T.C. Summary Opinion 2007-146
UNITED STATES TAX COURT
KENNETH FRANK DILLER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2668-06S. Filed August 22, 2007.
Kenneth Frank Diller, pro se.
Matthew A. Houtsma, 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, all 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. Pursuant to section 7463(b), the decision to be
entered is not reviewable by any other court, and this opinion
shall not be treated as precedent for any other case.
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Respondent determined for 2002 a deficiency in petitioner’s
Federal income tax of $8,877, an addition to tax under section
6651(a)(1) of $1,650, an addition to tax under section 6651(a)(2)
of $1,063, and an addition to tax under section 6654(a) of $239.
The issues for decision are whether petitioner: (1) May exclude
under section 104(a)(2) certain damages received, (2) paid
unreported business expenses, (3) is liable for the failure to
timely file addition to tax under section 6651(a)(1), (4) is
liable for the failure to pay timely addition to tax under
section 6651(a)(2), and (5) is liable under section 6654(a) for
the addition to tax for failure to pay estimated tax.
Background
The stipulation of 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 Greeley,
Colorado.
For several years, until his independent sales contract was
terminated in 1999, petitioner worked for Cronatron Welding
Systems, Inc. (Welding). Petitioner then began working with Gard
Specialists Co. (Gard). Gard was and is in the business of
selling nuts, bolts, screws, traps, drills, grinding discs, and
chemicals for maintenance operations. Petitioner continues to
work for Gard.
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Petitioner filed a claim of age discrimination against
Welding. In 2002, he received $53,000 to settle his
discrimination claim of which $19,055.58 was paid directly to his
attorney. The parties agree that no part of the settlement paid
to petitioner by Welding was compensation for physical injury or
physical sickness, and petitioner made no allegation that the
damages were paid for medical care attributable to emotional
distress.
The parties also agree that petitioner received in 2002:
(1) At least $481 in self-employment income, (2) at least $155 in
taxable interest, of which $19 was withheld, (3) $202 of
dividends, of which $23 was withheld, (4) a gain of $23 from the
sale of stocks and bonds, and (5) rental income of $5,744.23 and
rental expenses of $4,518.46.
The parties agree that petitioner filed a request for an
extension to file his 2002 Federal income tax return along with a
remittance of $1,500 on or before April 15, 2003. But the
parties also agree that petitioner has never filed a Federal
income tax return for 2002. The Internal Revenue Service (IRS)
made a return for him under section 6020(b) for 2002. The IRS
has no record of petitioner’s having filed a Federal income tax
return for 2001.
During preparation for trial, petitioner informed respondent
that he had a business for which he paid significant business
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expenses during 2002. Petitioner submitted to respondent’s
counsel on the morning of trial a Form 1040, U.S. Individual
Income Tax Return, for 2002, with an attached Schedule C, Profit
or Loss From Business, under the name KD Fabricating. The
Schedule C reported gross receipts of $53,826, total expenses of
$49,418 and a net profit of $4,408. Petitioner included in the
gross income reported on Schedule C the recovery from his lawsuit
against Welding, the proceeds from the sale of a vehicle, and
other items. Similarly, the expenses reported on Schedule C
include items from various sources.
Discussion
The Commissioner’s deficiency determinations are presumed
correct, and taxpayers generally have the burden of proving that
the determinations are incorrect. Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933). Under certain
circumstances, however, section 7491(a) may shift the burden to
the Commissioner with respect to a factual issue affecting
liability for tax. Petitioner did not present evidence or
argument that he satisfied the requirements of section 7491(a),
and therefore, the burden of proof does not shift to respondent.
Taxpayers are required, under section 61(a), to include in
gross income “all income from whatever source derived” unless
such income has been specifically excepted from inclusion. See
Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430 (1955)
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(Congress’s intent under section 61(a) was to tax income unless
specifically excluded). Exclusions to section 61(a) must be
narrowly construed. Commissioner v. Schleier, 515 U.S. 323, 328
(1995) (citing United States v. Burke, 504 U.S. 229, 233 (1992)).
The parties have agreed on the amounts of various income
items received by petitioner in 2002 but not to the taxability of
petitioner’s recovery of damages for discrimination or to the
treatment of his payment of attorney’s fees associated with the
recovery.
Exclusion of Certain “Damages”
Section 104(a)(2) allows taxpayers to exclude from income
“the amount of any damages (other than punitive damages) received
(whether by suit or agreement * * *) on account of personal
physical injuries or physical sickness”. The flush language of
section 104(a) specifies that “emotional distress shall not be
treated as a physical injury or physical sickness.” But the
exclusion from gross income does apply to the amount of damages
received for any medical care attributable to emotional distress.
Sec. 104(a).
Treasury regulations provide that the term “damages” means
amounts received (aside from workmen’s compensation) through
litigation or settlement of an action that is based on “tort or
tort type rights”. Sec. 1.104-1(c), Income Tax Regs.
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The Supreme Court in Commissioner v. Schleier, supra, held
that damages are excludable from income under section 104(a)(2)
if they meet a two-pronged test. First, the taxpayer must
demonstrate that the underlying cause of action giving rise to
the recovery is “based upon tort or tort type rights”, and
second, the taxpayer must show that the damages were received “on
account of personal injuries or sickness.” Commissioner v.
Schleier, supra at 335-337. Both requirements must be satisfied
for the damages to be excluded from income. Id. at 333.
Section 104(a)(2) was amended in 1996 to include the
requirement that damages be received for physical injuries or
sickness. Small Business Job Protection Act of 1996, Pub. L.
104-188, sec. 1605(a), 110 Stat. 1838. However, this does not
alter the analysis of Schleier. See Tamberella v. Commissioner,
T.C. Memo. 2004-47, affd. 139 Fed. Appx. 319, 321 (2d Cir. 2005).
None of the underlying documentation describing the nature
of the settlement is in the record. The parties have agreed,
however, that no part of the settlement paid to petitioner was
compensation for physical injury or physical sickness, and
petitioner has made no allegation that the damages were paid for
medical care attributable to emotional distress.
Therefore, petitioner’s recovery is not exempted from
inclusion in gross income under section 61. Because petitioner’s
recovery constitutes income, his income includes the portion of
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the recovery paid to his attorney for his representation.
Commissioner v. Banks, 543 U.S. 426, 429 (2005). Petitioner,
however, may deduct the attorney’s fees as a miscellaneous
itemized deduction under sections 67 and 162, subject to the
alternative minimum tax computations under sections 55 and 56.
See Commissioner v. Banks, supra at 432.
Petitioner’s Business Deductions
During preparation for trial, petitioner informed respondent
that he had a business for which he paid significant business
expenses during 2002. Respondent contends that petitioner has
not shown that his activity, if any, was actually conducted for
profit or as a business, but if it was, petitioner has not
adequately substantiated his expenses from the activity. Before
examining the issue of substantiation, consideration of
petitioner’s evidence of his carrying on a trade or business is
appropriate.
Deductions are allowed under section 162 for the ordinary
and necessary expenses of carrying on an activity that
constitutes the taxpayer’s trade or business. Deductions are
allowed under section 212(1) and (2) for the ordinary and
necessary expenses paid or incurred in connection with an
activity engaged in for the production or collection of income,
or for the management, conservation, or maintenance of property
held for the production of income.
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With respect to either section, however, the taxpayer must
demonstrate a profit objective for the activity in order to
deduct associated expenses. See Jasionowski v. Commissioner, 66
T.C. 312, 320-322 (1976); sec. 1.183-2(a), Income Tax Regs. The
profit standards applicable for section 212 are the same as those
used for section 162. See Agro Sci. Co. v. Commissioner, 934
F.2d 573, 576 (5th Cir. 1991), affg. T.C. Memo. 1989-687;
Antonides v. Commissioner, 893 F.2d 656, 659 (4th Cir. 1990),
affg. 91 T.C. 686 (1988); Allen v. Commissioner, 72 T.C. 28, 33
(1979); Rand v. Commissioner, 34 T.C. 1146, 1149 (1960).
Section 1.183-2(b), Income Tax Regs., sets forth nine
nonexclusive factors that should be considered in determining
whether a taxpayer is engaged in a venture with a profit
objective.
In order to show that he was engaged in a trade or business,
petitioner must show not only that his primary purpose for
engaging in the activity was for income or profit but also that
he engaged in the activity with “continuity and regularity”.
Commissioner v. Groetzinger, 480 U.S. 23, 35 (1987).
Respondent’s counsel represented to the Court that he was
not advised by petitioner of the purported business until 10 days
before trial and that petitioner did not provide him with any
evidence of business income and expenses.
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Petitioner responded by offering into evidence a copy of a
simple “letterhead” and a blank “invoice”, each of which appeared
to have been generated by a personal computer. Petitioner also
provided a checking account statement dated January 24, 2002, in
the name of “KD Fabricating Kenneth F. Diller”. Petitioner
testified that KD Fabricating was in the business of selling
welding maintenance and repair products, a business similar to
that of Welding at the time he worked for them.
Petitioner sent copies of the letterhead, invoice, and
checking account statement to respondent. In the cover letter
dated October 15, 2006 (on KD Fabricating, Co. “letterhead”),
transmitting the documents, petitioner stated that the documents
show that KD Fabricating1 is “the name under which I transact
business currently and have for the last ten to twelve years”.
At trial, however, petitioner testified that he started KD
Fabricating in January of 2002. And he testified that his
negative replies to questions about self-employment on his
February 6, 2006, Application For Waiver Of Filing Fee And
Affidavit (waiver), were because he was not conducting business
for KD Fabricating as of that date.2
1
Petitioner offered evidence that he also owned, beginning
in 2000, an interest in and was president of a now defunct
corporate entity named KD Technologies.
2
Question 3 of the waiver asks if you “have * * * received
any money from” self-employment “in the last 12 months”.
(continued...)
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This case was tried on October 23, 2006. On October 20,
2006, petitioner had provided to respondent’s counsel a computer-
generated chart that purports to list for 2002 the “W2 & 1099 &
Miscellaneous” income for Kenneth F. Diller. There is no listing
for KD Fabricating on the chart provided to respondent’s counsel.
At trial, however, petitioner introduced a similar chart that
lists “1099 Income” from KD Fabricating of $2,999.63. Petitioner
explained that the first chart was “incomplete”; he did not
explain why. Petitioner testified that KD Fabricating sent out
invoices in order to receive payment for sales. He kept track of
the invoices, he testified, by copying each invoice and placing
it in a “file folder”. But petitioner produced no copies of any
invoices to actual customers. According to petitioner, customers
paid him by check in 2002. Petitioner, however, produced no bank
statements or check registers to show receipt of payments from
customers. Petitioner did not produce any evidence of any single
amount received in payment from a customer. Petitioner’s
computer-generated record of income did not list customers of KD
Fabricating nor their payments; it merely listed the alleged
total payments for the year.
When questioned by the Court, petitioner testified that he
was indeed aware, before appearing in Court, that respondent was
2
(...continued)
Petitioner indicated “NO” in response.
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challenging the existence of his KD Fabricating business. Yet,
he produced no receipts or any other evidence, other than his own
testimony, of any customer payments to KD Fabricating. The Court
is not required to accept petitioner’s self-serving testimony,
particularly in the absence of corroborating evidence. See
Geiger v. Commissioner, 440 F.2d 688, 689 (9th Cir. 1971), affg.
per curiam T.C. Memo. 1969-159; Urban Redev. Corp. v.
Commissioner, 294 F.2d 328, 332 (4th Cir. 1961), affg. 34 T.C.
845 (1960). The Court concludes that petitioner has not shown
that he was engaged in an activity for profit under the name KD
Fabricating in 2002.
Taxpayers are required to maintain records that are
sufficient to enable the Commissioner to determine the correct
tax liability. See sec. 6001; sec. 1.6001-1(a), Income Tax Regs.
Petitioner’s “substantiation” for claimed business expenses
consists of computer-generated listings of expenses entitled
“cash supplies”, “credit card expenses”, and “check schedule”.
Petitioner produced no original documents or copies of such items
as receipts, credit card records, bank statements, or canceled
checks, on which his computer records were supposedly based.
Petitioner’s cash expenditures as listed on his “cash supplies
document” totaled $31,468.49. Included in both the cash and
check expenses was the purchase of a new Toyota pickup truck for
$23,514.
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Petitioner testified that his listings of expenses contained
some “leftover” expenses from Welding, some fuel expenses related
to KD Technology, and some expenses related to his rental
activity. As he failed to segregate his expenses, he was unable
to identify the expenses attributable to each activity.
Because petitioner has not shown that he was engaged in an
activity for profit under the name of KD Fabricating, has not
shown for what purpose the claimed expenses might otherwise be
deductible, and if deductible, has not provided proper
substantiation, he has not shown that he is entitled to any
deductions other than those agreed to by respondent.3 See Lerch
v. Commissioner, 877 F.2d 624, 629 (7th Cir. 1989), affg. T.C.
Memo. 1987-295.
Additions to Tax
Respondent bears the burden of production with respect to
any addition to tax. Sec. 7491(c). In order to meet this
burden, respondent must produce evidence sufficient to establish
that it is appropriate to impose the addition to tax. Higbee v.
Commissioner, 116 T.C. 438, 446-447 (2001).
Addition to Tax Under Section 6651(a)(1)
The parties agree that petitioner did not file a Federal tax
return for 2002. Respondent made a return for petitioner under
3
Petitioner may be entitled to deduct legal fees as
discussed supra.
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section 6020(b). A return prepared under section 6020(b) is to
be disregarded for purposes of determining the amount of the
addition to tax under section 6651(a)(1). Sec. 6651(g)(1).
Respondent has met his burden of production under section 7491(c)
with respect to imposing the addition to tax under section
6651(a)(1).
It is petitioner’s burden to prove that he had reasonable
cause and lacked willful neglect in not filing his return timely.
See United States v. Boyle, 469 U.S. 241, 245 (1985); Higbee v.
Commissioner, supra; sec. 301.6651-1(a)(1), Proced. & Admin.
Regs. Because petitioner failed to offer any evidence of
reasonable cause and lack of willful neglect for his failure to
file timely, respondent’s determination that he is liable for the
addition to tax under section 6651(a)(1) is sustained.
Addition to Tax Under Section 6651(a)(2)
Under section 6651(g)(2), the return made by respondent
under section 6020(b) is to be treated as a return filed by
petitioner for purposes of determining the amount of the addition
to tax under section 6651(a)(2). Because petitioner failed to
offer any evidence of reasonable cause and lack of willful
neglect for his failure to pay timely, respondent’s determination
that he is liable for the addition to tax under section
6651(a)(2) is sustained.
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Addition to Tax Under Section 6654
Section 6654 imposes an addition to tax for failure to make
timely and sufficient payments for estimated taxes. In order for
respondent to satisfy his burden of production under section
7491(c), he must produce evidence necessary to enable the Court
to conclude that petitioner had an obligation to make an
estimated tax payment. Wheeler v. Commissioner, 127 T.C. 200,
211 (2006). Specifically, respondent must produce evidence
showing that petitioner had a “required annual payment” as
defined by section 6654(d)(1)(B) for the year at issue. Id.
The section 6654 addition to tax is calculated with
reference to four required installment payments of the taxpayer’s
estimated tax liability. Sec. 6654(c)(1). Each required
installment of estimated tax is equal to 25 percent of the
“required annual payment”. Sec. 6654(d)(1)(A).
Under section 6654(d)(1)(B), “required annual payment” means
the lesser of--
(i) 90 percent of the tax shown on the return
for the taxable year (or, if no return is
filed, 90 percent of the tax for such year),
or
(ii) 100 percent of the tax shown on the
return of the individual for the preceding
taxable year.
Clause (ii) shall not apply if the preceding taxable
year was not a taxable year of 12 months or if the
individual did not file a return for such preceding
taxable year.
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Respondent produced a Form 4340, Certificate of Assessments,
Payments, and Other Specified Matters, for 2002 establishing that
petitioner filed for an extension of time to file a tax return
for 2002 along with a payment of $1,500. Respondent made a
return for petitioner under section 6020(b) reporting a tax
liability of $8,877. Such a return is “good and sufficient for
all legal purposes.” Sec. 6020(b)(2). The evidence is
sufficient for the Court to make the analysis required by section
6654(d)(1)(B)(i). Respondent introduced evidence in the form of
a Form 4340 for 2001 showing that there is no record that
petitioner filed a return for the preceding taxable year (i.e.
2001). Therefore, under the flush language of section
6654(d)(1)(B), clause (ii) does not apply. The Court concludes
that petitioner had a required annual payment for 2002.
The section 6654 addition to tax is mandatory unless
petitioner can place himself within one of the computational
exceptions provided by section 6654(e). Recklitis v.
Commissioner, 91 T.C. 874, 913 (1988); Grosshandler v.
Commissioner, 75 T.C. 1, 20-21 (1980). Petitioner did not pay
the required estimated tax for 2002 and failed to show that his
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failure to timely pay estimated taxes qualifies for one of the
exceptions under section 6654(e). Accordingly, petitioner is
liable for the addition to tax under section 6654 for 2002.
To reflect the foregoing,
Decision will be
entered for respondent.