T.C. Memo. 2007-183
UNITED STATES TAX COURT
ROY W. AND SHARON P. OSWANDEL, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 23622-04. Filed July 12, 2007.
Roy W. Oswandel, pro se.
Patricia A. Komor, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, Judge: Petitioners petitioned the Court to
redetermine respondent’s determination of deficiencies of $13,780
and $15,812 in their 2000 and 2001 Federal income taxes,
respectively, and section 6662(a) accuracy-related penalties of
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$2,756 and $3,162.40, respectively.1 After concessions by the
parties, we decide whether petitioners substantiated their
deductions for self-employment expenses, personal property tax,
student loan interest, noncash charitable contributions, job-
related mileage, and tuition. We hold they did not. We also
decide whether petitioners are liable for accuracy-related
penalties determined by respondent under section 6662(a). We
hold they are.
FINDINGS OF FACT
Some facts are stipulated and are so found. The stipulated
facts and the exhibits submitted therewith are incorporated
herein by this reference. Petitioners are husband and wife, and
they filed joint 2000 and 2001 Federal income tax returns. They
resided in Colorado Springs, Colorado, when they filed their
petition with the Court.
During 2000 and 2001, Roy Oswandel (petitioner) worked full
time for the U.S. Postal Service. In 2001, he also worked part
time for two other employers, neither of which was a church.
Petitioner is an ordained minister and before the years in
issue worked in the military as a chaplain. After leaving the
military, he continued to perform ministerial duties. These
duties included officiating weddings, holding retreats, and
1
Unless otherwise noted, section references are to the
applicable versions of the Internal Revenue Code. Rule
references are to the Tax Court Rules of Practice and Procedure.
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visiting the sick. Petitioner does not accept compensation for
his ministerial duties, except for $10 per year, which he does
not report as income.2 For 2000 and 2001, petitioners included
with their Federal income tax returns a Schedule C, Profit or
Loss From Business, that reported that petitioner was a self-
employed minister of the Gospel. During 2000 and 2001,
petitioners’ Federal income tax returns reported no income from
petitioner’s ministerial activities.
For each of the years 2000 and 2001, petitioners claimed
$33,547 of Schedule C deductions for petitioner’s ministerial
activities. Those deductions consisted of $30,752 for mileage,
$945 for nonovernight travel expenses, $600 for meals, and $1,250
for overnight travel expenses. Petitioner’s 2000 and 2001
Federal income tax returns also claimed on Schedule A, Itemized
Deductions, deductions for personal property tax, student loan
interest, noncash charitable contributions, tuition, and job-
related mileage. During respondent’s audit of petitioners’ 2000
and 2001 Federal income tax returns, petitioners did not meet
with respondent’s revenue agent and did not substantiate any of
the deductions. Petitioners informed the revenue agent by a
letter that they had no substantiation for 2000 and 2001 because
their records had been stolen from a storage facility.
Petitioners enclosed with the letter (1) an unsigned, undated,
2
The record does not reveal who pays the $10 to petitioner.
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handwritten letter from the Colorado Springs police department
stating that “several burglaries to storage units” had occurred
and “at least three units were burglarized” and (2) an unsigned,
undated, typed letter from the storage facility stating that
petitioners’ storage unit was one of several storage units
subject to “vandalism and theft”. The El Paso County Sheriff’s
office investigated the burglaries and prepared a report listing
the storage units that had been burglarized.3 That report does
not list petitioners’ storage unit among those burglarized.
When this case was tried in part on October 26, 2005,
respondent’s counsel proffered to the Court and to petitioners
that petitioner would have had to drive approximately 100,000
miles to receive a mileage deduction of $30,752. Subsequently,
petitioner asserted that his business miles during the subject
years were as follows: 5,280 miles for commuting to his part-
time jobs in each of 2000 and 2001; 28,600 miles and 31,900 miles
for job searching in 2000 and 2001, respectively; 7,000 miles and
8,000 miles for church-related visits in 2000 and 2001,
respectively; and 6,800 miles for graduate studies in 2001.
Also at trial on October 26, 2005, the Court ordered the
parties to attempt to determine the allowable deductions among
themselves. Subsequently, petitioners met with one of
respondent’s tax compliance officers, Anthony Atkinson
3
Colorado Springs is located in El Paso County.
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(Atkinson). Petitioners never gave Atkinson any books or records
to substantiate petitioners’ claimed deductions for petitioner’s
ministerial activities, tuition, mileage, student loan interest,
personal property tax, or noncash charitable contributions.
When the trial of this case was resumed and concluded on
September 11, 2006, petitioners introduced (and the Court
admitted) into evidence 262 pages of documents to substantiate
their claimed deductions. The documents included:
(1) Petitioner’s American Express credit card statement listing
purchases of airline tickets, train tickets, and lodging in
various cities in the amount of $1,857 (attached to the credit
card statement is a handwritten breakdown of estimated mileage
driven in connection with petitioner’s part-time jobs,
ministerial activities, and job searching); (2) an insurance
policy statement listing five cars covered under the policy; (3)
a Colorado vehicle registration/tax ownership receipt listing the
purchase date, purchase price, and taxable value of a car; (4) a
car payment history for a vehicle that petitioner has marked as
sold in February 2000; (5) handwritten notes listing petitioner’s
various destinations for his ministerial activities; and (6) an
account payment statement from Sallie Mae for student loan
payments from 2002 to 2005. Petitioners rely upon the credit
card statement and the handwritten destination list as
substantiation for some of the deductions claimed for
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petitioner’s ministerial activities. Petitioners provided the
car insurance policy statement, Colorado vehicle registration/tax
ownership receipt, and car payment history to substantiate their
deduction for the payment of personal property taxes.
OPINION
The burden of proof is on petitioners to show that
respondent’s determinations set forth in the notice of deficiency
are incorrect. Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111,
115 (1933). In certain circumstances, if the taxpayer introduces
credible evidence with respect to any factual issue relevant to
ascertaining the taxpayer’s proper tax liability, section
7491(a)(1) places the burden of proof on the Commissioner. Sec.
7491(a)(1); Rule 142(a)(2). For the burden to shift to the
Commissioner, the taxpayer must comply with the substantiation
and recordkeeping requirements of the Internal Revenue Code
(Code). Sec. 7491(a)(2)(A) and (B). In addition, section
7491(a)(2) requires that the taxpayer cooperate with reasonable
requests by the Commissioner for “witnesses, information,
documents, meetings, and interviews”. Sec. 7491(a)(2)(B). We
conclude that the burden of proof has not shifted to respondent
with respect to any of the issues in this case. To this end, we
find that petitioners failed to cooperate with respondent during
the audit of their 2000 and 2001 Federal income tax returns. We
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also find that petitioners failed to comply with substantiation
requirements of the Code.
Deductions are strictly a matter of legislative grace, and
petitioners must show that their claimed deductions are allowed
by the Code. Rule 142(a); New Colonial Ice Co. v. Helvering, 292
U.S. 435, 440 (1934); Welch v. Helvering, supra at 115.
Petitioners must keep sufficient records to substantiate any
deduction that would otherwise be allowed by the Code. Sec.
6001; New Colonial Ice Co. v. Helvering, supra at 440. In the
case of meals and traveling expenses, section 274(d) disallows
deductions for those expenses, unless the taxpayer substantiates
by adequate records or by sufficient evidence corroborating the
taxpayer’s own statement: (1) The amount of the expense; (2) the
time and place of the expense; and (3) the business purpose of
the expense. Section 1.274-5T(c)(5), Temporary Income Tax Regs.,
50 Fed. Reg. 46022 (Nov. 6, 1985) states that if an individual
taxpayer can establish that his or her failure to produce
adequate records is due to the loss of such records through
circumstances beyond the taxpayer’s control, such as destruction
by fire, flood, earthquake, or other casualty, the taxpayer may
substantiate a deduction by reasonable reconstruction of his or
her expenditures. Under these regulations, therefore, a taxpayer
may be deemed to meet the requirements of section 274(d) if he or
she establishes the occurrence of a casualty causing the loss of
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records and has adequately reconstructed the expenditures. Sec.
1.274-5T(c)(5), Temporary Income Tax Regs., supra.
Petitioners claimed Schedule C business expenses of $33,547
for each of the years 2000 and 2001. Section 162 provides for
deduction of all ordinary and necessary business expenses paid or
incurred during the taxable year in carrying on a trade or
business. For petitioner’s ministerial activity to qualify as a
trade or business, his dominant or primary objective of the
venture must be to earn a profit. Hildebrand v. Commissioner, 28
F.3d 1024, 1027 (10th Cir. 1994), affg. Krause v. Commissioner,
99 T.C. 132 (1992). Petitioners offered no evidence to establish
a profit motive for petitioner’s ministerial activities. To the
contrary, petitioner admits that he receives no compensation for
his ministerial services, yet incurs substantial expenses for
those services. On these facts, we conclude that petitioner’s
ministerial activities were not engaged in for profit and that
his expenses related to those activities are not deductible under
section 162 or section 183 (given that petitioners had no income
from these activities for 2000 or 2001).4 See Luellen v.
Commissioner, T.C. Memo. 1994-449; Anderson v. Commissioner, T.C.
Memo. 1984-59.
4
Of course, petitioner’s failure to substantiate expenses
related to his ministerial activities would also preclude
deductability of those expenses.
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As to the Schedule A deductions in issue, petitioners assert
that they had the requisite substantiation to support their claim
to those deductions, but their tax records were stolen from their
storage facility. Petitioners have failed to submit credible
evidence to establish either part of that assertion. In fact,
the report of the law enforcement agency investigating the
burglary of the location of their storage unit indicates that
petitioners’ storage unit was not among those burglarized.
Petitioner’s handwritten breakdown of estimated mileage
driven in connection with his part-time jobs and his job
searching is inadequate to substantiate his mileage deduction.
The documents petitioners submitted to substantiate their claim
to the personal property taxes deduction are also insufficient in
that not one of the documents lists 2000 or 2001 as the years in
which personal property tax was paid. Nor does the student loan
payment statement substantiate any claim for a student loan
interest deduction for 2000 or 2001 as it provides a payment
history only for 2002 to 2005. Petitioners presented no evidence
at trial, documentary or otherwise, to substantiate expenses
related to tuition or books or noncash charitable contributions.
We sustain respondent’s determination that petitioners are not
entitled to deduct any of the disallowed Schedule A deductions.5
5
While petitioners do not argue application of the rule
articulated in Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930),
(continued...)
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Respondent determined that petitioners are liable for
accuracy-related penalties under section 6662(a) and (b)(1) for
2000 and 2001. Section 6662(a) imposes an accuracy-related
penalty equal to 20 percent of the portion of an underpayment
that is attributable to, among other things, negligence.
Petitioners will avoid this accuracy-related penalty if the
record shows that they were not negligent; i.e., they made a
reasonable attempt to comply with the provisions of the Code, and
they were not careless, reckless, or in intentional disregard of
rules or regulations. See sec. 6662(c); Keeler v. Commissioner,
243 F.3d 1212, 1221 (10th Cir. 2001), affg. Leema Enters. Inc. v.
Commissioner, T.C. Memo. 1999-18. Negligence connotes a lack of
due care or failure to do what a reasonable and prudent person
would do under the circumstances. See Allen v. Commissioner, 92
T.C. 1 (1989), affd. 925 F.2d 348 (9th Cir. 1991); Neely v.
Commissioner, 85 T.C. 934, 947 (1985). An accuracy-related
penalty is not applicable to any portion of an underpayment to
the extent that an individual has reasonable cause for that
portion and acts in good faith with respect thereto. See sec.
6664(c)(1).
5
(...continued)
we note it does not apply to this case. Under the Cohan rule,
the Court can estimate the amount of certain deductible expenses,
but only if the taxpayer presents sufficient evidence to make
those estimates. See id. at 543-544. Petitioners have not
presented sufficient evidence for us to apply the Cohan rule.
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Respondent bears the burden of production with respect to
the accuracy-related penalties. Sec. 7491(c). In order to meet
this burden of production, respondent must produce sufficient
evidence that it is appropriate to impose the accuracy-related
penalties. Once respondent has done so, the burden of proof is
upon petitioners. Higbee v. Commissioner, 116 T.C. 438, 449
(2001). Petitioners may carry their burden by proving that with
respect to their underpayment there was reasonable cause and they
acted in good faith. Sec. 6664(c)(1).
Respondent has satisfied his burden of production in that
the record establishes that petitioners failed to substantiate
their claimed deductions. Section 6001 imposes on petitioners a
duty to maintain books and records sufficient to support items
reported on their returns, and petitioners’ breach of that duty
is contrary to what a prudent and responsible taxpayer would have
done under the circumstances. See sec. 1.6662-3(b)(1), Income
Tax Regs. Petitioners must now establish reasonable cause and
good faith in order to escape liability for the accuracy-related
penalties under section 6662(a). Petitioners have failed to
persuade us that their failure to maintain the requisite
substantiation was excused by reasonable cause and good faith.
We sustain respondent’s determination that petitioners are liable
for the 2000 and 2001 accuracy-related penalties under section
6662(a).
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We have considered all arguments made by petitioners for
holdings contrary to those expressed herein and reject these
arguments not discussed herein as irrelevant or without merit.
Decision will be entered
under Rule 155.