T.C. Memo. 2009-275
UNITED STATES TAX COURT
BRUCE MCGRAW AND NORMA MCGRAW, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 22519-07. Filed November 30, 2009.
Donna Rice Owens, for petitioners.
Ladd C. Brown, Jr., for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
THORNTON, Judge: Respondent determined a $19,277 deficiency
in petitioners’ 2005 Federal income tax and an accuracy-related
penalty of $3,650 pursuant to section 6662(a).1 After
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code as in effect for the taxable year at
issue.
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concessions, the only issue for decision is whether the casualty
loss deduction petitioners claimed on their 2005 joint Federal
income tax return is subject to the limitations of section
165(h).2 This issue turns upon whether the undisputed casualty
loss of $69,715 that petitioners sustained in 2005 was
attributable to Hurricane Wilma so as to qualify for relief under
sections 1400M(6) and 1400S(b), as enacted in the Gulf
Opportunity Zone Act of 2005 (the GO Zone Act), Pub. L. 109-135,
secs. 101(a), 201(a), 119 Stat. 2578, 2596.
FINDINGS OF FACT
The parties have stipulated some facts, which we so find.
When they filed their petition, petitioners resided in Florida.
Petitioners’ home is in Broward County, Florida, and within
the Hurricane Wilma disaster area as defined in the GO Zone Act
and declared by the President. Sec. 1400M(6); Notice of
Presidential Declaration, 70 Fed. Reg. 67187 (Nov. 4, 2005). On
their 2005 joint Form 1040, U.S. Individual Income Tax Return,
petitioners claimed a $69,715 casualty loss, which they contend
resulted from damage to their home caused by Hurricane Wilma.
2
In their stipulation of settled issues, the parties agree
that if the Court rules in petitioners’ favor on the casualty
issue, then their deficiency in income tax for 2005 is $4,966 and
there is no penalty pursuant to sec. 6662(a).
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In the notice of deficiency, respondent decreased
petitioners’ casualty loss deduction to $27,622 on the ground
that section 165(h) limited the amount allowed as a deduction.
OPINION
Section 165(a) allows a deduction for losses sustained
during the taxable year and not compensated for by insurance or
otherwise. In the case of an individual, the deduction is
limited to certain losses, including those arising from a
casualty. Sec. 165(c)(3).
Under the general rule of section 165(h), a casualty loss
may be deducted only to the extent it exceeds $100 and 10 percent
of the taxpayer’s adjusted gross income (after applying the $100
floor). These limitations do not apply to casualty losses “which
arise in the Hurricane Wilma disaster area on or after October
23, 2005, and which are attributable to Hurricane Wilma.” Sec.
1400S(b)(3).
The parties have stipulated that petitioners’ home is
located in the Hurricane Wilma disaster area. Respondent does
not dispute that on or after October 23, 2005, petitioners
sustained an uncompensated casualty loss of $69,217, as claimed
on their 2005 return. Respondent disputes only whether the
casualty loss was attributable to Hurricane Wilma.
Petitioners were not present at trial, but one of their
longtime friends, who lives a short distance from them in Broward
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County, testified on their behalf. He testified that he had been
at petitioners’ home watching football the day before Hurricane
Wilma and observed no damage to their property. He testified
that when he returned to their home a week later to help them
clean up, he observed extensive damage to their property and to
other properties in their gated community, although the guard
gate was no longer there.
We found the witness and his unrefuted testimony credible.
Sparse as it may be, the totality of the evidence fairly supports
the inference that petitioners’ undisputed casualty loss was
attributable to Hurricane Wilma, and we so find. Accordingly, we
conclude and hold that the section 165(h) limitations do not
apply to petitioners’ casualty loss deduction.
To reflect our resolution of the disputed issue and the
parties’ stipulation of settled issues,
Decision will be entered
for petitioners.