T.C. Memo. 2001-237
UNITED STATES TAX COURT
JOHN D. FAIRCHILD, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21918-97. Filed September 10, 2001.
John D. Fairchild, pro se.
Linda R. Averbeck, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
COLVIN, Judge: Respondent determined a $19,724 deficiency
in petitioner’s Federal income tax for 1993 and a $4,931 addition
to tax under section 6651(a)(1)1 for failure to timely file his
1993 return.
1
Unless otherwise stated, section references are to the
Internal Revenue Code in effect in 1993, and Rule references are
to the Tax Court Rules of Practice and Procedure.
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After concessions,2 we must decide the following issues:
1. Whether we have jurisdiction to decide whether
petitioner’s 1993 tax liabilities were discharged in his 1999
bankruptcy proceeding. We hold that we do not. Neilson v.
Commissioner, 94 T.C. 1, 8-9 (1990).
2. Whether petitioner may deduct taxes and wages in amounts
greater than respondent allowed. We hold that he may not.
3. Whether petitioner is liable for self-employment tax on
income that he received from his business in 1993. We hold that
he is.
4. Whether petitioner recognized $5,369 of capital gain
income from the sale of stock in 1993. We hold that he did.
5. Whether petitioner is liable for the addition to tax
under section 6651(a)(1) for failure to timely file his 1993
return. We hold that he is.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
A. Petitioner
Petitioner lived in Hurricane, West Virginia, when he filed
the petition in this case. He was married in 1993 and divorced
in 1995.
2
Respondent concedes that petitioner is entitled to a
dependency exemption for his spouse and that disability insurance
proceeds are not taxable income.
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B. Stan’s Pawn Shop
Petitioner owned Stan’s Pawn Shop. He occasionally went to
the shop to oversee its operations. His former best friend and
his nephew managed the shop. His parents also worked there.
Petitioner did not draw paychecks, have regular work hours, or
receive Forms W-2, Wage and Tax Statement, or Forms 1099-MISC,
Miscellaneous Income, from Stan’s Pawn Shop.
Stan’s Pawn Shop did not file a partnership return or
Schedule K-1, Partner’s Share of Income, Credits, Deductions,
Etc., for 1993.
C. Sale of Stock
In 1993, petitioner sold Hartmarx stock for $3,471, Keller
stock for $11,296.20, and TINT stock for $8,013.04. His basis
was $1,959.65 for the Hartmarx stock, $11,123.80 for the Keller
stock, and $5,315.52 for the TINT stock. In 1993, he also
received $12,560 from the sale of Cats 0% stock.3
D. Petitioner’s 1993 Income Tax Return
Petitioner received an extension to August 15, 1994, to file
his 1993 Federal income tax return. He filed his 1993 return on
February 2, 1995.
Petitioner deducted $900 for self-employment health
insurance on his 1993 Form 1040, Individual Income Tax Return.
3
There is no evidence in the record of petitioner’s basis
in the Cats 0% stock.
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On his 1993 Schedule C, Profit or Loss From Business (Sole
Proprietorship), for Stan’s Pawn Shop, petitioner reported a net
profit of $25,218 and deducted $29,978.80 for “Taxes and
Licenses” and $63,000 for “Cost of Labor”. Petitioner did not
report any capital gains or losses from the sale of stock or any
income from partnerships on his 1993 return. He did not attach a
Schedule E, Supplemental Income and Loss (from rental real
estate, royalties, partnerships, S corporations, estates, trusts,
REMICs, etc.), to his 1993 return. Petitioner’s spouse did not
sign the 1993 return.
E. Petitioner’s 1999 Bankruptcy Proceeding
Respondent issued a notice of deficiency to petitioner on
September 3, 1997. Petitioner filed a petition in this Court on
November 5, 1997, and an amended petition on January 2, 1998.
On March 2, 1998, respondent assessed $19,724 for
petitioner’s 1993 income taxes. On September 7, 1998, respondent
abated the $19,724 assessment, a $4,931 delinquency penalty, and
$9,899.15 in interest.
On April 8, 1999, the Tax Court calendared this case for
trial at a trial session beginning September 13, 1999.
Petitioner filed a petition in the United States Bankruptcy Court
for the Southern District of Ohio on July 30, 1999. On September
10, 1999, the Tax Court stayed proceedings in this case and
continued the case from the September 13, 1999, trial session.
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The bankruptcy court discharged petitioner’s bankruptcy petition
on November 3, 1999. The Tax Court lifted the stay of
proceedings on March 1, 2000.
OPINION
A. Whether the Tax Court Has Jurisdiction To Decide Whether
Petitioner’s 1993 Tax Liabilities Were Discharged in His
1999 Bankruptcy Proceedings
Petitioner contends that his 1993 Federal income tax
liabilities were discharged in his 1999 bankruptcy proceedings.
Respondent contends that only assessed taxes may be discharged in
bankruptcy. 11 U.S.C. sec. 507(a)(8)(A)(iii) (1994)).4 Neither
4
11 U.S.C. sec. 507(a)(8) (1994) provides in pertinent
part:
(a) The following expenses and claims have
priority in the following order:
* * * * * * *
(8) Eighth, allowed unsecured claims of
governmental units, only to the extent that such
claims are for--
(A) a tax on or measured by income or
gross receipts--
(i) for a taxable year ending on or
before the date of the filing of the
petition for which a return, if
required, is last due, including
extensions, after three years before the
date of the filing of the petition;
(ii) assessed within 240 days, plus
any time plus 30 days during which an
offer in compromise with respect to such
tax that was made within 240 days after
such assessment was pending, before the
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party contends that we lack jurisdiction to decide this issue.
However, we may question our jurisdiction sua sponte at any stage
of the proceedings. Moorhous v. Commissioner, 116 T.C. 263, 272
(2001); Neely v. Commissioner, 115 T.C. 287, 290 (2000); Smith
v. Commissioner, 96 T.C. 10, 13-14 (1991).
This is an income tax deficiency case. In a deficiency
case, we lack jurisdiction to decide whether petitioner’s tax
liability was discharged in bankruptcy. Moody v. Commissioner,
95 T.C. 655, 658 (1990); Neilson v. Commissioner, 94 T.C. at 8-9;
Graham v. Commissioner, 75 T.C. 389, 399 (1980); Swanson v.
Commissioner, 65 T.C. 1180, 1184 (1976); Fotochrome, Inc. v.
Commissioner, 57 T.C. 842, 847 (1972). Thus, we will deny
petitioner’s motion to dismiss on the grounds that his 1993
liability for income tax and additions to tax was discharged in
bankruptcy. We do, however, have jurisdiction to redetermine the
deficiencies and additions to tax that respondent determined in
this case. Neilson v. Commissioner, supra at 6-8; Graham v.
Commissioner, supra at 398-399.
date of the filing of the petition; or
(iii) other than a tax of a kind
specified in section 523(a)(1)(B) or
523(a)(1)(C) of this title, not assessed
before, but assessable, under applicable
law or by agreement, after, the
commencement of the case;
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In his brief, petitioner contends only that his 1993
liabilities were discharged in bankruptcy. He does not address
any of the issues raised in the notice of deficiency. We may
treat those issues as conceded by petitioner. Rothstein v.
Commissioner, 90 T.C. 488, 497 (1988); Burbage v. Commissioner,
82 T.C. 546, 547 n.2 (1984), affd. 774 F.2d 644 (4th Cir. 1985);
Reaves v. Commissioner, 31 T.C. 690, 721-722 (1958), affd. 295
F.2d 336 (5th Cir. 1961). However, for reasons discussed next,
the result would be the same if we did not treat those issues as
conceded.
B. Whether Petitioner May Deduct Expenses for Labor and Taxes
in Amounts Greater Than Respondent Allowed
Petitioner deducted labor expenses of $63,000 on Schedule C
of his 1993 return. Respondent determined that petitioner did
not substantiate $25,519 of those expenses.5 At trial,
petitioner testified that he had no evidence to support his
position, but he said that the Social Security Administration
does.
Petitioner deducted $29,978.80 for “Taxes and Licenses” on
his 1993 return. Respondent determined that petitioner did not
substantiate $19,896 of that amount.6 Petitioner testified
5
Respondent concedes that petitioner had labor costs of
$37,481.
6
Respondent concedes that petitioner paid taxes and
licenses expenses of $10,082.80 in 1993.
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generally that taxes were paid to the City of Louisville, the
County of Jefferson, and the Commonwealth of Kentucky. However,
he did not say when, how much, or by whom those taxes were paid,
or provide any corroboration for his testimony.
Petitioner did not meet his burden of proof.7 We conclude
that petitioner may not deduct the cost of labor and taxes in
amounts greater than respondent allowed for 1993.
C. Whether Stan’s Pawn Shop Was a Partnership in Which
Petitioner Held a One-Third Interest
Petitioner concedes that Stan’s Pawn Shop had a profit of
$25,218 in 1993. However, he contends that he is liable for
income tax on only one-third of that income because Stan’s Pawn
Shop was a partnership in which he held a one-third interest. He
testified that his partners were his former spouse and his former
best friend (otherwise unidentified in the record) who is now
deceased. We disagree that petitioner is liable for only one-
third of the income of Stan’s Pawn Shop.
Petitioner reported income and expenses for Stan’s Pawn Shop
as a sole proprietorship on Schedule C of his 1993 return.
Stan’s Pawn Shop did not file a partnership return or Schedules
7
Sec. 7491, relating to the burden of proof, applies to
court proceedings arising in connection with examinations
beginning after July 22, 1998. See Internal Revenue Service
Restructuring & Reform Act of 1998, Pub. L. 105-206, sec.
3001(a), (c), 112 Stat. 685, 726. The examination here began
before that date. Thus, sec. 7491 does not apply.
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K-1 for 1993, as would have been required if it had been a
partnership. Sec. 6031(a) and (b). Petitioner did not report
any partnership income on his 1993 return. Petitioner offered no
documents and called no witnesses to corroborate his testimony
that Stan’s Pawn Shop was a partnership in 1993. We are not
convinced that Stan’s Pawn Shop was a partnership in 1993.
Petitioner contends that he is not liable for tax on $25,218
because the business kept that amount and made no cash
distribution to him. We disagree. Stan’s Pawn Shop had net
income of $25,218. For tax purposes, a sole proprietorship has
no separate legal identity from its proprietor. Jaske v.
Commissioner, 823 F.2d 174, 176 (7th Cir. 1987), affg. T.C. Memo.
1986-454. Petitioner is liable for income tax on the $25,218,
whether or not Stan’s Pawn Shop distributed that amount in cash
to him. Id.
We conclude that petitioner is liable for tax on $25,218 of
net income from Stan’s Pawn Shop in 1993.
D. Whether Petitioner Is Liable for Self-Employment Tax
Petitioner contends that he is not liable for self-
employment tax on income from Stan’s Pawn Shop because it was a
partnership. We disagree for reasons discussed at paragraph C,
above.
Petitioner contends that he is not liable for self-
employment tax because he was not an employee of Stan’s Pawn Shop
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and did not receive Forms W-2 or Forms 1099. He testified that
he went to Stan’s Pawn Shop from time to time to oversee its
operations and did not work a specific schedule. He contends
that these facts show that he was not employed or self-employed.
We disagree.
Taxpayers who derive net earnings from self-employment of
$400 or more are liable for self-employment tax. Sec. 6017.
Self-employment income consists of the net earnings from a trade
or business carried on by an individual through a sole
proprietorship. Sec. 1.1401-1(c), Income Tax Regs.; see also
Parrish v. Commissioner, T.C. Memo. 1997-474, affd. 168 F.3d 1098
(3d Cir. 1999). Petitioner must take into account all of the
income and deductions of his sole proprietorship in computing his
1993 self-employment tax. Sec. 1402(a)(5)(A). The fact that he
received no wages from Stan’s Pawn Shop and did not work
regularly at Stan’s Pawn Shop does not affect whether he derived
income from his business because he and Stan’s Pawn Shop are not
separate legal entities for tax purposes. Jaske v. Commissioner,
supra. Thus, the net income that he derived from Stan’s Pawn
Shop is subject to self-employment tax. Sec. 1402. We conclude
that petitioner is liable for self-employment tax on the $25,218
that he reported on his 1993 tax return as net income of Stan’s
Pawn Shop in 1993.
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E. Whether Petitioner Realized $5,369 of Capital Gains From the
Sale of Stock in 1993
Respondent determined that petitioner is liable for capital
gains tax on $5,369 of capital gains that he realized from the
sale of stock in 1993. Petitioner contends that he had a $34,000
loss from the sale of stock in 1993 that offset any gain he may
have had in that year. We disagree.
Petitioner offered no evidence to corroborate his claim that
he had a $34,000 loss. We are not convinced that petitioner had
a $34,000 loss from the sale of stock in 1993.
Petitioner contends that proof of his claim that he had
losses in 1993 on stock sales can be obtained from his stock
brokerage firm. Petitioner did not identify the stock brokerage
firm. The record is now closed. Petitioner has not shown that
the brokerage records were not available for use at trial or
could not have been obtained with reasonable diligence. Merely
alleging that evidence can be obtained is not a sufficient basis
to reopen the record. See Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U.S. 321, 332-333 (1971); Purex Corp. v.
Procter & Gamble Co., 664 F.2d 1105, 1109 (9th Cir. 1981); Mayer
v. Higgins, 208 F.2d 781, 783 (2d Cir. 1953); Calcutt v.
Commissioner, 91 T.C. 14, 25 (1988); Dean v. Commissioner, 56
T.C. 895, 900 (1971).
We conclude that petitioner is liable for capital gains tax
on $5,369 that he realized from the sale of stock in 1993.
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F. Whether Petitioner Is Liable for the Addition to Tax For
Failure To Timely File His 1993 Return
Petitioner contends that he is not liable for the addition
to tax under section 6651(a)(1) for failure to timely file his
1993 return because he could not get information from his former
spouse. We disagree.
A taxpayer must show that late filing of a return was due to
reasonable cause and not due to willful neglect to avoid the
addition to tax under section 6651(a)(1) for failure to timely
file a return. Sec. 6651(a)(1). Petitioner did not show that he
took reasonable steps to obtain data from other sources, that he
could not have prepared his 1993 return without his former
spouse’s cooperation, or that he had reasonable cause for filing
his 1993 return late. We conclude that petitioner is liable for
the addition to tax under section 6651(a)(1) for failure to
timely file his 1993 return.
To reflect concessions and the foregoing,
An order will be issued
denying petitioner’s motion to
dismiss, and decision will be
entered under Rule 155.