T.C. Memo. 1996-116
UNITED STATES TAX COURT
WILLIAM W. HALLE IV, AND JANICE C. HALLE, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5120-94. Filed March 11, 1996.
William W. Halle IV, pro se.
Sara J. Barkley, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: Respondent determined a deficiency of
$60,952 in petitioners' Federal income tax for 1990, a section
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6651(a)(1)1 addition to tax of $2,989, and a section 6662(a)
accuracy-related penalty of $12,190.
Prior to or at trial, respondent made several concessions
resulting in a substantial reduction of the determined deficiency
and the elimination of the section 6651(a)(1) addition to tax.
Because of petitioner2 William Halle's contention that the notice
of deficiency was arbitrary and that the burden of proof shifted
to respondent, the concessions made by respondent are fully set
forth below.
On petitioners' Schedule C attached to their 1990 Federal
income tax return, they claimed Schedule C business expenses in
the total amount of $117,871. During the examination of their
return, respondent allowed in full the amounts claimed for
repairs, travel, meals and entertainment, which totaled $4,026.
For all the remaining categories of expenses claimed on the
return, respondent determined in the notice of deficiency that
petitioners were entitled to Schedule C expenses in the amount of
$63,013 and disallowed $50,832. During the preparation of this
case for trial, respondent increased the amount of Schedule C
expenses to which petitioners were entitled by $6,072.91 and
1
Unless otherwise indicated, all section references are
to the Internal Revenue Code in effect for the taxable year 1990,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
2
Subsequent references herein to petitioner individually
are to William W. Halle IV.
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disallowed only $44,759.09. Thus, at trial, respondent agreed
that petitioners are entitled to $69,085.91 in Schedule C
expenses (instead of the $63,013 allowed by respondent in the
notice of deficiency), which amount is in addition to expenses of
$4,026 allowed by respondent for repairs, travel, meals and
entertainment.
In the notice of deficiency, respondent determined that
petitioners had an unreported capital gain of $140,000 from the
sale of their New Jersey personal residence. In the stipulation
of facts, respondent conceded that petitioners did not have a
$140,000 capital gain from the sale of their personal residence
during 1990 because it was not sold until February 1991.
On Form 4797 attached to their Federal income tax return for
1990, petitioners reported the sale of business property and
reported a gain of $22,000. This reported gain was from the sale
of the portion of petitioners' New Jersey residence used for
business. Because their personal residence was not sold during
1990, this gain of $22,000 should not have been reported by them
in that year.
In Exhibit AL respondent proposed that no gain or loss
should be recognized by petitioners on the trade-in of a
Chevrolet Cavalier because they did not follow the rules under
section 1031 for like kind exchanges when they traded in the
Chevrolet Cavalier on the lease of a Chevrolet van. Respondent's
position was based on the fact that petitioners had advised
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respondent that they had treated the lease of the van as a
purchase and not as a lease. At trial, however, petitioner
testified that in subsequent years the lease was treated as a
lease and not as a purchase, and that petitioners were not
entitled to depreciation on the van. Consequently, respondent
concedes part of the loss claimed on petitioners' 1990 Federal
income tax return for the trade-in of the Chevrolet Cavalier for
the van.
In the notice of deficiency, respondent determined that
petitioners were liable for an addition to tax under section
6651(a)(1) in the amount of $2,989. However, in the stipulation
of facts, respondent conceded that petitioners timely filed their
1990 Federal income tax return and, consequently, are not liable
for that addition to tax.
In the notice of deficiency, there is an adjustment to
petitioners' self-employment tax, which was increased by
respondent. There is no dispute as to whether petitioner's net
earnings from his Locksmith/Burglar Alarm business are subject to
self-employment tax. That adjustment is computational.
In addition, respondent adjusted petitioners' medical
expenses deduction. There is no dispute as to whether
petitioners incurred the medical expenses claimed on the return.
That adjustment is also computational.
Petitioner, in his answering brief, has raised two
preliminary issues, namely, whether respondent should bear the
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burden of proof because the deficiency notice was allegedly
arbitrary and excessive, and whether the testimony of
respondent's witness, Alan Hull, should be rejected as
unreliable. The two substantive issues remaining for decision
are (1) whether petitioners are entitled to Schedule C business
expense deductions in excess of the amounts allowed by
respondent, and (2) whether petitioners are liable for the
section 6662(a) accuracy-related penalty for negligence or
disregard of rules or regulations.
For convenience we are combining our findings of fact and
opinion in this case.
Some of the facts have been stipulated and are so found.
The stipulation of facts and the exhibits attached thereto are
incorporated herein by this reference.
Petitioners William W. Halle IV, and Janice C. Halle resided
in Cheyenne, Wyoming, at the time their petition was filed. They
timely filed their joint Federal income tax return for 1990.
Prior to and during 1990, petitioner operated a locksmith
and burglar alarm business (the locksmith business) as a Schedule
C business. He used the accrual method of accounting in that
business. His personal residence and locksmith business were
located in New Jersey until late December 1990. Petitioner used
50 percent of the New Jersey personal residence for the locksmith
business. He also leased additional space in a separate location
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from November 1, 1989, to October 31, 1990. The lease agreement
called for 12 payments in the amount of $525 per month.
In December 1990, petitioner moved his family, personal
residence, and locksmith business to his current location in
Cheyenne, Wyoming. He continued to operate his locksmith
business in Wyoming and used a portion of his Wyoming residence
for his locksmith shop.
In December 1990, petitioners signed an agreement with North
American Van Lines to transport their belongings from New Jersey
to Wyoming. Actual delivery was made by North Park
Transportation Co. on January 10, 1991. Although petitioners
contracted to sell their New Jersey personal residence in
December 1990, the sale did not occur until February 1991.
In 1990, petitioner used two vehicles in his locksmith
business, a Chevrolet Cavalier and a Chevrolet van. Petitioner
owned the Cavalier, having acquired it in 1986 at a cost of
$13,500. Until 1990, the Cavalier was used 100 percent for
personal purposes. On June 1, 1990, petitioner converted the
Cavalier to 56 percent business use. On December 20, 1990,
petitioner traded in the Cavalier as a downpayment on a 4 year
lease for a Chevrolet van. The amount credited to petitioner for
the Cavalier trade-in was $2,000. The van was used 100 percent
for petitioner's locksmith business. His lease payments for the
van were $301 per month.
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In 1990, as in previous years, petitioner maintained the
financial records for his locksmith business and prepared the
Schedule C for the business as well as the rest of petitioners'
joint Federal income tax return. Petitioner did not hire an
accountant, return preparer, or anyone else to help him maintain
his business or financial records or prepare the tax return.
During 1990, petitioner used two different computer
accounting systems to maintain his financial records. He
personally made all entries into both systems.
Petitioner first used computer accounting system software
called Managing Your Money (MYM). From January 1, 1990, until
approximately July 15, 1990, petitioner entered expense items
into the MYM system on his computer.
After using MYM for a time, petitioner discovered that it
did not perform tasks he felt were necessary for his business.
To remedy this situation, a second computer accounting software,
DAC Easy (DAC), was installed on petitioner's computer prior to
July 15, 1990. Petitioner was then able to use either MYM or
DAC. From approximately July 15, 1990, to December 31, 1990,
petitioner entered his business expenses into DAC, and he no
longer made entries into MYM.
Thus, at the end of 1990, petitioner essentially had two
separate expense records, one on MYM and the other on DAC.
Neither the MYM nor the DAC expense records were complete. MYM
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covered only approximately the first 6 months of 1990, and DAC
covered only approximately the last 6 months of 1990.
Recognizing this problem, petitioner set out to consolidate
the MYM and DAC expense records by transferring the MYM expenses
into the DAC system. To accomplish this, petitioner created a
summary of the MYM expenses (MYM Summary). The MYM Summary is
dated December 31, 1990. On the same date, petitioner
transferred each expense from the MYM Summary into the DAC
system. This transfer is recorded on the DAC General Ledger
Listing Report (DAC Ledger) dated December 31, 1990, at 10:29
a.m.
On December 31, 1990, at 4:47 p.m., petitioner created his
DAC Accounting Summary. This summary lists total DAC system
expenses by account number under the column heading "Balance
YTD".
Therefore, when petitioner completed the entries on December
31, 1990, he had successfully accomplished his goal of
consolidating the locksmith business expenses for the entire year
into one system, the DAC system.
Petitioner prepared the 1990 joint Federal income tax return
on April 15, 1991, more than 3 months after he had consolidated
his expenses in the DAC system. To prepare the tax return, he
created a series of numbered tally sheets called "scratch pads"
on his computer. The purpose of the scratch pads was to give
petitioner the dollar amount for total business expense items by
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category for the 1990 tax year. The scratch pad categories are
identical to the expense categories listed on Schedule C of
petitioners' 1990 tax return. Petitioner personally created all
the scratch pads.
To create each scratch pad, petitioner retrieved an expense
item for a Schedule C category from the MYM system. He then
listed the MYM expense on a numbered scratch pad.3 Petitioner
also retrieved the DAC expense for the same category and then
listed it on the same numbered scratch pad.4 The computer added
the MYM items to the DAC items to produce a scratch pad dollar
amount total for each Schedule C category. Finally, the computer
recorded the dollar amount total from a scratch pad onto the
appropriate line of petitioner's Schedule C.
I. Preliminary Issues
A. Burden of Proof
Respondent initially determined a deficiency in the amount
of $60,952. After concessions, the deficiency was substantially
reduced. Petitioner argues that respondent's determination was
arbitrary, and, thus, the burden of proof shifted to respondent.
A statutory notice of deficiency is presumed correct. Rule
142(a); Welch v. Helvering, 290 U.S. 111 (1933). Petitioner has
3
The MYM amounts listed on each scratch pad are
identical to the amounts listed on the MYM Summary.
4
The DAC amounts are identical to the amounts on the DAC
Accounting Summary under the column "Balance YTD".
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the burden of proving that the determination was arbitrary.
Foster v. Commissioner, 80 T.C. 34, 228 (1983), affd. on this
issue 756 F.2d 1430 (9th Cir. 1985). If the taxpayer shows that
the deficiency notice is arbitrary or without foundation, the
burden of going forward with the evidence shifts to the
Commissioner. Dellacroce v. Commissioner, 83 T.C. 269, 280
(1984). Generally, this Court will not look behind the notice of
deficiency to review the information used or respondent's motives
or procedure involved in making the determination. Greenberg's
Express, Inc. v. Commissioner, 62 T.C. 324, 327-328 (1974). Our
decision with respect to the tax liability is based on the
evidence submitted at the trial of the case and not on any record
previously developed at the administrative level. Id.
Petitioner made three arguments in support of this
contention. First, he argues that respondent's concessions
before and at trial rendered the deficiency notice arbitrary as
to the remaining issues. Petitioner is incorrect. Respondent's
concession of an issue or issues prior to or at trial does not
destroy the presumptive correctness of the deficiency notice as
to the remaining issues. United States Holding Co. v.
Commissioner, 44 T.C. 323, 328 (1965), and cases cited therein.
Second, petitioner contends that the deficiency notice is
arbitrary because his canceled checks and other records were not
used to determine the deficiency. He testified that he delivered
these documents to the Internal Revenue Service (IRS) office in
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Cheyenne, Wyoming, at the auditor's request. He did not keep
copies of the documents or obtain a receipt from anyone. He
testified that he put the documents on a receptionist's desk
because no one was in the office. He failed to return to the
office or telephone to verify that the receptionist, auditor, or
any other IRS employee actually received the documents.
The auditor notified petitioner by letter dated April 9,
1992, that the documents could not be located and requested that
he resubmit them. In response, petitioner submitted his MYM
Summary, DAC Ledger, DAC Trial Balance, DAC Accounts Payable
Listing, and other documents detailing his business expenses.
These records were stamped "received" by the IRS on May 1, 1992.
The same records were later returned to petitioner. He then
submitted them to respondent, at her request, prior to the
issuance of the deficiency notice. Moreover, all of petitioner's
scratch pads used to calculate the total expense claimed for each
Schedule C category were attached to the 1990 joint Federal
income tax return.
Although the inability to produce a record that has been
unintentionally lost, whether by petitioner, respondent, or a
third party, alters the type of evidence that may be offered to
establish a fact, the burden of proof is not affected. Fed. R.
Evid. 1004; American Police and Fire Foundation, Inc. v.
Commissioner, 81 T.C. 699, 706 (1983); Malinowski v.
Commissioner, 71 T.C. 1120, 1124-1125 (1979).
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Thus, notwithstanding the purported unavailability of
petitioner's original canceled checks and other documents,
petitioner provided ample, detailed records of his claimed
business expenses prior to the issuance of the deficiency notice
on January 13, 1994. Petitioner testified at trial that he made
these records very detailed so that he "gave a complete audit
trail". Consequently, we think petitioner cannot now complain
that respondent lacked his business records and thus arbitrarily
determined the deficiency.
Third, petitioner contends that the deficiency notice did
not state that the adjustments were made because he claimed
certain business expenses twice; i.e., duplicated deductions.
Instead, the notice of deficiency states that "it has not been
established that any amount in excess of the corrected amount was
for an ordinary and necessary business expense or was expended
for the purpose designated". A list of adjustments by category
and dollar amount followed.
Although petitioner correctly notes that the deficiency
notice does not use the word "duplication", the lack of
specificity preferred by petitioner does not prove that the
notice is arbitrary. A notice of deficiency must describe the
basis for and identify the amounts of tax due, any additional
amounts, additions to tax, and assessable penalties. Sec.
7522(a) and (b). An inadequate description does not invalidate
the notice. Id. The notice must fairly advise the taxpayer that
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the Commissioner has determined a deficiency and specify the year
and amount. Abrams v. Commissioner, 84 T.C. 1308, 1310 (1985),
affd. sub nom. Alford v. Commissioner, 800 F.2d 987, 988 (10th
Cir. 1986) (also affd. by six additional circuits); Mayerson v.
Commissioner, 47 T.C. 340, 348-349 (1966).
The notice of deficiency adequately described the basis for
respondent's determination as excessive ordinary and necessary
business expense deductions. It fairly advised petitioner that a
deficiency was determined. It specified the year as 1990, and it
contained a comprehensive list of amounts by category (13 in all)
that are identical to petitioner's Schedule C categories. See
Hustead v. Commissioner, T.C. Memo. 1994-374, affd. without
published opinion 61 F.3d 895 (3d Cir. 1995) (notice of
deficiency clearly served to advise the taxpayers which of their
claimed deductions had been disallowed); Burnside v.
Commissioner, T.C. Memo. 1994-308 (notice of deficiency which
specified the years, amount of deficiencies, and additions to tax
complied with section 7522(a) and (b)(1)).
Petitioner attempts to shift the burden of proof to
respondent under Rule 142(a) by arguing that respondent first
raised the "duplication" grounds at trial. That is not so.
Respondent's counsel stated that she made several attempts prior
to trial to communicate precisely this point to petitioner.
Furthermore, respondent's Trial Memorandum, filed May 25, 1995,
explained that certain expenses were duplicated. Petitioner had
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ample notice of respondent's duplication grounds. Mayerson v.
Commissioner, 47 T.C. at 349.
Accordingly, we conclude that the notice of deficiency was
not arbitrary and that the burden of proof with respect to the
disputed issues remained with petitioner.
B. Testimony of Alan Hull
In his answering brief, petitioner contends that the
testimony of respondent's witness, Alan Hull, should be rejected
by the Court. While petitioner did not object to Mr. Hull's
testimony at trial, he argues that Mr. Hull lacked the necessary
foundation to testify because he was not involved in the audit or
the issuance of the deficiency notice. We disagree.
Mr. Hull is a Technical Advisor to the IRS District Counsel.
He has been an IRS employee for 18 years and is a Certified
Public Accountant in Colorado. Mr. Hull, who had reviewed
petitioner's records, the IRS administrative file, and the
stipulation of facts with attached exhibits, was called as
respondent's witness to explain which of petitioner's expenses
were duplicated or otherwise disallowed. He was a qualified,
competent, and thorough witness who gave reliable and detailed
testimony.
Tax Court trials are conducted according to the rules of
evidence applicable in trials without a jury in the United States
District Court for the District of Columbia. Sec. 7453; Rule
143(a). These rules include the Federal Rules of Evidence.
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Conti v. Commissioner, 99 T.C. 370, 373 (1992), affd. 39 F.3d 658
(6th Cir. 1994). Departing from these rules would remove the
certainty of what this Court may consider in finding the facts.
Snyder v. Commissioner, 93 T.C. 529, 531-532 (1989).
Fed. R. Evid. 602 requires that the witness have personal
knowledge of the matter to which he testifies. Mr. Hull
testified that petitioner duplicated certain business expense
deductions. He based his conclusions on his analysis of detailed
computer records of the locksmith business expenses supplied by
petitioner--records that petitioner acknowledged were so
comprehensive as to create an audit trail. Thus, Mr. Hull had
personal knowledge of the matters about which he testified. He
need not have been involved in the audit or the issuance of the
deficiency notice in order to have first-hand knowledge.
Fed. R. Evid. 103(a)(1), the controlling rule for
objections, requires that "a timely objection or motion to strike
appear of record". An objection that is not timely made
generally is waived. United States v. Jamerson, 549 F.2d 1263,
1266-1267 (9th Cir. 1977). Petitioner's objection to Mr. Hull's
testimony was first made in his answering brief and not at the
trial. It is untimely and, therefore, treated as waived.
Moreover, it lacks merit.
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II. Disallowance of Claimed Schedule C Business Expense
Deductions
As previously indicated, petitioners claimed total Schedule
C business expense deductions of $117,871 on their 1990 Federal
income tax return. Of that total amount respondent allowed
$4,026 for repairs, travel, meals and entertainment, and
$69,085.91 with respect to the other claimed expenses.
Respondent disallowed $44,759.09, i.e., $32,888.92 of duplicated
expenses and the remainder attributable to nondeductible personal
expenses, incorrect depreciation, a moving expense, or the
incorrect basis used to compute a loss on an automobile.
A. Duplicated Expenses
In addition to the expenses claimed for repairs, travel,
meals and entertainment, petitioner claimed the following
expenses on Schedule C relating to his locksmith business:
Expense Amount Claimed
Advertising $2,739
Car and truck 8,280
Depreciation 22,476
Insurance 3,632
Interest 2,729
Legal and prof. 9,468
Moving 1,254
Office expense 10,101
Other expense 5,876
Rent 3,675
Supplies 22,830
Taxes 11,686
Utilities 9,099
Total $113,845
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Petitioner is allowed a deduction for the ordinary and
necessary expenses paid or incurred in carrying on his trade or
business. Sec. 162. It is clear that a business expense
incurred only once cannot be claimed twice. Deductions are a
matter of legislative grace, New Colonial Ice Co. v. Helvering,
292 U.S. 435, 440 (1934), and petitioner has the burden of
proving that he is entitled to any deductions claimed. Rule
142(a); Welch v. Helvering , 290 U.S. 111 (1933).
Petitioner acknowledged at trial that some of the expenses
he claimed were duplicated. He indicated that when he hastily
prepared the Federal income tax return on or about April 15,
1991, he may have forgotten that he had transferred the MYM
expense items into the DAC system in December 1990.
The evidence shows that petitioner deducted various expenses
included in the MYM system twice, once as deductions based on the
MYM system and a second time when the same expenses were
transferred to the DAC system and included as deductions claimed
based on the DAC system. The duplicated expenses included on
petitioner's Schedule C for 1990 are as follows:
Expense Amount Duplicated
Advertising $637.47
Car and truck 1,076.64
Insurance 1,327.26
Legal and prof. 3,440.00
Moving 1,254.00
Office expense 2,778.84
Other expense 2,540.96
Rent 1,575.00
Supplies 8,969.29
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Taxes 6,150.72
Utilities 3,138.74
Total $32,888.92
Accordingly, we sustain respondent's disallowance of the
duplicated expenses.
B. Personal Allocation of Expenses
(1) Utilities
During 1990, petitioners utilized 50 percent of their
residence located in New Jersey for personal use and allocated 50
percent of the use to petitioner's Schedule C locksmith business.
On the Schedule C for the business $9,099 was deducted for
utilities. Of that amount $3,138.74 claimed for utilities was
duplicated. Of the remaining amount of utilities deducted,
$1,158.26 was attributable to utilities for petitioners' personal
residence. Because petitioner used the residence 50 percent for
his business, only $579.13 is deductible on Schedule C. The
other $579.13 is a nondeductible personal expenditure. Sec. 262.
Petitioners presented no evidence that respondent's calculation
of the portion of the utilities attributable to personal use was
incorrect. Therefore, respondent is sustained as to this
adjustment.
(2) Insurance
According to petitioners' Federal income tax return,
petitioner used a van 100 percent for business use and a vehicle
56 percent for business use. On Schedule C the amount of $3,632
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was deducted for insurance. Of that amount $1,327.26 was
duplicated. The remaining amount of insurance, after subtracting
the duplication, was attributable to insurance on petitioners'
two vehicles, one being used exclusively for the Schedule C
business and the other one being used 56 percent for business
use. The portion of the insurance attributable to the personal
use of one of petitioners' vehicles is not deductible because it
is a nondeductible personal expenditure. Respondent determined
that the portion of the insurance expense attributable to
personal use was $507.10. Petitioners presented no evidence that
respondent's calculation was incorrect. Therefore, respondent is
sustained as to this adjustment.
(3) Car and Truck Expense
On Schedule C petitioners deducted car and truck expenses in
the amount of $8,280 of which $1,076.64 was duplicated and $2,301
was a payment for the lease of a Chevrolet van. The remaining
expenses of $4,902.36 deducted on Schedule C were not allocated
by petitioners between business and personal use, even though one
of the vehicles was used 44 percent for personal use.
Petitioners should have allocated the expenses between business
and personal use. Consequently, they are not entitled to deduct
expenses of $1,078.52, the amount allocated by respondent to
personal use of one of the vehicles.
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(4) Taxes
Petitioners deducted $11,686 for taxes on Schedule C for the
business. Of that amount $6,150.72 was duplicated. Of the
remaining amount of taxes deducted, $2,540 was attributable to
sales taxes paid by petitioner in his Schedule C business which
are deductible in full on Schedule C, and $2,994 was attributable
to real property taxes paid by petitioners on their personal
residence. On their Schedule A, petitioners deducted real estate
taxes paid on their personal residence in the amount of $2,452.
Since petitioners used the residence 50 percent for business,
$1,497 is deductible on Schedule C and the remaining $1,497 is
deductible on Schedule A, instead of the $2,452 claimed by
petitioners on Schedule A.
(5) Interest
On Schedule C for the business, petitioner deducted $2,729
for interest. Interest of $1,864.75 paid to Midatlantic Bank was
attributable to the mortgage on petitioners' personal residence.
Because the residence was used 50 percent for business, only
$932.38 is deductible on Schedule C. The remaining $932.37 is
deductible on Schedule A as an itemized deduction.
C. Depreciation
Petitioners claimed depreciation deductions in the total
amount of $22,476 for 1990. This amount included depreciation
for a Chevrolet van, a Chevrolet Cavalier, and the Wyoming
locksmith shop. The amount of $6,136.38 was correctly
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disallowed. Thus the correct allowable depreciation is
$16,339.62 instead of $15,995.11 allowed by respondent.
Section 167(a) allows as a depreciation deduction a
"reasonable allowance for exhaustion, wear and tear (including a
reasonable allowance for obsolescence) -- (1) of property used in
the trade or business, or (2) of property held for the production
of income." The burden of proving the claimed depreciation
deductions rests with petitioners. Rule 142(a); Welch v.
Helvering, 290 U.S. 111 (1933); see Hamilton & Main, Inc. v.
Commissioner, 25 T.C. 878, 883 (1956). In order to meet their
burden, they must affirmatively establish the cost or other basis
of the assets, their age, condition, remaining useful life, and
the portion of their cost or other basis which has been recovered
in prior years. O. Bee, Inc. v. Commissioner, T.C. Memo. 1959-
160; Moore v. Commissioner, a Memorandum Opinion of this Court
dated Aug. 14, 1953; see Smith v. Commissioner, 31 T.C. 1, 7
(1958).
(1) Chevrolet Van
Petitioner leased a Chevrolet van and placed it in service
in his locksmith business on December 20, 1990. Depreciation was
claimed on Schedule C for the van in the amount of $1,540.
Petitioner also claimed a deduction for lease payments in the
amount of $2,301 on the 1990 Federal income tax return for the
lease of the van. Petitioner testified that he did not treat the
lease as a purchase, but as a lease, and admitted that he was not
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entitled to depreciate it. Therefore, petitioners are allowed to
deduct their lease payments of $2,301 for 1990. However, they
are not allowed a depreciation deduction.
(2) Chevrolet Cavalier
Petitioner claimed a section 179 deduction of $2,660 for the
Cavalier. Respondent disallowed this deduction, and instead
allowed depreciation of $1,347.78.
To claim a section 179 deduction, petitioner must have
acquired the property by purchase for use in the active conduct
of his trade or business. Sec. 179(d); Campana v. Commissioner,
T.C. Memo. 1990-395 (car purchased as family car and later also
used in taxpayer's trade or business does not qualify for section
179 deduction).
Petitioner did not purchase the Cavalier for use in his
locksmith business. He purchased it for personal use on November
1, 1986, and subsequently converted it to 56 percent business use
nearly 4 years later. Thus, petitioner is not entitled to a
section 179 deduction for the Cavalier.
We agree with respondent's allowance of depreciation in the
amount of $1,347.78 for petitioner's business use of the
Cavalier. Respondent accepted petitioner's 56 percent business
use. Respondent arrived at her depreciation figure by reducing
petitioner's basis in the Cavalier from $13,500 (cost) to $9,627
(fair market value) and by allocating 56 percent of the reduced
basis to business use. Petitioner offered no evidence as to the
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Cavalier's fair market value. Respondent relied on the National
Automobile Dealers Association (NADA) used car guide for the fair
market value.
The basis of property which has not been used in the trade
or business and which is thereafter converted to such use is the
lesser of fair market value on the date of conversion or the
adjusted basis on the date of conversion. Sec. 1.167(g)-1,
Income Tax Regs. Because petitioner converted the Cavalier to
business use, the appropriate basis for depreciation is fair
market value. Petitioner provided no evidence as to the
Cavalier's fair market value on June 1, 1990, the date of
conversion. Consequently, respondent's valuation is sustained.
See Lillis v. Commissioner, T.C. Memo. 1983-142, affd. without
published opinion 740 F.2d 974 (9th Cir. 1984) (taxpayers failed
to carry their burden of proof as to amount claimed for
depreciation where no evidence was introduced to establish basis
or other component of their depreciation formula); see also Boggs
v. Commissioner, T.C. Memo. 1981-224 (the Commissioner's estimate
of salvage value based on the NADA guide was sustained where the
taxpayer failed to introduce evidence to refute it).
(3) Wyoming Locksmith Shop
Petitioner claimed depreciation of $3,300 for the Wyoming
locksmith shop. Respondent does not challenge petitioner's
entitlement to depreciation. Rather, the parties disagree as to
the amount of depreciation to be allowed. Petitioner placed the
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locksmith shop in service on December 24, 1990. He calculated
the $3,300 amount of depreciation using the 150 percent declining
balance method, a 15-year recovery period, and half year
convention. Respondent allowed petitioner 1 month's depreciation
in the amount of $15.84 based on a determination that the
locksmith shop is nonresidential real property. Hence, in
effect, respondent argues that the straight line method, 31.5
year recovery period, and mid-month convention apply.
Section 1685 controls the computation of allowable
depreciation. Depreciation is to be computed by using the
applicable depreciation method, the applicable recovery period,
and the applicable convention. Sec. 168(a).
Petitioner offered no testimony or other evidence to support
his selection of depreciation method, recovery period, or
convention for reporting the locksmith shop depreciation. He
thus failed to carry his burden of proof to refute respondent's
depreciation adjustment. See Stafford v. Commissioner, T.C.
Memo. 1992-637 (where taxpayer failed to introduce any evidence
to establish that respondent's depreciation calculations based on
a shorter recovery period were incorrect, taxpayer did not
overcome the presumption of correctness of those adjustments);
Barron v. Commissioner, T.C. Memo. 1992-598 (where the record
5
Sec. 168 as amended by the Tax Reform Act of 1986, Pub.
L. 99-514, sec. 201, 100 Stat. 2085, 2121, for property placed in
service after Dec. 31, 1986, and in taxable years ending
thereafter.
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contained no evidence that a shorter recovery period was more
appropriate, taxpayers failed to carry their burden of proof).
Therefore, we sustain respondent as to the $15.84 of allowed
depreciation.
D. Moving Expenses
On his Schedule C, petitioner claimed moving expenses in the
amount of $1,254 attributable to his locksmith business assets.
Respondent disallowed the entire amount on the ground that the
expense was a contingent liability in 1990.
On January 10, 1991, petitioners paid North Park
Transportation Co. $1,253.37 for shipment of the locksmith
business assets from New Jersey to Wyoming. The bill of lading,
dated December 21, 1990, issued by North American Van Lines shows
that payment in the amount of $3,349.98 was to be "C.O.D.". Two
Consignee Memos, dated January 8, 1991, in the total amount of
$1,253.37, were issued by North Park Transportation Co. Both
were presented to petitioners on January 10, 1991, stamped
"Driver collect on Delivery". Both bear the handwritten notation
"paid" and petitioners' check number.
Petitioner elected the accrual method of accounting for the
business. Sec. 446. Under this method, an expense is deductible
when all events have occurred to establish the fact of liability,
the amount can be determined with reasonable accuracy, and
economic performance has occurred. Sec. 461(h)(1), (4); United
States v. General Dynamics Corp., 481 U.S. 239, 243 (1987)
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(accrual method taxpayer may not deduct a contingent liability);
Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 287
(1944) (amount must be definite); Lucas v. North Texas Lumber
Co., 281 U.S. 11, 13 (1930) (liability must be unconditional);
Levert v. Commissioner, T.C. Memo. 1989-333 (taxpayer's
contractual liability was contingent because it depended on
completion of the promised services); sec. 1.461-1(a)(2), Income
Tax Regs.
Economic performance occurred on January 10, 1991, when
petitioner's goods were delivered to Wyoming. Furthermore,
petitioner's liability to pay the moving expenses was contingent
under both parts of the "all events test" until January 10, 1991.
The obligation to pay the carrier for shipment was contingent on
delivery of petitioner's goods to Cheyenne, Wyoming. Had
delivery not occurred, petitioner would not have been obligated
to pay the carrier. Delivery occurred on January 10, 1991.
Moreover, the amount of the liability was not reasonably certain
or definite until the Consignee Memos were presented to him for
payment on January 10, 1991. The anticipated freight cost,
according to the bill of lading, was $3,349.98. The actual cost
shown on the Consignee Memos was $1,253.37, which includes a 50
percent discount not reflected on the bill of lading. Hence the
amount of petitioner's liability to the carrier was not
reasonably certain until the Consignee Memos were presented to
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petitioner on January 10, 1991. Accordingly, we sustain
respondent's disallowance of the claimed moving expenses.
E. Loss on Disposition of Chevrolet Cavalier
Petitioner claimed a loss in the amount of $8,350 when the
Cavalier was traded in for the leased van. He calculated the
loss by using a cost basis of $13,500. Respondent reduced the
amount of this loss to $2,043.34. Respondent arrived at this
figure by reducing petitioner's basis in the Cavalier from the
$13,500 cost basis to the $9,627 fair market value based on the
NADA used car guide. Respondent accepted petitioner's 56 percent
business use of the Cavalier and allocated $5,391.12 of the fair
market value basis to business use.
The basis for determining a loss on the disposition of
property used in a trade or business is "the cost * * *, except
as otherwise provided in this subchapter". Secs. 165(a), (b) and
(c), 1011, 1012. However, losses on personal property are not
deductible. Sec. 262. The depreciable basis for property
converted from personal to business use is the lesser of cost or
fair market value at the time of conversion. Sec. 1.167(g)-1,
Income Tax Regs. Thus, the basis for determining a loss under
section 165 for an automobile converted from personal to business
use is the lesser of cost or fair market value. Gross v.
Commissioner, T.C. Memo. 1972-221. To conclude otherwise would
allow petitioner through conversion to recognize a loss which was
realized during the period of personal use. Id. Therefore, we
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sustain respondent's position as to the amount allowed for the
loss on the Cavalier.
III. Section 6662(a) Accuracy-Related Penalty
Respondent determined that petitioners are liable for the
accuracy-related penalty. Section 6662(a) and (b)(1) provide
that an amount equal to 20-percent of that portion of the
underpayment that is attributable to negligence or disregard of
rules or regulations shall be added to the tax. Negligence is
the failure to exercise due care or to do what a reasonable and
ordinarily prudent person would do under the circumstances.
Neely v. Commissioner, 85 T.C. 934, 947 (1985). Negligence
includes failure to make a reasonable attempt to comply with
provisions of the Internal Revenue Code. Sec. 6662(c).
Petitioner has the burden of proving that respondent's
determination is in error. Rule 142(a); Bixby v. Commissioner,
58 T.C. 757 (1972).
Taxpayers have a duty to keep accurate records and to
carefully prepare their returns. See secs. 6001, 6011; secs.
1.6001-1(a), 1.6011-1(b), Income Tax Regs.
Petitioner overstated 13 out of 16 items listed on his
Schedule C primarily by duplication. Most of the duplication
errors occurred when he prepared the scratch pads, which he then
used to compute total deductible expenses. As petitioner listed
expenses on the scratch pads, he forgot that the DAC system
included the MYM expenses. He transferred the MYM expenses into
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the DAC system on December 31, 1990. As a result of his
forgetfulness, petitioner listed both the MYM expenses and the
DAC expenses on the scratch pads, added them together, and caused
the computer to copy the inflated figure onto his Schedule C.
There is no evidence that petitioner attempted to verify
whether the MYM expenses were already included in the DAC totals,
as in fact they were. On the contrary, petitioner testified that
"I knew I had to get this return done. It was April 15, and * *
* I had to get those figures in there. And I just kind of --
just jumped into it and started keypunching".
Petitioner personally created the DAC Ledger, DAC Accounting
Summary, DAC Accounts Payable Listing, and DAC Trial Balance on
his computer prior to April 15, 1991. No one else made entries
for petitioner. If copies of those records were unavailable on
April 15, 1991, petitioner had only to cause the computer to
generate another copy. Petitioner should have reviewed his own
computer records, as both this Court and respondent have done, to
see that the MYM expenses should not have been listed on the
scratch pads in addition to the DAC expenses. There is no
explanation in the record as to why petitioner did not do so
other than his own testimony that his duplication errors were the
result of haste.
Petitioner's contention that his records were complete and
carefully prepared is self-serving and not supported by the
evidence. The scratch pads were a key component of his tax
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preparation because the totals were merely copied onto the
matching lines of the Schedule C. The scratch pads were
carelessly prepared in petitioner's admitted haste to complete
his tax return.
Petitioner's carelessness also caused him to fail to
properly allocate the personal use portion of expenses for
utilities, home mortgage interest, vehicle insurance, car and
truck expenses, and property taxes.
Furthermore, petitioner's carelessness caused him to claim
both depreciation and the rental expenses for the leased van.
In our judgment petitioner's conduct was neither reasonable
nor prudent. His numerous errors are due to his failure to keep
accurate records and to verify the correct amount of his business
expenses. Therefore, we conclude that respondent's imposition of
the section 6662(a) penalty for negligence was justified.
To reflect the concessions made by respondent and our
conclusions with respect to the disputed issues,
Decision will be entered
under Rule 155.