T.C. Memo. 2000-76
UNITED STATES TAX COURT
SANDRA J. BRANNON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 22025-97. Filed March 6, 2000.
J. Raymond Karam, for petitioner.
Elizabeth A. Owen, for respondent.
MEMORANDUM OPINION
COUVILLION, Special Trial Judge: Respondent determined
deficiencies of $2,974 and $1,562 in Federal income taxes and
penalties under section 6662(a)1 of $595 and $312, respectively,
for petitioner's 1993 and 1994 tax years.
1
Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the years at issue. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
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The issues for decision are: (1) Whether a horse breeding
activity conducted by petitioner was an activity not engaged in
for profit under section 183(a); (2) alternatively, whether,
under section 162(a), some of the expenses in connection with the
activity were substantiated; (3) whether petitioner, in an
unrelated business activity, established, under section 1012, a
basis for an asset used in that activity upon which depreciation
would be allowable under section 167(a); and (4) whether
petitioner is liable for the penalties under section 6662(a).
Some of the facts were stipulated. Those facts, with the
annexed exhibits, are so found and are incorporated herein by
reference. At the time the petition was filed, petitioner's
legal residence was San Antonio, Texas.
The first issue is with respect to a horse breeding activity
that petitioner commenced in 1990 with the purchase of one horse.
She purchased another horse in 1991. During 1993 and 1994, the
years at issue, petitioner had six horses. The horses were
quarter horses. The activity was not successful from a financial
standpoint. Petitioner amassed substantial losses over the
years, although the losses did not deter petitioner's continuing
interest in and dedication to the activity. The Schedule C
losses reported by petitioner on her Federal income tax returns
were $18,642 and $8,869, respectively, for 1993 and 1994. The
other years, prior to and subsequent to the years at issue, were
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not much better financially. For these years, petitioner
reported the following losses:
1990 $18,521
1991 20,957
1992 24,926
1995 12,217
1996 15,549
1997 34,425
At trial, petitioner testified she believed she would realize a
net profit of $7,500 for 1998; however, she had no books and
records to support that testimony, and she had not yet filed her
income tax return for 1998. Petitioner acknowledged she did not
maintain accounting records to reflect income, expenses, and
profits or losses, although she maintained a file folder in which
she kept her receipts. It appears that petitioner calculated her
profits or losses for income tax purposes only at or about the
time such returns were due.
After graduating from high school in 1983, petitioner
attended Southwest Texas State University at San Marcos, Texas,
and earned a bachelor's degree in business with an emphasis in
marketing. After receiving her degree, petitioner obtained full-
time employment at or near San Antonio, Texas, and drove to her
employment each day from her parents' home, a distance of 8 to 10
miles. Although the nature of petitioner's employment and her
employer's business were not established at trial, neither the
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business nor petitioner's job related to horse breeding.
Petitioner left that employment in October 1997 and did not
thereafter accept any other employment. She continued living
with her parents, devoting her entire time to the horse breeding
activity. Petitioner has never paid rent or subsidized her
parents for her living accommodations even during the period she
was gainfully employed. In addition to providing petitioner with
her room and board, petitioner's father also provided her with
some financial assistance.
Petitioner's horses have always been on a tract of land of
approximately 10 acres located about 25 miles from petitioner's
parents' residence. The property consisted of a pasture with
some trees and a barn or shed. Petitioner and her father leased
the property. Another individual, Cecil Valdez, used the same
property for his horses. Mr. Valdez did not pay any rent for his
use of the property.
As noted earlier, petitioner commenced her activity with one
horse, then another, and owned six horses during 1993 and 1994.
Based on the testimony at trial, it appears that quarter horses
can be bred and trained in certain categories, which petitioner
and her father described generally as (1) western, (2) pleasure,
(3) halter and trail, and (4) cutting. Petitioner directed her
activity toward the first three named specialties, although she
later realized that her chances for profit would be greater with
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cutting horses. She, therefore, changed her operation to that
specialty. It is that change that petitioner claims resulted in
her realization of a net profit for 1998. Petitioner regularly
attended horse shows, was a member of various associations
related thereto, had business cards, and advertised in trade
journals or newspapers. Petitioner's sales of horses, however,
were minimal. The purchaser of three horses was Cecil Valdez,
who owned other horses at the same location with petitioner.
Another purchaser was an unrelated party.
Petitioner was of the belief that a market for her horses
would be in Mexico; however, that did not materialize because of
the decline in value of the Mexican peso. Petitioner also
attributed her losses to the fact that she did not have a
sufficient number of brood mares and that the bloodlines of her
horses were not of the quality that would be in demand. She
claimed that her chances of success would be enhanced by
specializing with cutting horses rather than the other
specialties stated above. She acknowledged her goal was to
produce a $100,000 horse; however, to do that, she would be
required to pay breeding or stud fees of at least $10,000, which
she was not capable of doing. During the years at issue,
petitioner paid $750 for stud fees. With respect to
participation in horse shows, participants were either
professionals or amateurs. Petitioner always participated as an
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amateur, although she acknowledged that participation as a
professional would enhance her financial success in the business.
Petitioner never attempted to qualify as a professional.
Petitioner's sole motivation for engaging in her activity
was her love for horses, dating back to her childhood.
Petitioner had no educational training or experience in the
business of breeding and training horses. She made no studies or
consultations with professionals with respect to the business
aspect of such an activity. She did not maintain a separate bank
account for her activity, and she did not maintain formal books
and records, nor does the record establish that petitioner made
any effort to change the direction of her operation, although she
recognized her need to do so.
Section 183(a) provides generally that, if an activity is
not engaged in for profit, no deduction attributable to such
activity shall be allowed. Section 183(c) defines an activity
not engaged in for profit as "any activity other than one with
respect to which deductions are allowable for the taxable year
under section 162 or under paragraph (1) or (2) of section 212."
The standard for determining whether the expenses of an activity
are deductible under either section 162 or section 212(1) or (2)
is whether the taxpayer engaged in the activity with the "'actual
and honest objective of making a profit'". Ronnen v.
Commissioner, 90 T.C. 74, 91 (1988) (quoting Beck v.
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Commissioner, 85 T.C. 557, 569 (1985)). While a reasonable
expectation of profit is not required, the taxpayer's profit
objective must be bona fide. See Hulter v. Commissioner, 91 T.C.
371 (1988). Whether a taxpayer had an actual and honest profit
objective is a question of fact to be resolved from all relevant
facts and circumstances. See id. at 393; Golanty v.
Commissioner, 72 T.C. 411, 426 (1979), affd. without published
opinion 647 F.2d 170 (9th Cir. 1981). The burden of proving such
objective is on petitioner. Rule 142(a); see Welch v. Helvering,
290 U.S. 111 (1933). In resolving this factual question, greater
weight is given to objective facts than to the taxpayer's after-
the-fact statements of intent. See Thomas v. Commissioner, 84
T.C. 1244, 1269 (1985), affd. 792 F.2d 1256 (4th Cir. 1986);
Siegel v. Commissioner, 78 T.C. 659, 699 (1982); sec. 1.183-2(a),
Income Tax Regs.
Section 1.183-2(b), Income Tax Regs., sets forth a
nonexclusive list of nine objective factors relevant to the
determination of whether an activity is engaged in for profit.
These factors are: (1) The manner in which the taxpayer carries
on the activity; (2) the expertise of the taxpayer or his
advisers; (3) the time and effort expended in carrying on the
activity; (4) the expectation that the assets used in the
activity may appreciate in value; (5) the success of the taxpayer
in carrying on other similar or dissimilar activities; (6) the
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history of income or losses with respect to the activity; (7) the
amount of occasional profits earned, if any; (8) the financial
status of the taxpayer; and (9) the elements of personal pleasure
or recreation involved. These factors are not merely a counting
device where the number of factors for or against the taxpayer is
determinative, but rather all facts and circumstances must be
taken into account, and more weight may be given to some factors
than to others. Cf. Dunn v. Commissioner, 70 T.C. 715, 720
(1978), affd. 615 F.2d 578 (2d Cir. 1980). Not all factors are
applicable in every case, and no one factor is controlling. See
Abramson v. Commissioner, 86 T.C. 360, 371 (1986); sec. 1.183-
2(b), Income Tax Regs. Further, the determination of a
taxpayer's profit motive is made on a yearly basis. See
Commissioner v. Sunnen, 333 U.S. 591, 598 (1948).
On this record, the Court is satisfied that petitioner's
activity was not carried on with an actual and honest objective
of making a profit. It is fair to conclude, among other things,
that the activity was not conducted in a businesslike manner.
Although the Court is satisfied that petitioner was dedicated to
the activity, her motivation was primarily her love for horses.
Despite years of substantial losses, petitioner had no formal or
informal business plan and never sought the advice of experts on
how to conduct the activity on a profitable basis. See Bessenyey
v. Commissioner, 45 T.C. 261, 274 (1965) ("the goal must be to
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realize a profit on the entire operation which presupposes not
only future net earnings but also sufficient net earnings to
recoup the losses which have meanwhile been sustained in the
intervening years"), affd. 379 F.2d 252 (2d Cir. 1967).
Respondent, therefore, is sustained on this issue.
Having concluded that petitioner's horse breeding activity
was not engaged in for profit, the Court finds it unnecessary to
consider respondent's alternative determination that some of the
expenses claimed in connection with the activity were not
substantiated.
With respect to the third issue, petitioner and her father
began an emu breeding business in 1993.2 Although the record is
not clear, it appears that this activity was also conducted on
the same property with petitioner's horse breeding activity.
The only issue with respect to the emu activity is
petitioner's claim to a depreciation deduction of $1,036 on her
1993 Federal income tax return with respect to four emus that
were purchased in September 1993.3 The four emus (two matched
2
An emu is defined as any of various flightless birds,
including a swift-running Australian bird with underdeveloped
wings that is related to and smaller than the ostrich. See
Webster's Ninth New Collegiate Dictionary 408 (1985).
3
Petitioner reported the emu activity on a separate
Schedule C of her 1993 and 1994 income tax returns. Respondent
did not challenge the activity as an activity not engaged in for
profit under sec. 183.
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pairs of male and female) were purchased by petitioner's father
for either $28,000 or $28,500. Petitioner contends that she
purchased a one-fourth interest in the four emus from her father
and claimed a depreciation deduction of $1,036 on her 1993 income
tax return with respect to that interest. Respondent disallowed
the deduction on the ground that there was no evidence that
petitioner had purchased any interest in the emus from her
father. Respondent, therefore, determined that petitioner did
not have a basis in the asset; therefore, petitioner could not
claim a depreciation deduction.
There was no bill of sale offered into evidence to reflect
the purchase of a one-fourth interest in the emus by petitioner.
Petitioner's father agreed that no monetary consideration was
paid to him by petitioner; however, he stated that petitioner was
obligated to pay for her interest in the birds by taking care of
them. No promissory note or other evidence of indebtedness was
executed by petitioner. There was some reference at trial to a
letter prepared by petitioner's father that stated that
petitioner would pay the interest on an indebtedness, but the
document admittedly failed to state that petitioner was liable
for the principal. The document was not offered into evidence,
nor was any documentary evidence presented to reflect what time
or care petitioner expended on the emus.
Under section 167(c), the basis for the deduction for
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exhaustion, wear and tear, and obsolescence in respect of
property is the adjusted basis for determining gain or loss on
the sale of such property as provided in section 1011. Section
1011(a) provides generally that the adjusted basis for
determining gain or loss shall be, as pertinent here, the basis
determined under section 1012. Section 1012 provides generally
that the basis of property is its cost.
On this record, petitioner did not establish that she
acquired an interest in the emus. Moreover, the record does not
establish that petitioner acquired an interest in the emus by
gift. The Court, therefore, sustains respondent on this issue.
The final issue is whether petitioner is liable for
penalties under section 6662(a) for the years 1993 and 1994.
Section 6662(a) provides that, if that section is applicable to
any portion of an underpayment in taxes, there shall be added to
the tax an amount equal to 20 percent of the portion of the
underpayment to which section 6662 applies. Under section
6664(c), no penalty shall be imposed under section 6662(a) with
respect to any portion of an underpayment if it is shown that
there was a reasonable cause and that the taxpayer acted in good
faith with respect to such portion of the underpayment.
Section 6662(b)(1) provides that section 6662 shall apply to
any underpayment attributable to negligence or disregard of rules
or regulations. Negligence is defined as lack of due care or
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failure to do what a reasonable and ordinarily prudent person
would do under like circumstances. Neely v. Commissioner, 85
T.C. 934 (1985). The term "negligence" includes any failure to
make a reasonable attempt to comply with the provisions of the
internal revenue laws, and the term "disregard" includes any
careless, reckless, or intentional disregard of rules or
regulations.
The Court is satisfied that petitioner not only engaged in
the horse breeding activity solely because of her personal love
of horses but also engaged in this activity with the knowledge
that it was unrealistic to expect that any profit could be
realized in the manner in which she conducted the activity. Such
a conclusion is manifested by the fact that petitioner maintained
no books and records, commingled the meager income with her
personal funds, and never sought the advice of professionals who
could have advised her on what she should do to make the activity
profitable. Petitioner, moreover, had a degree in business and
obviously had some knowledge, albeit basic, that her activity, as
described, necessitated the maintenance of books and records.
The substantial losses petitioner claimed over the years from
this activity and the manner in which she conducted this activity
manifest a negligent or intentional disregard of rules or
regulations. Respondent's determination on this issue also was
based on the deficiency attributable to the disallowed
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depreciation on the emus. The record shows that petitioner had
no semblance of title to the emus, either by purchase or by gift,
and the claim for depreciation on such asset likewise was a
negligent or intentional disregard of rules or regulations.
Respondent, therefore, is sustained on this issue.
Decision will be entered
for respondent.