T.C. Memo. 2000-195
UNITED STATES TAX COURT
NORMAN H. FAWSON AND MARY JANE B. FAWSON, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7705-99. Filed June 28, 2000.
Bruce E. Babcock, for petitioners.
Richard W. Kennedy, for respondent.
MEMORANDUM OPINION
DEAN, Special Trial Judge: Respondent issued a notice of
deficiency to petitioners for taxable year 1982. In the notice,
respondent determined that petitioners were liable for additions
to tax for negligence pursuant to section 6653(a)(1)1 of $509.75
and pursuant to section 6653(a)(2) for 50 percent of the interest
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
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due on $10,195. Respondent also determined an addition to tax of
$2,548.75 for a substantial understatement of tax under section
6661.
Petitioners did not contest and have conceded the addition
to tax for a substantial understatement. The issue for decision
is whether petitioners are liable for the additions to tax for
negligence pursuant to section 6653(a)(1) and (2) with respect to
the loss from their investment in the Utah Jojoba I Research
partnership claimed on their 1982 Federal income tax return.
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by reference. Petitioners resided in St.
George, Utah, at the time their petition was filed.
Background
Norman Fawson (petitioner) has a degree in genetics and a
medical degree from the University of Utah. He practices family
medicine with a medical group in St. George, Utah. He grew up on
a farm, and in 1979 he purchased approximately 15 acres and
started an apple orchard.
In 1982 petitioners’ financial planner/investment counselor,
Elroy Jones (Mr. Jones), recommended that petitioners invest in
the Utah Jojoba I Research partnership (the partnership). Over
the previous 2 or 3 years, Mr. Jones had set up an investment
plan for petitioners’ retirement, and petitioners had purchased
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one or two investments through Mr. Jones. As an officer of and
participant in the retirement plan sponsored by his medical
partnership (the retirement plan), petitioner also had
participated in other investments recommended and sold by
Mr. Jones.
The partnership was promoted by the CFS Corp. (CFS), through
which petitioners and the retirement plan had made several
investments. CFS was highly recommended by the attorney who
oversaw the retirement plan. Petitioners also had made
investments in real estate limited partnerships through this
attorney.
Petitioners discussed the partnership investment opportunity
with Mr. Jones. In addition to information provided by Mr.
Jones, petitioner had discovered, while investigating drip
irrigation for his apple orchard, that farmers in Israel were
already researching jojoba as an alternative source to sperm
whale oil and had already started jojoba plantations. Petitioner
also read what he could find at the library to become acquainted
with jojoba.
Mr. Jones gave petitioners a private placement memorandum
which they read and discussed with him. One of the features of
the investment was that it would generate substantial tax
deductions. The promotional materials petitioners reviewed
indicated that there were tax risks associated with the
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investment. Petitioners felt reassured about the tax risks after
talking with Mr. Jones. They also were reassured after talking
with someone from CFS. Petitioners did not explain the substance
of the reassuring statements made by Mr. Jones or by CFS.
Petitioners did not discuss the investment with an attorney.
Although petitioner does not recall whether he had their
accountant review the private placement offering before making
the investment, petitioners did discuss the partnership with him
after making the investment.
On their joint 1982 Federal income tax return, petitioners
reported wages from petitioner’s medical practice of $123,455 and
losses of $20,919 from the Utah Jojoba I Research partnership.
The partnership was audited and a Notice of Final Partnership
Administrative Adjustment was issued to the partnership. The
partnership initiated a TEFRA proceeding to contest the matter.
The matter was resolved by Utah Jojoba I Research v.
Commissioner, T.C. Memo. 1998-6, which found that the activities
of the partnership did not constitute a trade or business and
that the agreements between the partnership and U.S. Agri
Research & Development Corp. (U.S. Agri) had been designed and
entered into solely to provide a mechanism to disguise the
capital contributions of limited partners as currently deductible
expenditures.
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As a result of the partnership’s TEFRA proceeding,
petitioners were assessed a tax liability of $10,195, along with
interest. Respondent issued a notice of deficiency for affected
items determining that petitioners are liable for additions to
tax for negligence pursuant to section 6653(a)(1) and (2) and for
a substantial understatement addition to tax pursuant to section
6661. Petitioners timely filed a petition seeking a
redetermination of the negligence additions to tax.
Discussion
Section 6653(a)(1) imposes an addition to tax in an amount
equal to 5 percent of an underpayment of tax if any part of the
underpayment is due to negligence or intentional disregard of
rules or regulations. Section 6653(a)(2) imposes another
addition to tax in an amount equal to 50 percent of the interest
due on the portion of the underpayment attributable to negligence
or intentional disregard of rules or regulations.
Respondent’s determinations, contained in the notice of
deficiency, are presumed correct, and petitioners must establish
otherwise. See Rule 142(a); Welch v. Helvering, 290 U.S. 111,
115 (1933); cf. sec. 7491(c).2 Respondent maintains that
2
The Internal Revenue Service Restructuring & Reform Act
of 1998, Pub. L. 105-206, sec. 3001, 112 Stat. 685, 726, added
sec. 7491(c), which shifts the burden of proof to the Secretary
with respect to a taxpayer’s liability for penalties and
additions to tax in court proceedings arising in connection with
examinations commencing after July 22, 1998. Petitioners do not
(continued...)
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petitioners’ underpayment was due to negligence. Petitioners,
therefore, have the burden of proving they were not negligent in
deducting their share of the partnership’s losses. See Estate of
Mason v. Commissioner, 64 T.C. 651, 663 (1975), affd. 566 F.2d 2
(6th Cir. 1977); Bixby v. Commissioner, 58 T.C. 757, 791 (1972);
Anderson v. Commissioner, T.C. Memo. 1993-607, affd. 62 F.3d 1266
(10th Cir. 1995).
Negligence is defined as the failure to exercise the due
care that a reasonable and ordinarily prudent person would
exercise under like circumstances. See Anderson v. Commissioner,
62 F.3d 1266, 1271 (10th Cir. 1995), affg. T.C. Memo. 1993-607;
Neely v. Commissioner, 85 T.C. 934, 947 (1985); Glassley v.
Commissioner, T.C. Memo. 1996-206. The focus of our inquiry is
on the reasonableness of the taxpayer’s actions in light of his
experience and the nature of the investment. See Henry Schwartz
Corp. v. Commissioner, 60 T.C. 728, 740 (1973); Greene v.
Commissioner, T.C. Memo. 1998-101, affd. without published
opinion 187 F.3d 629 (4th Cir. 1999); Glassley v. Commissioner,
supra; Turner v. Commissioner, T.C. Memo. 1995-363. Whether a
taxpayer is negligent in claiming a tax deduction “depends upon
both the legitimacy of the underlying investment, and due care in
the claiming of the deduction.” Sacks v. Commissioner, 82 F.3d
2
(...continued)
contend that their examination commenced after July 22, 1998, or
that sec. 7491 is applicable to them.
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918, 920 (9th Cir. 1996), affg. T.C. Memo. 1994-217; see Greene
v. Commissioner, supra.
A taxpayer may avoid liability for negligence penalties
under some circumstances if the taxpayer reasonably relied on
competent professional advice. See Freytag v. Commissioner, 89
T.C. 849, 888 (1987), affd. 904 F.2d 1011 (5th Cir. 1990), affd.
on other issue 501 U.S. 868 (1991). Such reliance, however, is
“not an absolute defense to negligence, but rather a factor to be
considered.” Id. For reliance on professional advice to excuse
a taxpayer from the negligence additions to tax, the taxpayer
must show that the professional adviser had the expertise and
knowledge of the pertinent facts to provide informed advice on
the subject matter. See id.
The record does not establish the exact nature of the
underlying partnership investment in this case. No prospectus or
private placement memorandum was produced, few facts on the exact
nature of the investment were stipulated, and no witnesses other
than petitioner testified at trial. Nevertheless, a fair reading
of the stipulation of facts and the briefs of the parties shows
that they agree that the underlying facts of the partnership
operations are as discussed in Utah Jojoba I Research v.
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Commissioner, T.C. Memo. 1998-6.3 See Greene v. Commissioner,
supra. It is petitioners’ burden, in any event, to establish the
context in which their deductions were taken. See Rule 142(a);
Welch v. Helvering, 290 U.S. at 115; Bixby v. Commissioner, 58
T.C. 757, 791 (1972).
In Utah Jojoba I Research v. Commissioner, supra, we found
that the partnership was organized on December 27, 1982, as a
limited partnership with a described purpose of conducting
research and development (R&D) involving the jojoba plant. CFS
prepared the private placement memorandum (the offering) dated
November 10, 1982, and an R&D agreement and licensing agreement
executed on December 31, 1982. The partnership was formed with
subscriptions for 247 units for a total capitalization of
$2,094,560.
The offering identified William G. Kellen as the general
partner and characterized him as having “no previous experience”
with respect to jojoba beans. The offering also indicated that
3
Although the parties disagree as to what was apparent
from the partnership’s promotional materials, they have
stipulated that the Court found in Utah Jojoba I Research v.
Commissioner, T.C. Memo. 1998-6, that the activities of the
partnership did not constitute a trade or business and that the
research and development and licensing agreements entered into by
the partnership had been designed and entered into solely to
provide a mechanism to disguise the capital contributions of
limited partners as currently deductible expenditures. In their
brief, petitioners request a finding of fact that the Court’s
decision found that the activities of the partnership did not
constitute a trade or business.
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U.S. Agri was the contractor selected to carry out the R&D
program under an R&D agreement. The offering included the R&D
agreement and the license agreement.
The partnership entered into the exclusive R&D agreement
with U.S. Agri on December 31, 1982. The license agreement
between the partnership and U.S. Agri was executed concurrently
with the R&D agreement, granting U.S. Agri the exclusive right to
utilize technology developed for the partnership for 40 years in
exchange for a royalty of 85 percent of all products produced.
The R&D agreement, according to its terms, expired upon the
partnership’s execution of the license agreement. Because the
two agreements were executed concurrently, amounts paid to U.S.
Agri by the partnership were not paid pursuant to a valid R&D
agreement but were passive investments. The partnership never
engaged in research or experimentation either directly or
indirectly.
We noted that Mr. Kellen exhibited a lack of concern about
the details of the partnership’s operations. He hastily signed
the R&D agreement and licensing agreement prepared by CFS and
admitted he did not read the offering until preparing the case
for trial. Mr. Kellen also never took any legal action to
enforce promissory notes signed by limited partners who had
purchased subscriptions in the partnership and defaulted.
We found in Utah Jojoba I Research v. Commissioner, supra,
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that U.S. Agri’s attempts to farm jojoba commercially did not
constitute research and development. We concluded that the R&D
agreement was designed and entered into solely to decrease the
cost of participation in the jojoba farming venture for the
limited partners through large up-front deductions for
expenditures that were in reality capital contributions. We
further found that the partnership was not involved in a trade or
business and had no realistic prospect of entering into a trade
or business with regard to any technology that was supposed to be
developed by U.S. Agri. On these bases, we determined that the
partnership was not entitled to a claimed loss of $1,304,819,
including $1,298,627 claimed as qualified research and
experimental expenditures under section 174.
Petitioners contend that they invested in the partnership
and claimed losses arising out of the partnership in a good faith
belief that the partnership had the potential to earn a profit.
They contend they exercised the due care of reasonable and
ordinarily prudent persons under the circumstances, taking into
account their experience and the nature of the investment. They
further argue that at the time they claimed the deductions at
issue the law relating to the deductibility of research and
development expenses under section 174 was still unclear and that
there were no warning signs that they would not be entitled to
the claimed deduction. We, however, do not find that the
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evidence supports the conclusion that petitioners acted
reasonably under the circumstances.
In contrast to many of the cases decided by this Court
involving tax shelters in which the impropriety of partnership
deductions could be discerned only by an investigation of the
partnership’s actual operations, the problem with Utah Jojoba I
Research was apparent from the documents included in the offering
prepared by CFS. Both the R&D agreement and the licensing
agreement were included in the offering. An experienced attorney
capable of reading and understanding these documents should have
understood the legal ramification of the licensing agreement
canceling the R&D agreement. With the concurrent execution of
the two agreements, the partnership was not engaging, even
indirectly, in any research or experimentation. Instead, the
partnership was merely a passive investor seeking royalty returns
pursuant to the licensing agreement.
Rather than seeking professional legal and tax advice,4
petitioners relied solely on their reading of the offering, their
discussions with Mr. Jones, who was selling the investment, their
discussion with someone from CFS, which was promoting the
investment, and petitioner’s reading about jojoba. The record
4
Petitioner testified that he discussed the investment
with his accountant “at least after the investment was made”. He
did not indicate, however, what information he shared with the
accountant or the exact nature of any advice he received.
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provides no information about Mr. Jones’ background and
expertise, other than that he helped petitioners prepare their
retirement plan. Although petitioner testified he felt reassured
about any tax risks after talking with Mr. Jones and someone from
CFS, he did not elaborate on what he was told or why he felt
reassured.
Petitioners were not naive investors and should have
recognized the need for independent professional advice. See
LaVerne v. Commissioner, 94 T.C. 637, 652 (1990), affd. without
published opinion 956 F.2d 274 (9th Cir. 1992), affd. in part
without published opinion sub nom. Cowles v. Commissioner, 949
F.2d 401 (10th Cir. 1991); Glassley v. Commissioner, T.C. Memo.
1996-206. Petitioner apparently recognized the necessity of such
advice in connection with the investments of his medical group’s
retirement plan. He and his medical partners hired an attorney
to oversee the retirement plan’s investments. In the case at
hand, however, petitioners relied on the assurances of Mr. Jones
even though petitioner testified he was not clear about the
“legalese” in the offering and that the offering had put him on
notice of tax risks.
Furthermore, petitioners should have had reason to question
Mr. Jones’ representations. Petitioner testified that Mr. Jones
had indicated that he had met with Mr. Kellen, the partnership’s
general partner, and that Mr. Kellen had significant experience
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in the research and development of jojoba. In contrast, the
offering, which petitioner testified he read, characterized Mr.
Kellen as having no experience in the research and development of
jojoba.
Petitioner seemingly contends that his experience with
farming and his reading about jojoba gave him confidence in the
viability of his investment in the partnership, yet he presented
no evidence that he actually applied any of his knowledge through
an investigation of the partnership. If anything, petitioner’s
knowledge should have prompted him to inquire into the
operational aspects of the partnership and into the nature of the
“research” U.S. Agri was to conduct under the terms of the R&D
agreement. The record provides no evidence that petitioner ever
visited the jojoba plantation or inquired into U.S. Agri’s
ability to conduct research. If petitioner had investigated the
nature of the purported research U.S. Agri was to conduct, he
likely would have discovered that it amounted to nothing more
than farming activity. With petitioner’s farming background and
his professed interest in jojoba, we find it difficult to believe
he would have relied solely on the promoter’s investigation if he
viewed the partnership as a long-term investment.5
Petitioners’ contention that they were not negligent in
5
We note that petitioner went to Israel to investigate
drip irrigation for his own apple orchard.
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claiming losses associated with the partnership because the
limits of section 174 on the deductibility of research or
experimental expenditures had not been sufficiently developed in
1982 is without merit. Petitioners cite Kantor v. Commissioner,
998 F.2d 1514 (9th Cir. 1993), affg. in part and revg. in part
T.C. Memo. 1990-380, in support of their proposition. In Kantor,
the Court of Appeals for the Ninth Circuit concluded that the
experience and involvement of the general partner and the lack of
warning signs could have reasonably led investors to believe they
were entitled to deductions in light of the undeveloped state of
the law regarding section 174.
As explained by the Court of Appeals, the Supreme Court’s
decision in Snow v. Commissioner, 416 U.S. 500 (1974), left
unclear the extent to which research must be “in connection with”
a trade or business for purposes of qualifying for an immediate
deduction under section 174. In the present case, however, not
only was the partnership not engaged in a trade or business, it
was not conducting, directly or indirectly, any research or
development.
Petitioners’ investment in the partnership is further
distinguishable from the taxpayers’ investment in Kantor v.
Commissioner, supra. The general partner of Utah Jojoba I
Research was not experienced in jojoba research and development,
and he had minimal involvement in the partnership. Petitioners
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should have recognized additional warning signs including the
offering’s warnings of tax risks involved with the investment and
the terms of the licensing agreement which canceled the R&D
agreement.
Petitioners did not exercise the due care of reasonable and
ordinarily prudent persons under the circumstances. Accordingly,
we hold that petitioners are liable for the negligence additions
to tax imposed by the provisions of section 6653(a)(1) and (2).
To reflect the foregoing,
Decision will be entered
for respondent.