T.C. Summary Opinion 2005-114
UNITED STATES TAX COURT
FRANCIS N. AND PATRICIA A. LEONARD, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7893-03S. Filed August 4, 2005.
Francis N. and Patricia A. Leonard, pro sese.
Michael F. O’Donnell, for respondent.
CARLUZZO, Special Trial Judge: This case was heard pursuant
to the provisions of section 7463 of the Internal Revenue Code in
effect at the time the petition was filed. Unless otherwise
indicated, subsequent section references are to the Internal
Revenue Code in effect for 2000. 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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Respondent determined a deficiency of $25,746, and a section
6662(a) accuracy-related penalty of $2,412, with respect to
petitioners’ 2000 Federal income tax.
The issues for decision are: (1) Whether petitioners are
liable for the 10-percent additional tax imposed by section 72(t)
with respect to a distribution from a qualified retirement plan,
(2) whether petitioners are entitled to a casualty loss deduction
not claimed on their 2000 joint Federal income tax return, and
(3) whether petitioners are liable for an accuracy-related
penalty under section 6662(a).
Background
Some of the facts have been stipulated and are so found.
Petitioners are, and were at all times relevant, married to each
other. At the time the petition was filed, they resided in
Midlothian, Illinois. References to petitioner are to Francis N.
Leonard.
In 1978, petitioners purchased a house which had been built
about 1905. Petitioners had a deck built on the back of the
house in 1995 at a cost of approximately $7,000. The deck was
attached, in part, to the siding on the backside of petitioners’
house. The deck was insured by petitioners’ homeowner’s policy
with Illinois Farmers Insurance Company (Farmers Insurance) at a
value of $9,000.
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In August 2000, the deck collapsed during a graduation party
for petitioners’ son. In addition to the damage to the deck,
some siding on the back of petitioners’ house was damaged.
Petitioners submitted a claim of $18,035 with Farmers
Insurance for the damage caused by the collapsed deck. The
insurance claim included the replacement cost of $6,500 for a
smaller deck and the replacement cost of $3,500 for siding on
petitioners’ house. After inspection, Farmers Insurance
determined that the damage to the deck and the siding on
petitioners’ house was due to “wear and tear and deterioration,
wet rot and dry rot.” Petitioners’ insurance claim was denied
because their insurance policy specifically denied coverage for
losses due to “wear and tear, marring, deterioration”, as well as
“rust, mold, wet or dry rot”.
After the denial of petitioners’ claim, petitioners filed a
claim with the State of Illinois Department of Insurance
(Department of Insurance). In a letter from the Department of
Insurance, petitioners were likewise notified:
All insurance policies contain language that excludes
any kind of rot or deterioration. For your policy to
provide coverage for the collapse of your deck, you
will need to provide some type of proof or evidence
that it was not rot whether it be wet or dry rot that
caused the collapse. Also be advised that if it was
improper construction, that also is not covered by an
insurance policy.
During 2000, petitioners rebuilt a smaller deck and made
major repairs to their house, including repairs to the siding on
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the back of the house, the foundation, the kitchen, various
windows and doors, a portion of the roof, and the electrical
components under the house. Petitioners estimated the total
expenditures to be approximately $30,000.
About 1985, petitioner began working as a heavy equipment
operator. He suffers from chronic back problems, and in 1988 he
was diagnosed with osteoporosis. Over the years, despite his
back problems, petitioner continued to work as a heavy equipment
operator.
In 2000, petitioner informed his employer that he wanted to
be placed on disability due to the continued problems with his
back. Petitioner’s employer denied his disability request, and
as a result, petitioner resigned from his employment. Petitioner
also applied for, and was denied, Social Security disability
benefits. After being denied disability benefits, petitioner
continued to work as a heavy equipment operator for several
different employers during 2001 and 2002. As of the date of
trial, petitioner continued to hold a special operator’s license
to operate heavy equipment.
During 2000, petitioner received a distribution of $68,444
from his qualified retirement plan (the distribution). As of the
close of 2000, petitioner had not attained the age of 59-1/2.
Federal income tax withholdings of $13,688 were withheld from the
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distribution. The distribution was used, in part, to pay for
building the above-mentioned deck and repairs to the house.
Petitioners filed a timely 2000 joint Federal income tax
return that was prepared by H&R Block. The distribution is not
included in the income reported on that return, and no part of
the tax liability reported on the return is attributable to
section 72(t). Petitioners elected to itemize deductions but did
not claim a casualty loss deduction on their 2000 return.
In the notice of deficiency, respondent determined that the
entire amount of the distribution is includable in petitioners’
2000 income. Respondent further determined that the entire
distribution was subject to the additional tax imposed by section
72(t) and imposed a section 6662(a) accuracy-related penalty.
Other adjustments made in the notice of deficiency are
computational and need not be addressed.
Discussion
Petitioners now agree that the distribution is includable in
their 2000 income but argue that they are not liable for the
section 72(t) additional tax because the retirement distribution
was attributable to petitioner’s disability. Petitioners also
claim that they are entitled to a casualty loss deduction for the
collapsed deck. Finally, petitioners argue that they are not
liable for the accuracy-related penalty under section 6662(a).
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1. The Casualty Loss Deduction
In general and in addition to other types of losses, an
individual is entitled to a deduction for the loss of property if
the loss arises from fire, storm, shipwreck, or other casualty
and is not compensated for by insurance or otherwise. Sec.
165(a), (c)(3). “Other casualty” is defined as a loss
proximately caused by a sudden, unexpected, or unusual event,
excluding the progressive deterioration of property through a
steadily operating cause or by normal depreciation. Maher v.
Commissioner, 680 F.2d 91, 92 (11th Cir. 1982), affg. 76 T.C. 593
(1981); Coleman v. Commissioner, 76 T.C. 580, 589 (1981). There
must be a causal connection between the alleged casualty and the
loss claimed by the taxpayer. Kemper v. Commissioner, 30 T.C.
546, 549-550 (1958), affd. 269 F.2d 184 (8th Cir. 1959).
Whether damage qualifies as a casualty typically turns on whether
the damage satisfies the suddenness requirement, which denotes an
accident, a mishap, or some sudden invasion by hostile agency
rather than progressive deterioration of property through
steadily operating cause. Fay v. Helvering, 120 F.2d 253 (2d
Cir. 1941), affg. 42 B.T.A. 206 (1940). In considering whether
wood rot damage qualified as a casualty, we have held that the
“suddenness” of the loss itself (the lapse of time between the
precipitating event and the loss proximately caused by that
event) is a determining factor. Hoppe v. Commissioner, 42 T.C.
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820, 823 (1964), affd. 354 F.2d 988 (9th Cir. 1965). We have
also held that wood rot damage may qualify as a casualty loss if
it was of “comparatively recent origin so as to qualify for the
requisite degree of ‘suddenness’.” Id. at 823-824; see also
Kilroe v. Commissioner, 32 T.C. 1304 (1959). In this regard, the
burden is on petitioners to prove their entitlement to a casualty
loss deduction. Rule 142(a); Welch v. Helvering, 290 U.S. 111
(1933).
Respondent contends that the collapsed deck and related
damage to the house do not give rise to a casualty loss deduction
because the loss is attributable to deterioration that occurred
during an extended period of time. Petitioners contend that if
wood rot was the cause of the collapse of the deck, it was
“hidden” and they “were not aware of it.”
After inspection by Farmers Insurance, it was determined
that the cause of the collapse of the deck was wood rot and
deterioration. Although concealed, after the collapse of the
deck, the wood rot became obvious, even to petitioners. Nothing
in the record suggests that the wood rot was a “sudden”
occurrence, or that it did not progress, as it usually does, over
an extended period of time. Hoppe v. Commissioner, supra.
The collapse of petitioners’ deck was the result of wood rot
and deterioration. The damages and losses resulting from the
collapse of the deck were not caused by a “sudden” event, and
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therefore the collapse of the deck was not a casualty within the
meaning of section 165. Petitioners are not entitled to a
casualty loss deduction.
2. Section 72(t)
Section 72(t)(1) imposes an additional tax on early
distributions from qualified retirement plans “equal to 10
percent of the portion of such amount which is includable in
gross income.” Petitioners now concede that the entire amount of
the distribution is includable in their 2000 income but take the
position that the section 72(t) additional tax is not applicable
because petitioner was disabled at the time the distribution was
made.
Among other exceptions, none of which apply here, section
72(t)(2)(A)(iii) provides an exception for distributions
“attributable to the employee’s being disabled within the meaning
of subsection (m)(7)”. Section 72(m)(7) defines the term
“disabled” as follows:
(7) Meaning of disabled.--For purposes of this
section, an individual shall be considered to be
disabled if he is unable to engage in any substantial
gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or to be of long-continued
and indefinite duration. An individual shall not be
considered to be disabled unless he furnishes proof of
the existence thereof in such form and manner as the
Secretary may require.
The determination of whether a taxpayer is disabled is made
on the basis of all the facts. Sec. 1.72-17A(f)(2), Income Tax
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Regs. The regulations emphasize that the “substantial gainful
activity” to which section 72(m)(7) refers is the activity, or a
comparable activity, in which the individual customarily engaged
prior to the disability. Sec. 1.72-17A(f)(1), Income Tax Regs.
The regulations also provide that the nature and severity of the
impairment are the primary consideration in determining whether
an individual is able to engage in any substantial gainful
activity. Id. Other factors to consider in the evaluation of
the impairment include the taxpayer’s education, training, and
work experience. Id. Therefore, the impairment must be
evaluated in terms of whether it does, in fact, prevent the
individual from engaging in his customary, or any comparable,
substantial gainful activity. Sec. 1.72-17A(f)(2), Income Tax
Regs.
Additionally, the impairment must be expected either to
continue for a long and indefinite period or to result in death.
Sec. 1.72-17A(f)(3), Income Tax Regs. In this context, the term
“indefinite” means that it cannot reasonably be anticipated that
the impairment will, in the foreseeable future, be so diminished
as no longer to prevent substantial gainful activity. Id. More
specifically, the regulations provide that “An individual will
not be deemed disabled if, with reasonable effort and safety to
himself, the impairment can be diminished to the extent that the
individual will not be prevented by the impairment from engaging
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in his customary or any comparable substantial gainful activity.”
Sec. 1.72-17A(f)(4), Income Tax Regs.
According to respondent, petitioner was not disabled within
the meaning of section 72(m)(7). We agree.
Although petitioner suffered from chronic back problems over
the years, he continued to work as a heavy equipment operator
until 2002. In fact, after receiving the distribution,
petitioner worked “six days a week, 12 hours a day.”
We find that petitioner’s chronic back problems did not
prevent him from returning, and, in fact, petitioner did return,
to comparable substantial gainful activity as a heavy equipment
operator. Therefore, we find that petitioner was not disabled
within the meaning of section 72(m)(7) at the time of the
distribution. Accordingly, petitioners are liable for the 10-
percent additional tax pursuant to section 72(t).
3. The Section 6662(a) Penalty
Section 6662(a) imposes an accuracy-related penalty of 20
percent of any portion of an underpayment of tax that is
attributable to a substantial understatement of income tax.
Sec. 6662(b)(2), (d). An understatement of income tax is a
substantial understatement of income tax if it exceeds the
greater of $5,000 or 10 percent of the tax required to be
shown on the taxpayer’s return. Sec. 6662(d)(1). Ignoring
conditions not relevant here, for purposes of section 6662, an
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understatement is defined as the excess of the amount of the tax
required to be shown on the taxpayer’s return over the amount of
the tax which is shown on the return. Sec. 6662(d)(2)(A).
Under section 7491(c), respondent has the burden of
production with respect to the accuracy-related penalty under
section 6662(a). To meet that burden, respondent must come
forward with sufficient evidence to show that imposition of the
penalty is appropriate. Higbee v. Commissioner, 116 T.C. 438,
446 (2001). We have sustained, or petitioners have conceded, the
determinations in the notice that give rise to the deficiency
that respondent determined. In addition, we have rejected
petitioners’ position that they are entitled to a casualty loss
deduction. Respondent has satisfied his burden of production
under section 7491(c) with respect to the accuracy-related
penalty under section 6662(a) determined in the notice.
The accuracy-related penalty does not apply to any part of
an underpayment of tax if it is shown the taxpayer acted with
reasonable cause and in good faith. Sec. 6664(c)(1). The
determination of whether a taxpayer acted in good faith is made
on a case-by-case basis, taking into account all the pertinent
facts and circumstances. Sec. 1.6664-4(b)(1), Income Tax Regs.
Petitioners bear the burden of proof that they had reasonable
cause and acted in good faith with respect to the understatement.
Higbee v. Commissioner, supra at 449.
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Petitioners dispute the imposition of the penalty.
According to petitioners, the penalty should not apply because
they relied on the advice of a paid income tax preparer.
The general rule is that taxpayers have a duty to file
complete and accurate tax returns and cannot avoid the duty by
placing responsibility with an agent. United States v. Boyle,
469 U.S. 241, 252 (1985); Metra Chem Corp. v. Commissioner, 88
T.C. 654, 662 (1987). In limited situations, the good faith
reliance on the advice of an independent, competent professional
in the preparation of the tax return can satisfy the reasonable
cause and good faith exception. United States v. Boyle, supra at
250-251; Weis v. Commissioner, 94 T.C. 473, 487 (1990). However,
reliance on the advice of a professional tax adviser does not
necessarily demonstrate reasonable cause and good faith. See
sec. 1.6664-4(b)(1), Income Tax Regs. All facts and
circumstances must be taken into account. Sec. 1.6664-4(c)(1),
Income Tax Regs. The advice must be based upon all pertinent
facts and the applicable law. Sec. 1.6664-4(c)(1)(i), Income Tax
Regs. The taxpayer cannot establish reasonable reliance if he
fails to disclose facts that the taxpayer knows, or should know,
are relevant to the proper tax treatment of an item. Id. The
advice must not be based on unreasonable factual or legal
assumptions. See sec. 1.6664-4(c)(1)(ii), Income Tax Regs.
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Apart from passing references to the tax return preparer in
petitioner’s testimony, the record is devoid of evidence to
support petitioners’ claim that the position taken on their 2000
return was consistent with the tax return preparer’s advice.
Petitioners did not call their tax return preparer as a witness.
There is no evidence establishing the qualifications of
petitioners’ tax return preparer or that petitioners provided
their tax return preparer with all relevant information.
Respondent’s imposition of the section 6662(a) accuracy-
related penalty is sustained.
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent.