T.C. Memo. 2014-27
UNITED STATES TAX COURT
BOYD J. BLACK AND JANICE C. BLACK, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6406-12. Filed February 12, 2014.
P-H borrowed against a life insurance policy but failed to repay
the loans. The policy was terminated, and the loans were satisfied by
policy proceeds and extinguished. R contends that the amount
realized upon termination of the policy includes both loan principal
and capitalized interest; Ps contend that the amount realized includes
only loan principal.
Held: Capitalized interest that accrued on P-H’s loans against
his life insurance policy is includible in determining the gross
distribution and the taxable amount arising from the termination of
the policy.
Held, further, Ps are liable for the I.R.C. sec. 6662(a) accuracy-
related penalty.
Boyd J. Black and Janice C. Black, pro sese.
S. Mark Barnes, for respondent.
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[*2] MEMORANDUM OPINION
ARMEN, Special Trial Judge: Respondent determined a deficiency in
petitioners’ 2009 Federal income tax of $30,571 and an accuracy-related penalty
of $6,114 under section 6662(a) and (d) on the basis of a substantial
understatement of income tax.1
After concessions by petitioners,2 the issues for decision are as follows:
(1) Whether capitalized interest in respect of policy loans is part of the
amount received by petitioners upon termination of a life insurance contract. We
hold that it is; and
(2) whether petitioners are liable for the accuracy-related penalty under
section 6662(a) and (d). We hold that they are.
1
All section references are to the Internal Revenue Code (Code) in effect
for the taxable year in issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure. Monetary amounts are expressed in whole dollars without
regard to cents.
2
Petitioners concede that they received a taxable distribution of $1,310
from Northwestern Mutual Life Insurance Co. in respect of a life insurance policy
other than the life insurance policy that is at issue herein. Petitioners also concede
that they are liable for tax on a taxable distribution of $16,885, as well as the
proportional sec. 6662(a) penalty, arising from the termination of the life
insurance policy that is at issue herein.
Adjustments made in the notice of deficiency that are purely mechanical in
nature are not in issue and will be resolved on the basis of petitioners’ concessions
and the Court’s disposition of the disputed substantive issue.
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[*3] Background
This case was submitted fully stipulated under Rule 122. We incorporate by
reference the parties’ stipulation of facts and accompanying exhibits.
Petitioners resided in the State of Utah at the time that the petition was filed.
In 2009 petitioner Boyd J. Black was employed as an attorney. Petitioner
Janice C. Black was a homemaker who also had a modest proprietorship involving
crafts and sewing that reported its income on a Schedule C, Profit Or Loss From
Business.
In June 1989 Mr. Black acquired an insurance policy on his life from
Northwestern Mutual Life Insurance Co. (Northwestern). The policy was a so-
called whole life policy having both cash value and loan features.
Under the terms of the policy, Mr. Black was permitted to borrow against
the policy in an amount not in excess of its cash value. In that regard the policy
provided that policy debt consisted of all outstanding loans and accrued interest
and that unpaid interest would be added to loan principal. The policy also
provided that Mr. Black could surrender the policy and receive as a distribution
the cash value of the policy minus any outstanding policy debt. Finally, the policy
provided that it would terminate if policy debt were to equal (or exceed) the cash
value.
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[*4] Over time Mr. Black borrowed $103,548 against the policy. In addition,
interest due on each loan accrued at a specified annual percentage rate pursuant to
the terms of the policy. Mr. Black did not repay the loans.
In January 2009 the policy was terminated. Upon termination, the
outstanding loans were satisfied by policy proceeds and extinguished. At that time
the combined balance of the loans, including principal and interest, was $196,230,
and Mr. Black’s investment in the contract (in the form of aggregate premiums
paid) was $86,663.
Northwestern issued to Mr. Black a Form 1099-R, Distributions From
Pensions, Annuities, Retirement Or Profit-Sharing Plans, IRAs, Insurance
Contracts, Etc., for 2009 reflecting a gross distribution of $196,230 and a taxable
amount of $109,567. The latter amount represented the difference between the
combined balance of the loans at the time that the policy was terminated, i.e.,
$196,230, and Mr. Black’s investment in the contract, i.e., $86,663.
Petitioners self-prepared and timely filed their 2009 Federal income tax
return, reporting a total tax due of $36,583. They did not report any part of the
taxable income reflected on the Form 1099-R that had been issued by
Northwestern, nor did they acknowledge on their return either such form or any
aspect of the termination of the life insurance policy or even the policy itself.
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[*5] During the summer of 2011 petitioners prepared a Form 1040X, Amended
U.S. Individual Income Tax Return, for 2009 (amended return) and provided it to
respondent in early August 2011. The amended return reflected an increase in
income of $16,885 attributable to the difference between the principal of the loans
petitioners received from Northwestern totaling $103,548 less the amount of
premiums paid to Northwestern totaling $86,663. The amended return reported a
total tax of $41,358, which reflects the total tax due on their original return plus
the additional tax due on the basis of the increase in taxable income. Petitioners
enclosed a check for $4,775 for tax on the increased income reported on the
amended return. However, the amended return was not accepted or otherwise
processed by respondent, nor was the additional tax assessed; nevertheless, the
check was cashed and $4,775 was credited to petitioners’ account.
In December 2011 respondent issued petitioners a notice of deficiency for
2009, determining a deficiency of $30,571 and an accuracy-related penalty of
$6,114 under section 6662(a) and (d). The deficiency and penalty were
determined without regard to the amended return. Petitioners timely filed a
petition for redetermination.
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[*6] Discussion
I. Burden of Proof
In general, the Commissioner’s determinations set forth in a notice of
deficiency are presumed to be correct, and the taxpayer bears the burden of
proving that those determinations are in error. Rule 142(a); Welch v. Helvering,
290 U.S. 111, 115 (1933); cf. secs. 6201(d), 7491(a).3 The submission of a case
under Rule 122 does not alter the taxpayer’s burden of proof. Rule 122(b); see
Borchers v. Commissioner, 95 T.C. 82, 91 (1990), aff’d, 943 F.2d 22 (8th Cir.
1991).
As presented by the parties and on the basis of the stipulated facts, the
substantive issue in this case is legal and not factual. Therefore, the burden of
proof does not inform our analysis of such issue. Kleber v. Commissioner, T.C.
Memo. 2011-233; Sanders v. Commissioner, T.C. Memo. 2010-279. However,
insofar as the penalty issue may present factual issues, infirmities in the record
redound to petitioners’ detriment. See Rule 122(b); Woodsum v. Commissioner,
136 T.C. 585, 593, 594, 596 (2011) (in a fully stipulated case submitted under
Rule 122 involving liability for the accuracy-related penalty, gaps in the
3
We note that apart from the legal issue presented herein, petitioners do not
dispute the accuracy of the Form 1099-R issued by Northwestern. Therefore, sec.
6201(d) does not apply.
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[*7] evidentiary record negatively affected the taxpayers because they bore the
burden of proving that they had reasonable cause under section 6664 in omitting
income from their return).
II. Life Insurance Contract
The parties agree that the taxable amount of the gross distribution that arose
because of the termination of the Northwestern life insurance policy does not
include Mr. Black’s investment in the contract of $86,663. The parties further
agree that the taxable amount of such distribution takes into account the principal
amount of Mr. Black’s outstanding loans totaling $103,548. Respondent contends
that the taxable amount also takes into account capitalized interest, whereas
petitioners contend that it does not. Therefore, the central issue of this case is
whether capitalized interest is includible in determining the gross distribution and
the taxable amount that arose from the termination of the Northwestern life
insurance policy.
A. Sections 61 and 72
Gross income includes all income from whatever source derived. Sec.
61(a). Section 61 lists specific forms of gross income, including income from life
insurance contracts and income from discharge of indebtedness. Sec. 61(a)(10),
(12).
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[*8] For Federal income tax purposes, Mr. Black’s life insurance policy loans
were true loans. See McGowen v. Commissioner, T.C. Memo. 2009-285, 2009
WL 4797538, aff’d, 438 Fed. Appx. 686 (10th Cir. 2011); see also Atwood v.
Commissioner, T.C. Memo. 1999-61, 1999 WL 109617. The insurance policy
included terms for an interest rate on amounts borrowed against the policy, which
is indicative of bona fide debt. See McGowen v. Commissioner, 2009 WL
4797538, at *3 (citing Salley v. Commissioner, 55 T.C. 896, 903 (1971), aff’d,
464 F.2d 479 (5th Cir. 1972), Kay v. Commissioner, 44 T.C. 660, 670-672 (1965),
and Dean v. Commissioner, 35 T.C. 1083, 1085 (1961)). Pursuant to the policy’s
terms, amounts borrowed, as well as interest on these amounts, reflected bona fide
loans, which were collateralized by the policy’s value. See Sanders v.
Commissioner, T.C. Memo. 2010-279. Consequently, petitioners would not have
had to recognize these loan proceeds as taxable income upon receipt, see
Commissioner v. Indianapolis Power & Light Co., 493 U.S. 203, 207-208 (1990);
Commissioner v. Tufts, 461 U.S. 300, 307 (1983), because they were obliged to
repay the loans to Northwestern, see Commissioner v. Tufts, 461 U.S. at 307.
When an insurance policy is terminated and all or part of the proceeds are
used to satisfy a loan against the policy, the transaction is treated as if the
taxpayers received the proceeds and applied them against the outstanding loan.
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[*9] See McGowen v. Commissioner, T.C. Memo. 2009-285; Atwood v.
Commissioner, T.C. Memo. 1999-61; see also Brown v. Commissioner, T.C.
Memo. 2011-83, 2011 WL 1396936, aff’d, 693 F.3d 765 (7th Cir. 2012); Barr v.
Commissioner, T.C. Memo. 2009-250.
The tax treatment of a distribution from a life insurance contract before the
death of the insured is governed by section 72. Brown v. Commissioner, 2011WL
1396936, at *4-*6. As relevant herein, an amount received in connection with a
life insurance contract that is not received as an annuity generally constitutes gross
income to the extent that the amount received exceeds the investment in the
insurance contract. Sec. 72(e)(1)(A), (5)(A), (C); Feder v. Commissioner, T.C.
Memo. 2012-10, 2012 WL 75114, at *4. The investment in the contract is defined
generally as the aggregate amount of premiums or other consideration paid for the
contract less aggregate amounts previously received under the contract, to the
extent such amounts were excludable from gross income. Sec. 72(e)(6); Feder v.
Commissioner, 2012 WL 75114, at *4 n.14; sec. 1.72-6(a), Income Tax Regs.
B. Inclusion of Capitalized Interest
Mr. Black’s insurance policy, by its own terms, treated the policy loans,
including capitalized interest, as bona fide indebtedness. The capitalized interest
on these loans is properly treated as part of the principal of this indebtedness. See
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[*10] Allan v. Commissioner, 86 T.C. 655, 661-667 (1986) (advances for interest
that were added to the nonrecourse mortgage principal, pursuant to the terms of
the mortgage, constituted a true debt obligation), aff’d, 856 F.2d 1169 (8th Cir.
1988); see also Sanders v. Commissioner, T.C. Memo. 2010-279.
Capitalized interest is includible in determining the amount of a taxpayer’s
gross distribution when an insurance policy is terminated. In this regard, Atwood
v. Commissioner, 1999 WL 109617, at *2, states as follows:
[The taxpayers’] insurance contracts, by their terms, treated the
policy loans, including capitalized interest, as bona fide indebtedness.
For Federal income tax purposes, their policy loans constituted true
loans, rather than cash advances, and were not taxable distributions
when received. The capitalized interest on these loans is properly
treated as part of the principal of this indebtedness.
When * * * [the taxpayers’] policies terminated, their policy
loans, including capitalized interest, were charged against the
available proceeds at that time. This satisfaction of the loans had the
effect of a pro tanto payment of the policy proceeds to petitioners and
constituted income to them at the time. A contrary result would
permit policy proceeds, including previously untaxed investment
returns, to escape tax altogether and finds no basis in the law.
[Emphasis added; fn. ref. and citations omitted.]
In the instant case, Mr. Black owned a life insurance policy with
Northwestern. He took out loans against the policy. In January 2009 the policy
terminated. The termination of the policy gave rise to a gross distribution of
$196,230, a portion of which was applied to both the loan principal and
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[*11] capitalized interest. At the time that the policy was terminated, Mr. Black’s
investment in the contract was $86,663; which portion of the gross distribution
was nontaxable. See sec. 72(e)(5)(A). But the balance of the gross distribution, or
$109,567, constitutes taxable income. See Atwood v. Commissioner, T.C. Memo.
1999-61; see also Brown v. Commissioner, T.C. Memo. 2011-83; McGowen v.
Commissioner, 2009 WL 4797538, at *4 (“[T]he distributed policy proceeds
attributed to the return on investments must be taxed since the accruals on the
investments were not previously taxed. Untaxed accrual on an investment is often
referred to as inside buildup.”).
C. Discharge of Indebtedness
Petitioners appear to argue that the termination of the life insurance policy
gave rise to a discharge of indebtedness. A discharge of indebtedness occurs
when “the debtor is no longer legally required to satisfy his debt either in part or in
full.” Caton v. Commissioner, T.C. Memo. 1995-80, 1995 WL 73451, at *15; see
also United States v. Centennial Savs. Bank FSB, 499 U.S. 573, 580-581 (1991).
On the basis of the facts presented, the Court cannot characterize the source of
petitioners’ income as derived from the discharge of indebtedness. See McGowen
v. Commissioner, 2009 WL 4797538, at *3. The record indicates that the loans to
Mr. Black were not discharged; rather, they were extinguished after Northwestern
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[*12] applied the cash value of the insurance policy toward the debt owed by Mr.
Black. See id. at *4. The insurance policy itself was the sole collateral from
which Northwestern could seek repayment of the amount Mr. Black had borrowed.
Consequently, the insurance policy mandated the termination of the insurance
policy once the amount borrowed against the policy equaled or exceeded the cash
surrender value.
Even if the income received by petitioners were discharge of indebtedness
income, petitioners have not alleged that any exception under section 108 applies
to exclude the amount from gross income. Therefore, the amount would be
includible in income under section 61(a)(12) and subject to tax. However, this
issue is moot because petitioners’ debts were not discharged but rather
extinguished, and thus petitioners’ income was not from discharge of
indebtedness.
III. Accuracy-Related Penalty
Section 6662(a) imposes an accuracy-related penalty equal to 20% of the
amount of any underpayment of tax that is attributable to a substantial
understatement of income tax. By definition, an understatement is the excess of
the tax required to be shown on the tax return over the tax actually shown on the
return. Sec. 6662(d)(2)(A). An understatement of income tax is “substantial” if it
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[*13] exceeds the greater of $5,000 or 10% of the tax required to be shown on the
return. Sec. 6662(d)(1)(A).
With respect to a taxpayer’s liability for any penalty, section 7491(c) places
on the Commissioner the burden of production, thereby requiring the
Commissioner to come forward with sufficient evidence indicating that it is
appropriate to impose the penalty. Higbee v. Commissioner, 116 T.C. 438, 446-
447 (2001). Once the Commissioner meets his burden of production, the taxpayer
must come forward with persuasive evidence that the Commissioner’s
determination is incorrect. See Rule 142(a); Welch v. Helvering, 290 U.S. at 115.
In the instant case, respondent’s notice of deficiency determines the
accuracy-related penalty on the basis of a substantial understatement of income
tax. See sec. 6662(d). Here the understatement of $30,571 is substantial because
it exceeds $5,000 and is greater than 10% of the tax required to be shown on
petitioners’ return. Consequently, respondent has carried his burden of
production. As a result, petitioners now bear the burden to show that an exception
to the penalty applies. See Higbee v. Commissioner, 116 T.C. at 446-447.
Section 6664(c)(1) provides an exception to the imposition of the accuracy-
related penalty with respect to any portion of an underpayment if the taxpayer
establishes that there was reasonable cause for such portion and the taxpayer acted
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[*14] in good faith with respect to such portion. The decision as to whether the
taxpayer acted with reasonable cause and in good faith is made on a case-by-case
basis, taking into account the pertinent facts and circumstances, including the
taxpayer’s knowledge, education, and experience, as well as the taxpayer’s
reliance on professional advice. Thomas v. Commissioner, T.C. Memo. 2013-60;
see also Neonatology Assocs., P.A. v. Commissioner, 115 T.C. 43, 99 (2000)
(providing a three-prong test to establish reasonable reliance on professional
advice), aff’d, 299 F.3d 221 (3d Cir. 2002); sec. 1.6664-4(b)(1), Income Tax Regs.
Generally, the most important factor is the extent of the taxpayer’s effort to assess
his or her proper tax liability. Humphrey, Farrington & McClain, P.C. v.
Commissioner, T.C. Memo. 2013-23; sec. 1.6664-4(b)(1), Income Tax Regs.
Petitioners self-prepared their 2009 Federal income tax return, and nothing
in the record suggests that they consulted with a professional adviser in connection
therewith. Nevertheless, petitioners contend they had reasonable cause and acted
in good faith.4 However, Mr. Black is an attorney, and petitioners have not cited
4
On brief petitioners expressly “concede the applicability of the IRC §
6662(a) penalty in regard to the underpayment of tax remedied by petitioners’
filing of their 2009 Form 1040X.” See supra note 2. Presumably petitioners also
concede such penalty in respect of the $1,310 distribution from the Northwestern
policy that is not at issue herein, see supra note 2, as petitioners are mute about
such matter and there is nothing in the record that might serve to satisfy their
(continued...)
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[*15] any case holding that interest on loans made against an insurance policy is
not includible in the gross distribution when the policy is terminated for
nonpayment. Rather, the only authorities petitioners cite are Code sections and
Treasury regulations that are inapposite to the case at hand. We therefore hold
that petitioners do not come within the reasonable cause exception of section
6664(c)(1), nor may they invoke the “substantial authority” provision of section
6662(d)(2)(B)(i) to reduce the amount of the understatement for penalty
computation purposes. Accordingly, petitioners are liable for the accuracy-related
penalty under section 6662(a) and (d) as determined by respondent. See sec.
1.6664-4(b)(1), (d), Income Tax Regs.; see also Brown v. Commissioner, 2011WL
1396936, at *8-*10; Atwood v. Commissioner, 1999 WL 109617, at *3.
Conclusion
We have considered all of the arguments advanced by petitioners, and, to
the extent not expressly addressed, we conclude that those arguments do not
support results contrary to those reached herein.
4
(...continued)
burden of proof as to the underpayment attributable to such distribution. The
Court therefore proceeds on the basis that petitioners challenge the accuracy-
related penalty only insofar as it relates to the underpayment of tax arising from
the inclusion of capitalized interest upon the termination of the Northwestern
policy at issue herein.
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[*16] To give effect to petitioners’ concessions and our disposition of the disputed
issues,
Decision will be entered for
respondent.5
5
Presumably, respondent will credit petitioners’ payment of $4,775 against
the deficiency to be assessed.