T.C. Summary Opinion 2006-116
UNITED STATES TAX COURT
PETER K. CHOW, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 19059-03S. Filed July 24, 2006.
Peter K. Chow, pro se.
Bradley C. Plovan, for respondent.
GOLDBERG, 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. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority. Unless otherwise indicated,
subsequent section references are to the Internal Revenue Code in
effect for the year in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
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Respondent determined a deficiency in petitioner’s Federal
income tax of $25,964, an addition to tax of $5,562.22 pursuant
to section 6651(a)(1), an addition to tax of $3,090.12 pursuant
to section 6651(a)(2), and an addition to tax of $1,322.13
pursuant to section 6654(a) for the taxable year 2000.
After a concession1 by respondent, the issues for decision
are: (1) Whether petitioner was engaged in the trade or business
of trading securities; (2) whether petitioner may deduct for
taxable year 2000 a net operating loss (NOL) which purportedly
arose in taxable year 1999; (3) whether petitioner may exclude
any portion of his disability benefits from income for taxable
year 2000; and (4) whether petitioner is liable for additions to
tax pursuant to sections 6651(a)(1) and 6654(a) for taxable year
2000.
Background
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. On the date the petition
was filed in this case, petitioner resided in North Potomac,
Maryland.
1
In the notice of deficiency, as previously stated,
respondent determined petitioner was liable for an addition to
tax in the amount of $3,090.12 pursuant to sec. 6651(a)(2).
However, at trial, respondent conceded that petitioner was not
liable for the addition to tax under sec. 6651(a)(2).
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Until 1994, when he was placed on short-term disability, the
petitioner was employed as an insurance agent for Metropolitan
Life and Affiliated Companies, Inc. (Met Life). Petitioner--who
holds an M.B.A. degree--was previously employed by Met Life as a
systems analyst and a financial planner. Petitioner also has
been employed as an investment broker and is a registered
investment advisor.
Petitioner suffers from serious medical conditions and
physical impairments. Petitioner was placed on short-term
disability in 1994, whereupon he was periodically examined for 2
years before he was placed on long-term disability. He has
remained on long-term disability continuously since 1996.
Petitioner failed to file a tax return for 2000. Respondent
prepared a substitute return and determined petitioner’s income
tax liability and accordingly, an amount in deficiency, based on
income as reported by third-party payers. Petitioner did not
make any estimated income tax payments for 2000.
At a partial trial on June 1, 2004, petitioner appeared
before this Court, and--for the first time--delivered to
respondent a completed Federal income tax return for 2000. Upon
discovering that respondent had not reviewed the material
contained in petitioner’s return, this Court retained
jurisdiction, issuing an order for both parties to submit written
status reports. However, before petitioner offered his completed
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return, this Court heard testimony regarding the nature of the
disability benefits paid to petitioner by Met Life in 2000. In
sum, although he did not raise the issue in his underlying
petition, petitioner argued that because he paid one-sixth of the
premiums for his disability insurance policy from his after-tax
income, the amount attributable to his contribution should not be
included in his gross income.
Following the partial trial, and after reviewing
petitioner’s submitted return, respondent concluded that
petitioner had improperly deducted expenses arising from his
buying and selling of stock futures contracts. Respondent also
concluded that petitioner had improperly excluded from income
one-sixth of his disability benefits without a proper basis for
doing so and impermissibly carried over a net operating loss from
his 1999 taxable year.
Included among the stipulated exhibits for this case is a
copy of petitioner’s Form 1040, U.S. Individual Income Tax
Return, for the 2000 taxable year that petitioner supplied to
respondent on June 1, 2004. On the Form 1040, petitioner
reported $82,862 in wages, salaries, and tips; a business loss on
Schedule C, Profit or Loss From Business, of $13,627; a capital
loss on Schedule D, Capital Gains and Losses, of $3,000; pensions
and annuities totaling $3,696; and total Social Security benefits
(line 20a) of $15,810, with taxable Social Security benefits
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(line 20b) of $13,439. In addition, petitioner reported a loss
of $13,131 as an adjustment to long-term disability income. Of
the $82,862 reported in wages, salaries, and tips: Met Life
reported to respondent wage income totaling $78,950; pension
income was reported by the Social Security Administration as
$15,810; $9,195 was reported as income from interest and
dividends; and $216 was reported by Putnam Investments as an
early IRA distribution.
Further trial of this case was held on May 9, 2005.
Petitioner argued that he was engaged in the trade or business of
short-term trading of stock futures contracts during 2000.
Petitioner deducted both his business expenses from the gross
receipts of his investment transactions, and a capital loss
arising from these activities. Petitioner also claimed a carry
over of a net operating loss from 1999 to his 2000 taxable year.
Discussion
In general, the Commissioner’s determination set forth in a
notice of deficiency is presumed correct. Welch v. Helvering,
290 U.S. 111, 115 (1933). Moreover, deductions are a matter of
legislative grace and are allowed only as specifically provided
by statute. INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84
(1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440
(1934). In pertinent part, Rule 142(a)(1) provides the general
rule that “The burden of proof shall be upon the petitioner”. In
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certain circumstances, however, if the taxpayer introduces
credible evidence with respect to any factual issue relevant to
ascertaining proper tax liability, section 7491 places the burden
of proof on the Commissioner. Sec. 7491(a)(1); Rule 142(a)(2).
Credible evidence is “‘the quality of evidence which, after
critical analysis, * * * [a] court would find sufficient * * * to
base a decision on the issue if no contrary evidence were
submitted’”.2 Baker v. Commissioner, 122 T.C. 143, 168 (2004)
(quoting Higbee v. Commissioner, 116 T.C. 438, 442 (2001)).
Section 7491(a)(1) applies only if the taxpayer complies with
substantiation requirements, maintains all required records, and
cooperates with reasonable requests by the Commissioner for
witnesses, information, documents, meetings, and interviews.
Sec. 7491(a)(2). Although neither party alleges the
applicability of section 7491(a), we conclude that the burden of
proof has not shifted to respondent with respect to the issue in
the present case.
1. Was Petitioner Engaged in a Trade or Business?
The term “trade or business” is not defined by the Internal
Revenue Code. Commissioner v. Groetzinger, 480 U.S. 23, 27
(1987); Estate of Yaeger v. Commissioner, 889 F.2d 29, 33 (2d
2
We interpret the quoted language as requiring the
taxpayer’s evidence pertaining to any factual issue to be
evidence the Court would find sufficient upon which to base a
decision on the issue in favor of the taxpayer. See Bernardo v.
Commissioner, T.C. Memo. 2004-199.
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Cir. 1989), affg. 92 T.C. 180 (1989). The determination of
whether petitioner’s securities activities during the year in
issue constituted a trade or business is a question of fact.
Higgins v. Commissioner, 312 U.S. 212, 217 (1941); Estate of
Yaeger v. Commissioner, supra at 33; Paoli v. Commissioner, T.C.
Memo. 1991-351.
“In determining whether a taxpayer in a securities activity
is engaged in a trade or business, courts have distinguished
between ‘traders’, who are in a trade or business, and
‘investors’, who are not.” Mayer v. Commissioner, T.C. Memo.
1994-209 (and the cases cited therein.) Managing security
investments, no matter what the extent or scope of such activity,
is seen as the work of a mere investor, “not the trade or
business of a trader.” Estate of Yaeger v. Commissioner, supra
at 34; see also Whipple v. Commissioner, 373 U.S. 193, 202
(1963); Higgins v. Commissioner, supra at 217; Paoli v.
Commissioner, supra; Beals v. Commissioner, T.C. Memo. 1987-171.
The outcome is the same notwithstanding the amount of time the
individual devotes to the activity. Even “full-time market
activity in managing and preserving one’s own estate is not
embraced within the phrase ‘carrying on a business’ and * * *
salaries and other expenses incident to the operation are not
deductible as having been paid or incurred in a trade or
business.” Commissioner v. Groetzinger, supra at 30. However,
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under certain circumstances, an investor’s expenses may be
deductible pursuant to section 212 if incurred in the production
of income. Sec. 212; Whipple v. Commissioner, supra at 200;
United States v. Gilmore, 372 U.S. 39, 45 (1963). Petitioner has
not argued this point in the alternative.
To determine whether a taxpayer who manages his own
investments is a trader, we consider the following nonexclusive
factors: (1) The taxpayer’s intent; (2) the nature of the income
to be derived from the activity; and (3) the frequency, extent,
and regularity of the taxpayer’s securities transactions. Moller
v. United States, 721 F.2d 810, 813 (Fed. Cir. 1983). Therefore,
as stated in Mayer v. Commissioner, T.C. Memo. 1994-209:
A taxpayer’s activities constitute the trade or business of
trading only where both of the following are true:
(1) The taxpayer’s trading is substantial. King
v. Commissioner, 89 T.C. 445, 458-459 (1987); Paoli v.
Commissioner, supra; Walker v. Commissioner, T.C. Memo.
1990-609. In this regard, sporadic trading will not
constitute a trade or business. Commissioner v.
Groetzinger, supra at 35; Paoli v. Commissioner, supra.
(2) The taxpayer seeks to catch the swings in the daily
market movements, and to profit from these short-term
changes, Moller v. United States, supra at 813; Purvis v.
Commissioner, 530 F.2d 1332, 1334 (9th Cir. 1976), affg.
T.C. Memo. 1974-164; Liang v. Commissioner, 23 T.C. 1040,
1043 (1955); Walker v. Commissioner, supra, rather than to
profit from the long-term holding of investments, Estate of
Yaeger v. Commissioner, supra at 33; Paoli v. Commissioner,
supra. In connection with this, courts look at whether the
taxpayer’s securities income is principally derived from the
frequent sale of securities rather than from dividends,
interest, or long-term appreciation. Moller v. United
States, supra at 813; Purvis v. Commissioner, supra at 1334;
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King v. Commissioner, supra at 458-459; Liang v.
Commissioner, supra at 1043.
Petitioner has offered into evidence trading records which
substantiate his purchasing and selling of 146 paired purchases
and sales of futures contracts during taxable year 2000. It is
clear from petitioner’s trading records that these activities
sought to profit from short-term market swings. However,
petitioner’s records show trading activities only during the
months of April, May, August, and December of 2000. In fact,
petitioner’s records indicate trading activities on only 20 days
during taxable year 2000.
Further, although petitioner testified that he handled his
securities investments in a businesslike manner, that fact is
irrelevant to our determination of whether he was a trader or a
mere investor. See Higgins v. Commissioner, supra at 213; Moller
v. United States, supra at 814. In Higgins v. Commissioner,
supra at 217, the taxpayer had substantial investments in real
estate, stocks, and bonds. He devoted a considerable amount of
time to oversight of his investments. Id. He maintained two
offices from which he conducted his investment activities. In
his New York office, the taxpayer employed an office manager, an
assistant, an accountant, and a stenographer/clerk. Higgins v.
Commissioner, 39 B.T.A. 1005, 1006 (1939), affd. 111 F.2d 795 (2d
Cir. 1940), affd. 312 U.S. 212 (1941). The taxpayer employed an
additional employee who worked in the Paris office. Id. Despite
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the taxpayer’s businesslike conduct of his investment activities,
the Supreme Court held that he was a mere investor, and his
activity did not constitute a trade or business. Higgins v.
Commissioner, 312 U.S. at 217.
On the basis of the facts and circumstances of the present
case, we find that petitioner’s trading activities were not
regular, continuous, and frequent enough for him to be considered
a trader during taxable year 2000. Therefore, petitioner was an
investor, not a trader. As such, he was not conducting a trade
or business. Commissioner v. Groetzinger, 480 U.S. at 30;
Whipple v. Commissioner, supra at 202; King v. Commissioner, 89
T.C. 445, 459 (1987); Paoli v. Commissioner, supra.
2. Net Operating Loss
Because petitioner is not in a trade or business of trading
securities, he is not entitled to any net operating loss of such
nonexistent business.
Furthermore, as of the time of trial, respondent had not
accepted petitioner’s 1999 Form 1040, U.S. Individual Income Tax
Return, as a valid return. Therefore, any carryover losses
claimed by petitioner, whether NOL losses or capital carryover
losses, have not been proven by petitioner. Thus, any such
losses cannot be deducted by petitioner for taxable year 2000.
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3. Disability Benefits
Included in the stipulated exhibits for this case is
literature from Met Life detailing petitioner’s long-term
disability insurance which provides an explanation of the taxable
consequences resulting from the payout of disability benefits.
At trial, petitioner testified that he had selected “Option 3”3
as his long-term disability plan, and asserted that because his
monthly contribution (an amount equal to one-sixth) for the
premium was deducted from his paycheck ‘after taxes’ that he
should accordingly be entitled to exclude from his gross income
that amount attributable to his contribution (one-sixth of the
approximately $78,000 paid as disability income by Met Life in
2000).
However, it is clear from the information provided in the
Met Life literature that petitioner is misguided in maintaining
this position. First, at LTD-2,4 the brochure describes the
taxability of the payouts, stating that “since [the employee]
paid for the cost of the LTD coverage on a before tax basis ...
the LTD benefits are taxable when you receive them.” Then, at
LTD-14, the brochure reads:
3
“Option 3” bases long-term disability benefits on 60
percent of the participant’s pre-disability income.
4
“LTD” refers to Met Life’s long-term disability policy
brochure.
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Under present law, disability benefit payments are
generally considered as part of gross taxable income
for federal income tax purposes. When you are
disabled, the Company will not automatically withhold
income taxes from your LTD benefits. However, you may
arrange with the Company’s claim unit to have federal
income taxes withheld.
Although petitioner testified that his portion of the
premium was paid with ‘after tax’ dollars, both the brochure
detailing the plan and the petitioner’s Pay Statement provide no
evidentiary corroboration for these claims. Petitioner has
failed to provide any evidence illustrating that tax was
otherwise withheld from his disability payments in 2000.
Accordingly, petitioner is not entitled to exclude from gross
income one-sixth of the total amount of disability benefits paid
to him in the year at issue.
4. Additions to Tax
a. Section 6651(a)
Respondent determined an addition to tax as a result of
petitioner’s failure to file timely his Federal income tax
return for the year at issue. Section 6651(a)(1) imposes an
addition to tax for failure to file a return on the date
prescribed for filing, unless petitioner proves that such failure
to file was due to reasonable cause, and not willful neglect.
Sec. 6651(a)(1); Higbee v. Commissioner, 116 T.C. at 447.
Respondent must carry the burden of production with respect to
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the addition to tax under section 6651(a)(1). Sec. 7491(c);
Higbee v. Commissioner, supra at 446-447.
To satisfy respondent's burden of production, respondent
must come forward with "sufficient evidence indicating that it is
appropriate to impose" the addition to tax. Higbee v.
Commissioner, supra at 446. The addition to tax is equal to 5
percent of the amount of the tax required to be shown on the
return if the failure to file is not for more than 1 month. 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 of the tax. Id. The addition to tax is
imposed on the net amount due. Sec. 6651(b).
The addition to tax is applicable unless a taxpayer
establishes that the failure to file was due to reasonable cause
and not willful neglect. Sec. 6651(a). If a taxpayer exercised
ordinary business care and prudence and was nonetheless unable to
file the return within the date prescribed by law, then
reasonable cause exists. Sec. 301.6651-1(c)(1), Proced. & Admin.
Regs. “[W]illful neglect” means a “conscious, intentional failure
or reckless indifference.” United States v. Boyle, 469 U.S. 241,
245 (1985).
At trial, petitioner testified that his 2000 income tax
return was not filed timely because of both his medical
afflictions and his belief that he was being erroneously targeted
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by respondent as a tax shelter marketer. Petitioner also
responded that he accepted full responsibility for his failure to
timely file his return. Petitioner also testified that although
he hired persons to trade stock futures for him, he did not hire
anyone to help prepare his taxes because ‘he didn’t really know
how much of an impact it would have.’
Petitioner’s delay in filing a timely tax return
is not due to reasonable cause. Petitioner failed to
exercise ordinary care and willfully neglected to file his 2000
Federal tax return timely. “As a general rule, taxpayers are
charged with knowledge of the law.” Niedringhaus v.
Commissioner, 99 T.C. 202, 222 (1992). A taxpayer need not be an
expert in tax law to know that tax returns have fixed filing
dates. United States v. Boyle, supra at 251.
Petitioner’s 2000 Federal income tax return was due on April
15, 2001. Petitioner filed his return on June 1, 2004, and
offered no rational explanation for his failure to file the
return timely. Petitioner failed to show that he exercised
ordinary care and prudence in this case. Accordingly, petitioner
is liable for the addition to tax under section 6651(a)(1).
Respondent is sustained on this issue.
b. Section 6654(a)
Respondent also determined that petitioner is liable for an
addition to tax for the underpayment of estimated tax pursuant to
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section 6654(a) for taxable year 2000. 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 applying 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, supra at 222.
The amount of the addition to tax under section 6654(a)
stated in the notice of deficiency is based on the return
respondent prepared for petitioner before the issuance of the
notice of deficiency. Nothing in the record indicates petitioner
made the required amount of estimated tax payments for taxable
year 2000. Petitioner has not shown that he falls within any of
the exceptions to the section 6654(a) addition to tax. See sec.
6654(e); Grosshandler v. Commissioner, 75 T.C. 1, 20-21 (1980).
Accordingly, we conclude petitioner is liable for the addition to
tax pursuant to section 6654(a) for taxable year 2000.
Reviewed and adopted as the report of the Small Tax Case
Division.
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To reflect the foregoing and respondent’s concession,
Decision will be entered
for respondent, except as to
the addition to tax pursuant
to section 6651(a)(2).