Attorney-at-Law

Archive for October, 2019|Monthly archive page

TRIAL BY AMBUSH

In Uncategorized on 10/31/2019 at 17:38

But the Bushwhacker Gets Whacked

Moacir Santos, 2019 T. C. Memo. 148, filed 10/31/19, wants to claim he was prejudiced when IRS, at the trial, asserted that instead of unreported business income, he had constructive dividends from his wholly-owned C Corp.

Mo never bothered with tax returns until eighteen months after his petition, and then handed in unsigned ones, that included Sched Cs. Then, at the start of trial, Mo claimed all the income went to his C Corp. IRS said OK, so you got constructive dividends. And as we concede this is new matter, we have the burden of proof. And we also have your bank records.

Judge David Gustafson has this one.

“The Commissioner initially determined that Mr. Santos’s deficiency arose from unreported Schedule C income; and Mr. Santos’s petition appeared to claim that he was entitled to additional deductions.  However, at trial Mr. Santos moved to amend his petition (and the Commissioner did not oppose) to contend that the unreported amounts were gross receipts of [C Corp] and were therefore taxable as [C Corp]’s income, not his.  The Commissioner conceded the point, but this significant change prompted him to proceed under a new theory–i.e., that Mr. Santos had received constructive dividends from [C Corp].  Even though Mr. Santos’s asserted tax liability was smaller under this new theory than the amount stated in the SNOD, the Commissioner concedes that his constructive dividends argument constitutes ‘new matter’ since it required Mr. Santos to present different evidence.” 2019 T. C. Memo. 148, at p. 11 (Citation omitted).

Needless to say, IRS lost nothing by its concession. Mo’s proof was, shall we say, dubious.

“The Commissioner’s constructive dividend argument was tried by the implied consent of the parties.  See Rule 41(b)(1).  However, on brief, Mr. Santos argues that he will be deprived of ‘due process if * * * [the Commissioner] is allowed to proceed on a new theory first presented at the hearing’.  We interpret Mr. Santos’s argument to mean that he alleges that he was prejudiced because he was unfairly surprised by the Commissioner’s constructive dividend argument.  We disagree.  In the first place, he explicitly consented to the Commissioner’s raising that contention.  More important, Mr. Santos was the party who moved, on the day of trial, to amend his pleading in a manner that required the Commissioner to revise his position.  Mr. Santos was neither surprised nor prejudiced by the Commissioner’s constructive dividend argument.  Consequently, the Commissioner is permitted to advance his contention of constructive dividends; but as to that contention he bears the burden of proof.  He successfully sustained that burden….” 2019 T. C. Memo. 148, at p. 12.

Mo’s proof sustains IRS’ burden. I include only a couple examples (hi, Judge Holmes).

“First, the total value of the receipts Mr. Santos provided is $107,476, not the $79,928 he alleges constituted business expenses.  He does not specify which receipts compose the $79,928 of supposed business expenses, and he does not explain how he has a greater amount of receipts that are among his supposed business expenses but do not constitute business expenses.  It appears that he fabricated the receipts before he settled on his final story and did not notice the discrepancy.

“Second, receipts that are ostensibly from different vendors appear to be from the same receipt book.  He did not explain this fact.

“Third, the chronology of the dates written on the receipts does not follow the sequential order of the preprinted receipt numbers.  For example, a receipt numbered 238777 was dated July 2, 2010, for ‘New Fence our Richmond yard labor’, but the subsequent receipt, numbered 238778, was dated December 28, 2010 (more than 6 months later), for a $7,200 payment on an ‘Excavator CAT 308’.  And the next receipt, numbered 238779, jumps back 10 months and is dated February 28, 2010, allegedly for a payment on the same machinery.” 2019 T. C. Memo. 148, at pp. 15-16.

There’s more, but I’ll spare you.

MONSTER FORWARD SHOT BLOCKED

In Uncategorized on 10/31/2019 at 16:05

As we start the basketball season, Judge Ruwe is getting back a blocked shot from a Monster forward; here’s Estate of Andrew J. McKelvey, Bradford Peters, Executor, Docket No. 26834-14, filed 10/31/19.

You’ll doubtless recall that the late Andrew’s Monster forward had scored big-time, according to Judge Ruwe. If not, see my blogpost “A Monster Forward,” 4/19/17.

Well, 2 Cir wasn’t so sure. They found that the late Andrew had not extended the contracts, but had entered into new contracts and had constructively sold the Monster shares, because there was a statistically insignificant chance the share price would rebound to let the late Andrew (or his estate) keep any. So the late Andrew’s attempt to extend until he died and his estate get the stepped-up basis cratered.

And the purported extensions are new contracts. So there’s both short-term capital gains and long-term capital gains in play. Short-term on the “extension” deemed termination,  and long-term on the constructive sale of the new contracts (which supposedly would never hit the “sweet spot” on termination).  See Estate of Andrew J. McKelvey v. Commissioner, No. 17-2554 (2d Cir. 2018), decided 9/26/18, cert. den.. 6/13/19.

Clear? Thought not.

But this is what 2 Cir meant. “A taxpayer and his VPFC long party can often be expected to repeat these extensions for the taxpayer’s life, knowing that at his death the shares will have a stepped‐up basis in the hands of his estate. The up‐front payment will have been received without ever incurring the capital gains tax that would have been due had the payment resulted from a sale of the stock. In this case that payment was $194 million, and thus far, no capital gains taxes have been paid. The Internal Revenue Code should not be readily construed to permit that result.” 17-2554, at p. 31.

But 2 Cir bucks this frittata back to Judge Ruwe, to decide.

“Whether the replacement of the obligations in the original VPFCs with the obligations in what we hold are new contracts satisfies the criteria for a termination of obligations that gives rise to taxable income, presumably capital gain, and the amount of such gain are issues that we leave for determination in the first instance by the Tax Court on remand.” No. 17-2554, at p. 20.

So Judge Ruwe tells the parties to brief this stuff seriatim.

A DEFIER AND AN EVADER

In Uncategorized on 10/30/2019 at 16:34

Walk Into a Blog

No, I’m not auditioning for a late-night comedy slot. This afternoon the hard-laboring clerks and flailing datestampers at the Glasshouse on Second Street, NW,  have favored me with two T. C. Memos. The subject is dodging.

First up is Francis Steffan Hayes, 2019 T. C. Memo. 147, filed 10/30/19, who gets Wnuck’d by Judge Patrick J. (“Scholar Pat”) Urda. It doesn’t take excessive scholarship by Judge Scholar Pat to conclude that, instead of taking on IRS’ extensive reconstruction of five (count ‘em, five) of Francis Steffan’s tax years, Francis Steffan “…reserves his energy for laying out assorted tax-defier chestnuts about the scope of the Sixteenth Amendment, the purportedly unworkable definition of income under the Internal Revenue Code, and the effect of regulations relating to the Alcohol and Tobacco Tax and Trade Bureau on the administration of the income tax regime.  The shopworn arguments he offers in support of his position are incomplete, misleading, and misguided, and have been rejected more times than we care to count.” 147 T. C. Memo. 147, at p. 11. (Citations omitted, but ya gotta know Wnuck is in there).

IRS does more reconstruction than a plastic surgeon, and after conceding around $10K, establishes deficiencies and chops for the years at issue. But IRS left out the $400 Making Work Pay credit they originally allowed, so Judge Scholar Pat tells IRS to include it in the Rule 155 beancount or tell him why.

Taishoff says if anyone deserves credit for making work pay, it’s the RA who went through the “reams of bank account statements, checks, and money orders showing that in the years in issue Mr. Hayes received income both directly and through the media ventures he alone controlled.” 2019 T. C. Memo. 147, at p. 10. And testified in extenso about the same.

Next case is Bertram Russell, 2019 T. C. Memo. 146, filed 10/30/19. That’s Dr. Bertram Russell, although maybe after he went down for Section 7201 tax evasion in USDCEDPA and did 66 months, he stopped practicing medicine.

Anyway, Doc Bert’s game was the phony corporation. Doc Bert claimed he was an IC working for said corporation, but he never got a W-2, a 1099-MISC, or anything but sole signatory power over the corporation’s checking account, into which the IC payments for Doc Bert’s services were funneled, and from which he paid his personal expenses.

Supposedly an attorney and another doctor set up this dodge; they really could have done a better job.

Now of course an individual can incorporate his or her trade or business or occupation. And our beneficent tax system allows each of us to roll our own. But the corporation has to be real.

I’ll let Judge Ruwe explain.

“Taxpayers have the right to shape business transactions to minimize the incidence of taxation, including the right to use corporate entities.  Furthering this pursuit, a ‘corporate entity is deemed to exist as a separate taxpayer if it is organized to carry on a business activity or if, in fact, it has carried on such activity.’ (‘[S]o long as * * * [the corporate purpose] is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity.’).  However, in ‘matters relating to the revenue, the corporate form may be disregarded where it is a sham or unreal.’” 2019 T. C. Memo. 146, at pp. 9-10. (Citations omitted.)

Judge Ruwe finds Doc Bert’s corporation activities “reek of a sham corporate entity.” 2019 T. C. Memo. 146, at p. 10.

“[Corp] filed no corporate income tax return for any year, including [year at issue].  The entity had no employees and no proper physical location, and it appears to have respected no corporate formalities.  There is no evidence that it ever paid any dividends.  The 13 payments … to [Corp] were deposited into a checking account that petitioner, and only petitioner, exercised control over.  Funds in this checking account were later used to pay petitioner’s personal expenses, such as private school tuition for his children.  Petitioner observed no meaningful distinction between his personal funds and the funds of [Corp].  We therefore find that [Corp] is a sham corporate entity which is disregarded for Federal income tax purposes.“  2019 T. C. Memo., 146, at p. 10-11.

Now we all know that conviction for tax evasion with an order for restitution does not determine actual tax liability, unless the judgment of conviction so states. Nor does conviction estop IRS from going after the taxpayer for actual tax. But the conviction does establish fraud, to the extent of the Section 6663 75% chop, if for the same year as evasion is determined.

Oh, and Doc Bert owes a late filing chop.

 

WELCOME, JUDGE TORO

In Uncategorized on 10/30/2019 at 13:14

Let’s all give a good, hearty Tax Court Observers’ welcome to Judge Emin (“The Eminent”) Toro, the latest addition to the Tax Court bench. Judge Toro brings hefty academic, judicial and white-shoe experience to this distinguished Court. I look forward to great orders and opinions from Judge Toro.

THE YELLOW CARD

In Uncategorized on 10/29/2019 at 16:19

On a day with no opinions or designated hitters, I am thrown back on reflections on Tax Court practice and procedure. Joe Daniel Skelton, Docket No. 15412-19, filed 10/29/19, offers me one such. Ch J Maurice B (“Mighty Mo”) Foley tosses JD’s petition at IRS’ request, to which toss JD has no objection.

JD petitioned the usual eighteen-year bundle (tax years 2000 to 2017), and of course neither SNOD nor NOD was in evidence.

So why blog it? Because IRS asks for a Section 6673 frivolity chop, and Ch J Mighty Mo shows JD the yellow card. “Although an I.R.C. section 6673 penalty will not be imposed here, petitioner is admonished that the Court will consider imposing such a penalty in future cases commenced by petitioner seeking similar relief under similar circumstances.” Order, at p. 2.

Wherefore it might be inferred that JD was a Wit, Wag or Wiseacre, because he had earlier sent in a document bearing the unusual title “Affidavit of Lawful Claim of Title, Will, Execution of Will, Declaration of Status & Appointment and Standing Orders for the Trustees.” This document, however, is not available online, and your reporter hasn’t the slightest intention of trucking on down to The Glasshouse at 400 Second Street, NW, to enlighten you, dear reader, with its contents.

And JD thereafter filed a motion to dismiss for cause, leading one to conclude that at least one of the three Ws above-mentioned might be in play.

But I’d like to say a word about petitioning something that a Tax Court Judge mightn’t find to be a SNOD or NOD.

We all know that there is no form of SNOD mandated either by statute or regulation. Only the taxpayer, tax and year need be stated, and of course the contact info for TAS. NODs can issue for equivalent hearings (no right to petition), as well as the usual laundry list where the NOD plus petition is the ticket to Tax Court (worker classification, innocent spousery, revocation of 501(c)(3) status, whistleblowing, and passport-grabbing).

But how is the ordinary taxpayer to know which is which? See my blogpost “Fake Out,” 12/16/14, where an IRS letter that says they sent a SNOD when they didn’t, and to petition Tax Court if you disagree with IRS’ numbers, somehow isn’t a SNOD.  See a recent, like yesterday, example, my blogpost “Petition Everything,” 10/28/19, where a SNOD gave the same deficiencies for two related entities at the same last known address, but if the wrong entity petitions, the right entity gets tossed too late to petition.

And there is a plethora of orders tossing petitioners who petition one IRS-standard-issue piece of paper or another that isn’t a SNOD, or the right kind of NOD (remember, tax refund and child support levies aren’t tickets to Tax Court).

So before deciding a priori (as Judge Scholar Al or Judge Scholar Pat might say) that someone dropping a petition (and in JD’s case, even ponying up the sixty simoleons) is a Wit, Wag or Wiseacre deserving of The Yellow Card, maybe there is legitimate ground for confusion. Although in JD’s case, not so much.

YOU’LL NEVER KNOW

In Uncategorized on 10/28/2019 at 22:48

The Mack Gordon-Harry Warren 1943 Oscar winner echoes through Tax Court, as Judge Paris goes to “preponderance of the evidence” and bids farewell to burden of proof where IRS folds an innocent spouser, but intervenor goes all-in.

Here’s Jane M. Lassek, Petitioner, and Michael E. Smith, Intervenor, 2019 T. C. Memo. 145, filed 10/28/19. It’s the usual; IRS folds one of two years at issue, intervenor opposes both years.

Petitioner goes one for two, as Judge Paris is down with the conceded year despite intervenor’s objections. The non-conceded year is a win for IRS and intervenor.

Like 98% of innocent spousers, it’s a fact-bound trudge through Rev. Proc. 2013-34 (which I’ve exhaustively blogged), and The Big Seven Factors. Taxpayer First plays no part, as no newly-discovered evidence.

The reason I’m bothering with this at all is stated in the title.

As far as Judge Paris is concerned (and I’m thinking she is speaking for her colleagues as well), where IRS folds and intervenor fights on, burden of proof is invariably irrelevant. So preponderance-of-the-evidence wins the day.

In this case, the question was the requesting spouse’s actual knowledge that the MFJ return understated income. Intervenor claimed requestor “had reason to know.” Not good enough.

“If, as here, all of the other requirements of that section [6015(c)] have been satisfied, then, as relevant here, the burden of proof is shifted to the Commissioner and relief is denied to the requesting spouse only if the Commissioner “demonstrates that * * * [the requesting spouse] had actual knowledge, at the time such individual signed the return, of any item giving rise to a deficiency”. Sec. 6015(c)(3)(C); see Charlton v. Commissioner, 114 T.C. 333, 341 (2000); Martin v. Commissioner, T.C. Memo. 2000-346, slip op. at 12-13.” 2019 T. C. Memo. 145, at p. 13.

But if IRS folds, where does the burden of proof go?

“An issue arises where the burden of proof shifts to the Commissioner in cases when the Commissioner favors granting relief and the nonrequesting spouse intervenes to oppose it. The Court has previously resolved this issue of burden shifting by deciding the case on a preponderance of the evidence as presented by all three parties. See Hollimon v. Commissioner, T.C. Memo. 2015- 157; Pounds v. Commissioner, T.C. Memo. 2011-202; Knight v. Commissioner, T.C. Memo. 2010-242; McDaniel v. Commissioner, T.C. Memo. 2009-137. “ 2019 T. C. Memo. 145, at p. 13.

And that’s what Judge Paris does, and I’ll wager one bucket of Modelò Negras that’s what her colleagues do, from now on. Invariably.

So we’ll never know if the burden of proof shifts to the intervenor, or stays with the requestor.

Takeaway- Intervenor, try your case as if IRS wasn’t there, because as far as Tax Court is concerned, they might just as well not be.

 

 

 

DIAMONDS ARE FOREVER

In Uncategorized on 10/28/2019 at 17:52

Coal Is Not

And coal has to be forever, or their conservation easement tanks. So says Judge Albert G (“Scholar Al”) Lauber in Coal Property Holdings, LLC, Coal Land Manager, LLC, Tax Matters Partner, 153 T. C. 7, filed 10/28/19.

The Coalholders donated 3,713 acres of strip-mined TN they bought three (count ‘em, three) weeks before to a qualified organization, three (count ‘em, three) days after an investor bought 99% of the Coalholders for $32.5 million, and claimed a $155.5 million deduction.

The aim was to let the land recover from strip mining by natural means, and prevent strip mining from ever happening again.

Problems: the deed allows the present oil and gas lease, and any mineral extraction that the lessee chooses to remain in place, provided the 501(c)(3) donee doesn’t reasonably object. And the gas wells and cellphone towers can remain. Plus underground lines, utility lines, “roads and/or driveways for vehicular access to areas of the Property on which the existing and additional structures and related ancillary improvements are and may be constructed.” 153 T. C. 7, at p. 10.

And if the easement is judicially extinguished (the only way it can be), then out of any proceeds, the  Coalholders first get FMV (based on a formula), plus the amount of “any prior claims,” with a savings clause that this cannot torpedo the easement.

And there’s the usual appraisal.

The formula would allow the 501(c)(3) grantee to come up short in the event of judicial extinguishment, plus the “prior claims” language could guarantee that result.

“The Conservancy’s [501(c)(3)] share of the proceeds would thus be reduced by any amounts paid in satisfaction of prior claims–e.g., claims against Coal Holdings by the oil and gas lessees or cell tower operators–even if the easement’s fair market value were determined exactly as the regulation requires.” 153 T. C. 7, at p. 32.

The savings clause is a condition subsequent, and a dead loser. The Palmolives got torpedoed by a similar clause.  See my blogpost “No Joy Forever – Because Golsen,” 3/11/17.

Just when you thought the Coalholders had gone the limit, here’s the kicker.

“Petitioner discerns no fault in the ‘prior claims’ provision, asking rhetorically:  ‘How else would prior claims be addressed?’  It is not necessarily unreasonable for a deed to provide that prior claims may be paid from sale proceeds. What is unreasonable, and what violates the ‘judicial extinguishment’ regulation, is the requirement…that all prior claims be paid out of the Conservancy [501(c)(3)]’s share of the proceeds, even if those claims represent liabilities of Coal Holdings.” 153 T. C. 7, at p . 32, footnote 5. (Emphasis by the Court).

Ya gotta love these facts, and the gang that petitioned with a straight face. Tungsten? Titanium? You pick it.

PETITION EVERYTHING

In Uncategorized on 10/28/2019 at 17:11

Even Someone Else’s SNOD

What’s in a SNOD? My battle-hardened readers will respond, “year and tax. Everything else is commentary.” Well, there’s more than that, as ex-Ch J L Paige (“Iron Fist”) Marvel tells U. S. Auto Sales, Inc., 153 T. C. 5, filed 10/28/19.

“Petitioner is a corporation whose principal place of business was in Georgia when it petitioned the Court.  Petitioner and U.S. Auto Finance, Inc. (U.S. Auto Finance), are related entities which share a mailing address and are represented by the same counsel.  Petitioner and U.S. Auto Finance filed separate income tax returns for taxable years ending (TYE) June 30, 2003, 2007, and 2008.” 153 T. C. 5, at p. 3.

IRS unloads eleven (count ’em, eleven) pages of SNOD on Sales. But only four pages pertained to Sales, and the remaining seven pertained to Finance. And the identical alleged deficiencies ascribed to Sales in the front four got ascribed to Finance on the back seven. Sales petitions.

Then two months later, IRS unloads a fresh SNOD on Sales, with widely different deficiencies ascribed to Sales only. Sales petitions this one.

IRS wants to toss Sales’ first petition, because IRS meant Finance only, so Sales is the wrong party and no jurisdiction. I think IRS meant “no standing to sue,” a subset of no jurisdiction. “No standing” means “not your pig, not your barbecue.”

IRS puts in the tax returns of Sales and Finance for the years at issue, showing all the numbers in the SNOD at issue relate to Finance, and have nothing to do with Sales.

The rule here is cited in a case I didn’t blog. Basically, if the recipient of a SNOD can tell it’s a SNOD, and is directed to said recipient, that’s it, the recipient can petition. “But if a notice is ambiguous, the party seeking to invoke our jurisdiction must establish both that: (1) ‘the Commissioner made a determination’ as to the taxpayer and (2) ‘the taxpayer was not misled by the ambiguous notice.’ Failure to meet either test results in a conclusion that the notice is invalid.” 153 T. C. 5, at p. 8. (Citations omitted).

And Tax Court can use extrinsic evidence to resolve an ambiguous SNOD. Thus, reading the first SNOD, one can tell the years and the taxes, but first it says Sales owes and then it says Finance owes. The key is the separate tax returns for Sales and Finance. Reading the first SNOD against its tax returns for the years at issue, Sales had to know that Finance was meant, not them.

Besides, Sales petitioned the second SNOD timely, so Sales wasn’t prejudiced.

Finally, it’s true that there’s no standard form for a SNOD, but besides the year and the tax, the SNOD has to tell the taxpayer that it is in fact their tax and their year. This SNOD is so ambiguous that it isn’t a SNOD, at least as to Sales. But it might be valid as to Finance, since Sales and Finance share last known addresses. And mistakes in addresses don’t necessarily invalidate SNODs; see my blogpost “Name and Number,” 6/9/11.

Takeaway- In this context, if you have any related entity whatsoever named in a SNOD sent to you, they should petition and you should petition. Finance may have missed the boat, since the SNOD sent to Sales was sent to the last known address of Finance. And because who knows what an unambiguous SNOD is, petition everything anyway (just hold off the $60 until you have to send it).

TWELVE PAGES, TWENTY-TWO LAWYERS

In Uncategorized on 10/28/2019 at 16:00

It was Thomas Jefferson, to whom was ascribed the statement concerning lawyers, that they are those “whose trade is to question everything, yield nothing, and talk by the hour.”

Well, today Judge Kerrigan takes twelve (count ’em, twelve) pages to knock out the asserted Section 6662(h) 40% chops to Eaton Corporation and Subsidiaries, 153 T. C. 6, filed 10/28/19, which has to be a record-breaker for brevity in a seven-year-old case that has produced some great blogfodder.

IRS canceled some APAs (advance purchase agreements, sort of PLRs for transfer pricing situations, avoiding Section 482 adjustments), which Judge Kerrigan reinstated, because IRS was arbitrary and capricious. See my blogpost “Breaking Bad,”7/26/17.

Eaton and IRS are at the Rule 155 beancount, and the only thing they’re fighting about is penalties. Thus, thirteen (count ‘em, thirteen) lawyers for Eaton, and nine (count ‘em, nine) lawyers for IRS, are necessary to help Judge Kerrigan wrap it up in twelve (count ‘em, twelve) pages.

IRS wants the penalties because Section 482 adjustments would shatter the $20 million or 20% of gross ceiling that Section 6662(h) requires before the 40% chop, which exceeds the standard 20% understatement. Eaton claims that’s new matter, IRS had the burden of proof, and they didn’t sustain it.

Judge Kerrigan doesn’t care.

“We do not need to decide whether the imposition of section 6662(h) penalties is a new issue for the purposes of Rule 155.  Even if we were to assume, for purposes of argument, that this is not a new issue, we nevertheless would conclude that there were no net section 482 adjustments to support imposition of section 6662(h) penalties.”  153 T. C. 6, at p. 9.

Remember, the APAs were never rightly canceled.

“In this case we did not address whether there was an abuse of discretion regarding a section 482 allocation.  We never reached that step.  Rather, we addressed whether it was an abuse of discretion for respondent to cancel the APAs.  Because Eaton II concluded that the cancellation of the APAs was an abuse of discretion, the APAs remained in effect.  There was no allocation of income and deductions by the Secretary pursuant to section 482 and no “net increase in taxable income for the taxable year * * * resulting from adjustments under section 482 in the price for any property or services”.  See sec.  6662(e)(3)(A).  Therefore, there was no net section 482 transfer price adjustment.” 153 T. C. 6, at pp. 11-12.

No 482 adjustments, no penalties.

THE GOOFY REGULATION PLAYS THE SLOTS

In Uncategorized on 10/25/2019 at 17:36

Before retiring from the US Air Force, Hope Snead “attained the rank of first lieutenant” as a nurse. The Air Force pay couldn’t come close to her and her husband’s gross income from gambling for the three years at issue, namely, $513,939, $1,220,393, and $92,867. But their offsetting losses equaled their gains, so their deficiencies for those years didn’t aggregate $25K, and IRS drops both chops and additions.

But Hope wants their gambling losses above-the-line, like Sched C, rather than below-the-line, like Sched A. If so, Hope and hubby Jim would have no AGI. And no tax.

Judge Morrison goes off the bench in James E. Snead and Hope R. Snead, Docket No. 7556-18S, filed 10/25/19. It’s Hope’s story, and she claims to be a professional gambler. At the slots. Now it doesn’t take an old-time casino hound to know that “slot gambling has a negative value on a long-term, probabilistic basis no matter what strategy is used.” Transcript, at p. 8.

If you’re claiming you’re in it to win it and cart off the boodle in one of those plastic buckets, slots might could be not the way to go.

So we have Judge Morrison going with the “goofy regulation,” Reg. 1.183-2(b), and furnishing further material for me and my colleague, Peter Reilly, CPA, a hobby loss aficionado.

First is businesslike manner. Since if you play long enough, you can’t win at the slots (the payout is less than the odds, and strictly random), if you do it long enough to show continuity, you do it for fun, not profit.

Next, Hope spoke to some unidentified poker player (where skill does matter) and watched some videos. “However, we are not impressed with the idea that Mrs. Snead accumulated expertise in the field of slot gambling or engaged in significant consultation with experts.” Transcript, at p. 8. As mathematically no strategy, other than rigging the machines, could produce a net win over a long enough run of play, I also am unimpressed.

Hope spent a long time gambling, to the detriment of her family life. But she did hold down a full-time job, so spending time gambling doesn’t rule out treating it as a hobby.

Hope has no assets that could appreciate. And she had no success gambling; even though her winnings went up between two of the years at issue, her net didn’t. Her success as a nurse in the Air Force has nothing to do with slot machines.

She always lost. Though in one month in her biggest year she hit five (count ‘em, five) jackpots, “temporary winning streaks are to be expected given the high frequency with which she gambled and the random nature of slot payoffs.” Transcript, at pp. 9-10. And she supported herself on her Air Force pay.

Now personal pleasure is a key factor in the Goofy Reg Stakes. Hope claims she hadn’t any. “Gambling was not a pleasurable pursuit for Mrs. Snead but instead was a way to deal with mental anguish. That gambling was not a pleasurable pursuit but a way to deal with mental anguish does not suggest to us that Mrs. Snead gambled primarily to earn a profit.

“We hold that Mrs. Snead did not gamble primarily to earn a profit. She therefore was not a professional gambler. Other than their argument that Mrs. Snead was a professional gambler, the Sneads did not raise any other dispute about the determinations in the notice of deficiency with respect to their gambling activities.” Transcript, at p. 10.

I’ve often echoed Tax Court Judges, saying you don’t have to suffer to be in business for profit. But it seems that if you do suffer, it doesn’t help you if you don’t make a profit. Neither too much fun nor too much pain helps much in the Goofy Reg Stakes.

Hope and Jim claim some charitables, but fall at the $250 fence; no papers.

Hope and Jim also claim some miscellaneous itemized deductions (of the kind now deep-frozen by the TCJA of 2017, but still alive when Hope and Jim were trying for them), but the 2% AGI floor would wipe them out, because their gambling losses are below the line Sched As.

Takeaway- Ya gotta be really rich or really lucky to win at the Section 1.183-2(b) slot machine.