Jackson v. Comm'r

T.C. Memo. 2014-160

UNITED STATES TAX COURT

DELLWARD R. JACKSON AND JUDITH N. JACKSON, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 2513-11. Filed August 7, 2014.

During the tax years at issue Ps sold insurance policies at
recreational vehicle (RV) rallies. R disallowed depreciation and
interest deductions that Ps claimed as business expenses and
determined accuracy-related penalties under I.R.C. sec. 6662(a).

Held: Ps’ use of their RV had substantial business purpose but
I.R.C. sec. 280A prohibits Ps from deducting the RV expenses.

Held, further, Ps are liable for accuracy-related penalties under
I.R.C. sec. 6662(a).

Jeffrey D. Moffatt, for petitioners.

Suzanne M. Warren, for respondent.
 -2-

[*2] MEMORANDUM FINDINGS OF FACT AND OPINION

WHERRY, Judge: This case is before the Court on a petition for

redetermination of the following deficiencies and penalties respondent determined

in a notice of deficiency for petitioners’ 2006 and 2007 tax years.

Penalty
Year Deficiency sec. 6662(a)
2006 $13,984 $2,796.80
2007 28,244 5,648.80

After concessions,1 the issues2 for decision are:

1
The parties have stipulated that petitioners are entitled to a car and truck
business expense deduction of $5,317 for the 2007 tax year and that petitioners
correctly reported a long-term capital gain of $68,973 for their 2007 tax year.
2
Petitioners’ counsel, Jeffrey Moffatt, claims we removed sec. 280A from
consideration at trial. We did not. We merely stated that our primary factual
concern at trial was sec. 162, and in directing the parties to file briefs, we
specifically noted that the case involved sec. 280A issues. Furthermore, Mr.
Moffatt’s briefs do not conform to our Rules. Because the Court recognizes that
its statements may have contributed to the misunderstanding, we will not punish
petitioners for their counsel’s misapprehension in deeming the sec. 280A issue
waived. See Bradley v. Commissioner, 100 T.C. 367, 370-371 (1993) (on the
Commissioner’s motion to dismiss, finding that the taxpayers waived objections
not pursued on brief). All section references are to the Internal Revenue Code
(Code) as amended and in effect for the tax years at issue. All Rule references are
to the Tax Court Rules of Practice and Procedure.
 -3-

[*3] (1) Do petitioners’ expenses related to their recreational vehicle (RV)

qualify as business expenses? We hold that they do;

(2) Does section 280A nevertheless prohibit them from deducting those

expenses? We hold that it does; and

(3) Are petitioners liable for accuracy-related penalties under section

6662(a)? We hold that they are.

FINDINGS OF FACT

The parties’ stipulation of facts, supplemental stipulation of facts, second

supplemental stipulation of facts, stipulation of settled issues, and accompanying

exhibits are incorporated herein by this reference. Petitioners resided in California

at the time they filed their petition.

Dellward Jackson was the owner-operator of Dell Jackson Insurance

Services (Dell Jackson Insurance), an insurance brokerage business, for about 30

years until he sold the business and retired in 2011. Judith Jackson was also a part

of Dell Jackson Insurance, both as an agent and as officer manager. Petitioners

sold a number of insurance products including homeowners, rental property

owners, commercial, life, disability, and health insurance. Petitioners worked at

least 40 hours weekly at the Dell Jackson Insurance office in Copperopolis,

California.
 -4-

[*4] In 2004 petitioners began selling RV insurance in addition to the other

products. Prior to that date, petitioners had sold auto insurance policies that would

cover RVs. But petitioners recognized that traditional auto insurance policies

were not well suited for the higher end RVs. When they learned of RV-specific

policies, they decided that they could market these policies at weekend RV rallies.

And it was at this point that petitioners’ business and personal interests began to

intersect.

Petitioners joined their first RV club in 1995. These clubs are chapters of

the Family Motor Coach Association, which was established in 1963. These clubs

hold RV rallies, which, according to petitioners, are held about once a month and

are primarily social events. A rally would usually start on Friday afternoon, and

the participants would hold a potluck dinner that night. On Saturday, after a

breakfast provided by the “trail boss”, the club would have an information session,

often about RV maintenance issues. Only RV owners may attend these rallies.

Ownership is similarly required by certain RV parks. Some parks also prohibit

RVs older than a certain age. During the years at issue petitioners were members

of the Gold Diggers and the Goldengate club chapters. They remained members

of these two chapters at least up to the time of trial.
 -5-

[*5] Starting in 2004, petitioners began attending RV rallies not just for pleasure

but also for business purposes. At or around the same time, they purchased a 2004

Winnebago RV. We reject petitioners’ contentions that they attended RV rallies

solely for business purposes from 2004 but instead find that they had mixed

purposes. Petitioners would gather sales leads at every rally. To that end,

petitioners had a banner that they attached to their RV advertising Dell Jackson

Insurance. Petitioners would set up an information table outside of their RV or

outside the clubhouse, if the site had one. If they set up a table by a clubhouse,

petitioners moved the banner from the RV to the table. Otherwise, the sign

remained on the RV from the time they arrived until the time they left. Petitioners

would invite potential customers to come to their RV, and they would sit either

outside or inside the RV and discuss the prospective client’s insurance needs. It

would often take months, if not years, for a relationship with a potential customer,

which could begin with a lead, to develop into an actual sale.

Petitioners would gather information from potential clients. When they

returned to the office after the weekend, they would use that information to

generate rate quotes. They would bring the quotes, policies, and other data to the

next rally. Clients would review and sign policies in petitioners’ or their own
 -6-

[*6] RVs. Petitioners did not limit their sales at the rallies to RV insurance; they

sold all types of policies.

Petitioners’ certified public accountant, William Hartley, prepared the tax

returns for both years at issue using the information petitioners provided. During

the 2006 tax year petitioners deducted $47,461 for depreciation of their 2004

Winnebago. Petitioners claimed 100% business use for the RV for 2006.

Petitioners admitted at trial, however, that they took two or three personal trips in

that RV during 2006. In 2007 petitioners purchased a brand-new Winnebago for

$248,456.96. On their 2007 Federal income tax return, petitioners deducted

$60,424 for depreciation of the new Winnebago. Petitioners reported business use

of 99.95% and a depreciable basis of $302,119. Petitioners testified that, because

of Mrs. Jackson’s health, they took no personal trips during 2007.

Petitioners deducted as a business expense interest paid with respect to the

financing of the 2007 Winnebago. Petitioners provided a calendar of the 2007

trips on which they recorded 15 trips in that year. They also provided a log that

described in more detail their meetings with specific clients and potential clients.

The total gross receipts directly attributable to petitioners’ RV rally contacts were

$14,882 and $19,446 for the 2006 and 2007 tax years, respectively.
 -7-

[*7] In the notice of deficiency, respondent disallowed the depreciation

deductions. Respondent also disallowed the interest expense as a business

expense. Petitioners timely petitioned this Court for redetermination.

OPINION

As a general rule, the Commissioner’s determination of a taxpayer’s liability

is presumed correct, and the taxpayer bears the burden of proving that the

determination is improper. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115

(1933). Deductions are a matter of legislative grace, and the taxpayer bears the

burden of proving that he is entitled to any claimed deductions. New Colonial Ice

Co. v. Helvering, 292 U.S. 435, 440 (1934). This includes the burden of

substantiation. Hradesky v. Commissioner, 65 T.C. 87, 89-90 (1975), aff’d per

curiam, 540 F.2d 821 (5th Cir. 1976). Although section 7491 may shift the burden

of proof in specified circumstances, petitioners have not established that they meet

the prerequisites, under section 7491(a)(1) and (2), for such a shift.

I. Petitioners’ RV Expenses as Business Expenses

Section 167(a) allows taxpayers a depreciation deduction for property used

in a trade or business or held for the production of income, whereas section 163(a)

allows a deduction for all interest paid or accrued on indebtedness. But section
 -8-

[*8] 262(a) disallows deductions “for personal, living, or family expenses,” and

section 163(h) prevents noncorporate taxpayers from deducting personal interest.

To determine whether property is used in a trade or business or held for the

production of income, we look to “whether the acquisition and/or maintenance of

property was primarily associated with profit-motivated purposes.” Gill v.

Commissioner, T.C. Memo. 1994-92, 1994 WL 59249, at *6 (citing Int’l Artists,

Ltd. v. Commissioner, 55 T.C. 94, 104 (1970)), aff’d without published opinion,

76 F.3d 378 (6th Cir. 1996). If there is personal use, it must “be distinctly

secondary and incidental”. Int’l Artists, Ltd. v. Commissioner, 55 T.C. at 104. If

the expenses are primarily motivated by personal considerations, section 262

prohibits the taxpayer from deducting them. Id. In certain circumstances where

substantial personal and substantial business motives coexist, we can allocate the

expenses between personal and business use. Id. at 105; see also Int’l Trading Co.

v. Commissioner, 275 F.2d 578, 587 (7th Cir. 1960), aff’g T.C. Memo. 1958-104;

Deihl v. Commissioner, T.C. Memo. 2005-287, slip op. at 25.

There is no question that petitioners used the RV for personal purposes.

They admitted such with respect to the 2006 tax year. The parties disagree,

however, as to whether petitioners, when attending the RV rallies, used the RV for

pleasure or business. Respondent appears concerned primarily with the magnitude
 -9-

[*9] of the expense, calling the RV opulent and extravagant, as well as the

perceived social aspect of these rallies. Respondent’s position has merit.

Petitioners attended these rallies in a purely social setting for at least nine years

before using the rallies as a business venue, and they have continued to attend

such rallies since they retired and sold their insurance business.

Nevertheless, there is no doubt that petitioners actively sold insurance

policies during their time at the rallies and that their business activities generated

not-insignificant revenue. While respondent seems to emphasize the meager gross

receipts compared to the significant capital outlay, petitioners’ gross receipts from

the rallies steadily increased each year, tripling in the four years after they began

conducting business at RV rallies. Many businesses incur a loss in their early

years while they are spooling up, establishing their reputation, and acquiring a

customer base. In the insurance business, this is very important because of

renewal commissions, and the value of the book of continuing business adds to

goodwill and the market price of the insurance agency.

Petitioners credibly testified that they spent their time at these rallies

cultivating business contacts and closing sales. One of petitioners’ clients even

described Mr. Jackson as having the reputation of being “a pest about

insurance”. Petitioners had a substantial business purpose in purchasing the RV,
 - 10 -

[*10] and we believe this an appropriate situation to allocate the depreciation and

interest deductions between business and personal uses. But before we can

allocate, we must consider the impact of the substantiation rules.

Section 274(d) disallows deductions, including depreciation and interest,

with respect to certain items of property unless the taxpayer meets certain

substantiation requirements. These items of property include “property used as a

means of transportation” and “any property of a type generally used for purposes

of entertainment, recreation, or amusement”. Sec. 280F(d)(4)(A). A recreational

vehicle, not used for transportation of people or cargo for hire, see sec.

280F(d)(4)(C), falls within these definitions. Therefore petitioners must

“substantiate[] by adequate records or by sufficient evidence corroborating * * *

[their] own statement” the amount of the expense, the time and place of use of the

property, the business purpose, and “the business relationship to the taxpayer of

persons * * * using the facility or property”. Sec. 274(d); see also sec. 1.274-

5T(b)(6), Temporary Income Tax Regs., 50 Fed. Reg. 46016 (Nov. 6, 1985).

For the 2007 tax year, petitioners produced a calendar listing the dates of

the rallies and the clients with whom they met. They kept this calendar record

contemporaneously with the rallies. They also produced a list prepared during

respondent’s examination that details the types of conversations held with clients
 - 11 -

[*11] during the 2007 rallies. While “postevent ballpark estimates” are generally

insufficient to meet the substantiation requirements, Moss v. Commissioner, 135

T.C. 365, 369 (2010), we find this document reliable as a showing of business

purpose corroborated by the calendar and affidavits of clients, see sec. 1.274-

5T(c)(3), Temporary Income Tax Regs, 50 Fed. Reg. 46020 (Nov. 6, 1985). For

the 2006 tax year petitioners produced no records, and we cannot find that they

adequately substantiated any business purpose for that tax year.3 Absent two brief

assertions in affidavits that the affiants purchased policies in 2006, petitioners’

testimony is uncorroborated for the 2006 tax year. These affidavits are not enough

for the purposes of section 274.

The Code does not prevent taxpayers from enjoying their work or from

turning a leisure activity into a profitable one. See Jackson v. Commissioner, 59

T.C. 312, 317 (1973) (recognizing that “suffering has never been made a

prerequisite to deductibility”). That being said, we think it undeniable that there is

an element of personal use. Yet, as discussed above, we think petitioners after

3
At the end of the trial, Mr. Moffatt asked for permission to introduce a
binder with mileage logs. However, he violated our pretrial order by not
exchanging this document with respondent at least 15 days before trial.
Respondent objected to the inclusion of this exhibit, and because we concluded
respondent had been prejudiced and surprised by the proposed evidence, we
refused to admit it.
 - 12 -

[*12] 2004 and before 2012 had substantial and predominant business motives in

their RV activities. After reviewing the evidence in the record and considering

petitioners’ testimony, we believe petitioners to have spent two-thirds of their time

during these rallies on business. Therefore, petitioners’ business use of the RV

amounted to 66-2/3% in 2007. We cannot allocate the use in 2006; petitioners

failed to establish a business use because they could not sufficiently corroborate

their testimony.

We note two other issues with petitioners’ 2007 depreciation deduction. On

petitioners’ 2007 tax return, they claim a cost basis of $302,270 for the RV. But

the sale contract between the RV dealership and petitioners states a cost of

$248,456.96. The difference may be sales or use tax and license fees, which were

not currently deducted but instead capitalized. Petitioners did not substantiate the

higher cost basis, reported on their return, and they must use the lesser amount to

calculate any allowable 2007 depreciation.

It follows that--except for the important impediment imposed by section

280A, discussed infra--66-2/3% of the claimed depreciation on the new

Winnebago and of petitioners’ 2007 interest expense would be deductible as a

reasonable allowance for the “exhaustion, wear and tear” on the Winnebago and

for “interest paid or accrued on indebtedness properly allocable to a trade or
 - 13 -

[*13] business”. See secs. 163(h)(2)(A), 167(a); see also sec. 1.163-8T,

Temporary Income Tax Regs., 52 Fed. Reg. 24999 (July 2, 1987). The balance of

petitioners’ 2007 interest expense and claimed depreciation are personal expenses

and may not be deducted. Secs. 163(h)(1), 262(a).

II. Petitioners’ RV as a Dwelling Unit

Now we must address respondent’s secondary argument, namely that

section 280A prevents petitioners from taking any deduction with respect to the

RV. Section 280A(a) and (b) provides the general rule that individual and S

corporation taxpayers cannot deduct expenses “with respect to the use of a

dwelling unit which is used by the taxpayer during the taxable year as a residence”

unless such a deduction would be allowable “without regard to its connection with

* * * [the taxpayer’s] trade or business * * * [or] income-producing activity”.

Use as a residence is a defined term. Sec. 280A(d). Generally, “a taxpayer

uses the dwelling unit during the taxable year as a residence if he uses such unit

(or portion thereof) for personal purposes for a number of days which exceeds the

greater of--(A) 14 days, or (B) 10 percent of the number of days during such year

for which such unit is rented at a fair rental.” Sec. 280A(d)(1). “Dwelling unit” is

also a defined term and “includes a house, apartment, condominium, mobile home,

boat, or similar property”. Sec. 280A(f)(1)(A). This Court has previously held
 - 14 -

[*14] that a motor home qualifies as a dwelling unit within the meaning of section

280A(f)(1)(A). See, e.g., Haberkorn v. Commissioner, 75 T.C. 259, 260 (1980);

Dunford v. Commissioner, T.C. Memo. 2013-189, at *23-*24; Perry v.

Commissioner, T.C. Memo. 1996-194, slip op. at 14. Although we use the more

modern term throughout this opinion, an RV and a motor home are one and the

same thing. Petitioners and counsel used the two terms interchangeably at trial.

Accordingly, petitioners’ RV is a dwelling unit for purposes of section 280A.

The question is then whether petitioners used the RV for personal purposes

for more than 14 days. “Personal purposes” is also a defined term, and a “taxpayer

shall be deemed to have used a dwelling unit for personal purposes for a day if, for

any part of such day, the unit is used * * * for personal purposes by the taxpayer”.

Sec. 280A(d)(2) (emphasis added). Our finding above that petitioners had some

personal use of the RV is fatal to their position. Any personal use, including

watching TV in the RV, makes the entire day a personal day. Petitioners therefore

used the RV as a dwelling unit for personal purposes for more than 14 days, and

section 280A prohibits them from taking any deductions with respect to the RV.4

4
From reviewing the notice of deficiency and enclosures thereto, it appears
to the Court that, in conjunction with disallowing petitioners’ 2007 deduction on
Schedule C, Profit or Loss From Business, for interest paid on their RV,
respondent may have reclassified the interest as qualified residence interest, see
(continued...)
 - 15 -

[*15] See also Dunford v. Commissioner, at *15 (denying the taxpayers’ business

deductions with respect to their motor home because they used it as a residence).

Section 280A(c) contains a number of exceptions to the general rules

described above, including one which allows a taxpayer to allocate costs to a

certain portion of the dwelling unit. But the exception, as relevant to petitioners,

requires that a portion of the dwelling unit be “exclusively used” on a regular basis

“as a place of business which is used by patients, clients, or customers in meeting

or dealing with the taxpayer in the normal course of his trade or business”. Sec.

280A(c)(1)(B). Exclusivity is the key here as petitioners did not use any portion

of their RV exclusively for business. They therefore do not meet the requirements

for allocations under section 280A(c). See Salih v. Commissioner, T.C. Memo.

1994-627, 1994 WL 706221, at *3 (finding that the taxpayer failed to prove he

4
(...continued)
sec. 163(h)(2)(D), (3), (4)(A), and allowed the deduction on Schedule A, Itemized
Deductions. In 2007 petitioners reported a business interest expense of $10,222
on Schedule C and a home interest expense of $23,848 on Schedule A.
Respondent disallowed $10,110 of the Schedule C deduction but also increased
petitioners’ Schedule A deduction by $10,115 without offering any explanation for
the increase. To the extent that respondent did reclassify petitioners’ claimed
interest expense as deductible home mortgage interest, we do not disturb this
adjustment or any subsequent agreement between the parties on this subject.
 - 16 -

[*16] used the television and VCR in his claimed home office exclusively for

business), aff’d without published opinion, 77 F.3d 490 (9th Cir. 1996).

This result may seem harsh, but it is the operation of the statute, which

reflects Congress’ desire to prevent taxpayers from deducting personal expenses as

business expenses. In enacting section 280A, Congress wished to prevent

taxpayers from deducting costs associated with their personal residences as well as

vacation homes. The Senate Finance Committee wrote: “[T]here is a great need

for definitive rules to resolve the conflict that exists between several recent court

decisions [which had allowed taxpayers to claim deductions] and the position of

the Internal Revenue Service as to the correct standard governing the deductibility

of expenses attributable to the maintenance of an office in the taxpayer’s personal

residence.” S. Rept. No. 94-938, at 147 (1976), 1976-3 C.B. (Vol. 3) 49, 185.

Congress adopted the Internal Revenue Service’s position and set forth the new

rule. Congress believed that the prior “appropriate and helpful” standard used by

the courts in determining whether similar home office expenses were deductible

result[ed] in treating personal living, and family expenses which are
directly attributable to the home (and therefore not deductible) as
ordinary and necessary business expenses, even though those
expenses did not result in additional or incremental costs incurred as
a result of the business use of the home. Thus, expenses otherwise
considered nondeductible personal, living and family expenses might
be converted into deductible business expenses simply because, under
 - 17 -

[*17] the facts of the particular case, it was appropriate and helpful to
perform some portion of the taxpayer’s business in his personal
residence. * * *

Id. Section 280A casts a wide net in this regard and sometimes catches taxpayers,

like petitioners, who in addition to their personal use had genuine business

purposes. Thus, while petitioners’ RV may be “appropriate and helpful” in their

business, they have failed to meet the stringent requirements of section 280A.

III. Petitioners’ Liability for Accuracy-Related Penalties

Respondent also determined accuracy-related penalties under section

6662(a). Respondent bears the burden of production for the determined penalties

and must produce sufficient evidence establishing that it is appropriate to impose

the penalties. See Higbee v. Commissioner, 116 T.C. 438, 446 (2001). However,

the burden to establish that they acted with reasonable cause remains with

petitioners. See id. at 446-447.

Section 6662(a) imposes an accuracy-related penalty equal to 20% of an

underpayment of tax attributable to one of five causes specified in subsection (b).

Respondent contends that petitioners are liable for the penalties because of

negligence and/or disregard of the rules or regulations or, alternatively, because

the underpayments are due to substantial understatements of income tax. See sec.

6662(b)(1) and (2).
 - 18 -

[*18] For purposes of the penalty, “‘negligence’ includes any failure to make a

reasonable attempt to comply with the provisions of this title”. Sec. 6662(c).

Under caselaw, “‘[n]egligence is a lack of due care or the failure to do what a

reasonable and ordinarily prudent person would do under the circumstances.’”

Freytag v. Commissioner, 89 T.C. 849, 887 (1987) (quoting Marcello v.

Commissioner, 380 F.2d 499, 506 (5th Cir. 1967), aff’g on this issue 43 T.C. 168

(1964) and T.C. Memo. 1964-299), aff’d, 904 F.2d 1011 (5th Cir. 1990), aff’d,

501 U.S. 868 (1991). A substantial understatement of income tax in the case of an

individual is (with certain modifications which do not apply in this case) an

understatement of income tax that exceeds the greater of (1) 10% of the tax

required to be shown on the return for the taxable year or (2) $5,000. Sec.

6662(d)(1)(A).

There is an exception to the section 6662(a) penalty when a taxpayer can

demonstrate that the taxpayer (1) had reasonable cause for the underpayment and

(2) acted in good faith with respect to the underpayment. Sec. 6664(c)(1).

Regulations promulgated under section 6664(c) further provide that the

determination of reasonable cause and good faith “is made on a case-by-case basis,

taking into account all pertinent facts and circumstances.” Sec. 1.6664-4(b)(1),

Income Tax Regs.
 - 19 -

[*19] If a taxpayer can show that he reasonably relied on a tax professional, then

he may avoid a section 6662(a) penalty. See sec. 1.6664-4(c), Income Tax Regs.

But to do so, the taxpayer must meet the following three-prong test: “(1) The

adviser was a competent professional who had sufficient expertise to justify

reliance, (2) the taxpayer provided necessary and accurate information to the

adviser, and (3) the taxpayer actually relied in good faith on the adviser’s

judgment.” Neonatology Assocs., P.A. v. Commissioner, 115 T.C. 43, 99 (2000),

aff’d, 299 F.3d 221 (3d Cir. 2002).

Respondent determined that petitioners’ understatements exceeded $5,000,

which is greater than 10% of the tax required to be shown on the returns, for both

tax years, and he has met his burden of production. Petitioners did not produce

sufficient evidence that they acted with reasonable cause and in good faith.

Petitioners took deductions contrary to the plain language of the statute, and they

have not alleged a misunderstanding of section 280A.5 See sec. 1.6664-4(b)(1),

Income Tax Regs. (stating that “an honest misunderstanding of fact or law” may

5
Both at trial and in a pretrial memorandum, petitioners’ counsel insisted
that sec. 280A does not apply to motor homes, which suggests a misunderstanding
of our prior caselaw on that very subject. See Haberkorn v. Commissioner, 75
T.C. 259, 260 (1980). However, petitioners did not testify and have offered no
other evidence tending to show that they misunderstood the law or its application
to their factual situation.
 - 20 -

[*20] be reasonable cause). Nor do petitioners allege that they relied on a

professional, such as their certified public accountant, whom they did not call to

testify at trial, for tax advice. Petitioners introduced no evidence as to their

accountant’s qualifications, the nature of his advice, if any, as to the RV

deduction, or their reliance on any of that advice. The only testimony was that

petitioners provided their accountant with the raw numbers and he calculated the

tax from those numbers and prepared the tax returns. Consequently, the exception

for reasonable cause does not apply here, and petitioners are liable for the

accuracy-related penalties.

The Court has considered all of petitioners’ contentions, argument, requests,

and statements. To the extent not discussed herein, we conclude that they are

moot, irrelevant, or without merit. To reflect the foregoing,

Decision will be entered

under Rule 155.