T.C. Summary Opinion 2005-14
UNITED STATES TAX COURT
AGNES T. BOSCO, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15492-03S. Filed February 15, 2005.
Agnes T. Bosco, pro se.
Wendy S. Harris, for respondent.
COUVILLION, Special Trial Judge: This case was heard
pursuant to section 7463 in effect when the petition was filed.1
The decision to be entered is not reviewable by any other court,
and this opinion should not be cited as authority.
1
Unless otherwise indicated, subsequent section
references are to the Internal Revenue Code in effect for the
year at issue, and all Rule references are to the Tax Court Rules
of Practice and Procedure.
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Respondent determined a deficiency of $3,705.60 in
petitioner’s Federal income tax for 2001 and the section 6662(a)
penalty in the amount of $741.12. At trial, petitioner conceded
respondent’s determination of a section 72(t) additional tax of
$282 for an early distribution from her qualified retirement
plans. The issues for decision are: (1) Whether petitioner is
entitled to a claimed deduction of $12,449 for moving expenses
under section 217, and (2) whether petitioner is liable for the
section 6662(a) penalty.
Some of the facts were stipulated. Those facts, with the
exhibits annexed thereto, are so found and are made part hereof.
Petitioner’s legal residence at the time the petition was filed
was Reno, Nevada.
During part of 2001, petitioner was employed by Authentic
Fitness. Authentic Fitness manufactured clothing under the
Speedo trade name and was headquartered in California. Authentic
Fitness’s main warehouse was at Reno, Nevada. Petitioner worked
at the Reno warehouse in the international shipping department.
Petitioner had been employed by Authentic Fitness for
slightly over 2 years when, in 2001, the company decided to move
its warehouse operation to California. Petitioner and eight
other employees transferred to the new location at Irwindale,
California, located just outside of Los Angeles. In connection
with the move, Authentic Fitness agreed to pay the employees’
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moving expenses and pay for their temporary stay at an Embassy
Suites hotel. Authentic Fitness arranged for petitioner’s move
and paid the expenses directly to the service providers.
Petitioner stayed at an Embassy Suites hotel and worked in
Irwindale for 3 months. Then the company filed for bankruptcy.
Petitioner’s employment terminated, and she received severance
pay. Petitioner then moved back to Reno, Nevada, at her own
expense. As a result of the bankruptcy, Warnaco became the
surviving owner of the Authentic Fitness assets and business.
In connection with petitioner’s move and in accordance with
the policies of her employer, the following amounts were paid on
petitioner’s behalf directly to the service providers. The
amounts paid by Authentic Fitness were:
For moving personal belongings $ 3,759.87
For lodging 8,241.24
For meals 1,705.54
For maintenance of former residence 339.99
Total amount paid to third parties $14,046.64
Authentic Fitness attributed the entire amount it paid to third
parties as income to petitioner. In addition, Authentic Fitness
paid directly to petitioner $7,464.34 for what was identified as
“Total Tax Liability Gross-Up”, intended to compensate or
reimburse petitioner for any Federal and State income taxes that
might be due on this additional income. Thus, the $14,046.64
paid to third-party providers and the $7,464.34 paid directly to
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petitioner for anticipated State and Federal income taxes totaled
$21,510.98.
Warnaco, the surviving corporation, issued to petitioner,
for the year 2001, a Form W-2, Wage and Tax Statement, in the
amount of $46,519.83. The amount was itemized on a separate
schedule and included the wages paid to petitioner, including
overtime, severance pay, and a bonus. Additionally, the
$46,519.83 included $17,751.11 for moving expenses. On the
itemized schedule, Warnaco explained that the $17,751.11
consisted of $14,046.64 paid to third-party providers, less the
$3,759.87 paid for the transportation of petitioner’s personal
belongings to Irwindale, California, and the $7,464.34 paid to
petitioner as a “Total Tax Liability Gross-Up”. Thus, the
$3,759.87 paid by Authentic Fitness was not included as income on
the schedule provided to petitioner, nor was that amount included
as income on her Form W-2.
A taxpayer may claim a deduction for moving expenses paid or
incurred in connection with beginning work at a new principal
place of work. Sec. 217(a). Moving expenses include reasonable
expenses incurred in moving household goods and traveling
(including lodging) from the former residence to the new
residence. The cost of meals incurred while traveling may not be
deducted as moving expenses. Sec. 217(b). Petitioner bears the
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burden of proof in substantiating all moving expense deductions.
Sec. 7491(a); Rule 142(a).
On her Federal income tax return, petitioner reported
$46,520 as wage income. As noted earlier, petitioner claimed a
deduction of $12,449 for moving expenses, all of which was
disallowed in the notice of deficiency. Petitioner testified
that the $12,449 she claimed consisted of $4,100 for
transportation of her household goods and $8,349 for traveling
and lodging expenses associated with the move.
Under section 217, a taxpayer may claim deductions only for
moving expenses reimbursed by the employer to the extent such
expenses are included in gross income. Butka v. Commissioner, 91
T.C. 110, 120-121 (1988), affd. without published opinion 886
F.2d 442 (D.C. Cir. 1989). As noted above, the $3,759.87 paid by
Authentic Fitness directly to the moving company was not included
as income on the Form W-2. Consequently, petitioner is not
entitled to a moving expense deduction for that item. Section
132(a)(6) provides that “gross income shall not include any
fringe benefit which qualifies as a * * * qualified moving
expenses reimbursement”. According to petitioner’s Form W-2, the
cost to move petitioner’s household items, which would be a
qualified moving expense, was not included in the calculation of
her gross income. In addition, petitioner presented no evidence
substantiating any expenses, qualified or otherwise, that would
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make up the $4,100 portion of the $12,449 claimed on her return
as a moving expense deduction. Therefore, respondent is
sustained on that portion of the adjustment in the notice of
deficiency.
The remaining portion of petitioner’s claimed moving expense
deduction was $8,349 for lodging expenses, which was, as noted
before, disallowed by respondent. The evidence at trial shows
that $8,241.24 of the amount claimed was for 3 months of
temporary lodging at an Embassy Suites hotel. The Form W-2
issued to petitioner included $8,241.24 for temporary lodging
expenses paid to the Embassy Suites by Authentic Fitness.
Respondent disallowed that amount as a qualified moving expense.
The cost of temporary lodging does not qualify as a moving
expense under section 217(b). Section 217(b)(1) provides:
(1) * * * for purposes of this section, the term
“moving expenses” means only the reasonable expenses–
(A) of moving household goods and personal effects
from the former residence to the new residence, and
(B) of traveling (including lodging) from the
former residence to the new place of residence.
Such term shall not include any expenses for meals.
[Emphasis added.]
Petitioner’s stay at the Embassy Suites did not constitute
lodging while traveling “from the former residence to the new
place of residence.” Sec. 217(b)(1)(B). Petitioner resided at
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the Embassy Suites for 3 months. The hotel was located in the
same vicinity as petitioner’s new place of work, and, during her
stay, petitioner worked full time for Authentic Fitness at the
new location. Petitioner’s extended stay at the Embassy Suites
while working at Authentic Fitness’s new location amounted to a
new place of residence. Therefore, petitioner was not entitled
to deduct the $8,241.24 paid to the Embassy Suites by Authentic
Fitness.
Authentic Fitness included the $8,241.24 it paid Embassy
Suites as wages on petitioner’s Form W-2, and it also paid her an
additional $7,464.34 identified as “Total Tax Liability Gross-
Ups”.2 Respondent argued that, because petitioner received the
additional payment from Authentic Fitness, she was no longer
entitled to a moving expense deduction. The Court disagrees.
Petitioner did not receive a double tax benefit because of
the additional payment from Authentic Fitness, nor did she lose
her entitlement to a deduction merely because Authentic Fitness
decided to term the payment “Total Tax Liability Gross-Up”. The
payment was the equivalent of a bonus, paid in connection with
her employment, and thus constituted compensation for services
2
Petitioner alleged she never received the additional
$7,464.34 labeled “Total Tax Liability Gross-Up” on Authentic
Fitness’ Employee Relocation Expenses Worksheet and included on
her Form W-2. The Form W-2 reflects she did receive the amount,
and the Court accepts that as true. Moreover, petitioner
included the amount on her 2001 Federal income tax return after
receiving the worksheet from Warnaco listing this payment.
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rendered. Petitioner correctly included it as income on her
Federal tax return. Had the cost of petitioner’s temporary
lodging amounted to a qualified moving expense, her entitlement
to a deduction would not have been eliminated because Authentic
Fitness paid her a bonus described as a “Total Tax Liability
Gross-Up”. Therefore, the payment to petitioner is income, and
that payment does not affect the character of the other payments
related to petitioner's move.
Respondent determined a section 6662(a) penalty against
petitioner in the amount of $741.12. Section 6662(a) provides
for a 20-percent penalty for any underpayment to which the
section applies. Respondent determined that section 6662(b)
applied to petitioner because petitioner was negligent or
disregarded rules or regulations.
Negligence is defined as “any failure to make a reasonable
attempt to comply with the provisions of this title.” Disregard
includes “careless, reckless, or intentional disregard”. Sec.
6662(c). Although respondent bears the burden of production
under section 7491(c), petitioner must still show she had
reasonable cause to believe her deduction was correct. The Court
holds that petitioner was negligent in claiming part of her
moving expenses as deductible.
Petitioner filed her 2001 Federal income tax return on April
10, 2002. She received a letter on or about February 10, 2002,
from Warnaco explaining the items on her Form W-2. The expense
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worksheet provided by her employer clearly showed that the
$3,759.87 paid by Authentic Fitness, on her behalf, to her moving
company was not included in her wages. On that basis, and the
basis that Authentic Fitness, not petitioner, paid the moving
company directly, petitioner had no reason to believe she was
entitled to a deduction for that expense. Petitioner’s actions
with respect to that portion of her deduction amount were
unreasonable under section 6662(c), and her actions are
considered by the Court to be “careless, reckless, or intentional
disregard”. The section 6662(a) penalty is sustained with
respect to that portion of the deduction.
Concerning the remainder of her deduction, petitioner did
not act unreasonably. Although her stay at Embassy Suites was
not deductible as a moving expense, petitioner took reasonable
steps to ensure it was. Petitioner consulted a tax planner when
preparing her income tax return, and there is no evidence that
she disregarded his advice.3 Petitioner had every reason to
believe a professional tax planner would know what moving
expenses could be deducted under section 217. Petitioner was not
unreasonable or negligent in relying on the tax planner's expert
advice. Therefore, the section 6662(a) penalty only applies to
$3,759.87 of the understatement.
3
The record does not reflect whether petitioner showed
the tax planner the expense worksheet from Authentic Fitness;
therefore, it is not considered in determining whether petitioner
acted reasonably with respect to sec. 6662(a).
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Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
under Rule 155.