T.C. Summary Opinion 2005-97
UNITED STATES TAX COURT
LARRY T. COOPER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 16331-04S. Filed July 21, 2005.
Larry T. Cooper, pro se.
Thomas L. Fenner, for respondent.
DEAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code.
Unless otherwise indicated, section references are to the
Internal Revenue Code, as in effect for the year in issue, 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.
- 2 -
Respondent determined for 2001 a deficiency in petitioner’s
Federal income tax of $22,5831 and additions to tax under
sections 6651(a)(1), 6651(a)(2), and 6654(a) of $2,944, $1,570,
and $575, respectively.
The issues for decision are whether: (1) Petitioner’s wife2
engaged in her horse barrel-racing activities3 in 2001 with the
primary objective of making a profit; (2) petitioner is liable
for an addition to tax under section 6651(a)(1) for failure to
timely file an income tax return; (3) petitioner is liable for an
addition to tax under section 6651(a)(2) for failure to timely
pay tax; and (4) petitioner is liable for an addition to tax
under section 6654(a) for failure to pay estimated income tax.
Some of the facts have been stipulated and are so found.
The stipulated facts and the exhibits received into evidence are
incorporated herein by reference. At the time the petition in
this case was filed, petitioner resided in Willis, Texas.
Background
During 2001, petitioner was employed in automotive sales and
earned wages of $97,890.64 from Wright Motor Co., Inc. His wife,
1
These figures are rounded to the next dollar.
2
Petitioner’s wife, Stephanie Cooper, was not listed on the
notice of deficiency, and therefore is not a party to this case.
3
Horse barrel-racing is a timed rodeo event in which a
participant must ride a complete circle around each of 3 barrels
and return to the starting point with the fastest time to win.
- 3 -
Stephanie Cooper (Mrs. Cooper), pursued dog breeding and horse
barrel-racing activities resulting in losses of $882 and $15,920,
respectively.
Since she was 2 years old, Mrs. Cooper has enjoyed riding
horses. Mrs. Cooper, who was 38 years old at the time of trial,
stopped riding after she graduated from high school and did not
resume riding until 1999. Petitioner’s wages financed his wife’s
riding activities.
During 2001, Mrs. Cooper was a district director for the
National Barrel Horse Association for whom she heard grievances
and complaints. She also applied to be a member of the
Professional Rodeo Riders Society, an affiliation that could have
helped her obtain sponsors for her riding activities. Mrs.
Cooper failed to follow through with the application process.
Mrs. Cooper had competition winnings of $1,740.70 during
2001. She also gave free riding lessons to friends,
acquaintances, and fellow competitors.
Mrs. Cooper did not keep documentation regarding her
activities and time spent in those activities during 2001.
Mrs. Cooper’s 2001 expenses for her horse barrel-racing
activities were reported as follows:
- 4 -
Car and truck expenses $5,231
Depreciation and section 179 expense 1,268
Office expense 68
Repairs and maintenance 1,529
Travel 518
Meals and entertainment 101
Entry fees 2,261
Feed/hay 913
Vet/meds 2,513
Tack maintenance 2,053
Farrier 1,206
17,661
Petitioner failed to timely file a Federal income tax return
for 2001. Respondent prepared a substitute for return (SFR) for
2001. Respondent determined a deficiency in petitioner’s Federal
income tax and that petitioner is liable for additions to tax.
Petitioner had not yet filed a Federal income tax return for 2001
when the notice of deficiency was issued. Respondent had also
prepared SFRs for petitioner for 1999 and 2000. Respondent, in
preparing SFRs for petitioner, treated him as a single taxpayer.
On January 7, 2005, petitioner faxed to respondent an
unsigned joint Form 1040, U.S. Individual Income Tax Return, for
2001.4 Attached to the return were various schedules including:
(1) Schedule A, Itemized Deductions; (2) Schedule B, Interest and
Ordinary Dividends; and (3) two Schedules C, Profit or Loss From
Business. Respondent accepted all the items on the return except
for the ordinary loss of $15,920 claimed in connection with Mrs.
4
The parties agree that petitioner should be treated as
filing a joint return with his wife for 2001.
- 5 -
Cooper’s horse barrel-racing activities. Respondent contends
that Mrs. Cooper’s horse barrel-racing activities were not
engaged in with the primary objective of earning a profit.
Discussion
The Commissioner’s determinations are presumed correct, and
generally, the taxpayer bears the burden of proving otherwise.
Welch v. Helvering, 290 U.S. 111, 115 (1933). Because
petitioners did not comply with the requirements of section
7491(a)(2), section 7491(a)(1) is inapplicable here. Under
section 7491(c), respondent has the burden of production with
respect to petitioner’s liability for the additions to tax.
A. Mrs. Cooper’s Horse Barrel-Racing Activities
Section 183(a) provides that “if * * * [an] activity is not
engaged in for profit, no deduction attributable to such activity
shall be allowed under this chapter except as otherwise provided
in this section.” Thus, to properly deduct certain expenses, a
taxpayer must engage in an activity with an actual and honest
objective of making a profit. See Dreicer v. Commissioner, 78
T.C. 642, 645-646 (1982), affd. without opinion 702 F.2d 1205
(D.C. Cir. 1983). Moreover, the Court of Appeals for the Fifth
Circuit, in which jurisdiction petitioner resides, has stated
that taxpayers whose activities are challenged under section 183
“bear the burden of proving that their activities * * * were
engaged in with the primary purpose of earning a profit.”
- 6 -
Westbrook v. Commissioner, 68 F.3d 868, 876 (5th Cir. 1995),
affg. per curiam T.C. Memo. 1993-634 (emphasis added). If a
taxpayer engages in an activity without a profit objective,
deductions attributable to the activity are allowed only to the
extent of the income derived from the activity. Sec. 183(b)(2);
see Hager v. Commissioner, 76 T.C. 759, 781 (1981).
The determination of whether an activity is engaged in for
profit is to be made by reference to objective standards, taking
into account all the facts and circumstances of each case.
Brannen v. Commissioner, 78 T.C. 471, 506 (1982), affd. 722 F.2d
695 (11th Cir. 1984); Jasionowski v. Commissioner, 66 T.C. 312,
319 (1976); sec. 1.183-2(b), Income Tax Regs. Greater weight is
given to the objective facts than to the taxpayer’s own
statements of intent. Sec. 1.183-2(a), Income Tax Regs. The
burden of proof is on the taxpayer to show that he or she engaged
in an activity with the objective of realizing an economic
profit. Rule 142(a).
Section 1.183-2(b), Income Tax Regs., sets forth a
nonexclusive list of factors that should normally be taken into
account in determining whether the requisite profit objective has
been shown. The factors are: (1) Manner in which the taxpayer
carries on the activity; (2) the expertise of the taxpayer or his
advisers; (3) the time and effort expended by the taxpayer; (4)
expectation that assets used in activity may appreciate in value;
- 7 -
(5) the success of the taxpayer in carrying on 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. No single factor is determinative. Sec. 1.183-2(b),
Income Tax Regs.
The following discussion applies the nine factors to Mrs.
Cooper’s horse barrel-racing activities:
Factor (1): Manner in Which the Taxpayer Carried On the
Activity
Mrs. Cooper did not carry on her horse barrel-racing
activities in a businesslike manner. See sec. 1.183-2(b)(1),
Income Tax Regs. She failed to charge fees for riding lessons
she gave, and she failed to follow through with membership
affiliations that could help her obtain financial sponsorship for
her activities. Mrs. Cooper also failed to keep detailed records
of her activities for 2001. She did not present any evidence
that she developed a profit plan before she began her horse
barrel-racing activities or that she evaluated her activities in
an attempt to make them profitable.
Factor (2): The Expertise of the Taxpayer or His Advisers
Preparation for an activity by extensive study or
consultation with experts may indicate a profit motive where the
taxpayer conducts the activity in accordance with such study or
- 8 -
advice. Sec. 1.183-2(b)(2), Income Tax Regs. Mrs. Cooper has
had an interest in horses for many years and is an avid rider.
She watched videos and read magazines to further her knowledge
about horses. She also held a leadership position with the
National Barrel Horse Association. However, her background and
interest in horses are not necessarily synonymous with expertise
in horse barrel-racing as a business.
Mrs. Cooper’s knowledge regarding barrel-horse competition
is not inconsistent with the pursuit of such an activity as a
hobby. She had no experience with the economics of a profitable
barrel-horse operation, and she did not make an extensive study
of the profit potential of training horses or of competing as a
horse barrel-racer. While a formal market study is not required,
her failure to make basic investigation of the factors that would
affect profit is indicative of a lack of profit objective.
Dunwoody v. Commissioner, T.C. Memo. 1992-721; Underwood v.
Commissioner, T.C. Memo. 1989-625; Burger v. Commissioner, T.C.
Memo. 1985-523, affd. 809 F.2d 355 (7th Cir. 1987).
Factor (3): The Time and Effort Expended by the Taxpayer in
Carrying On the Activity
The fact that the taxpayer devotes much of his or her
personal time and effort to carrying on an activity may indicate
a profit motive. Sec. 1.183-2(b)(3), Income Tax Regs. However,
the regulations effectively provide that time and effort are
somewhat discounted as a factor when the activity has substantial
- 9 -
recreational aspects. Sullivan v. Commissioner, T.C. Memo. 1998-
367, affd. without published opinion 202 F.3d 264 (5th Cir.
1999).
Mrs. Cooper testified that she participated in horse shows
on holidays and every weekend, sometimes twice in one weekend.
Keeping and showing horses has strong recreational aspects,
especially given her long-term interest in horses. Although the
Court believes that Mrs. Cooper spent considerable time with her
horses, the Court finds that this factor is not dispositive.
Factor (4): The Expectation That Assets Used in the
Activity May Appreciate in Value
An expectation that assets used in the activity will
appreciate in value may indicate a profit objective. Sec. 1.183-
2(b)(4), Income Tax Regs. Mrs. Cooper briefly testified about a
horse, “Scooter”, she believed to be valued at $35,000 based on
training and winnings earned. During her subsequent testimony,
Mrs. Cooper stated that Scooter actually belongs to her mother.
She testified about two other horses but merely speculated about
their value.
Factor (5): The Success of the Taxpayer in Carrying On
Similar or Dissimilar Activities
A taxpayer’s past successes in similar or dissimilar
activities is relevant in determining a profit objective. Sec.
1.183-2(b)(5), Income Tax Regs. During 2001, Mrs. Cooper also
had a dog-breeding business which generated gross receipts of
- 10 -
$6,700 and a loss of $882. Mrs. Cooper testified that she did
not report mileage expenses and the cost of purchasing a dog so
that the dog breeding business would seem more profitable.
Additionally, she used money she received from dog sales to fund
her horse activities.
No evidence was provided to demonstrate that petitioner
participated in Mrs. Cooper’s horse barrel-racing activities in
any manner other than providing financing. Thus, any success he
may have had as an automotive salesperson has no bearing on the
assessment of the horse barrel-racing activities.
Factors (6) and (7): Taxpayer’s History of Income or Losses
With Respect to the Activity and The Amount of Occasional
Profits, If Any, Which Were Earned
An activity’s history of income or loss may reflect whether
the taxpayer has a profit motive. Sec. 1.183-2(b)(6), Income Tax
Regs. Unless explained by customary business risks or unforeseen
or fortuitous circumstances beyond the taxpayer’s control, a
record of continuous losses beyond the period customarily
required to attain profitability may indicate that the activity
is not engaged in for profit. Id.
Respondent prepared SFRs for petitioner’s accounts for 1999,
2000, and 2001. No allowances were made for any expenses
regarding Mrs. Cooper’s horse barrel-racing activities.
Respondent disallowed the loss claimed by petitioner on his
subsequently filed 2001 Form 1040. Petitioner has not yet filed
- 11 -
returns for 2002 and 2003. Therefore, the Court has no
information in the record regarding the history of income or loss
from those activities.
Factor (8): The Financial Status of the Taxpayer
Petitioner had substantial income from his automotive sales
employment during the year in issue. Based on the record, it
appears he was financially capable of supporting the losses
generated by Mrs. Cooper’s horse barrel-racing activities.
Factor (9): Elements of Personal Pleasure or Recreation
The presence of personal motives in carrying on an activity
may indicate that the activity is not engaged in for profit,
especially where there are recreational or personal elements
involved. Sec. 1.183-2(b)(9), Income Tax Regs.; see also
Commissioner v. Groetzinger, 480 U.S. 23, 35 (1987)(where the
Court stated that a hobby or amusement diversion does not qualify
as constituting a profit objective.)
Mrs. Cooper has been an avid rider of horses since early
childhood. Additionally, in conducting her horse-related
activities, she gave riding lessons without charge and failed to
pursue memberships that would have enabled her to obtain
independent financing of her activities. Based upon the facts
presented, the Court concludes that Mrs. Cooper engaged in her
horse barrel-racing activities primarily for recreation and
personal pleasure.
- 12 -
The Court finds that Mrs. Cooper did not engage in her
horse-barrel racing activities in 2001 with the primary objective
of making a profit and therefore sustains respondent’s
determination that petitioner is not entitled to deduct any
amount in excess of the income derived from Mrs. Cooper’s horse-
related activities.
B. Additions to Tax
1. Section 6651(a)(1) and (2)
Under section 7491(c), the Commissioner has the burden of
production in any court proceeding with respect to the liability
of any individual for any penalty or addition to tax. Higbee v.
Commissioner, 116 T.C. 438, 446-447 (2001). In order to meet his
burden of production, the Commissioner must come forward with
sufficient evidence indicating that it is appropriate to impose
the addition to tax in the particular case. Id. at 446. Once
the Commissioner meets his burden of production, the taxpayer
must come forward with evidence sufficient to persuade a court
that the Commissioner’s determination is incorrect. Id. at 447.
Respondent determined that petitioner is liable for
additions to tax for: (1) Failure to timely file a return for
taxable year 2001 pursuant to section 6651(a)(1); and (2) failure
to make timely payment of tax pursuant to section 6651(a)(2).
Section 6651(a)(1) imposes an addition to tax for failure to
timely file a tax return. The addition to tax is equal to 5
- 13 -
percent of the amount of tax required to be shown on the return
if the failure to file is not for more than 1 month. See sec.
6651(a)(1). An additional 5 percent is imposed for each month or
fraction thereof in which the failure to file continues, to a
maximum of 25 percent. See id. Section 6651(a)(2) provides for
an addition to tax of 0.5 percent per month, up to 25 percent for
failure to pay the amount shown or required to be shown on a
return. A taxpayer may be subject to both paragraphs (1) and
(2), in which case the amount of the addition to tax under
section 6651(a)(1) is reduced by the amount of the addition to
tax under section 6651(a)(2) for any month to which an addition
to tax applies under both paragraphs (1) and (2). The combined
amounts under paragraph (1) and paragraph (2) cannot exceed 5
percent per month. Sec. 6651(c)(1).
The additions to tax under section 6651(a)(1) and (2) are
imposed unless the taxpayer establishes that the failure to file
and/or pay was due to reasonable cause and not willful neglect.
United States v. Boyle, 469 U.S. 241, 245 (1985); Heman v.
Commissioner, 32 T.C. 479, 489-490 (1959), affd. 283 F.2d 227
(8th Cir. 1960). “Reasonable cause” requires the taxpayer to
demonstrate that he exercised ordinary business care and
prudence. United States v. Boyle, supra at 246. “Willful
neglect” is defined as a “conscious, intentional failure or
reckless indifference.” Id. at 245.
- 14 -
Petitioner’s 2001 return was due on April 15, 2002. He
stipulated that the 2001 return was faxed to respondent January
7, 2005, after the notice of deficiency was issued. At trial,
Mrs. Cooper blamed their accountant for not preparing their
return timely. However, it appears from the record that
petitioner did not timely provide the accountant with the
relevant information with which he could prepare the return.
Under section 6651(g)(2), a return the IRS prepared under
section 6020(b) is treated as “the return filed by the taxpayer
for purposes of determining the amount of the addition” under
section 6651(a)(2). See Spurlock v. Commissioner, T.C. Memo.
2003-124. Respondent prepared an SFR for 2001 that meets the
requirements of section 6020(b).
Respondent has satisfied his burden of producing evidence to
show the additions to tax are appropriate. Petitioner has failed
to show that he had reasonable cause for failing to timely file
the 2001 return or for failing to pay the tax. Respondent’s
determination as to the section 6651(a)(1) and (2) additions to
tax is sustained.
- 15 -
2. Section 6654(a)
Respondent also determined that petitioner is liable for an
addition to tax for failure to pay estimated tax pursuant to
section 6654(a).
Section 6654(a) provides that in the case of an underpayment
of estimated tax by an individual, there shall be added to the
tax an amount determined by multiplying the underpayment rate
established under section 6621 to the amount of the underpayment
for the period of the underpayment. Unless the taxpayer
demonstrates that one of the statutory exceptions applies,
imposition of the section 6654(a) addition to tax is mandatory
where prepayments of tax, either through withholding or by making
estimated quarterly tax payments during the course of the taxable
year, do not equal the percentage of total liability required
under the statute. See sec. 6654(a); Niedringhaus v.
Commissioner, 99 T.C. 202, 222 (1992).
The amount of the addition to tax under section 6654(a)
stated in the notice of deficiency is based on the SFR respondent
prepared for petitioner prior to the filing of the notice of
deficiency. Nothing in the record indicates petitioner made the
required amount of estimated tax payments for taxable year 2001,
and petitioner does not argue, and the record does not indicate,
that any of the statutory exceptions apply. Accordingly, the
- 16 -
Court concludes that petitioner is liable for the addition to
tax.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
under Rule 155.