T.C. Summary Opinion 2008-20
UNITED STATES TAX COURT
DIANE AND FRANK BURKLEY, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13748-04S. Filed February 27, 2008.
Diane Burkley,1 pro se.
Jason W. Anderson and Kathleen C. Schlenzig, for respondent.
GOLDBERG, Special Trial Judge: This case was heard pursuant
to the provisions of section 7463 of the Internal Revenue Code
(Code) in effect at the time the petition was filed. 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
1
Both petitioners signed the petition. When the case was
called for trial, petitioner Diane Burkley informed the Court
that petitioner Frank Burkley was disabled and therefore unable
to physically be present at the trial.
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precedent for any other case. 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.
Respondent determined a $10,048 deficiency in petitioners’
Federal income tax for 2002 and a $2,009.60 accuracy-related
penalty under section 6662(a).
The deficiency resulted from respondent’s disallowance of:
(1) $12,000 deducted as an other miscellaneous deduction for
“home winterization” on Schedule A, Itemized Deductions, and (2)
the following expenses claimed on Schedule E, Supplemental Income
and Loss, for rental Property B (identified as an “apartment
building” located at 8314 South Green Street):
Advertising $350
Auto and travel 4,500
Cleaning and maintenance 3,000
Repairs 12,000
Supplies 900
Utilities 3,000
Petitioners attached a Schedule E to their Federal income
tax return for 2002 showing three properties as follows: (1)
Property A, a “2-flat building” located at 8314 South Green
Street; (2) Property B, an “apartment building” located at 8314
South Green Street; and (3) Property C, an “apartment building”
located at 8314 South Green Street.
In the deficiency computation, respondent increased the
amount of the alternative minimum tax shown on the return and
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recomputed the amount of itemized deductions allowable, taking
into account the limitations due to adjusted gross income under
section 67.
This case was originally set for trial on May 23, 2005. In
anticipation of trial, respondent’s counsel suggested that the
parties meet at respondent’s office. The parties met on May 12,
2005. During this meeting, respondent informed petitioner Diane
Burkley (Mrs. Burkley) and petitioners’ return preparer, Horace
Ingram (Mr. Ingram), about Rule 91 (requiring parties to
stipulate all facts, documents, and evidence not in dispute). In
response to this exchange, Mr. Ingram replied: “rules are made
to be broken”.
During the above meeting, Mr. Ingram redefined the
properties listed on petitioners’ Schedule E with the following
information: (1) Property A, and all expenses listed for it,
pertained to a single-family residence located at 8314 South
Green Street; (2) Property B, and all expenses listed for it,
pertained to a multiunit building located on South Vernon Avenue,
and (3) Property C, which was originally described on
petitioners’ Schedule E as an “apartment building” located at
8314 South Green Street, was included by error on Mr. Ingram’s
part, and all income and expenses listed for this property should
be disregarded.
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The meeting adjourned with no agreed-upon stipulation.
On May 17, 2005, respondent received (via facsimile) from
petitioners a set of documents that included petitioners’ 2002
Forms W-2, Wage and Tax Statement, petitioners’ joint 2002 Form
1040, U.S. Individual Income Tax Return, a joint Form 1040X,
Amended U.S. Individual Income Tax Return for 2002, and pictures
of the South Green Street property and another rental property
located at 11036 South Vernon Avenue.
On the basis of these documents, and pursuant to an order of
this Court dated May 23, 2005, respondent filed an answer on July
29, 2005, in which respondent raised numerous new issues that
resulted in an increased deficiency and a section 6662(a)
accuracy-related penalty. The answer raised the following new
issues: (1) Unreported rental income; (2) disallowance of five
dependency exemption deductions; (3) unreported income from a
State income tax refund; (4) disallowance, in total, of itemized
Schedule A deductions for (a) medical and dental expenses, (b)
real estate taxes, (c) personal property taxes, (d) home mortgage
interest, (e) gifts to charity, and (f) unreimbursed employee
business expenses; (5) disallowance in total of all Schedule E
deductions; and (6) disallowance of rental and real estate loss
because of passive activity loss limitations.
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After concessions,2 the issues for decision are: (1)
Whether petitioners are entitled to deduct claimed Schedule E
expenses as follows:
Property A Property B
Advertising $350 $350
Auto and travel 850 4,500
Cleaning
and maintenance 2,000 3,000
Insurance 1,200 1,800
Mortgage interest 7,484 13,462
Repairs 6,500 12,000
Supplies 2,000 900
Taxes 1,404 1,404
Utilities 3,000 3,000
Total 24,788 40,416
(2) whether petitioners are entitled to claim Schedule A itemized
deductions as follows:
Medical and dental expenses $25,000
Home mortgage interest 13,642
Charitable contributions by cash
or check 18,000
Charitable contributions other
than by cash or check 500
Unreimbursed employee expenses 13,500
Total 70,642
(3) whether petitioners failed to report rental income; (4)
whether petitioners are entitled to claim five dependency
exemption deductions; and (5) whether petitioners are liable for
the accuracy-related penalty under section 6662(a).
2
Petitioners concede that they are not entitled to claim:
(1) A $1,404 Schedule A deduction for real estate taxes; (2) a
$150 Schedule A deduction for personal property taxes; (3) any
expenses with respect to “Property C”, as listed on Schedule E of
their 2002 return; (4) passive activity losses of $81,120.
Petitioners are also not contesting the increase in their
alternative minimum tax.
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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.
Petitioners resided in Chicago, Illinois, on the date the
petition was filed.
During the year in issue, Mrs. Burkley was employed as a
nurse at the University of Illinois, Gentivia Certified
Healthcare, and Nursepower Services. Petitioner Frank Burkley
(Mr. Burkley) was employed at Genetivia Certified Healthcare.
At the start of 2002, petitioners owned a single-family
residence located on South Green Street in Chicago, Illinois (the
South Green Street property). In April 2002, petitioners
purchased a multiunit apartment building located on South Vernon
Avenue in Chicago, Illinois (the South Vernon Avenue property).
The South Vernon Avenue property consists of three floors.
Each of the floors contains an apartment with a living room, two
bedrooms, a kitchen, and a sun porch. Petitioners moved into the
first floor apartment of the South Vernon Avenue property in
August 2002. At the time of their occupancy, a tenant resided in
the second floor apartment. Petitioners evicted this tenant in
August 2002 for failure to pay rent.
Petitioners rented out the second floor apartment starting
in September 2002 for $500 a month. Petitioners rented out the
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third floor apartment starting in October 2002 for $500 a month.
In addition to paying rent, tenants occupying both of the South
Vernon Avenue apartments were required to pay all utilities
attributable to their respective units.
Petitioners continued to own the South Green Street property
after they purchased the South Vernon Avenue property.
Petitioners’ daughter, Vernice, occupied the South Green Street
property immediately after petitioners moved. Vernice paid
petitioners $500 a month rent beginning in September 2002 and was
also responsible for paying all utilities with respect to the
South Green Street property. Two of Vernice’s minor children--
L.B. and J.B.--lived with her at the South Green Street
property.3 These same children were listed as dependents on
petitioners’ 2002 Federal income tax return.
The South Green Street and the South Vernon Avenue
properties are 5.1 miles apart.
Petitioners used the services of Mr. Ingram to prepare and
file their 2002 return. Petitioners’ 2002 return reflected the
following: (1) $196,153 in wages, salaries and tips; (2) $29,916
Schedule E loss; (3) $166,282 adjusted gross income; (4) $73,353
in Schedule A deductions; (5) $16,886 total tax due; (6) $3,670
alternative minimum tax; (7) $40,538 Federal income tax withheld;
and (8) $23,652 refund.
3
The Court uses initials when referring to minor children.
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Discussion
In general, the Commissioner’s determination as set forth in
a notice of deficiency is presumed correct. Welch v. Helvering,
290 U.S. 111, 115 (1933). In pertinent part, Rule 142(a)(1)
provides the general rule that the burden of proof shall be on
the taxpayer. In certain circumstances, however, if the taxpayer
introduces credible evidence with respect to any factual issue
relevant to ascertaining the proper tax liability, section 7491
shifts the burden of proof to the Commissioner. Sec. 7491(a)(1);
Rule 142(a)(2). Petitioners did not argue that section 7491 is
applicable, and they did not establish that the burden of proof
should shift to respondent. Petitioners, therefore, bear the
burden of proving that respondent’s determinations as set forth
in the notice of deficiency are erroneous. See Rule 142(a);
Welch v. Helvering, supra at 115.
With respect, however, to the issues raised in respondent’s
answer, which increased the amount of the deficiency, Rule
142(a)(1) places the burden of proof on respondent.
Finally, with respect to any penalty or addition to tax,
section 7491(c) places the burden of production on the
Commissioner.
Schedule E Expenses
Petitioners maintain that they are entitled to deduct
$24,788 in Schedule E expenses for the South Green Street
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property (Property A) and $40,416 in Schedule E expenses for the
South Vernon Avenue property (Property B). Respondent disallowed
in the notice of deficiency all of the claimed expenses
pertaining to Property B and pleaded in the answer that
petitioners were not entitled to any of the claimed expenses with
respect to Property A. We sustain respondent’s determination
with respect to Property B and hold that respondent has met the
burden of proof with respect to Property A, on the basis of the
facts hereinafter discussed.
Section 6001 provides, in pertinent part, as follows:
SEC. 6001. NOTICE OR REGULATIONS REQUIRING RECORDS,
STATEMENTS, AND SPECIAL RETURNS.
Every person liable for any tax imposed by this
title [title 26, Internal Revenue Code of 1986], or
for the collection thereof, shall keep such records,
render such statements, make such returns, and comply
with such rules and regulations as the Secretary may
from time to time prescribe. * * *
Petitioners provided no receipts to substantiate any of the
expenses claimed for either Property A or B. For example, Mrs.
Burkley admits that they did not spend $350 to advertise either
Property A or B for rent and that, in the case of Property A, no
advertising of any kind was necessary since their daughter took
possession of that property immediately after they moved to
Property B. Mrs. Burkley acknowledged that $700 claimed for auto
and travel expenses was arbitrarily arrived at. Mrs. Burkley
testified that the $2,000 claimed for cleaning expenses for
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Property A was paid to clean out the basement of that property in
anticipation of their move.
Our examination of the record convinces us that petitioners
failed to maintain any records whatsoever with respect to the
items claimed on the Schedule E attached to their 2002 return.
Moreover, Mrs. Burkley and their tax preparer, Mr. Ingram, admit
that some of the figures claimed for deductions taken on their
2002 return, including all of their Schedule E deductions, were
false and/or arbitrarily contrived. Accordingly, without any
evidence to the contrary, we sustain respondent’s determination
and hold that respondent has met the burden of proof with respect
to the issues relevant to petitioners’ 2002 Schedule E as raised
in the answer.
Schedule A Deductions
Petitioners maintain that they are entitled to deduct
$73,353 in Schedule A expenses for taxable year 2002. Respondent
disallowed $24,788 of petitioners’ claimed Schedule A expenses in
the notice of deficiency and further challenged $48,565 of
claimed expenses in the answer. We sustain respondent’s
determination with respect to the disallowance in the notice of
deficiency and hold that respondent has met the burden of proof
with respect to the remaining amount, after concessions, as
asserted in the answer, and based on the facts hereinafter
discussed.
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The aforementioned section 6001 frames our analysis with
respect to this issue. Mrs. Burkley admitted that they
maintained no receipts for any of the $25,000 claimed in medical
and dental expenses. Mrs. Burkley admitted that they had no
records or receipts for many of the expenses claimed on Schedule
A, including all of the taxes listed, unreimbursed business
expenses, job expenses, or miscellaneous deductions claimed.
With respect to the $18,000 claimed for cash or check gifts
made to a charity, petitioners did provide respondent with an
unsigned receipt for contributions they purportedly made to
Screaming Eagle M.B. Church at 1820 West 59th Street, Chicago,
Illinois. The receipt included a breakdown of the $18,000
claimed by petitioners by specific categories such as “tithing”
and “Sunday School”, etc. Ms. Dominque Hall is named as the
secretary/treasurer of the church on this receipt.
On the basis of our examination of the unsigned receipt and
after careful reading of the transcript of the proceeding, we
have grave doubts as to the trustworthiness of the receipt and
are not convinced that petitioners gave a total of $18,000 to
Screaming Eagle M.B. Church in 2002 or that the church did, in
fact, exist at the address listed on the receipt provided, if it
did exist at all.
As to the $500 noncash gift, Mr. Ingram testified that this
was the value of clothing and goods donated to the Salvation Army
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at its drop boxes, where there are no receipts. Petitioners did
not offer any evidence as to what, where, or when the non-cash
items were donated to the Salvation Army.
We are not convinced on the basis of our review of the
entire record that petitioners are entitled to claim an $18,500
deduction for gifts to charity.
Finally, with respect to the other miscellaneous $12,000
deduction claimed for “home winterization”, Mr. Ingram admitted
that he mistakenly duplicated this amount from the amount claimed
for repairs on Schedule E for Property B.
Accordingly, and based on the foregoing, respondent’s
determination is sustained with respect to the $24,788 of
Schedule A deductions disallowed in the notice of deficiency. We
also hold that respondent has satisfied the burden of proof with
respect to the $48,565 of Schedule A deductions disallowed in the
answer.
Rental Income
Mrs. Burkley admitted receiving rent from Property A and B
in 2002 as follows: (1) Property A--$2,000, (2) Property B,
second floor--$2,000, and (3) Property B, third floor--$1,500.
Respondent pleaded in the answer that petitioners did not report
the rents collected on Property A and B as income on their
return.
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Petitioners reported $7,000 in rent received from Property A
and $7,000 in rent received from Property B on Schedule E of
their return. While the Court is perplexed as to why petitioners
would have inflated the rent received, we do find that they did,
indeed, report rent received on their 2002 return. Petitioners
did not, however, report the correct amount of rent received,
which was $5,500. We hold, therefore, on the basis of Mrs.
Burkley’s admission, that petitioners must include only $5,500 of
rental income for taxable year 2002.
Dependency Exemption Deductions
Petitioners claimed five dependency exemption deductions on
their 2002 return. Petitioners listed three minor children--
M.Y., L.B., and J.B--and two adults--Fred Henigan and Harold
Burkley--as dependents. In the answer, respondent asserted that
petitioners are not entitled to the five claimed dependency
exemption deductions on the grounds that: (1) Petitioners had
failed to prove their entitlement to claim a dependency exemption
deduction for any of the individuals listed on their return, and
(2) they failed to maintain adequate records to substantiate
amounts paid in support of the claimed dependents.
Section 151 allows deductions for personal exemptions,
including exemptions for dependents of a taxpayer. See sec.
151(c). Section 152(a) defines the term “dependent” in pertinent
part to include a son or daughter of the taxpayer, or a
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descendant of either, a brother or brother-in-law of the
taxpayer, and an individual who has as his or her principal place
of abode for the taxable year the home of the taxpayer, if over
half of his or her support for the calendar year was received
from the taxpayer. The term “support” includes “food, shelter,
clothing, medical and dental care, education, and the like.”
Sec. 1.152-1(a)(2)(i), Income Tax Regs.
In determining whether an individual received more than half
of his or her support from a taxpayer, there shall be taken into
account the amount of total support received from the taxpayer as
compared to the entire amount of support which the individual
received from all sources. Id.
Mrs. Burkley testified that the three minor children were
her grandchildren. Mrs. Burkley also testified that two of the
children listed on petitioners’ 2002 return--L.B. and J.B.--lived
with their mother, her daughter Vernice, at the South Green
Street property. Mrs. Burkley failed to explain adequately why
the third grandchild, M.Y., resided with them. Petitioners
provided no evidence as to the total amount of support that they
provided to these children or as to the total amount of support
provided to these children from all sources. Petitioners’ only
evidence with respect to the grandchildren was testimony that
when all of the grandchildren slept at the South Vernon Avenue
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property, two of the children slept on the sun porch, and one
child slept in Mrs. Burkley’s bedroom.
With respect to the two adults claimed as dependents,
petitioners provided no evidence either that they had provided
more than half of these individuals’ support during the year in
issue or of the total amount of support received by each of these
individuals. Further, petitioners did not offer any evidence to
substantiate that Fred Henigan made either petitioners’ residence
at South Green Street or South Vernon Avenue his primary place of
abode during the year in issue. The only evidence offered with
respect to these individuals was Mrs. Burkley’s testimony that
Fred Henigan shared a bedroom with Mr. Burkley when he slept at
the South Vernon Avenue property and that Harold Burkley slept on
the couch in the living room of the South Vernon Avenue property.
Accordingly, because petitioners have provided no credible
evidence proving that they are entitled to claim five dependency
exemption deductions with respect to the aforementioned
individuals, we conclude that respondent has satisfied the burden
of proof with respect to this issue and hold that pursuant to
section 152, petitioners are not entitled to five dependency
exemption deductions in taxable year 2002.
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Accuracy-Related Penalty
In the notice of deficiency, respondent determined that
petitioners were liable for the accuracy-related penalty under
section 6662(a) for underpayment of tax.
Section 6662(a) imposes a 20-percent penalty with respect
“to any portion of an underpayment of tax required to be shown on
a return”. This penalty applies to underpayments attributable to
any substantial understatement of income tax. Sec. 6662(a),
(b)(2).
An “understatement” of income tax is defined as the excess
of the tax required to be shown on the return over the tax
actually shown on the return. Sec. 6662(d)(2)(A). An
understatement is “substantial” if it exceeds the greater of 10
percent of the tax required to be shown on the return, or $5,000.
Sec. 6662(d)(1)(A).
Section 6664 provides a defense to the accuracy-related
penalty if a taxpayer establishes that there was reasonable cause
for any portion of the underpayment and that he or she acted in
good faith with respect to that portion. Sec. 6664(c)(1); sec.
1.6664-4(a)(1), Income Tax Regs. Although not defined in the
Code, “reasonable cause” is viewed in the regulations as the
exercise of ordinary business care and prudence. See sec.
301.6651-1(c)(1), Proced. & Admin. Regs. Whether a taxpayer
acted with reasonable cause and in good faith is made on a case-
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by-case basis, taking into account all the pertinent facts and
circumstances. Sec. 1.6664-4(b)(1), Income Tax Regs. The
taxpayer’s education, experience, and knowledge are considered in
determining reasonable cause and good faith. And, generally, the
most important factor is the extent of the taxpayer’s effort to
assess his or her proper tax liability. Sec. 1.6664-4(b)(1),
Income Tax Regs.
Respondent determined an accuracy-related penalty under
section 6662(a) to be applicable in this case because petitioners
understated their income tax by $10,048 on their 2002 return.
Because petitioners’ understatement of tax was greater than 10
percent of the tax required to be shown on the return, or $5,000,
the understatement was a substantial understatement of income tax
pursuant to section 6662(d)(1)(A)(i) and (ii).
Petitioners argue that they should not be held liable for
the penalty because of their reliance on the income tax
preparation provided to them by Mr. Ingram.
Respondent carries the burden of production under section
7491(c) with respect to the accuracy-related penalty under
section 6662. To meet that burden, respondent must come forward
with sufficient evidence indicating that it is appropriate to
impose the penalty. Higbee v. Commissioner, 116 T.C. 438, 446
(2001). Although respondent bears the burden of production with
respect to the penalty, respondent “need not introduce evidence
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regarding reasonable cause * * * or similar provisions. * * *
the taxpayer bears the burden of proof with regard to those
issues.” Id.
Petitioners concede certain determinations that respondent
made in the notice of deficiency and, as a result, have
acknowledged that an underpayment of tax exists for the year in
issue. Petitioners offered no evidence under section 6662 with
respect to those items raised in either the petition or the
answer. On the basis of the foregoing, we hold that respondent
has satisfied the burden of production under section 7491(c).
We further conclude that petitioners have failed to show
that their reliance on Mr. Ingram’s tax return preparation was
reasonable. Mr. Ingram admitted that he was not an accountant,
that he was unfamiliar with the computer software that he used to
prepare petitioners’ return, that he had made many errors with
respect to petitioners’ 2002 return, and that his rush to
complete the return also resulted in errors. Petitioners’
reliance on Mr. Ingram as their tax return preparer was clearly
unreasonable. Petitioners have, therefore, failed to carry their
burden of showing any reasonable cause for the underpayment of
tax for 2002. See sec. 6664(c)(1).
On the entire record before us, we hold that petitioners
have failed to carry their burden of proving that they are not
liable for an accuracy-related penalty for 2002 under section
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6662(a). We accordingly sustain respondent’s determination with
respect to that issue.
Decision will be entered
under Rule 155.