T.C. Memo. 2014-102
UNITED STATES TAX COURT
RICHARD A. CANATELLA, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13787-12. Filed May 28, 2014.
Richard A. Canatella, pro se.
L. Katrine Shelton and Joseph E. Nagy, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
CHIECHI, Judge: Respondent determined a deficiency in, an addition un-
der section 6651(a)(1)1 to, and an accuracy-related penalty under section 6662(a)
1
All section references are to the Internal Revenue Code (Code) in effect for
the year at issue. All Rule references are to the Tax Court Rules of Practice and
Procedure.
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[*2] on petitioner’s Federal income tax (tax) for his taxable year 2007 of
$132,005, $6,602.25, and $26,401, respectively.
The issues remaining for decision for petitioner’s taxable year 2007 are:2
(1) Is petitioner entitled to deduct under section 162(a) certain claimed busi-
ness expenses in excess of those that respondent conceded? We hold that he is
not.
(2) Is petitioner liable for the addition to tax under section 6651(a)(1)? We
hold that he is.
(3) Is petitioner liable for the accuracy-related penalty under section
6662(a)? We hold that he is.
FINDINGS OF FACT
Many of the facts have been deemed established pursuant to Rule 91(f).
Petitioner resided in California at the time he filed the petition.
During 2007, petitioner operated a law practice as a sole proprietorship
under the name of Cotter & Del Carlo.
2
The parties raised at the trial in this case an issue regarding the amount of
the gross receipts of petitioner that must be included in Schedule C, Profit or Loss
From Business (Schedule C), for his taxable year 2007. We need not resolve that
issue. See infra notes 4 and 5.
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[*3] During 2007, petitioner maintained, and had signatory authority over,
certain bank accounts (petitioner’s bank accounts) at U.S. Bank, Countrywide
Bank, Citibank, Washington Mutual Bank, and World Savings Bank.
On April 15, 2008, petitioner and Zini Canatella (Ms. Canatella)3 filed Form
4868, Application for Automatic Extension of Time To File U.S. Individual In-
come Tax Return, for their taxable year 2007. Respondent granted an extension of
time to October 15, 2008, within which petitioner and Ms. Canatella were required
to file their tax return for their taxable year 2007 (2007 return). The accountant
(petitioner’s accountant) who prepared the 2007 return of petitioner and Ms.
Canatella signed that return on October 27, 2008. Petitioner and Ms. Canatella
signed their 2007 return on October 28, 2008, and filed it with respondent on Oc-
tober 29, 2008.
Petitioner attached to the 2007 return Schedule C, Profit or Loss From Busi-
ness, for his law practice (2007 Schedule C). In the 2007 Schedule C, petitioner
reported gross receipts totaling $441,124 and claimed the following expenses to-
taling $423,182 (2007 claimed Schedule C expenses):
3
Ms. Canatella is petitioner in the case at docket No. 8821-13.
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[*4] Expense Amount
Advertising $8,647
Contract labor 87,345
Depreciation and sec.
179 expense deduction 8,025
Office expense 24,326
Rent or lease 18,000
Repairs and maintenance 7,275
Travel, meals, and
entertainment 11,792
Other expenses 257,772
Total 423,182
At a time not established by the record, respondent commenced an examina-
tion of petitioner’s 2007 return (respondent’s examination). As part of that exami-
nation, respondent’s revenue agent (revenue agent) assigned to that examination
asked petitioner to provide him with certain documents pertaining to petitioner’s
2007 return. Petitioner did not provide the revenue agent with those documents.
Consequently, the revenue agent issued summonses on behalf of respondent (re-
spondent’s summonses) to the respective banks at which petitioner maintained
petitioner’s bank accounts. Pursuant to respondent’s summonses, those banks
provided the revenue agent with the bank statements for the respective bank ac-
counts that petitioner maintained during 2007 (2007 bank statements).
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[*5] The revenue agent examined the 2007 bank statements and prepared a bank
deposits analysis for petitioner’s taxable year 2007 on the basis of that examina-
tion (respondent’s bank deposits analysis). That bank deposits analysis showed,
inter alia, the total amount of deposits into each of petitioner’s bank accounts dur-
ing each month in 2007. In preparing respondent’s bank deposits analysis, the
revenue agent attempted to ascertain whether any of the deposits into petitioner’s
respective bank accounts during 2007 is nontaxable because, for example, a de-
posit had been made as a result of a transfer of funds from one of petitioner’s bank
accounts to another of those accounts. The revenue agent reduced the total depos-
its during 2007 by (1) all deposits that the revenue agent determined to be nontax-
able, (2) all deposits that were attributable to Ms. Canatella’s business income that
she reported in Schedule C-EZ, Net Profit From Business, that she attached to the
2007 return, (3) all deposits that the revenue agent concluded represented (a) inter-
est income or (b) retirement pension income that petitioner reported in his 2007
return, and (4) the gross receipts totaling $441,124 that petitioner reported in the
2007 Schedule C. The revenue agent concluded that the balance of the total de-
posits, i.e., $46,233.31, constituted gross receipts from petitioner’s law practice
during 2007 that he failed to report in the 2007 Schedule C.
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[*6] Respondent issued to petitioner and Ms. Canatella a notice of deficiency
(notice) for their taxable year 2007. In that notice, respondent determined, inter
alia, that petitioner has unreported 2007 Schedule C gross receipts from his law
practice of $46,233.31. In making that determination, respondent relied on re-
spondent’s bank deposits analysis that the revenue agent had prepared. In the
notice, respondent further determined to disallow $338,047.76 (disallowed 2007
Schedule C expenses) of the 2007 claimed Schedule C expenses of $423,182.4
Respondent also determined in the notice that petitioner and Ms. Canatella are lia-
ble for their taxable year 2007 for the addition to tax under section 6651(a)(1) and
the accuracy-related penalty under section 6662(a).
OPINION
Petitioner bears the burden of proving that the determinations in the notice
that remain at issue are erroneous.5 See Rule 142(a); Welch v. Helvering, 290
4
Respondent concedes on brief that petitioner is entitled to deduct under sec.
162(a) an expense of $87,939.90 that consists of a payment that petitioner made
during 2007 from one of petitioner’s bank accounts to one of his clients (2007 cli-
ent amount) and that petitioner had not included in his 2007 claimed Schedule C
expenses.
5
Petitioner maintains that in preparing respondent’s bank deposits analysis
the revenue agent erroneously failed to reduce the total deposits in petitioner’s
bank accounts during 2007 by $87,939.90, the 2007 client amount. According to
petitioner, that failure caused respondent to overstate by $87,939.90 the amount of
(continued...)
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[*7] U.S. 111, 115 (1933). Moreover, deductions are a matter of legislative grace,
and petitioner bears the burden of proving entitlement to any deduction claimed.
See INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992). The Code and the
regulations thereunder required petitioner to maintain records sufficient to estab-
lish the amount of any deduction claimed. See sec. 6001; sec. 1.6001-1(a), Income
Tax Regs.
We turn initially to the disallowed 2007 Schedule C expenses of
$338,047.76. It is petitioner’s position that he is entitled to deduct those expenses
under section 162(a). In support of that position, petitioner relies primarily on
(1) certain schedules showing by month and type of expense the total amount that
he claims he paid for each type of expense during each month in 2007 in carrying
on his law practice (petitioner’s summary claimed expense schedules) and (2) a
document titled “Profit & Loss Detail” showing by month and type of expense the
5
(...continued)
petitioner’s 2007 Schedule C gross receipts that respondent determined in the
notice. Respondent disagrees. However, as discussed supra note 4, respondent
concedes on brief that petitioner is entitled to deduct under sec. 162(a) the 2007
client amount of $87,939.90. The tax result for petitioner in the 2007 Schedule C
is the same regardless of whether the amount of his 2007 Schedule C gross
receipts is reduced by $87,939.90 or whether he is entitled under sec. 162(a) to
deduct the 2007 client amount of $87,939.90. Therefore, we need not resolve the
issue of whether the amount of petitioner’s 2007 Schedule C gross receipts that
respondent determined in the notice is overstated by $87,939.90.
-8-
[*8] amount that he claims he paid for each type of expense during each month in
2007 in carrying on his law practice (petitioner’s detailed claimed expense
schedules). (We shall sometimes refer collectively to petitioner’s summary
claimed expense schedules and petitioner’s detailed claimed expense schedules as
petitioner’s records.) According to petitioner, petitioner’s records are
“undisputedly substantiation for [the claimed 2007] Schedule C business
expenses”.
In an attempt to understand petitioner’s position with respect to the dis-
allowed 2007 Schedule C expenses of $338,047.76, the Court asked petitioner
certain questions while he was testifying at the trial in this case, including the
following:
THE COURT: Okay, let’s move on to each of the expenses,
and I'll tell you what they are, just in the order in which they were in
the statutory notice of deficiency. Meals and entertainment of
$2,436, what do you have to tell me in support of your position that
that entire amount is deductible?
THE WITNESS: As far as I’m concerned, every expense is
allowable, and if the examiner didn’t allow it, it’s because he didn’t
accept cancelled checks, bank statements, and documentation that
prove under, I believe, 7491 of the probate -- I mean, of the revenue
code that we’re entitled to the allowance.
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[*9] THE COURT: So you believe that having a
cancelled check or a credit card [statement] entitles you
to each of the deductions, is that right?
THE WITNESS: Yes.
As we understand petitioner’s position with respect to the disallowed 2007
Schedule C expenses, petitioner maintains that he is entitled to deduct under sec-
tion 162(a) any expense that he is able to establish he paid during 2007 (e.g.,
through canceled checks or credit card statements). Any such position reflects a
misunderstanding, or a disregard, of the requirements of section 162(a).
Section 162(a) generally allows a deduction for ordinary and necessary ex-
penses paid or incurred during the taxable year in carrying on any trade or busi-
ness.6 In general, an expense is ordinary if it is considered normal, usual, or cus-
tomary in the context of the particular business out of which it arose. See Deputy
v. du Pont, 308 U.S. 488, 495 (1940). Ordinarily, an expense is necessary if it is
appropriate and helpful to the operation of the taxpayer’s trade or business. See
Commissioner v. Tellier, 383 U.S. 687, 689 (1966); Carbine v. Commissioner, 83
T.C. 356, 363 (1984), aff’d, 777 F.2d 662 (11th Cir. 1985). The determination of
6
For certain expenses otherwise deductible under sec. 162(a), such as ex-
penses for travel, meals, and entertainment, see sec. 274(d)(1) and (2), and ex-
penses for a cellular telephone that is “listed property”, see sec. 280F(d)(4), a tax-
payer must also satisfy the substantiation requirements set forth in sec. 274(d)
before such expenses will be allowed as deductions.
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[*10] whether an expenditure satisfies the requirements for deductibility under
section 162 is a question of fact. See Commissioner v. Heininger, 320 U.S. 467,
475 (1943).
Respondent does not dispute that petitioner paid most of the expenses
shown in petitioner’s records. However, as we understand respondent’s position,
respondent maintains that, except for certain expenses shown in petitioner’s rec-
ords that respondent allowed in the notice, petitioner failed to establish that the
expenses shown in petitioner’s records that he proved he paid during 2007 are
ordinary and necessary expenses that he paid or incurred in carrying on his law
practice.
On the record before us, we find that petitioner has failed to carry his bur-
den of establishing through petitioner’s records, or otherwise, that any of the dis-
allowed 2007 Schedule C expenses of $338,047.76 is an ordinary and necessary
expense that he paid or incurred in carrying on his law practice.
Based upon our examination of the entire record before us, we find that pe-
titioner has failed to carry his burden of establishing that he is entitled for his tax-
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[*11] able year 2007 to deduct under section 162(a) the disallowed 2007 Schedule
C expenses of $338,047.76.7
We turn next to the issues presented under sections 6651(a)(1) and 6662(a).
Respondent bears the burden of production with respect to any addition to tax or
penalty. See sec. 7491(c); Higbee v. Commissioner, 116 T.C. 438, 446-447
(2001). To satisfy respondent’s burden of production, respondent must come for-
ward with “sufficient evidence indicating that it is appropriate to impose” the
addition to tax or penalty. Higbee v. Commissioner, 116 T.C. at 446. Although
respondent bears the burden of production with respect to any addition to tax or
penalty, respondent “need not introduce evidence regarding reasonable cause * * *
or similar provisions. * * * the taxpayer bears the burden of proof with regard to
those issues.” Id.
With respect to section 6651(a)(1), that section imposes an addition to tax
for failure to file timely a tax return. Respondent granted an extension of time to
October 15, 2008, within which petitioner and Ms. Canatella were required to file
7
Assuming arguendo that we had found that petitioner had carried his bur-
den of establishing for his taxable year 2007 his entitlement to deductions under
sec. 162(a) for certain of the disallowed 2007 Schedule C expenses subject to sec.
274(d), petitioner would still have to satisfy the requirements of sec. 274(d) with
respect to those expenses. On the record before us, we find that petitioner has
failed to carry his burden of establishing that he satisfies those requirements.
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[*12] their 2007 return. Petitioner and Ms. Canatella did not file their 2007 return
until October 29, 2008.
On the record before us, we find that respondent has satisfied respondent’s
burden of production under section 7491(c) with respect to the addition to tax un-
der section 6651(a)(1) that respondent determined for petitioner’s taxable year
2007.
The addition to tax under section 6651(a)(1) does not apply if the failure to
file timely is due to reasonable cause, and not due to willful neglect. See sec.
6651(a)(1). Petitioner argues that his failure to file timely his 2007 return was due
to reasonable cause, and not due to willful neglect, because (1) he relied on peti-
tioner’s accountant to prepare his 2007 return and (2) that accountant testified at
the trial in this case that he “believe[d] it was timely filed, given our last extension
filing deadline.” On the record before us, we reject petitioner’s argument.
Petitioner’s accountant signed the 2007 return of petitioner and Ms.
Canatella on October 27, 2008, and petitioner and Ms. Canatella signed their 2007
return on October 28, 2008. Those respective signing dates were after October 15,
2008, the date by which petitioner and Ms. Canatella were required to file their
2007 return.
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[*13] On the record before us, we find that petitioner has failed to carry his bur-
den of establishing that his failure to file timely his 2007 return was due to reason-
able cause, and not due to willful neglect.
Based upon our examination of the entire record before us, we find that
petitioner has failed to carry his burden of establishing that he is not liable for an
addition to tax under section 6651(a)(1) for his taxable year 2007.
With respect to section 6662(a), that section imposes an accuracy-related
penalty of 20 percent of the underpayment to which section 6662 applies. Section
6662 applies to the portion of any underpayment which is attributable to, inter alia,
negligence or disregard of rules or regulations, sec. 6662(b)(1), or a substantial
understatement of tax, sec. 6662(b)(2).
The term “negligence” in section 6662(b)(1) includes any failure to make a
reasonable attempt to comply with the Code. Sec. 6662(c). Negligence has also
been defined as a failure to do what a reasonable person would do under the cir-
cumstances. See Leuhsler v. Commissioner, 963 F.2d 907, 910 (6th Cir. 1992),
aff’g T.C. Memo. 1991-179; Antonides v. Commissioner, 91 T.C. 686, 699
(1988), aff’d, 893 F.2d 656 (4th Cir. 1990). The term “negligence” also includes
any failure by the taxpayer to keep adequate books and records or to substantiate
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[*14] items properly. Sec. 1.6662-3(b)(1), Income Tax Regs. The term
“disregard” includes any careless, reckless, or intentional disregard. Sec. 6662(c).
For purposes of section 6662(b)(2), an understatement is equal to the excess
of the amount of tax required to be shown in the tax return over the amount of tax
shown in the return. Sec. 6662(d)(2)(A). An understatement is substantial in the
case of an individual if the amount of the understatement for the taxable year ex-
ceeds the greater of 10 percent of the tax required to be shown in the tax return for
that year or $5,000. Sec. 6662(d)(1)(A).
The accuracy-related penalty under section 6662(a) does not apply to any
portion of an underpayment if it is shown that there was reasonable cause for, and
that the taxpayer acted in good faith with respect to, such portion. Sec.
6664(c)(1). The determination of whether the taxpayer acted with reasonable
cause and in good faith depends on all the pertinent facts and circumstances,
including the taxpayer’s efforts to assess the taxpayer’s proper tax liability, the
knowledge and experience of the taxpayer, and the reliance on the advice of a
professional, such as an accountant. Sec. 1.6664-4(b)(1), Income Tax Regs.
Reliance on the advice of a professional may demonstrate reasonable cause
and good faith if, under all the circumstances, such reliance was reasonable and
the taxpayer acted in good faith. Id. In this connection, a taxpayer must demon-
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[*15] strate that the taxpayer’s reliance on the advice of a professional concerning
substantive tax law was objectively reasonable. See Goldman v. Commissioner,
39 F.3d 402, 408 (2d Cir. 1994), aff’g T.C. Memo. 1993-480. A taxpayer’s
reliance on the advice of a professional will be objectively reasonable only if the
taxpayer has provided necessary and accurate information to the professional. See
Neonatology Assocs., P.A. v. Commissioner, 115 T.C. 43, 99 (2000), aff’d, 299
F.3d 221 (3d Cir. 2002); see also Ma-Tran Corp. v. Commissioner, 70 T.C. 158,
173 (1978).
Respondent argues that petitioner is liable for the accuracy-related penalty
under section 6662(a) because of a substantial understatement of tax under section
6662(b)(2) and petitioner’s negligence or disregard of rules or regulations under
section 6662(b)(1).
On the record before us, we find that petitioner failed to substantiate under
section 162(a) the disallowed 2007 Schedule C expenses. On that record, we fur-
ther find that respondent has satisfied respondent’s burden of production under
section 7491(c) with respect to the accuracy-related penalty under section 6662(a).
It is petitioner’s position that under section 6664(c)(1) he had reasonable
cause for, and acted in good faith with respect to, the underpayment for his tax-
able year 2007 because “petitioner relied upon * * * a competent tax advisor [i.e.,
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[*16] petitioner’s accountant] and operated under an objective disability since
petitioner had no understanding of tax penalties or the bona fides of business
deductions.”
Petitioner’s accountant testified at the trial in this case that in preparing
petitioner’s 2007 return he relied on information contained in certain handwritten
summary schedules that petitioner had provided to him. Petitioner’s accountant
did not testify that he gave petitioner any advice with respect to his preparation of
petitioner’s 2007 return.
On the record before us, we find that petitioner has failed to carry his bur-
den of establishing that there was reasonable cause for, and that he acted in good
faith with respect to, the underpayment for his taxable year 2007.
Based upon our examination of the entire record before us, we find that
petitioner has failed to carry his burden of establishing that he is not liable for his
taxable year 2007 for the accuracy-related penalty under section 6662(a).
We have considered all of the contentions and arguments of the parties that
are not discussed herein, and we find them to be without merit, irrelevant, and/or
moot.
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[*17] To reflect the foregoing and the concessions of the parties,
Decision will be entered under
Rule 155.