T.C. Memo. 2013-223
UNITED STATES TAX COURT
HARRY E. OBEDIN AND NEALE P. OBEDIN, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10707-10. Filed September 23, 2013.
Arthur H. Boelter, for petitioners.
William D. Richard, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
COHEN, Judge: Respondent determined deficiencies and penalties with
respect to petitioners’ Federal income taxes as follows:
-2-
[*2] Penalty
Year Deficiency sec. 6662(a)
2004 $73,261 $14,652.20
2005 38,401 7,680.20
After concessions, the issues for decision are (1) whether petitioners are entitled to
a net operating loss (NOL) carryover in excess of the amount respondent conceded
for 2004 and (2) whether petitioners had an adjusted basis in real estate, at the
time of its disposition in 2004, greater than the amount respondent conceded.
Unless otherwise indicated, all section references are to the Internal Revenue Code
in effect for the years in issue, and all Rule references are to the Tax Court Rules
of Practice and Procedure.
FINDINGS OF FACT
Some of the facts have been stipulated, and the stipulated facts are
incorporated in our findings by this reference. Petitioners resided in Washington
when they filed their petition.
Petitioners are involved in real estate businesses and described themselves
as realtors during the years in issue. In 1962, petitioners organized two wholly
owned S corporations through which to conduct real estate activities: Samaras
Associates, Inc. (Samaras), which primarily deals with property rentals and
management; and Silver Fox NW, Inc. (Silver Fox), which primarily deals with
-3-
[*3] property sales. Samaras and Silver Fox incurred losses before 2004, which
passed through to petitioners.
In 2003, petitioners embarked on a real estate development project called
“the Fremont Cottages” and set up on their accounting records a construction loan
account identifying the project as “Obedin #70188”. Petitioners hired CM Steel
Construction, Inc. (CM Construction), to build the Fremont Cottages. Because
CM Construction failed to perform its contractual duties, petitioners had to hire a
law firm to represent them in litigation. Petitioners also had to retain and pay
subcontractors to finish the project.
In 2003, petitioners made a payment to CM Restoration for $11,542.05, and
in 2004, they made a payment to Aaron’s Contracting for $4,000. At the end of
2004, petitioners sold the Fremont Cottages.
Harry E. Obedin (petitioner) prepared petitioners’ jointly filed Forms 1040,
U.S. Individual Income Tax Return, for 2004 and 2005. On their 2004 tax return,
petitioners claimed an NOL carryover of $208,195 but did not attach any
statement describing or computing the NOL deduction. Petitioners claimed a
$1,249,511 adjusted basis and a $38,511 capital loss on the sale of the Fremont
Cottages.
-4-
[*4] The Internal Revenue Service (IRS) selected petitioners’ 2004 and 2005 tax
returns for examination. The agent assigned to petitioners’ examination
contemporaneously reviewed the tax returns of Samaras and Silver Fox, which
petitioner also prepared. The examining agent requested that petitioners provide
documents to substantiate the 2004 NOL carryover--specifically, all records for
2003, a tax year already examined by the IRS. Petitioners failed to provide any
records substantiating the NOL carryover but instead provided copies of their tax
returns from 1997 through 2003 (carry years).
During the examination, the IRS agent determined that, for 2004 and 2005,
petitioners deducted their Samaras and Silver Fox employees’ employment taxes
twice--once as gross wages and, again, as taxes paid. In other instances,
petitioners were unable to substantiate certain deductions claimed on their
Schedules C, Profit or Loss From Business. Accordingly, the agent made
adjustments to petitioners’ 2004 and 2005 tax returns. Assuming that the same
improper deductions occurred in earlier years, the agent made similar adjustments
to petitioners’ returns for the carry years, thereby reducing the amount of the
carryover. In his workpapers, the agent explained his reasoning for making these
additional adjustments as follows:
-5-
[*5] When the source of the * * * [Net Operating Loss Deduction] is
the same business and other similarities exist, it is probable that, if the
records were examined, the result would be similar to the current year
adjustment. The examiner may propose a full or partial disallowance
of the * * * [Net Operating Loss Deduction] based on this premise in
the interests of reducing burden for both the Service and the taxpayer.
On the basis of this reasoning, the examining agent allowed petitioners a partial
NOL carryover deduction of $90,685 for 2004.
With respect to their claimed basis in the Fremont Cottages, petitioners
provided a box of receipts to the examining agent. The agent, however, stated that
these records were impossible to use because they were so disorganized. The
agent made an additional request for substantiating information, and petitioners
provided some work product of their law firm that was created for the purpose of
the CM Construction litigation. This work product included spreadsheets
reflecting the costs involved in the Fremont Cottages project. These spreadsheets
also showed costs from at least one other housing project that petitioners were
involved with at that time.
To assist in computing the basis, the examining agent used one particular
spreadsheet titled “Obedin Payments and Bankdraws to CM”, numbered as pages
2 and 3, and dated April 25, 2005 (payments spreadsheet I). Page 2 of payments
spreadsheet I reflects payments by petitioners to third-party subcontractors due to
-6-
[*6] CM Construction’s contractual breach. Page 2 also shows a net amount of
$207,977.99 as having been paid by petitioners towards construction of the
Fremont Cottages, which the examining agent included in his basis computation.
Page 3 of payments spreadsheet I reflects payments and bank draws by petitioners
to “CM” and includes a bank draw disbursement of $22,896.05 dated October 6,
2003. The examining agent also used the net totals on page 3 in his basis
computation.
The statutory notice determined that, inter alia, petitioners’ basis in the
Fremont Cottages and their claimed NOL carryover were both less than the
amounts reported on their 2004 tax return.
OPINION
Normally our findings of fact would include only events occurring during
the years in issue and not details of the audit. In this case, however, because
substantiation of items by adequate records and the propriety of the examiner’s
determination are in dispute, we have described the process that led to the notice
of deficiency. In other words, this case is an exception to the usual rule that we
will not look “behind * * * [the] notice”. See Greenberg’s Express, Inc. v.
Commissioner, 62 T.C. 324, 327 (1974).
-7-
[*7] Burden of Proof
Taxpayers are required to maintain adequate records that substantiate
claimed loss deductions and generally bear the burden of proving that they are
entitled to claimed losses. Sec. 6001; Rule 142(a)(1); Welch v. Helvering, 290
U.S. 111, 115 (1933). Taxpayers claiming an NOL deduction bear the burden of
substantiating the deduction by establishing both the existence of the NOL and the
amount of any NOL that may be carried over to the subject years. Rule 142(a)(1);
United States v. Olympic Radio & Television, Inc., 349 U.S. 232, 235 (1955).
Nevertheless, if taxpayers produce credible evidence with respect to any factual
issue relevant to ascertaining their Federal income tax liabilities, and certain other
requirements are met, the burden of proof shifts from the taxpayers to the
Commissioner as to that factual issue. Sec. 7491(a)(1) and (2).
During pretrial preparation, the parties stipulated payments spreadsheet I, as
well as another spreadsheet also titled “Obedin Payments and Bankdraws to CM”,
numbered as page 2, dated as “Revised May 20, 2005”, and showing a net amount
of $165,816.92 (payments spreadsheet II). Payments spreadsheet II identifies
check No. 1111 as a payment of $4,000 made to Aaron’s Contracting on
December 15, 2004. The parties agreed that payments spreadsheet II reflects
payments to vendors and subcontractors that were not attributable to CM
-8-
[*8] Construction and were therefore excluded for litigation purposes. The parties
also stipulated an exhibit, a cashier’s check for $11,542.05 dated October 6, 2003,
payable to CM Restoration and showing the remitter to be “Obedin #70188” (CM
Restoration payment).
At trial and on brief, petitioners claimed to have boxes of documents
substantiating the NOL carryover and the basis in the Fremont Cottages, but they
failed to submit those records. Even if petitioners had just provided the tax returns
for the carry years--as they had done for respondent--those returns would have
been insufficient to prove that any NOL (assuming such) was not completely
absorbed in years before 2004. See, e.g., Stutsman v. Commissioner, T.C. Memo.
1961-109. Petitioners also failed to propose findings of fact that compute the
NOL and, instead, include only respondent’s computation. Additionally,
petitioners failed to attach the required statement detailing the NOL to their 2004
tax return.
Petitioners argue that, through the stipulated joint exhibits and petitioner’s
testimony, they have met their initial burden of production as to the propriety of
their claimed NOL deduction; thus it is respondent, not petitioners, who should
bear the burden of proof as to the 2004 NOL carryover deduction. Petitioners
-9-
[*9] rationalize that there is no reason not to accept petitioner’s testimony because
it was allegedly unopposed and not impeached.
Petitioners’ argument is unsupported by the record. The only stipulated
joint exhibits that speak to the NOL deduction are petitioners’ 2004 tax return, the
notice of deficiency, and the 2004 NOL workpapers of the examining agent. Of
those exhibits, only the 2004 tax return indicates petitioners’ position, at least as to
the amount of the NOL carryover. But the return is merely a statement of
petitioners’ claim to the NOL and does not establish the facts contained therein.
See Roberts v. Commissioner, 62 T.C. 834, 837 (1974).
Petitioner’s testimony is equally unreliable as he makes only vague
references to the 2004 NOL deduction. See Sparkman v. Commissioner, 509 F.3d
1149, 1156 (9th Cir. 2007) (confirming that, in the face of vague, contrived, and
noncredible testimony, the Tax Court may disregard uncontradicted testimony by a
taxpayer where it finds that testimony lacking in credibility), aff’g T.C. Memo.
2005-136. He has not explained how the double deductions occurred for 2004 and
2005 or given us any reason to reject the examiner’s assumption that the same
errors occurred in the carry years. The absence of corroboration of his testimony
by organized and reliable records leads us to conclude that petitioners have not
carried their burden of proof as to the disputed deductions. See Shea v.
- 10 -
[*10] Commissioner, 112 T.C. 183, 188 (1999). Petitioners have not satisfied the
conditions for shifting that burden to respondent under section 7491(a)(1).
Alternatively, petitioners argue that the burden of proof should shift to
respondent because respondent’s computation of the NOL carryover is arbitrary
and lacking in foundation and that such a determination cannot be presumed
correct. Generally, the Commissioner’s determination in a notice of deficiency is
presumed correct. Helvering v. Taylor, 293 U.S. 507, 515-516 (1935). If a
taxpayer wishes to overcome this presumption of correctness, he bears the burden
of proving that the Commissioner’s determination was arbitrary. Id.; Clapp v.
Commissioner, 875 F.2d 1396, 1403 (9th Cir. 1989). However, “when a taxpayer
refuses to substantiate his claimed deductions, the Commissioner is not arbitrary
or unreasonable in determining that the deductions should be denied.” Roberts v.
Commissioner, 62 T.C. at 837. Moreover, if the Commissioner does arbitrarily
disallow deductions, the burden of proof as to substantiation of the deductions still
rests with the taxpayer who claimed them. See Westby v. Commissioner, T.C.
Memo. 2004-179, slip op. at 32; see also Time Ins. Co. v. Commissioner, 86 T.C.
298, 313-314 (1986).
Petitioners submitted no evidence that respondent reached the determination
arbitrarily. To the contrary, respondent’s examining agent took reasoned steps in
- 11 -
[*11] determining an NOL carryover where no substantiating documents had been
provided. Petitioners are required to substantiate the NOL carryover and to carry
their burden of proof.
NOL Deduction
Section 172 permits a deduction in a taxable year for the full amount of
allowable NOL carrybacks from subsequent years and carryovers from previous
years, as long as taxable income for the current year is not less than zero. Sec.
172(a), (b)(2). As with all deductions, taxpayers are required to maintain adequate
records substantiating a claimed NOL deduction. Sec. 6001. See generally,
Scharringhausen v. Commissioner, T.C. Memo. 2012-350, at *31-*32. As part of
claiming the deduction, taxpayers must file with their returns a concise statement
setting forth the amount of the NOL deduction claimed and all material and
pertinent facts, including a detailed schedule showing the computation of the NOL
deduction. Sec. 1.172-1(c), Income Tax Regs.
Petitioners focus on respondent’s computation of the NOL, even though
they are the ones who claimed, and must prove, the loss. Yet petitioners have
produced only petitioner’s unpersuasive testimony to substantiate their entitlement
to an NOL carryover in 2004. His testimony does not detail when the NOL was
- 12 -
[*12] allegedly incurred, the amount allegedly incurred, or the calculation of the
amount allegedly available to be carried forward to 2004.
Respondent allowed petitioners the benefit of an NOL carryover of $90,685
for 2004. Petitioners have not carried their burden of proof and, accordingly, are
not entitled to an NOL carryover beyond that allowed by respondent.
Adjusted Basis in the Fremont Cottages
Unless permitted otherwise, a taxpayer must recognize gain from the sale or
exchange of property. Sec. 1001(c); see also sec. 1.61-6(a), Income Tax Regs.
(providing, generally, that gain realized on the sale of property is included in gross
income). Section 1001(a) defines gain from the sale or other disposition of
property as the excess of the amount realized on the sale of property over the
adjusted basis of the property sold or exchanged. Section 1011(a) provides that a
taxpayer’s adjusted basis for determining the gain from the sale or other
disposition of property shall be its cost, adjusted to the extent permitted by section
1016. See sec. 1016(a)(1); sec. 1.1016-2(a), Income Tax Regs. (providing that the
cost basis should be increased by additional costs properly chargeable to capital
account, including the cost of improvements and betterments made to the
property). The taxpayer has the burden of proving the basis of property for
purposes of determining whether a gain occurred and, if so, in what amount. Rule
- 13 -
[*13] 142(a); O’Neill v. Commissioner, 271 F.2d 44, 50 (9th Cir. 1959), aff’g T.C.
Memo. 1957-193.
The parties agree to the computation of the adjusted basis of the Fremont
Cottages, with the exception of two items. Petitioners maintain that they are
entitled to include in their basis the CM Restoration payment for $11,542.05 and a
payment to Aaron’s Contracting for $4,000. Respondent concedes that these
payments were made but contends that petitioners have failed to show either that
these payments were not already included in the examining agent’s computation of
basis or that they were properly chargeable to the capital account of the Fremont
Cottages.
Petitioners point out that the CM Restoration payment, dated October 6,
2003, bears the account number of the Fremont Cottages project, “Obedin
#70188”. That identification, however, does not explain whether the examining
agent’s computation already included this payment. Payments spreadsheet I lists
an entry, also dated October 6, 2003, that reflects a bank draw disbursement to
“CM” of $22,896.05. Petitioners did not explain why the $11,542.05 amount to
CM Restoration was not a portion of the $22,896.05 amount to CM. Nor did
petitioners testify as to whether CM Restoration was a part of CM Construction or,
- 14 -
[*14] conversely, that the two companies merely shared the same initials and same
payment date.
While it appears that respondent’s determination of basis does not include
the payment to Aaron’s Contracting, we are unable to tell if petitioners made that
payment in connection with the Fremont Cottages project. The record has
established that petitioners were involved in at least one other project at the time
of the Fremont Cottages project. And payments spreadsheet II, while suggesting
an omission of the payment from basis, represents only that the listed payment was
not attributable to CM Construction--not necessarily that the payment was
attributable to the Fremont Cottages project.
There is simply not enough substantiating evidence to ascertain that these
two payments should be added to the basis of the Fremont Cottages. Neither party
provides a clear itemization as to what payments were actually included in the last
computation of basis. Additionally, payments spreadsheets I and II appear to have
inconsistences, such as the same check number listed on both spreadsheets yet
reflecting different payees and different amounts. The evidence covering this
issue is not sufficient to satisfy petitioners’ burden of proof. We therefore sustain
respondent’s determination on this issue.
- 15 -
[*15] In reaching our decision, we have considered all arguments made, and, to
the extent not mentioned, we conclude that they are moot, irrelevant, or without
merit.
To reflect the foregoing,
Decision will be entered
under Rule 155.