T.C. Summary Opinion 2004-89
UNITED STATES TAX COURT
ALBERT R. MATTHEWS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17869-02S. Filed July 1, 2004.
Albert R. Matthews, pro se.
Donald E. Edwards, for respondent.
WOLFE, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect when the petition was filed. Unless otherwise indicated,
all subsequent section references are to the Internal Revenue
Code in effect at relevant times, and all Rule references are to
the Tax Court Rules of Practice and Procedure. The decision to
be entered is not reviewable by any other court, and this opinion
should not be cited as authority.
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Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. When he filed his
petition, petitioner resided in Muskogee, Oklahoma.
Respondent determined deficiencies in petitioner’s Federal
income taxes, additions to tax under section 6651(a)(1), and
accuracy-related penalties under section 6662(a) as follows:
Additions to Tax Penalties
Year Deficiency Sec. 6651(a)(1) Sec. 6662(a)
1997 $26,097 $6,524.26 $5,146.20
1998 19,113 4,778.25 3,341.80
1999 18,173 1,750.95 3,329.80
The issues for decision are: (1) Whether petitioner engaged
in his rodeo and horse-training activity during 1997-99 with the
objective of making a profit within the meaning of section 183,
(2) whether petitioner is liable for additions to tax under
section 6651(a)(1) for filing his tax returns after the due
dates, and (3) whether petitioner is liable for accuracy-related
penalties under section 6662(a).
Background
Petitioner is an attorney and partner with the Bonds
Matthews Law Firm in Muskogee, Oklahoma. Petitioner’s law
practice is concentrated primarily in litigation and plaintiff
personal injury law. In 1997, 1998, and 1999, petitioner’s
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taxable income from his law practice was $214,736, $164,008, and
$161,332, respectively.1
In addition to practicing law, petitioner also is engaged in
rodeo and horse-training activities (horse activity) that are the
subject of this case. Petitioner raises and trains horses on his
ranch in Muskogee, Oklahoma, where he also resides. For the
years 1991 and 1993 through 1999 (data is not available for
1992), petitioner reported income and expenses and claimed losses
from his horse activity as follows:
Rodeo & Horse Rodeo & Horse Rodeo & Horse
Year Gross Income Expenses Losses
1991 $17,763 $92,116 ($74,353)
1992 Data not available
1993 6,264 66,211 (59,947)
1994 3,130 58,983 (55,853)
1995 15,195 53,622 (38,427)
1996 4,625 45,736 (41,111)
1997 1,016 60,837 (59,821)
1998 8,212 52,477 (44,265)
1999 4,616 47,377 (42,761)
Total 60,821 477,359 (416,538)
As shown above by the table, petitioner claimed horse
activity losses of $59,821, $44,265, and $42,761 on Schedule C,
1
The parties stipulated that these amounts were earned
from practicing law. However, a review of Schedules E,
Supplemental Income and Loss, for the years in issue shows that,
while most of petitioner’s income consisted of partnership
distributions from the Bonds Matthews Law Firm, petitioner also
received Schedule E income in the form of royalties from TEPPCO
Crude Oil, LLC, and GM Oil Prop, Inc., partnership income or loss
from the Matthews, Bonds Jr., & Hayes Building Partnership, and
income or loss from an S corporation called Hopes & Dreams Ltd.
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Profit or Loss from Business, in 1997, 1998, and 1999,
respectively.2
Petitioner’s income tax returns for the years in issue were
received by the Internal Revenue Service on the following dates:
(1) Petitioner’s 1997 tax return was received on July 7, 1999,
(2) petitioner’s 1998 tax return was received on August 23, 2000,
and (3) petitioner’s 1999 tax return was received on December 26,
2000.
By notice of deficiency dated August 30, 2002, respondent
determined that petitioner’s horse activity was not engaged in
for profit, and the corresponding deductions for the Schedule C
losses from this activity were disallowed.
Discussion
I. Deductibility of Losses
In general, a taxpayer bears the burden of proving his
entitlement to business expense deductions. Rule 142(a); Welch
v. Helvering, 290 U.S. 111, 115 (1933); Burrus v. Commissioner,
T.C. Memo. 2003-285. Section 7491(a) does not apply in this case
to shift the burden of proof to respondent. Petitioner has
neither alleged that section 7491 applies nor established his
compliance with the requirements of section 7491(a)(2)(A) and (B)
2
The total amounts of losses deducted on petitioner’s tax
returns for 1997, 1998, and 1999 actually were $56,733, $44,265,
and $30,910, respectively. Petitioner’s Schedule C losses from
his horse activity were offset by Schedule C income from his law
practice in the amounts of $3,088 in 1997 and $11,851 in 1999.
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to substantiate items, maintain required records, and cooperate
fully with respondent’s reasonable requests. In addition,
petitioner is not entitled to a presumption that his horse
activity is engaged in for profit under section 183(d) because
petitioner’s gross income from his horse activity has not
exceeded deductions for any 2 years in the period of 7
consecutive taxable years ending with the first of the years in
issue. Sec. 183(d). Thus, petitioner has the burden of proving
that respondent’s determination is incorrect and that he is
entitled to the claimed losses from his horse activity.
The deductibility of a taxpayer’s expenses attributable to
an income-producing activity depends upon whether that activity
was engaged in for profit. See secs. 162, 183, 212. Section 162
provides that a taxpayer who is carrying on a trade or business
may deduct ordinary and necessary expenses incurred in connection
with the operation of the business. Section 212 provides a
deduction for expenses paid or incurred in connection with an
activity engaged in for the production or collection of income,
or for the management, conservation, or maintenance of property
held for the production of income. Section 183 specifically
precludes deductions for activities “not engaged in for profit”
except to the extent of the gross income derived from such
activities. Secs. 183(a) and (b)(2). For example, deductions
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are not allowable for activities a taxpayer engaged in as a sport
or hobby or for recreation. Sec. 1.183-2(a), Income Tax Regs.
For a taxpayer’s expenses in an activity to be deductible
under section 162 or section 212, and not subject to the
limitations of section 183, the taxpayer must show that he
engaged in the activity with an actual and honest objective of
making a profit. Hulter v. Commissioner, 91 T.C. 371, 392
(1988); Dreicer v. Commissioner, 78 T.C. 642, 645 (1982), affd.
without opinion 702 F.2d 1205 (D.C. Cir. 1983); Hastings v.
Commissioner, T.C. Memo. 2002-310. Although a reasonable
expectation of a profit is not required, the taxpayer’s profit
objective must be “actual and honest”. Dreicer v. Commissioner,
supra at 645; sec. 1.183-2(a), Income Tax Regs. Whether a
taxpayer has an actual and honest profit objective is a question
of fact to be resolved from all the relevant facts and
circumstances. Hulter v. Commissioner, supra at 393; Hastings v.
Commissioner, supra; sec. 1.183-2(a), Income Tax Regs. Greater
weight is given to objective facts than to a taxpayer’s statement
of intent. Dreicer v. Commissioner, supra at 645; sec. 1.183-
2(a), Income Tax Regs. As stated earlier, the taxpayer bears the
burden of establishing the requisite profit objective. Rule
142(a); Keanini v. Commissioner, 94 T.C. 41, 46 (1990); Hastings
v. Commissioner, supra.
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Regulations promulgated under section 183 provide the
following nonexclusive list of factors which normally should be
considered in determining whether an activity was engaged in for
profit: (1) The manner in which the taxpayer carried on the
activity; (2) the expertise of the taxpayer or his advisers; (3)
the time and effort expended by the taxpayer 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
taxpayer’s history of income or losses with respect to the
activity; (7) the amount of occasional profits, if any, which are
earned; (8) the financial status of the taxpayer; and (9)
elements of personal pleasure or recreation. Sec. 1.183-2(b),
Income Tax Regs. No single factor, nor the existence of even a
majority of the factors, is controlling, but rather it is an
evaluation of all the facts and circumstances in the case, taken
as a whole, that is determinative. Golanty v. Commissioner, 72
T.C. 411, 426-427 (1979), affd. without published opinion 647
F.2d 170 (9th Cir. 1981); sec. 1.183-2(b), Income Tax Regs.
Petitioner claims that he engaged in his horse activity with
a profit objective, but he has not introduced any records or
documentation to substantiate his claims. A taxpayer is required
to maintain records sufficient to substantiate deductions that he
claims on his tax return. Sec. 6001; sec. 1.6001-1(a), Income
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Tax Regs. The fact that a taxpayer reports a deduction on his
income tax return is not sufficient to substantiate the deduction
claimed on the return. Wilkinson v. Commissioner, 71 T.C. 633,
639 (1979); Roberts v. Commissioner, 62 T.C. 834, 837 (1974).
Despite petitioner’s training and experience as an attorney, he
did not have his books and records stipulated into evidence and
did not bring any supporting documentation with him to trial.
The stipulation of facts agreed upon by the parties did not
include necessary objective facts relevant to the issue of
whether petitioner operated his horse activity with a profit
motive.
Instead of introducing objective evidence that he engaged in
his horse activity for profit, petitioner stated that he “chose
to come [before the Court] and tell my story of what I have done
for the past 45 years.” Petitioner testified that he has been
involved in activities relating to cattle and horses for the past
40 or 50 years and has focused on raising and training horses for
about the past 25 years. He was raised on a farm, majored in
animal husbandry in college, and considers himself an expert in
raising and training horses. Consequently, petitioner explained
that he never felt the need to consult with outside experts. He
bought his ranch in Muskogee about 20 years ago and has made
numerous improvements over the years, including constructing both
indoor and outdoor training arenas, three barns, miles of
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fencing, and pipe corrals. He formed a futurity named Hopes and
Dreams Futurity in the early 1980s3 and remains active in
promoting his horses at various rodeos and horse shows throughout
the nation.
Petitioner specifically testified that he has always been in
the horse business for profit, and that during the years in
issue, he split his time equally between his law practice and his
horse activity. Petitioner did not maintain a separate bank
account for his horse activity and did not keep an inventory
accounting of each individual horse. Petitioner testified that
he kept inventory as he claims most ranchers do--by simply
keeping track of “how much money you take in and how much money
you spend”. Petitioner suggested that on the basis of these
cashflows, he expects to profit from the sale of each horse once
it is fully trained. Furthermore, petitioner testified that most
3
Petitioner explained the Hopes and Dreams Futurity as
follows:
Hopes and Dreams takes – enrolls stallions in their
program of $1000 stud fee or less.
And they put that money in a pot, and Hopes and Dreams
takes a small percentage of it. Then the foals – if
that entices a mare owner to breed to these stallions
that are enrolled in Hopes and Dreams, and when they
breed to them, their foals, which are the offspring of
the mare, are then eligible for the futurity that they
run at two years of age.
Now, after about three or four years, the pot got pretty
big, and you’d pay out for the winner of the Hopes and
Dreams * * *
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ranchers experience a history of operating losses as money is
spent improving their land but will make a profit when they
eventually sell their ranches. Petitioner stated that the value
of his ranch has appreciated significantly, and he estimated that
the value of his ranch has increased from $150 per acre to
approximately $1,000 to $1,500 per acre.
Without supporting documentation, petitioner’s testimony is
self-serving, and it is well established that this Court is not
bound to accept at face value such unverified testimony from a
taxpayer. See Shea v. Commissioner, 112 T.C. 183, 189 (1999);
Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).
We apply the nine factors provided in the regulations, sec.
1.183-2(b), Income Tax Regs., to the limited evidence petitioner
introduced to prove that he was engaged in his horse activity for
profit.
In the complete absence of books and records, we can only
conclude that petitioner did not engage in his horse activity in
a businesslike manner. Although petitioner claims that he sent
receipts to his accountant twice a year for purposes of
maintaining books and records for his ranch, petitioner did not
introduce these books and records into evidence. In addition,
petitioner did not develop a budget or an informal business plan
to project whether the horse activity could be operated
profitably, did not have a separate bank account for his horse
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activity, and did not maintain an inventory accounting for each
of his horses.
His testimony indicates that petitioner’s primary
expectation for a profit comes from the anticipated appreciation
in the value of his assets, his ranch property and improvements
and his horses. Because of the absence of supporting
documentation, such as an outside appraisal, records from the
sale of comparable ranch property in the area, or receipts for
the cost of the improvements to his ranch, petitioner failed to
substantiate the value of his ranch. Furthermore, in response to
direct questioning from this Court, petitioner admitted that the
current value of his ranch is probably less than the cumulative
amount of losses he has claimed from his horse activity.
Petitioner speculated that his property will continue to
appreciate tremendously in the future, but he did not introduce
any objective evidence of projected increases in property values
in the area of his ranch for the Court to consider. As to the
values of his horses, petitioner’s 1997 return showed a sale of a
horse at a loss of $7,500, undermining his own unverified and
self-serving testimony that he expects to profit from the sale of
his horses. Petitioner failed to substantiate the value of his
assets or the likelihood of any appreciation in the value of
these assets. The record clearly shows that petitioner’s horse
activity has produced a history of losses. For each year since
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1991 for which his financial information was made available to
the Court, petitioner reported substantial losses from the horse
activity. Petitioner has not introduced evidence of even a
single profitable year, although he did offer uncorroborated
testimony that he previously sold a cattle ranch at a profit and
sold a portion of his current horse ranch in 2001 to a relative
at a profit.
In contrast to his history of losses from his horse
activity, the record shows that petitioner was a successful
attorney. For the years in question, petitioner was able to use
losses from his horse activity to offset income earned from the
practice of law. The magnitude of petitioner’s losses from his
horse activity and the substantial tax benefits petitioner
received by offsetting those losses against income from his law
practice support the view that petitioner did not engage in his
horse activity for profit.
Petitioner testified that he was an expert in raising and
training horses. He grew up on his father’s cattle and horse
farm, has a degree in animal husbandry, and has focused on
training horses for the past 25 years. Petitioner’s testimony
that he is an expert in raising and training horses and that he
had no need to consult with advisers about such matters is not
contradicted. Petitioner also testified that he spent
approximately one-half of his time on his horse activity.
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Although we cannot overlook the fact that petitioner had a
successful legal practice during the years in issue, it does
appear that petitioner spent a substantial amount of time with
his horse activity. However, these factors, particularly
standing alone, are not enough to show that petitioner engaged in
his horse activity for profit.
Finally, petitioner admitted that he received personal
pleasure and enjoyment from his horse activity but stated that he
was always in it to make money.
From this record, we conclude that petitioner did not have
an actual and honest objective of making a profit from his horse
activity. Rather, the record demonstrates that petitioner
conducted this activity as part of his way of life and at least
partly for pleasure, and he used expenses from this activity to
offset income from his law practice. Under section 183, his
horse activity was not engaged in for profit, and petitioner is
not permitted to deduct losses from his horse activity.
II. Additions to Tax
Section 6651(a)(1) imposes an addition to tax for a
taxpayer’s failure to file a required return on or before the
specified filing date, including extensions. The amount of the
liability is based upon a percentage of the tax required to be
shown on the return. Sec. 6651(a)(1). The addition to tax is
inapplicable, however, if the taxpayer’s failure to file the
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return was due to “reasonable cause and not due to willful
neglect”. Sec. 6651(a)(1).
Under section 7491(c), the Commissioner bears the burden of
production with regard to whether any penalty or addition to tax
is appropriate, but he does not bear the burden of proof with
regard to the “reasonable cause” exception of section 6651(a).
Higbee v. Commissioner, 116 T.C. 438, 447 (2001). Petitioner’s
tax returns for 1997, 1998, and 1999 are part of the record, and
the filing dates of the returns were stipulated. In the notice
of deficiency, respondent sets forth the following: (1) For
1997, petitioner’s return was due on August 15, 1998, and was
filed on July 7, 1999, approximately 11 months after its due
date; (2) for 1998, petitioner’s return was due on August 15,
1999, and was filed on August 23, 2000, approximately 12 months
after its due date; and (3) for 1999, petitioner’s return was due
on October 15, 2000, and was received on December 26, 2000,
approximately 2 months after its due date. The stipulation of
facts and the stipulated tax returns are consistent with these
statements in the notice of deficiency. On the basis of this
record, we conclude that respondent has satisfied the burden of
production in regard to whether the additions to tax under
section 6651(a)(1) are appropriate.
Because respondent met his burden of production, petitioner
is liable for the additions to tax unless he can show his failure
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to file was due to reasonable cause and not willful neglect. See
Higbee v. Commissioner, supra at 447. Petitioner did not argue
that his failure to file was due to reasonable cause, nor is
there any evidence in the record to suggest that petitioner’s
failure to file was due to reasonable cause. Accordingly, we
sustain the additions to tax under section 6651(a)(1).
III. Penalties for Underpayment of Tax
Section 6662 provides that a taxpayer may be liable for a
penalty of 20 percent of the portion of an underpayment of tax
(1) attributable to a substantial understatement of tax or (2)
due to negligence or disregard of rules or regulations. A
substantial understatement of tax occurs where the understatement
exceeds the greater of 10 percent of the tax required to be shown
or $5,000. Sec. 6662(d)(1)(A). “Negligence” is defined as any
failure to make a reasonable attempt to comply with the
provisions of the Internal Revenue Code and includes any failure
by the taxpayer to keep adequate books and records or to
substantiate items properly. Sec. 6662(c); sec. 1.6662-3(b)(1),
Income Tax Regs. “Disregard” includes any careless, reckless, or
intentional disregard. Sec. 6662(c).
A taxpayer may avoid the accuracy-related penalty with
respect to any portion of an underpayment of tax if the taxpayer
acted with reasonable cause and good faith under section
6664(c). The determination of whether the taxpayer acted with
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reasonable cause and good faith depends upon all the pertinent
facts and circumstances. See sec. 1.6664-4(b)(1), Income Tax
Regs. Relevant factors include the taxpayer’s efforts to assess
his proper tax liability, including the taxpayer’s reasonable and
good faith reliance on the advice of a professional such as an
accountant. See id. Further, an honest misunderstanding of fact
or law that is reasonable in light of the experience, knowledge,
and education of the taxpayer may indicate reasonable cause and
good faith. See Remy v. Commissioner, T.C. Memo. 1997-72; sec.
1.6664-4(b)(1) Income Tax Regs.
As discussed above, section 7491(c) imposes upon the
Commissioner the burden of production with regard to any penalty
or addition to tax, including the section 6662(a) penalty. Once
the Commissioner comes forward with sufficient evidence to
indicate that it is appropriate to impose the section 6662(a)
penalty, the taxpayer has the burden of proof in regard to
whether the taxpayer acted with reasonable cause and in good
faith under section 6664(c)(1). Higbee v. Commissioner, supra at
447; Emerson v. Commissioner, T.C. Memo. 2003-82.
In the notice of deficiency, respondent summarized his
calculations of petitioner’s underpayments of tax as follows:
(1) In 1997, respondent calculated an understatement of $25,731
on a tax liability of $71,354, or a 36-percent understatement,
(2) in 1998, respondent calculated an understatement of $16,709
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on a tax liability of $56,423, or a 29.6-percent understatement,
and (3) for 1999, respondent calculated an understatement of
$16,649 on a tax liability of $62,381, or a 26.7-percent
understatement. Therefore, from the notice of deficiency, it is
clear that petitioner’s understatement of tax for each year is a
substantial understatement under section 6662(d)(1)(A), and
respondent has satisfied his burden of production. These
computations are consistent with our disallowance of petitioner’s
claimed deductions for losses in excess of his revenue from his
horse activity.
Petitioner did not present convincing evidence that his
underpayments of tax resulted in spite of his acting with
reasonable cause and good faith. He argued only that he had been
claiming the disallowed deductions for many years without adverse
results. Under these circumstances, we sustain respondent’s
determination of accuracy-related penalties under section
6662(a).
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent.