T.C. Memo. 2009-226
UNITED STATES TAX COURT
ANN M. LAPLANTE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17591-07. Filed October 1, 2009.
Joseph Fitzgibbons, for petitioner.
Paul Colleran, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
GOLDBERG, Special Trial Judge: Respondent determined a
deficiency of $1,808 in petitioner’s Federal income tax for 2004
and an accuracy-related penalty of $362 under section 6662(a) for
negligence.
The deficiency arises from petitioner’s reporting of her
2004 recreational gambling activities. Petitioner reported
$4,000 in income from gambling winnings on her 2004 Form 1040,
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U.S. Individual Income Tax Return, and she deducted $4,000 in
gambling losses on her 2004 Schedule A, Itemized Deductions,
under “Other Miscellaneous Deductions”. After examination,
respondent determined that petitioner should have reported
$30,170 in gross income from gambling winnings, causing an
automatic computational increase in the amount of petitioner’s
Social Security benefits includable in income, and petitioner
should have deducted $30,170 in gambling losses for 2004.
As a result, the issues for decision are: (1) Whether
petitioner’s gambling winnings for 2004 were $30,170 as
respondent determined; and (2) whether petitioner is liable for
the section 6662(a) accuracy-related penalty for negligence for
2004.
Unless otherwise indicated, all section references are to
the Internal Revenue Code (Code), and all Rule references are to
the Tax Court Rules of Practice and Procedure. All amounts are
rounded to the nearest dollar.
FINDINGS OF FACT
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. Petitioner resided in
Massachusetts at the time she filed her petition.
Petitioner is a widow and is retired. She worked for 48
years from 1950 to 1998 for John C. Tombarello & Sons, a scrap
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iron and metal facility in Lawrence, Massachusetts, retiring when
the owners sold the business. Before the sale, the business
employed 35 to 40 people. Petitioner’s original duties included
bookkeeping, but as the business grew she became the office
manager and had a bookkeeper reporting to her.
When petitioner gambles, she enjoys playing the slot
machines. She began slot machine gambling in earnest in 1988 on
a trip to Las Vegas. While she was still employed, petitioner
would vacation a couple of times a year in Las Vegas and would
also travel to Atlantic City to gamble. After Foxwoods Resort
Casino opened in Ledyard, Connecticut, in 1992 and after
petitioner retired from her job, she eventually became a regular
Foxwoods patron.
Petitioner participated in Foxwoods’ loyalty program, which
provided her with a Wampum Club card. Petitioner would insert
the Wampum Club card into a slot machine, and the casino would
track her play. She would receive Wampum points on the basis of
the time she spent at the machines, not on the basis of the
amount of money she spent or lost. Foxwoods has restaurants,
hotel rooms, stores, and boutiques. Petitioner would use the
Wampum points to purchase clothing and jewelry. Foxwoods would
also provide petitioner at no charge complimentary (commonly
called comp) meals, rooms, and occasional limousine rides from
her home to and from the casino.
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During 2004 petitioner traveled with a group of friends to
Foxwoods on 25 to 30 separate occasions. Petitioner’s normal
practice was to spend at least 8 hours at the casino and then
return home. Sometimes she would stay longer and return home
after spending 2 or more full days at the casino. Typically,
petitioner would start at 25 cents per wager, progress to 50
cents, then $1, and finally $5 per wager.
Whenever she won $1,200 or more from one pull (or push of a
button), the casino would promptly provide her with a Form W-2G,
Certain Gambling Winnings, reflecting her winnings from that one
pull or push. During 2004 petitioner received 26 Forms W-2G,
which reported winnings totaling $56,200. Petitioner received a
Form W-2G on 22 separate days in 2004. On 4 days petitioner won
two prizes of $1,200 or more, causing the casino to issue two
Forms W-2G for those 4 days. A review of the dates from
petitioner’s summary of the Forms W-2G indicates that petitioner
gambled at Foxwoods on many different days of the week, receiving
at least one Form W-2G on 5 Sundays, 11 Mondays, 1 Tuesday, 2
Wednesdays, and 3 Saturdays.
Petitioner engaged an attorney to prepare her 2004 Federal
income tax return, the same attorney she had used to prepare her
prior years’ returns. Attached to the return was a two-page
document entitled “MEMORANDUM Re: W-2G” addressing petitioner’s
2004 gambling activity. The first page detailed by date and
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amount the winnings on each of the 26 Forms W-2G totaling
$56,200. The second page was a legal memorandum providing the
attorney’s rationale for petitioner’s including only $4,000 of
the gambling winnings in her 2004 income. Petitioner did not
discuss or report in income any of her gambling winnings below
$1,200; neither did she include in income the fair market value
of meals, rooms, limousine rides, clothing, jewelry, and the
other comps she received from Foxwoods.
Petitioner reported adjusted gross income totaling $36,111
for 2004. In addition to the $4,000 in gambling winnings,
petitioner’s other items of income for 2004 were: Interest of
$2,262; dividends of $755; refunds of State and local income
taxes of $158; capital gain distributions of $78; IRA
distributions of $7,197; pension and annuities of $11,367; net
income from rental real estate of $1,663; and Social Security
benefits of $22,758, of which $8,631 was includable in income.
Petitioner also claimed itemized deductions of $12,638 on
Schedule A, of which pertinent here was a deduction of $4,000 for
gambling losses.
Respondent examined petitioner’s 2004 Federal income tax
return, determining that the correct amount of her gambling
winnings and losses for 2004 was $30,170. The $30,170 consists
of the total of 11 of 26 Form W-2G amounts, but the record is
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silent as to why respondent chose to exclude some of the Forms W-
2G and how respondent determined which ones to exclude.
Because of the adjusted gross income thresholds in section
86, Social Security and Tier 1 Railroad Retirement Benefits, the
additional $26,170 in wagering income caused a computational
increase to the portion of petitioner’s $22,758 in Social
Security benefits includable in income from $8,631 (38 percent)
to $19,345 (85 percent). As a result, respondent issued a notice
of deficiency determining a deficiency of $1,808 in Federal
income tax for 2004 and an accuracy-related penalty of $362 for
negligence. Petitioner timely petitioned the Court seeking a
redetermination of the deficiency and the accuracy-related
penalty.
At trial the Court received into evidence two documents
purporting to support petitioner’s claim of receiving only $4,000
in gambling winnings and $4,000 in gambling losses. One document
was an undated and untitled two-page worksheet with 33 specific
dates in 2004 reflecting a dollar amount in at least one of four
columns showing: (1) Checks she cashed at the casino totaling
$14,600; (2) markers totaling $42,000, which represent cash
advances the casino provided to petitioner during her play in
exchange for petitioner’s authorization for the casino to
withdraw reimbursement within 2 weeks from her checking account;
(3) money market checks totaling $61,100, which petitioner cashed
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before her trips to the casino to have about $2,000 to $3,000 in
cash on hand when she began each visit; and (4) deposits she
returned to the checking account totaling $28,600.
With respect to the deposit column, the worksheet contains a
notation immediately to the right of three of the seven deposits.
Next to the August 31 deposit of $2,000 is the notation
“winnings”, and next to the November 17 and December 11 deposits
of $10,000 and $4,000, respectively, are notations indicating the
deposits were transfers of funds from her money market account.
The other four deposits totaling $14,600 have no notation next to
them. An IRS date stamp on petitioner’s 2004 Federal income tax
return shows that respondent received petitioner’s return on
October 15, 2005. The record does not clarify whether petitioner
prepared the worksheet around the end of 2004, near her tax
return filing date of October 15, 2005, or in preparation for
trial.
The second document is a letter dated February 22, 2005,
from Foxwoods Resort Casino to petitioner printed on plain paper,
not on Foxwoods’ letterhead. The letter states that petitioner’s
win or loss total from table games was zero and that she lost a
total of $35,480 at slot machines during 2004. The letter
explained that “the total slot machine activity is the total coin
deposited in the machines, less the total coin paid out, and less
jackpots paid by hand with currency.” The letter advised that
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the “information is derived from the use of your Wampum Club Card
as recorded in Foxwoods Resort Casino’s player rating system,
which is maintained for marketing purposes only.”
OPINION
I. Reporting of Gambling Winnings and Losses
Gambling winnings are includable in gross income. Sec.
61(a); Merkin v. Commissioner, T.C. Memo. 2008-146. The Code
treats gambling losses in one of two ways. Taxpayers engaged in
the trade or business of gambling may deduct their gambling
losses against their gambling winnings above the line as a trade
or business expense in arriving at adjusted gross income. Sec.
62(a)(1); Merkin v. Commissioner, supra. In contrast, taxpayers
who are not in the trade or business of gambling are typically
called recreational or casual gamblers and may deduct their
gambling losses less favorably below the line as an itemized
deduction in arriving at taxable income. Sec. 63(a); Merkin v.
Commissioner, supra. Irrespective whether the taxpayer is a
professional or a casual gambler, “Losses from wagering
transactions shall be allowed only to the extent of the gains
from such transactions.” Sec. 165(d); Merkin v. Commissioner,
supra; sec. 1.165-10, Income Tax Regs.
Petitioner was a recreational gambler in 2004. See
generally Merkin v. Commissioner, supra. Petitioner argues for a
different methodology for reporting her gambling winnings and
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losses. Petitioner contends the summation of her individual
gambling wins does not accurately reflect true winnings because
she promptly plowed the individual winnings back into the
casino’s slot machines. In petitioner’s view, a gambling session
is not complete until the gambler finishes gambling for the day
or weekend or weeklong visit to the casino and leaves the casino
at the conclusion of the visit with either a net win or loss.
Petitioner emphasizes that the tracking of individual wins
and losses is unrealistic when placing many bets at slot machines
during a long session of plays. As a result, according to
petitioner a gambler should net the winnings and losses from each
visit to the casino. On those visits where the gambler leaves
with more money than the gambler brought to the casino (here and
for the rest of this opinion the term “brought” encompasses a
broad definition to include cash in the gambler’s pocket when the
gambler arrived at the casino plus cash the gambler added at the
casino from markers, ATM draws, credit card advances, and cashing
checks), the gambler should recognize the net winnings for the
visit in a single amount. The gambler should then total the net
winning visits in a year to determine an aggregate amount to
include in income as gambling winnings for that year.
Similarly, in those instances where the gambler leaves the
casino with less money than brought, the gambler should recognize
a net loss for the visit. The gambler should then aggregate the
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net amounts from losing visits for the year and may deduct the
total losses as an itemized deduction up to the total winnings
from the successful gambling sessions for the year.
Applying her theory to her own situation, petitioner
determined her $4,000 in gambling winnings and losses for 2004 in
the following manner. Petitioner claims that on only one
occasion in her 25 to 30 visits did she leave the casino with
more money than she brought. On that one occasion, she won a
single jackpot of $8,000 on Monday, August 30, 2004, of which
Foxwoods held back 25 percent or $2,000 for petitioner’s Federal
income tax withholding. Petitioner claims she gambled and lost
$4,000 of the winnings, and left the casino with the remaining
$2,000. Consequently, according to petitioner her one net win of
$2,000 plus the $2,000 in withholding represents her sole
gambling winnings for the year totaling $4,000.
With respect to gambling losses for 2004, petitioner
contends that she broke even or lost money on every one of her
other 24 to 29 visits to the casino during the year. Petitioner
claims her losses totaled much more than $4,000, but pursuant to
the gambling loss limitation of section 165(d) she limited her
gambling losses to the amount of her gambling winnings, $4,000,
and deducted the $4,000 gambling loss as an itemized deduction
for 2004.
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In general, casual gamblers such as petitioner should report
the gross amount of their gambling winnings as income and should
deduct separately as an itemized deduction the gross amount of
their gambling losses up to the amount of gambling winnings. See
Merkin v. Commissioner, supra (taxpayers not in the trade or
business of gambling may report gambling losses only as an
itemized deduction); Hardwick v. Commissioner, T.C. Memo. 2007-
359 (same); Lutz v. Commissioner, T.C. Memo. 2002-89 (“It is well
settled that taxpayers [who are recreational gamblers] have a
duty to report as gross income gambling winnings” and “gambling
losses must be claimed as itemized deductions”).
Respondent nonetheless agrees with petitioner’s theory of
recognizing slot machine play on the basis of net wins or losses
per visit to the casino. Specifically, respondent states the
following:
[T]he better view is that a casual gambler playing a
slot machine, such as the petitioner, recognizes a
wagering gain or loss at the time she redeems her
tokens. The fluctuating wins and losses left in play
are not accessions to wealth until the taxpayer redeems
her tokens and can definitively calculate the amount
above or below basis (the wager) realized. See
Commissioner v. Glenshaw Glass Co., 348 U.S. 426
(1955).
Respondent’s agreement, however, does not mean petitioner
wins the day. Respondent argues instead that petitioner’s
contentions fail because petitioner did not maintain adequate
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records to substantiate her claims of net gambling winnings and
losses.
We do not have to decide and we explicitly do not decide the
propriety of petitioner’s theory of income recognition from
recreational slot machine play because, as discussed below, we
agree with respondent that with respect to 2004, petitioners did
not maintain adequate records to substantiate her claims of net
gambling winnings and losses. Thus, in its essence this case is
solely one of substantiation. See Gagliardi v. Commissioner,
T.C. Memo. 2008-10 (concluding that that gambling case was solely
“a substantiation case”, with the sole issue being whether the
taxpayer had substantiated the gambling losses which the
Commissioner had disallowed).
II. Substantiation of Gambling Winnings
Petitioner’s situation is different from the usual gambling
case where the taxpayer tries to prove gambling losses greater
than the amount the Commissioner allowed. See, e.g., Briseno v.
Commissioner, T.C. Memo. 2009-67; Gagliardi v. Commissioner,
supra; Hardwick v. Commissioner, supra. Petitioner is already at
the maximum of losses that section 165(d) allows (gambling losses
may not exceed reported gambling winnings). Instead, to refute
respondent’s determination, petitioner must establish that she
had less than the $30,170 in gambling winnings that respondent
determined.
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In general, the Court presumes the Commissioner’s
determination of a deficiency in a notice of deficiency is
correct, and the burden is on the taxpayer to prove otherwise.
Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).
Under certain circumstances the taxpayer may shift the burden to
the Commissioner regarding factual matters affecting tax if the
taxpayer produces credible evidence and meets the other
requirements of the section including maintaining records
required by the Code. Sec. 7491(a). Petitioner does not argue
that she satisfied the elements for a burden shift, but even if
she did advance this argument, petitioner did not produce
sufficient substantiation to support her claims as section 6001
requires. See Higbee v. Commissioner, 116 T.C. 438, 443 (2001).
Accordingly, the burden of proof remains on petitioner to prove
the $30,170 in gambling winnings that respondent determined for
2004 was in error. With respect to the accuracy-related penalty,
the burden of production is on respondent. See sec. 7491(c).
Deductions are a matter of legislative grace, and the
taxpayer bears the burden of proving entitlement to deductions
claimed on a return. Rule 142(a)(1); INDOPCO, Inc. v.
Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice Co. v.
Helvering, 292 U.S. 435, 440 (1934). Implicit in this burden is
the requirement that taxpayers must prove the amount of gambling
winnings as well as losses. Schooler v. Commissioner, 68 T.C.
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867, 869 (1977); Donovan v. Commissioner, T.C. Memo. 1965-247,
affd. per curiam 359 F.2d 64 (1st Cir. 1966).
Section 6001 and the regulations thereunder require
taxpayers to keep permanent records sufficient to substantiate
the amounts of income, deductions, and credits shown on their
income tax returns. Sec. 1.6001-1(a), Income Tax Regs. The
obligation to maintain sufficient supporting records for wagering
transactions is no more onerous than the recordkeeping
requirements for taxpayers engaged in daily activities such as
business travel and entertainment. Schooler v. Commissioner,
supra at 870-871; see also Rodriguez v. Commissioner, T.C. Memo.
2001-36.
Petitioner’s evidence consists of the following three items:
(1) The undated four-column worksheet that petitioner prepared;
(2) the February 22, 2005, letter from Foxwoods; and (3)
petitioner’s oral testimony that on only one occasion did she
leave the casino with more money that she wagered. We review in
turn each of these three pieces of evidence.
Petitioner relies on the four-column worksheet with the
written notation “winnings” next to one deposit of $2,000 as the
documentary evidence that only one of her visits to Foxwoods in
2004 resulted in a net win, and the amount of that win was $4,000
(including the $2,000 in Federal tax withholding). However,
shortcomings exist with respect to this evidence. No valid
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reason exists for taxpayers engaged in wagering transactions not
to maintain a contemporaneous gambling diary or gambling log.
Schooler v. Commissioner, supra at 870-871. Petitioner
acknowledged that she did not prepare the worksheet
contemporaneously, stating that she tried to “keep up with it
[her recordkeeping] daily, but if not, it would have to be
yearly. It would be a lot easier to go through it yearly.”
Petitioner was not specific as to whether she prepared the
worksheet around the end of the 2004 calendar year, 10 months
later when she filed her 2004 return, or 3 years later in
preparation for trial.
Additionally, the worksheet was untitled, had no explanation
of its purpose, and did not explain many items on the document.
For instance, the worksheet showed $14,600 of deposits with no
explanation, which may have been additional gambling winnings.
Similarly, petitioner did not reconcile the worksheet to the
winnings Foxwoods reported on the Forms W-2G.
Moreover, petitioner did not provide copies of bank
statements, canceled checks, or other corroborating evidence to
establish the accuracy of individual line items on the worksheet
or to establish the completeness of the worksheet by reconciling
the worksheet to figures supplied by the bank. Without support,
the worksheet is unreliable to corroborate petitioner’s claims.
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The February 22, 2005, letter from Foxwoods also has
shortcomings. The letter reports that petitioner lost a total of
$35,480 at the slots during 2004. However, the letter provides
no detail by which we could determine which of petitioner’s 25 to
30 visits to the casino for the year were a net win or a net
loss. Since the net win or loss per visit is the mainstay of
petitioner’s argument, and since Foxwoods’ letter stated the
casino was tracking petitioner’s results, we find it curious that
petitioner did not ask Foxwoods to provide, or that petitioner
did not supply to the Court, a more detailed statement from
Foxwoods showing the results for each visit. In summary, the
letter is helpful in confirming the overall picture that
petitioner lost money for 2004, a point not in dispute, but the
letter does not shed light on the decisive matter regarding which
of petitioner’s visits were net wins or losses and in what
amounts.
With respect to petitioner’s testimony, petitioner claims
that she walked away a winner from Foxwoods on only 1 of her 25
to 30 visits to the casino during 2004. Given the nature of
gambling, where the house usually wins; Foxwoods’ letter stating
petitioner’s overall losses for 2004; and petitioner’s credible
testimony, we find it likely that she lost money on most of her
visits to the casino during 2004. However, a general tenor is
not the same as accepting petitioner’s unsupported assertion of
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precisely $4,000 in income from just one win. See Crepeau v.
Commissioner, 438 F.2d 1228 (1st Cir. 1971) (uncontradicted oral
testimony is not adequate to overcome insufficiently supported
taxpayer statements), affg. T.C. Memo. 1969-236; Niedringhaus v.
Commissioner, 99 T.C. 202, 212 (1992) (we need not accept a
taxpayer’s testimony in the absence of corroborating evidence).
We also note that petitioner did not call as a witness any
friend with whom she traveled to Foxwoods to corroborate her
testimony. The failure to call witnesses leads to an inference
that if called they would testify adversely. Interstate Circuit,
Inc. v. United States, 306 U.S. 208, 226 (1939); Bresler v.
Commissioner, 65 T.C. 182, 188 (1975); Blum v. Commissioner, 59
T.C. 436, 440-441 (1972); Wichita Terminal Elevator Co. v.
Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th
Cir. 1947).
Moreover, respondent has already reduced the gambling
winnings that Foxwoods reported for 2004 on the Forms W2-G, from
$56,200 to $30,170. Petitioner has simply not provided
sufficient corroborating evidence to make an estimate beyond the
reduction respondent has already determined. See Hardwick v.
Commissioner, T.C. Memo. 2007-359 (the Court should not make an
estimate in a gambling case where the taxpayer’s substantiation
has too many omissions and discrepancies, especially where the
taxpayer could have simply provided evidence from use of a casino
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Players’ Club card to document slot machine play during each
gambling trip). Further, respondent made the reduction even
though petitioner almost certainly had many winnings below the
Form W2-G threshold amount of $1,200 and despite petitioner’s
receiving comps from Foxwoods for some meals, hotel stays,
limousine rides, and shopping. See Libutti v. Commissioner, T.C.
Memo. 1996-108 (comps are “increases to * * * wealth” and
therefore fall within the plain meaning of section 165(d) as
gains from wagering transactions).
In summary, we find that petitioner has not met her burden
of proving that respondent’s determination is incorrect. Because
petitioner has not provided a reasonable basis to estimate which
of her visits to the casino resulted in a net win or a net loss,
or the dollar amount of each outcome, to reduce income more than
respondent has already done would be unguided largesse.
Therefore, we sustain respondent’s determination.
III. Accuracy-Related Penalty
Respondent also determined that petitioner is liable for a
20-percent accuracy-related penalty under section 6662(a) and
(b)(1) for 2004 for an underpayment of income tax that results
either from negligence or disregard of rules and regulations.
The term “negligence” includes any failure to make a reasonable
attempt to comply with the provisions of the Code, and the term
“disregard” includes any careless, reckless, or intentional
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disregard. Sec. 6662(c); sec. 1.6662-3(b)(1), Income Tax Regs.
Negligence is also “‘a lack of due care or the failure to do what
a reasonable and ordinarily prudent person would do under the
circumstances.’” Freytag v. Commissioner, 89 T.C. 849, 887
(1987) (quoting Marcello v. Commissioner, 380 F.2d 499, 506 (5th
Cir. 1967), affg. in part and remanding in part 43 T.C. 168
(1964) and T.C. Memo. 1964-299), affd. 904 F.2d 1011 (5th Cir.
1990), affd. 501 U.S. 868 (1991).
As noted, the Commissioner bears the burden of production
with respect to penalties. Sec. 7491(c). To meet this burden,
the Commissioner must produce evidence to show that it is
appropriate to impose the relevant penalty. Swain v.
Commissioner, 118 T.C. 358, 363 (2002); Higbee v. Commissioner,
116 T.C. at 446. Respondent has met his burden by establishing
that petitioner did not keep adequate records as required by
section 6001 to substantiate the amount of gambling income she
reported on her 2004 Federal income tax return.
Nonetheless, a taxpayer may overcome the accuracy-related
penalty if the taxpayer can show that the underpayment of income
tax was due to “reasonable cause * * * and that the taxpayer
acted in good faith”. Sec. 6664(c)(1). The taxpayer bears the
burden of proving reasonable cause. Higbee v. Commissioner,
supra at 446-447. The Court decides reasonable cause and good-
faith effort on a case-by-case basis, taking into account all
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pertinent facts and circumstances, including the extent of the
taxpayer’s efforts to assess his or her proper tax liability; the
taxpayer’s education, knowledge, and experience; and the
taxpayers’ reasonable reliance on a tax professional. Higbee v.
Commissioner, supra at 448; Sec. 1.6664-4(b)(1), Income Tax Regs.
The extent of the taxpayer’s efforts to assess the proper tax
liability is generally the most important factor. Sec.
1.6664-4(b)(1), Income Tax Regs.
Good faith reliance on professional advice concerning tax
laws may provide a basis for a reasonable cause defense. United
States v. Boyle, 469 U.S. 241, 250-251 (1985); see also sec.
1.6664-4(b)(1), Income Tax Regs. Reliance on professional advice
is not an absolute defense to the section 6662(a) penalty.
Freytag v. Commissioner, supra at 888. Reasonable cause exists
where a taxpayer relies in good faith on the advice of a
qualified tax adviser where the following three elements are
present: “(1) The adviser was a competent professional who had
sufficient expertise to justify reliance, (2) the taxpayer
provided necessary and accurate information to the adviser, and
(3) the taxpayer actually relied in good faith on the adviser’s
judgment.” Neonatology Associates, P.A. v. Commissioner, 115
T.C. 43, 99 (2000), affd. 299 F.3d 221 (3d Cir. 2002).
Petitioner made a good-faith effort to determine the proper
tax by engaging an attorney to prepare her return, the same
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attorney who had prepared her prior returns which respondent
never challenged. Petitioner’s attorney was certainly competent:
respondent agreed with the attorney’s theory of the case that
taxpayers should recognize results from slot machine play on the
basis of net wins or losses per visit to the casino.
Petitioner’s overall story is also credible, albeit
unsupported. That she probably did lose money on most of her
visits to the casino is reflected in the fact that respondent
reduced the amount of petitioner’s winnings for 2004 from $56,200
to $30,170, and reflected in a reduction from 26 to 11 in the
number of Forms W-2G that respondent required petitioner to
recognize for 2004.
Petitioner disclosed all of her $56,200 of Form W-2G
winnings to her attorney. Petitioner relied in good faith on the
attorney’s judgment, disclosing to respondent on her 2004 Federal
income tax return the Forms W-2G that led to the $56,200 total
and attaching a memorandum describing the attorney’s theory of
netting wins and losses per visit to the casino. “To require the
taxpayer to challenge the attorney, to seek a ‘second opinion,’
or to try to monitor counsel on the provisions of the Code
himself would nullify the very purpose of seeking the advice of a
presumed expert in the first place.” United States v. Boyle,
supra at 251.
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In summary, we conclude that petitioner has done what a
reasonable person would do under the circumstances to determine
the proper tax. Therefore, on the basis of the record before us,
for all of the above reasons, we find that petitioner had
reasonable cause and acted in good faith. We do not sustain
respondent’s determination of an accuracy-related penalty for
2004.
To reflect our disposition of the issues,
Decision will be entered
for respondent as to the
deficiency and for
petitioner as to the
accuracy-related penalty.