notice from the IRS, as well as the city and State of the issuing IRS office. In paragraph 3, give the tax year for which the notice was issued. In paragraph 4, check the box for type of case procedures petitioners wish to have used for the case, either small tax case procedures or regular tax case procedures. (General information concerning deciding whether to elect regular or small case procedures is posted under the ‘Starting A Case’ tab in the Taxpayer Information section of the Court’s website at http://www.ustaxcourt.gov.) In paragraph 5, state the reasons why petitioners disagree with the IRS notice, and in paragraph 6, give the facts which support petitioners’ position. Be sure to sign and date the Amended Petition on the second page, with original signatures (preferably in blue ink) by both petitioners. Completion of the additional short forms (T.C. Forms 4 and 5)… in the petition packet would likewise assist the Court in processing the case.” Order, at pp. 1-2.

Short of filling out the Form 2 her own self, handing Tim and Tam a blue inkpen and pointing to the signature line while addressing and stamping the envelope directed to 400 Second Street, NW,  what more could Ch J Iron Fist do?

Judge Buch is playing myth-buster today in the ongoing Beekman Vista odyssey, Docket No. 8393-12, filed 7/13/16.

They’re still romping around with e-discovery, and IRS claims the Beeks haven’t come clean with all the goods, despite resuscitated tapes of quaint and curious volumes of forgotten lore, seed groups, and enough Boolean algebra to give even the nerdiest e-wonk indigestion. See my blogpost “Method to His Madness – Part Deux,” 9/17/14.

Two years into the program, and IRS is still claiming sandbagging.

IRS claims predictive coding didn’t predict what IRS wanted.

So we get the fight between precision (how many documents are scooped up by the coding, screening out “false positives”, that is, irrelevant stuff) and the extent of recall (the documents retrieved without “false negatives”, that is, leaving out relevant stuff).

IRS claims the Beeks didn’t get it perfect. The recall was too low, too much false negativity.

Yes, says Judge Buch, the predictive coding was flawed. So what?

There are two myths, as aforesaid.

First is human perfection. “Research shows that human review is far from perfect. Several studies are summarized in Nicholas M. Pace & Laura Zakaras, RAND Corp., Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery (2012) at 55. To summarize even further, if two sets of human reviewers review the same set of documents to identify what is responsive, research shows that those reviewers will disagree with each on more than half of the responsiveness claims.” Order, at pp. 7-8.

Or, following the rule of KISS (Keep it Simple, Stupid), “In other words, people make mistakes, and, according to the evidence, they make them regularly when it comes to judging relevance and responsiveness.” Order, at p. 8.

Second is that the FRCP requires perfection in discovery responses.

“The second myth is the myth of a perfect response. The Commissioner is seeking a perfect response to his discovery request, but our Rules do not require a perfect response. Instead, the Tax Court Rules require that the responding party make a ‘reasonable inquiry’ before submitting the response. Specifically, Rule 70(f) requires the attorney to certify, to the best of their knowledge formed after a ‘reasonable inquiry,’ that the response is consistent with our Rules, not made for an improper purpose, and not unreasonable or unduly burdensome given the needs of the case. Rule 104(d) provides that ‘an evasive or incomplete * * * response is to be treated as a failure to * * * respond.’ But when the responding party is signing the response to a discovery demand, he is not certifying that he turned over everything, he is certifying that he made a reasonable inquiry and to the best of his knowledge, his response is complete.

“Likewise, ‘the Federal Rules of Civil Procedure do not require perfection.’ Like the Tax Court Rules, the Federal Rule of Civil Procedure 26(g) only requires a party to make a ‘reasonable inquiry’ when making discovery responses.” Order, at pp. 8-9. (Citation omitted).

And using electronic searching and predictive coding doesn’t impose a higher or different standard than old-fashioned eyeballing. If it did, no one would use it.

So Beeks, you’re cool. “Petitioners provided the Commissioner with seed sets of documents from the backup tapes, and the Commissioner determined which documents were relevant. That selection was used to develop the predictive coding algorithm. After the predictive coding algorithm was applied to the backup tapes, petitioners provided the Commissioner with the production set. Thus, it is clear that petitioners satisfied our Rules with their response. Petitioners made a reasonable inquiry in responding to the Commissioner’s discovery demands when they used predictive coding to produce any documents that the algorithm determined was responsive, and petitioners’ response was complete when they produced those documents.” Order, at p. 9.

So, chaps, want to try the case?

No, this is not a political blog. I too have had enough political blather about e-mails. I write here about tax, specifically United States Tax Court, the “sixty buck ticket to justice.”

But Judge Buch has a lot to say about confidential e-mails on a shared server in a designated hitter, Beekman Vista, Docket No. 8393-12, filed 7/12/16.

IRS claims a shared server waives client-attorney privilege, and cites six (count ‘em, six) cases IRS claims say so.

Negatory, good buddy, says Judge Buch.

“The Commissioner broadly argues that petitioners waived all claims of privilege because petitioners disclosed the documents to each other by merely sharing a computer system. The Commissioner does not argue that there was actual disclosure, but that the mere sharing of a computer system is enough to cause waiver.” Order, at pp. 3-4.

Judge Buch then blows off IRS’s carefully researched six cases, thereby doubtless wrecking a summer intern’s weekend.

“Waiver occurs when a privileged communication is disclosed. The mere act of sharing a computer system does not demonstrate that a privileged communication was disclosed. If we were dealing with paper, what we have here is akin to keeping documents in a basement full of file cabinets. That, alone, is not a waiver.” Order, at p. 4 (Citations omitted).

Though it causes me to grit my teeth, I will refrain from any political comment.

The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Indomitable, Illustrious, Incontrovertible, Ineffable, Ineluctable and Indefatigable Foe of the Partitive Genitive, and Old China Hand, His Honor Judge Mark V. Holmes, seems to be on a run of discovering skullduggerers.

See my blogpost “Wow,” 7/1/16.

Well, here’s the story of Mark Feathers & Natalie E. Feathers, Docket No. 9371-14, filed 7/11/16.

They were on for trial, but a Section 6871(c) bar appeared to halt Tax Court proceedings. If a receiver is appointed for a taxpayer in any State or Federal Court, IRS can go ahead with assessing deficiencies, and no Tax Court petition can be filed once the receiver is appointed.

But there was a carve-out for Tax Court in the order appointing the receiver.

Nowise discouraged, Mark had another string to his cliché. “Then Mr. Feathers informally challenged our jurisdiction by suggesting that he may have filed his petition starting this case while his bankruptcy case was pending. That was true, but he had filed his petition in this case after he was discharged. Even though his bankruptcy case was later reopened, reopening doesn’t reimpose the automatic stay. See Allison v. Commissioner, 97 T.C. 544, 548 (1991).” Order, at p. 1.

Once again the late-night telehucksters have the last word: “”But wait – there’s more!”

“Both parties want at least some informal discovery; Mr. Feathers may also want to set up the legal questions of the effect of the bankruptcy discharge on his tax liability, as well as his claim that the Commissioner didn’t issue the notice of deficiency that led to this case before the statute of limitations had run.” Order, at p. 1.

OK, so do a Branerton, play nice, and pick a date, right?

Wrong!

“Then the Court and respondent learned that there is a 29-count indictment pending against him in the Northern District of California.” Order, at p. 1.

IRS wants the case on the December San Francisco calendar. Judge Holmes says he’ll do that when the calendar comes out, although it might be a wee bit optimistic.

Meantime, Judge Holmes sends them to the status report track, in the immortal words of the 1959 Sid Wayne and Sherman Edwards classic, “See You in September.”

That’s Judge Big Julie’s, a/k/a His Honor Big Julie Judge Julian I. Jacobs (hereinafter sometimes referred to as ”HHBJJJIJ”) message to Bonnie Maria Armour, Petitioner and Mark V. Poulsen. Intervenor, 2016 T. C. Memo. 129, filed 7/11/16.

It takes six lawyers (three for IRS and three for Intervening Mark) to get there, and Bonnie is standing up alone, seeking (and not getting) innocent spousery.

Turns out Bonnie knew their tax returns showing income from then-spouse’s Mark’s construction business (“MVP”) were bogus. How did she know, you might ask.

HHBJJJIJ will tell you.

“Petitioner was MVP ’s bookkeeper/office manager for approximately 20 years, including the years involved.  She developed and maintained the accounting program used by the business.  Her duties included:  (1) managing the company’s financial records, bank accounts, and American Express credit card account; (2) managing the company’s ‘end of the month check run’, which reconciled all charge accounts that MVP had from its vendors, roofing suppliers, lumber yards, plumbing supply houses, and other subcontractors; (3) reconciling the company’s bank and credit card statements; (4) managing the accounts payable and accounts receivable; (5) tracking inventory; and (6) managing the company’s payroll.  To these ends, petitioner had authority to write and sign checks on behalf of MVP, deposit money into the company’s accounts, and prepare checks and receipts for the business.  Petitioner was familiar with MVP’s clients and knew, or at least could have learned, the amounts they paid the company.  Before becoming MVP’s bookkeeper, petitioner had other experience in accounting.

“When petitioner managed MVP’s finances, her duties included the end-of-year accounting for the company.  She reviewed the company’s books and provided information and documents to the company’s certified public accountant (C.P.A.), JT, who prepared petitioner and intervenor’s joint tax returns. She also met and interacted with Mr. T during the years involved.  She admitted to ‘’booking things wrong’ for MVP and was advised that she had done so by Mr. T.” 2016 T. C. Memo. 129, at pp. 4-5. (Name omitted).

Y’all can see this is not going to end well for Bonnie.

Oh yes, Bonnie claims she didn’t review the tax returns for the years at issue before signing them.

True, to flunk the innocent spousery exam, the requesting spouse need have a Cartesian clear and distinct perception of the deficiency-creating items in the returns for the years at issue. Cf Section 6015(c)(3)(C). Well, Bonnie ran the show. Her claim she was just a keypuncher falls very flat.

Besides, she was funneling money from MVP to her horse care and horse boarding business. It’s amazing how often these horsey types are fiddling with the fisc.

True, Bonnie is up against it, and Appeals was unduly harsh.

HHBJJJIJ:” We note the Cincinnati Centralized Innocent Spouse Operation’s determination that the economic factor favored relief as petitioner’s gross income was at 250% or less of the Federal poverty line and that she did not have sufficient assets to make payments and still pay basic family living expenses.  The IRS Appeals officer’s own analysis indicated that petitioner’s household income was below the Federal poverty line and her expenses were slightly less than her income.  Yet the Appeals officer found that this factor was neutral.” 2016 T. C. Memo. 129, at p. 17, footnote 7.

But at close of play, Bonnie was the woman with the goods.

“We conclude that petitioner is not entitled to relief from joint and several liability under section 6015(f) for any of the years involved.  The most significant factor in reaching our conclusion is that petitioner had knowledge of the understatements of tax or deficiencies with respect to the joint income tax returns.  Petitioner was directly responsible for the underreporting of income with respect to the horse care and boarding business and, as MVP’s bookkeeper/office manager, she knew of the underreporting of income and excessive expense deductions attributable to that business.” 2016 T. C. Memo. 129, at p. 19.

If you knew, you’re through.

A Friday afternoon in July, and I’m thinking about my favorite hot weather cordial, known as an Ourobouro. No, not the one with the worm; mine is a piña colada made with Ypaioca Ouro, cachaça aged two years in Balsamo barrels (whatever they are). It goes down singing Florencia en las Amazonas.

But Judge Holmes is unrelenting, with or without cognomens, so my drink must wait.

Here goes. It’s a bunch of designated hitters in the ongoing Ernest Ryder saga. We’ll extract Ernest S. Ryder & Associates, Inc., APLC, et al, Docket No. 14619-10, filed 7/8/16. There are fifteen (count ‘em, fifteen) cases of Ernie’s carryings-on, and Judge Holmes has designated all of them.

The mélange is supposedly set for trial July 25, but IRS is up to its old tricks.

“…petitioners had learned that respondent [IRS] has served 77 subpoenas on third parties, some of whom petitioners think may be represented. This might cause problems if the government is trying to communicate with represented persons without talking to their representative. But it became clear during the phone call that there’s an antecedent problem — petitioners have no idea who’s been subpoenaed.” Order, at p. 1.

Doesn’t that jog your memory about FRCP 45?

Well, it did mine, so see my blogpost “The Stealth Subpoena,” 7/16/15, when IRS played the same game they’re playing here, claiming they needn’t notify Ernie and the gang because Tax Court Rules say nothing about notice when a document isn’t filed with Tax Court…and subpoenas aren’t filed with Tax Court, so Rule 21(a) is auf’d.

Stealth subpoenas ride again.

Judge Holmes didn’t buy it then, and he ain’t buyin’ it now. Hey, maybe it’s time for a T. C. Memo., Judge, so that people don’t have to go scrolling through my old blogs to cop quotes for their memos of law. Or maybe change your Rules to conform to the FRCP.

“We do have to disagree with the Commissioner, however, that this absence of a rule creates an implication that secret subpoenas are favored. We promulgated our Court’s Rule 147, which governs subpoena practice, back in 1973. See Tax Court Rules of Practice and Procedure, 60 T.C. 1057, 1137 (1973). At that time, we said that our goal was a rule substantially similar to FRCP 45. Id. Back then, FRCP 45 didn’t require notice for subpoenas. Fed. R. Civ. Proc. 45 (1970). The notice requirement was added in 1991 to give parties the same opportunity to challenge nonparty subpoenas for documents that they had to challenge subpoenas for depositions (since FRCP 30 and 31 already provided notice protection in these circumstances). See Fed. R. Civ. Proc. 45 advisory committee’s note (1991). We have never publicly stated that we intended to deviate from Article III practice -it’s just an example of the two sets of rules drifting apart over time.

“We think that the current federal rule is a good one in litigation that is, as in these cases, especially hard-fought. The Court will therefore adopt the notification requirement of Federal Rule 45 as a modification to the pretrial order that governs this case.” Order, at p. 2.

Have a great weekend, guys.

We used to sing a little song many years ago, about tiptoeing through minefields, but it wasn’t anything to do with Tax Court’s, shall I say Byzantine, jurisdiction.

But today Judge James S. (“Big Jim”) Halpern does a pas seul over, around and through Section 6512(b)(4) interplay with Section 6402, leading to a  prohibition on Tax Court reviewing IRS’s wisdom in assigning overpayments in one year to underpayments in another.

Settle back in your seats and watch Gonzalo Luque and Maribel Luque, 2016 T. C. Memo. 128, filed 7/7/16.

IRS hit Gonz and Mari with a SNOD, but took it all back and wanted entry of decision saying nothing owed, no refund due. Gonz and Mari say no, we want a refund.

IRS’s evidence as to the dates when all this happened is a little bit squirrely, so Judge Big Jim gave IRS some ‘splainin’ to do. And they do. And since y’all might be interested, he lays it out.

No proof that Gonz and Mari filed late, although IRS didn’t process their return until May 21, though it was due April 17 (DC holidays and all that). But they credited Gonz and Mari with their over-withholding on April 15. So Gonz’s and Mari’s eagle-eyed attorney says “assignment of overpayment for that year to shortfall in prior year wasn’t made under Section 6402, because as of April 15 the IRS hadn’t even looked at Gonz’s and Mari’s return, so how could they know there was or was not an overpayment?”

A Taishoff “good try, first class” goes to Shahin Rahimi, Esq. (or USTCP, as the case may be).

Judge Halpern: “We disagree with the premise of petitioners’ argument. Section 6402(a) applies to the crediting of refunds shown on a return even before any final determination of the taxpayer’s tax liability for the year covered by the return. In Savage v. Commissioner, 112 T.C. at 48-49, for example, we concluded that, after relying on section 6402(a) to apply a taxpayer’s overpayment for one year against the taxpayer’s liability for another year, ‘the Commissioner is not precluded from subsequently determining a deficiency for the taxable year in respect of which the overpayment was originally claimed and allowed.’ See also sec. 301.6402-3(a)(5) and (6), Proced. & Admin. Regs. (allowing a refund shown on a return to be credited under section 6402 against any outstanding tax liability of the taxpayer). Obviously, if the Commissioner can still determine a deficiency for the taxable year that generated the credit, the overpayment initially credited under section 6402(a) cannot have been based on a final determination of the taxpayer’s tax liability for that year. Therefore, we accept that section 6512(b)(4) limits our ability to review respondent’s crediting of the overpayment shown on petitioners’ [year-at-issue] return against any liabilities assessed for [prior year]. But we do not read section 6512(b)(4) to prevent us from verifying, in the exercise of our jurisdiction under section 6512(b)(1), that the credit respondent professes to have made was actually applied.” 2016 T. C. Memo. 128, at pp. 6-7.

While Gonz and Mari want to fight about prior year, Judge Big Jim isn’t going there because that year is not before the Court, and eagle-eyed counsel didn’t raise mitigation (probably because it wouldn’t have worked).

IRS deems all overpayments to be available (like bank deposits) as of the due date of the return (without counting holidays, weekends, extension or anything else). This it does to save taxpayers interest on underpayments. So it doesn’t matter when IRS processed the return, or whether Gonz and Mari were timely or late.

There is an extensive visit to the IRS Integrated Data Retrieval System, which, if you are a total geek with a penchant for obsolete software, can be found at pp. 11-14. If you are not such a one, you might find it useful nonetheless, as a good cure for insomnia. When IRS’s ‘splainer gets through, Judge Big Jim is satisfied.

At the end of the day, IRS properly picked up Gonz’s and Mari’s overpayment and applied it to the past shortfall (I won’t call it a deficiency to avoid confusion, as there’s no mention of a SNOD  for that year for whatever reason).

So no tax due, no refund due.

Here’s a designated hitter from STJ Lewis (“A Name to Conjure With”) Carluzzo, which is a variant on my blogpost “Wait ‘til I Finish My Lawsuit,” 3/26/13.

Hear now the long-term stock market hold played by Thomas Richard Linell, 4818-15L, filed 7/6/16.

Thom was behind in his uncontested tax liabilities, but claims in his CDP that IRS shouldn’t have rejected his proposed IA.

Hard-hearted IRS says “Cash in your IRAs and pay us in full.” Thom says “The stocks in my IRAs tanked and I’d have the 10% Section 72(t) hit if I cashed in, so wait a while and when they come back you can levy, and then I don’t get hit with the 10%.”

No go, says STJ Lewis.

“At the hearing [on the CDP] petitioner candidly admitted that he took advantage of his rights under sections 6320 and 6330 not so much to insist upon a collection alternative to the proposed collection actions, but to avoid having to liquidate his retirement account(s) at a time when the value of the assets in the account(s) was greatly diminished. The administrative hearing that preceded the filing of the petition in this case concluded with the issuance of the notice almost 18 months ago…. As of that date, petitioner anticipated that the value of the stock held in the retirement account(s) would ‘increase significantly in the next month or so.’ About eight months later, in his response to respondent’s motion [for summary J] petitioner projected that the value of the stock in the retirement accounts would ‘recover in the next twelve months’. As it turns out, petitioner’s challenge to respondent’s proposed collection actions is directed not so much to respondent’s rejection of his request for a collection alternative as it is to respondent’s apparent refusal to wait until the assets in his retirement account(s) appreciated to an amount that would allow for the underlying liabilities to be paid without completely extinguishing the balance in the account(s).” Order, at p. 2.

Maybe so, Thom, but that’s your problem. Game over.

STJ Lewis isn’t interested in stock market fluctuations. “Regardless of whether the assets in the retirement account(s) have appreciated as petitioner expected, and regardless of how petitioner’s challenge to respondent’s determination is characterized, we find that petitioner has failed to establish that respondent abused his discretion by (1) rejecting petitioner’s proposed collection alternative, or (2) apparently refusing to wait until the assets in the retirement account(s) appreciated. That being so, respondent’s determination to proceed with collection as shown in the notice will be sustained.” Order, at p. 2.

But maybe Thom and IRS can craft a Motion for Entry of Decision that gives Thom the Section 72(t)(2)(A)(vii) escape hatch.

But I’ll bet IRS will be watching the clock, to make sure Thom doesn’t keep them waiting for his stocks go up.

That’s Judge Buch’s lesson for John A. Sullivan, Docket No. 5095-16SL, filed 7/6/16.

As you can see, this is a lien or levy case, so when John A. asks Judge Buch to dismiss his petition, there should be little to detain the blogger. A quick cite to Wagner, 118 T. C. 330 (2002), a brisk “you got it. Have a nice day” to petitioner, and the parties go their merry way.

But John A. has a new twist, so Judge Buch has some ‘splainin’ to do.

“In his motion, petitioner asks the Court to ‘dismiss this action without prejudice.’ Black’s Law Dictionary defines a dismissal without prejudice as ‘[a] dismissal that does not bar the plaintiff from refiling the lawsuit within the applicable limitations period.’ Black’s Law Dictionary 537 (9th ed. 2009). It defines a case that is dismissed without prejudice as one that is ‘removed from the court’s docket in such a way that the plaintiff may refile the same suit on the same claim.’ Id.” Order, at p. 1.

That might fly in atmospheres less rarefied than as found at 400 Second Street, NW.

Judge Buch: “A dismissal in this case would mean that the IRS may proceed with its proposed collection actions. However, because the period within which to file a petition from the IRS’s determination has long since lapsed (see I.R.C. sec. 6330(d)(1)), petitioner would not be able to refile the same suit on the same claim. And the limitation of one hearing per period would appear to preclude a new determination and petition giving rise to our jurisdiction. See I.R.C. secs. 6320(b)(2) and 6330(b)(2). As a result, once the Court dismisses this case, that dismissal will be final, subject only to a motion to vacate, which must be filed within 30 days of when this Order is entered. See Tax Court Rule 162.” Order, at pp. 1-2.

But John A., after having been catechized by Judge Buch, wants to go ahead, even though he’s not getting what he says he wanted.

Accordingly, John A.’s petition is tossed.

Remember, dismissing a Tax Court petition otherwise than for want of jurisdiction or for mootness means IRS wins. So dismissal without prejudice means dismissal with extreme prejudice.

Richard Brewster Main, 2016 T. C. Memo. 127, filed 7/5/16, certainly thought so. Those words were spoken in an advertisement for the 1955 Plymouth, and RB was a specialist in 1950s Plymouths,  trying to restore those old Detroit relics to their pristine glory.

Only it was too expensive.

IRS claimed his Plymouth restoration gig was a hobby, but Judge Foley didn’t see it that way.

“Petitioner undoubtedly enjoyed working with Plymouths. See sec.1.183-2(b)(9), Income Tax Regs. Although his manner of carrying on this activity was unsophisticated, it was businesslike. See id. subpara. (1). He had experience operating a business and expertise relating to Plymouths; advertised online, in print, and at live events; traveled outside California to acquire cars at bargain prices; contracted with third parties to manufacture parts for him to resell and use in restorations; and abandoned unprofitable aspects of his automobile activity (i.e., he downsized his inventory and stopped contracting for manufactured parts). See id. subparas. (1), (2), (5). Furthermore, he devoted considerable time to, and handled all material aspects of, his automobile activity. See id. subpara. (3). Lastly, petitioner’s patent business was undergoing a downturn during the year in issue, and petitioner, a prudent businessman, would not have squandered his hard-earned money on an expensive hobby. See id. subpara. (8). In short, petitioner’s automobile activity was a business, and his primary objective was to make a profit.” 2016 T. C. Memo. 127, at p. 5.

Note the last point. It probably won the day for RB. He had no great income from other sources. Most hobby loss cases blow up when the loss-seeker turns out to have plenty of other income.

Some of RB’s Schedule C deductions get allowed, but his camcorder and wireless router get disallowed because they were not used exclusively for his business or at his business location. Anyway, RB didn’t have Section 274 substantiation.

And his attempt to avoid Section 6651(a)(1) late filing chop doesn’t work, because claiming you were unaware you had a tax liability doesn’t get it.

Takeaway: Hobbyist, use the checklist, but remember: lots of other income is a tough fence to jump.