T.C. Memo. 2010-72
UNITED STATES TAX COURT
ANTHONY J. ADAMS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2563-08. Filed April 13, 2010.
Anthony J. Adams, pro se.
Bryan E. Sladek and Robert D. Heitmeyer, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: For 2003 and 2004 respondent determined
deficiencies in petitioner’s Federal income taxes, additions to
tax, and penalties as follows:
Addition to Tax Penalty
Year Deficiency Sec. 6651(a)(1) Sec. 6662(a)
2003 $38,020 $6,304.00 $7,604
2004 20,705 1,983.25 4,141
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As an initial matter, neither party argued or briefed
whether: (1) The Essex Drive trust should have claimed the
mortgage interest deduction pursuant to section 163(h)(4)(D)1 and
the provisions of subchapter J; (2) petitioner could have claimed
the mortgage interest deduction as investment interest, Davies v.
Commissioner, 54 T.C. 170, 176 (1970) (property that was a
residence in the taxpayer’s hands was business property in the
land trust’s hands); or (3) the Essex Drive trust was a mere
nominee, a sham, or should otherwise be disregarded, see Norton
v. Commissioner, T.C. Memo. 2002-137 (land trusts disregarded as
shams and income taxable to beneficiaries). These issues are
deemed waived. See Rule 40; Muhich v. Commissioner, 238 F.3d
860, 864 n.10 (7th Cir. 2001) (issues not addressed or developed
are deemed waived--it is not the Court’s obligation to research
and construct the parties’ arguments), affg. T.C. Memo. 1999-192;
330 W. Hubbard Rest. Corp. v. United States, 203 F.3d 990, 997
(7th Cir. 2000) (same); Larson v. Northrop Corp., 21 F.3d 1164,
1168 n.7 (D.C. Cir. 1994) (declining to reach issues neither
argued nor briefed). Accordingly, our decision in the case will
be based upon the extent to which section 1.163-1(b), Income Tax
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code (I.R.C.) in effect for the year in
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
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Regs., applies and on the arguments the parties asserted or
briefed with respect thereto.
For 2003 and 2004, respectively, respondent concedes that
petitioner is entitled to deductions for: (1) State and local
income taxes of $3,823 and $4,161; (2) real estate taxes of
$3,346 and $5,020; (3) charitable contributions of $11,263 and
$11,637; (4) miscellaneous expenses of $1,330 and $989 (before
application of the section 67(a) 2-percent floor); and (5)
“Schedule E” net losses of $81,226 and $34,645.
The issues remaining for decision for 2003 and 2004 are
whether petitioner is: (1) Entitled to his claimed mortgage
interest deductions; (2) liable for the section 6651(a)(1)
additions to tax; and (3) liable for the section 6662(a)
accuracy-related penalties.
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
Michigan when the petition was filed.
I. The Essex Drive Trust: Formation and Trust Agreement
In 2003 Michael and Zina Gedz transferred legal and
equitable title to 325 Essex Drive (Essex Drive property) for a
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5-year period2 to Equity Holding Corp. as trustee for the Essex
Drive Trust pursuant to a trust agreement. A warranty deed
memorializing the transfer was recorded by the Register of Deeds,
Oakland County, Michigan.3
The trust agreement provides that the purpose of the Essex
Drive Trust is to hold the Essex Drive property and the proceeds
and profits therefrom in trust for the beneficiaries’ use and
benefit. The trustee is to deal with the Essex Drive property
only when the beneficiaries authorize it to do so.
According to the trust agreement, the beneficiaries’
“interests * * * consist solely” of: (1) A power of direction to
authorize the trustee to deal with the Essex Drive property;4
(2) the right to receive or direct the disposition of proceeds
from the Essex Drive property; (3) the right to purchase, lease,
manage, and control the Essex Drive property; and (4) “the
2
The trust agreement provides that the Essex Drive trust
would terminate on Feb. 28, 2008, unless extended by mutual
direction of the beneficiaries.
3
The Gedzes also executed a beneficiary agreement, an
assignment of beneficial interest, and a rider to the trust
agreement with Bill Gatten (Mr. Gatten). These documents define
their interests, rights, and obligations. The Gedzes transferred
to Mr. Gatten a 90-percent beneficial interest and the
corresponding proportionate share of the power of direction.
4
The power of direction includes the right to direct the
trustee to make and execute contracts or deeds for the sale of,
to execute mortgages, leases, or options on, and to otherwise
deal with the Essex Drive property; to dispose of the proceeds
from rentals, mortgages, insurance, and sales; and to dispose of
the Essex Drive property.
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obligation for expenses and disbursements relative to the trust
property.” The beneficiaries’ rights to the proceeds are “deemed
to be personal property”; the beneficiaries do not possess “any
right, title, or interest * * * [in the Essex Drive property]
either legal or equitable”.5 Expenses of the Essex Drive Trust
are allocated among the beneficiaries according to their
respective percentages of beneficial interests unless otherwise
agreed. The beneficiaries also are required to obtain insurance
for the Essex Drive property. A beneficiary’s interest passes to
an executor or administrator of his or her estate on death;
otherwise, a transfer of a beneficiary’s interest to a third
party is subject to the other beneficiaries’ rights of first
refusal, and no assignment of a beneficiary’s interests is valid
unless all beneficiaries consent, a copy of the assignment is
delivered to the trustee, and the trustee indicates its
acceptance thereon.
The trust agreement further provides that the trustee is not
obligated to file any Federal income tax returns or schedules on
behalf of the Essex Drive Trust notwithstanding “section 671 of
the * * * [I.R.C.] of 1954 or any other applicable regulations.”6
5
The trust agreement further provides that a beneficiary
“has only an interest in the proceeds and profits” and the
trustee is to “vest with full legal and equitable title to the”
Essex Drive property.
6
The trust agreement does not discuss sec. 641 (tax
(continued...)
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If it becomes necessary for the Essex Drive Trust to file a Form
1041, U.S. Income Tax Return for Estates and Trusts, or other
informational returns under “section 6031 of the * * * [I.R.C.]
of 1954,” the trustee will not be obligated to prepare them, but
the trustee will sign informational returns if necessary at the
beneficiaries’ request. The beneficiaries are to report and pay
all taxes on the earnings and proceeds of the Essex Drive
property or otherwise arising from their beneficial interests.
II. Petitioner’s Beneficial Interest and Trust Documents
In 2003 the Gedzes assigned a 40-percent beneficial interest
in the Essex Drive Trust to BOGAT Management and a 50-percent
beneficial interest in the Essex Drive Trust to petitioner and
Sandra Adams.7
A. Beneficiary Agreement
The Gedzes, BOGAT Management, and petitioner and Sandra
Adams entered into a beneficiary agreement that provides that the
beneficiaries collectively have the: (1) Power of direction to
authorize the trustee to deal with the Essex Drive property’s
6
(...continued)
imposed on taxable income of estates or of any kind of property
held in trust) or 6012(a)(4) (return filing requirement for
trusts with “any taxable income, or gross income of $600 or over,
regardless of the amount of taxable income”). As stated supra,
neither party briefed these issues, and we do not discuss them
further.
7
Sandra Adams is petitioner’s wife; they were separated
when the petition was filed.
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title; (2) “right to receive and/or direct the disposition of
proceeds from rentals, mortgages, sales, or other related income
sources”; (3) right and duty to manage the Essex Drive property;
and (4) obligation to pay the Essex Drive property’s expenses.
The beneficiaries’ interests in the Essex Drive Trust are
personal property interests. The beneficiaries share in the
Essex Drive property’s earnings, gains, proceeds, and expenses
according to their respective percentages of beneficial
interests. No beneficiary may make material alterations or
improvements to the Essex Drive property without the trustee’s
and the other beneficiaries’ prior written consent. The
beneficiaries’ rights to transfer their beneficial interests are
subject to the provisions of the trust agreement, and any
transfer must be agreed to by a majority of the beneficiaries.
The beneficiary agreement further provides that the Essex
Drive property will be sold at termination (i.e., February 28,
2008) subject to a first right to purchase (right of first
refusal) held by petitioner and Sandra Adams. The terms of the
right of first refusal are that the Essex Drive property is to be
made available for sale to petitioner and Sandra Adams at a price
equal to what would be proposed by a third party and that they
have a right to offset the sale price by the value of their share
of profits and any contributions that are agreed to have been
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paid by and refundable to petitioner and Sandra Adams.8
Petitioner and Sandra Adams’ right of first refusal “begins with
the date of * * * [the beneficiary agreement (March 1, 2003) and
terminates on the Essex Drive property’s] sale or other
disposition.” According to “Exhibit ‘A’ To Beneficiary
Agreement”, petitioner and Sandra Adams’ refundable contribution
is $12,000. Their initial contribution consists of all
nonrecurring costs contributed including closing costs,
contributions to existing equity “($0.00 -‘Down Payment’),”
realtor commissions, and costs of agreed-upon expenditures for
repairs and capital improvements to the Essex Drive property by
petitioner and Sandra Adams. Petitioner and Sandra Adams’
contributions are “Refundable At Termination, If Equity Permits”.
B. “NEHT Occupancy” Agreement
The beneficiary agreement also provides that no beneficiary
is entitled to occupy or possess the Essex Drive property unless
an NEHT Occupancy agreement accompanies the beneficiary
agreement. The NEHT Occupancy agreement refers to the Essex
Drive Trust as “Landlord” and to petitioner and Sandra Adams as
“Tenant” and provides that Landlord agrees to lease to Tenant the
Essex Drive property. Tenant is to pay rent of $2,900 per month,
which includes principal and interest on all loans secured by the
8
From the record, it appears that the sale price of the
Essex Drive property that petitioner and Sandra Adams agreed to
was $320,000.
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Essex Drive property. Tenant is required to maintain insurance
coverage for and is liable for all repairs and maintenance of the
Essex Drive property. Tenant may not make material alterations
to the Essex Drive property without Landlord’s consent, and
expenditures for repairs are not refundable or creditable to
Tenant unless done at Landlord’s written direction. Tenant may
not assign or sublet his interest under the NEHT Occupancy
agreement.
C. Related Documents
Petitioner and Sandra Adams received other documents for the
Essex Drive property. The first document, titled “Beautiful
Home”, states: (1) No bank qualifying, no credit approval, and
immediate tax benefits; (2) “Rent to Own”; (3) three payments and
closing costs get you in at $320,000; and (4) participate in
future appreciation and benefit in equity buildup. The second
document, titled “How We (TK Investment Properties, LLC) Can
Benefit You (the Buyer))”, states that benefits provided to a
buyer include: (1) Easier credit qualification and payment
arrangements; (2) entitlement to all income tax deductions for
“Mortgage Investors and Property Tax payments,” even though title
does not pass to buyer; (3) receipt of equity buildup from
reduction of the mortgage principal as payments are made;
(4) receipt of appreciation of the Essex Drive property;
(5) protection of the Essex Drive property from the buyer’s
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creditors; and (6) the pride of ownership without the rules and
constraints of conventional real estate acquisition and mortgage
processes. These documents include an amortization table that
was provided to petitioner and Sandra Adams, and it sets forth
the amounts of mortgage interest and principal paid for each
payment.
III. Petitioner’s Occupancy
Petitioner and Sandra Adams moved into the Essex Drive
property in June 2003 and resided there for 5 years. During that
time petitioner made improvements to the Essex Drive property.
For example, he replaced the cedar deck for about $1,700 and
installed an automatic garage door opener for about $500 to $600.
He relandscaped the Essex Drive property and incurred costs of
about $1,500 for “Dirt shoveling, [and] stuff like that.” He
also incurred costs of about $500 to $600 to have glass block
windows installed in the basement because of Michigan’s harsh
winters. The Essex Drive property’s value declined, however, and
at the end of the contract term petitioner did not exercise the
right of first refusal to purchase the Essex Drive property.
Petitioner sent Equity Management Services9 payments of
$2,900 per month that included principal and interest on all
loans secured by the property. Petitioner credibly testified
9
The Gedzes and the Essex Drive Trust used Equity
Management Services as a “bill paying” or collection service.
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that the fair rental value of the Essex Drive property was about
$1,500 to $1,600 per month.
The escrow account statements from which the mortgage
payments were made bear the Gedzes’ names as mortgagees, and the
Forms 1098, Mortgage Interest Statement, also bear the Gedzes’
names as mortgagees.10 Equity Management Services sent
petitioner copies of the escrow account statements and the Forms
1098.
IV. Petitioner’s Tax Returns
Petitioner filed his 2003 Form 1040, U.S. Individual Income
Tax Return, in November 2005. He filed his 2004 Form 1040 in
February 2006.11 For 2003 and 2004, respectively, he claimed
mortgage interest deductions of $24,135 and $23,471 that
respondent disallowed.
OPINION
Petitioner has neither claimed nor shown that he satisfied
the requirements of section 7491(a) to shift the burden of proof
to respondent. Accordingly, petitioner bears the burden of
proof. See Rule 142(a).
10
The Gedzes’ mortgage is held by National City Mortgage
Co. There is no indication in the record as to the original
principal amount.
11
Petitioner did not apply for extensions of time to file
his Forms 1040.
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I. Mortgage Interest Deductions
Section 163(h)(1) generally disallows a deduction for
personal interest. An exception to this rule is qualified
residence interest. Sec. 163(h)(2)(D). Qualified residence
interest includes interest paid or accrued during the taxable
year on acquisition indebtedness. Sec. 163(h)(3)(A).
Acquisition indebtedness means any indebtedness that is incurred
in acquiring, constructing, or substantially improving any
qualified residence of the taxpayer and is secured by the
residence. Sec. 163(h)(3)(B)(i). A qualified residence includes
the principal residence of the taxpayer. Sec. 163(h)(4)(A).
Generally, for interest on a mortgage to be deductible the
indebtedness must be an obligation of the taxpayer and not an
obligation of another. Smith v. Commissioner, 84 T.C. 889, 897
(1985), affd. without published opinion 805 F.2d 1073 (D.C. Cir.
1986). But section 1.163-1(b), Income Tax Regs., provides:
“Interest paid by the taxpayer on a mortgage upon real estate of
which he is the legal or equitable owner, even though the
taxpayer is not directly liable upon the bond or note secured by
such mortgage, may be deducted as interest on his indebtedness.”
Where a taxpayer has not established legal, equitable, or
beneficial ownership of property, we have disallowed the
taxpayer’s claimed mortgage interest deduction. Hynes v.
Commissioner, 74 T.C. 1266, 1288 (1980); Song v. Commissioner,
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T.C. Memo. 1995-446; Bonkowski v. Commissioner, T.C. Memo.
1970-340, affd. 458 F.2d 709 (7th Cir. 1972).
The Court considers State law to determine the nature of the
taxpayer’s property rights. United States v. Natl. Bank of
Commerce, 472 U.S. 713, 722 (1985); Aquilino v. United States,
363 U.S. 509, 513 (1960).12 The Court also considers certain
factors to determine whether a taxpayer is an equitable or
beneficial owner of the property, including whether the taxpayer:
(1) Has a right to possess the property and to enjoy the use,
rents, or profits thereof; (2) has a duty to maintain the
property; (3) is responsible for insuring the property; (4) bears
the property’s risk of loss; (5) is obligated to pay the
property’s taxes, assessments, or charges; (6) has the right to
improve the property without the owner’s consent; and (7) has the
right to obtain legal title at any time by paying the balance of
the purchase price. Blanche v. Commissioner, T.C. Memo. 2001-63,
affd. 33 Fed. Appx. 704 (5th Cir. 2002).
Under Michigan law, the term “trust” includes an express
trust wherever and however created (with certain exceptions not
shown here). Mich. Comp. Laws Serv. sec. 700.1107(m) (Lexis
Nexis 2005). Express trusts may be created to sell, mortgage, or
12
Whatever rights or interests petitioner held in the
Essex Drive property are determined under Michigan law because
the property is in Michigan, see Altmann v. Commissioner, 20 T.C.
236, 252 (1953), and the trust agreement provides that it is
governed by Michigan law.
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lease lands; to receive the rents and profits of lands and apply
them to the use of any person, during the life of the person, or
for any shorter term subject to the rules prescribed in Mich.
Comp. Laws Serv. chapter 554; or for the beneficial interest of
any person where the trust is fully expressed and clearly defined
upon the face of the instrument creating it subject to the
limitations as to time. Mich. Comp. Laws Serv. sec. 555.11
(Lexis Nexis 2007).
Petitioner’s property rights or interests are as follows:
he is a beneficiary of the Essex Drive Trust, which meets the
definition of an express trust under Michigan law; however, the
trust agreement provides that he does not have any right, title,
or interest in the Essex Drive property.13 See id. Other
documents refer to him as a buyer and certain attributes of a
sale are present such as a downpayment, closing costs,14 and
petitioner’s payment of principal and interest, while other
attributes of a sale are not present such as a transfer of the
13
As stated supra pp. 3-4, the trust agreement provides
that its purpose is to hold the Essex Drive property and the
proceeds and profits therefrom in trust for the beneficiaries’
use and benefit; and collectively, the trust documents were used
to facilitate the purported lease of the Essex Drive property to
petitioner.
14
Petitioner and Sandra Adams agreed to pay their
respective closing costs pursuant to the document titled
Assignment of Beneficial Interest, and as stated supra, the
document titled Exhibit A To Beneficiary Agreement also
references closing costs and a downpayment.
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Essex Drive property by deed to petitioner. The NEHT Occupancy
agreement refers to him as Tenant and to his monthly payments as
rent. The escrow account statements, the Forms 1098, and an
amortization table were sent to petitioner, even though he was
not personally liable for the mortgage, and the escrow account
statements and the Forms 1098 bear the Gedzes’ names. We now
turn to the benefits and burdens of ownership factors.
Some factors weigh in favor of finding that petitioner had
assumed the benefits and burdens of ownership of the Essex Drive
property while others weigh against. Factors that indicate that
petitioner assumed the benefits and burdens of ownership are:
(1) He had a duty to repair or maintain the Essex Drive property;
(2) he was responsible for insuring the Essex Drive property;
(3) he had a duty to pay the Essex Drive property’s taxes,
assessments, or charges; (4) he had a right to the Essex Drive
property’s proceeds from rents, mortgages, or sales; (5) he had
the right to obtain legal title at any time by paying the balance
of the purchase price: his right of first refusal began on the
date of the beneficiary agreement and terminated on the Essex
Drive property’s sale or other disposition; (6) he bore some risk
of loss because he was required to maintain insurance on the
Essex Drive property and because he could lose his refundable
contribution, which may have included the value of the
improvements petitioner made, if there was no equity in the Essex
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Drive property; and (7) he agreed to pay the mortgage principal
and interest under the NEHT Occupancy and beneficiary agreements.
See Amundson v. Commissioner, T.C. Memo. 1990-337 (finding
agreement to make mortgage payments created “enforceable
interest-bearing debt” to taxpayer’s sister); see also Belden v.
Commissioner, T.C. Memo. 1995-360.15 In short, petitioner
treated the Essex Drive property as if he owned it. See Amundson
v. Commissioner, supra (taxpayer’s performance of obligations as
owner is indicative of ownership interest); see also Trans v.
Commissioner, T.C. Memo. 1999-233 (same); Uslu v. Commissioner,
T.C. Memo. 1997-551 (same).
Factors that indicate that petitioner did not assume the
benefits and burdens of ownership are: (1) He could choose not
to exercise his right of first refusal and to walk away from the
Essex Drive property, see Randolph v. Reisig, 727 N.W.2d 388, 392
(Mich. Ct. App. 2006) (right of first refusal does not create
interest in land); see also Jones v. Commissioner, T.C. Memo.
2006-176 (optionee was not entitled to mortgage interest
deduction because under California law he had no ownership
15
Pursuant to the beneficiary agreement, the beneficiaries
agreed that any failure to pay the Essex Drive property’s
expenses created, at the option of the majority interest of the
other beneficiaries, a debt from the delinquent beneficiary to
the other beneficiaries plus 10 percent interest per annum until
paid. Moreover, the “uncollected balance” might be collected by
lawsuit or by charge against the proceeds otherwise due to the
delinquent party.
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interest in property and because he had not acquired sufficient
benefits and burdens of ownership to establish that he was
equitable owner); (2) he had to enter into an NEHT Occupancy
agreement with the Essex Drive Trust to possess or enjoy the use
of the Essex Drive property, see Ryan v. Commissioner, T.C. Memo.
1995-579; and (3) although petitioner made substantial
improvements to the Essex Drive property, the beneficiary and
NEHT Occupancy agreements provide that he could not make material
alterations or improvements to the Essex Drive property without
certain consents.
On the unique facts of this case, we conclude that the
benefits and burdens that favor ownership outweigh the factors
against ownership. Petitioner has assumed the benefits and
burdens of ownership of the Essex Drive property. See, e.g.,
Derr v. Commissioner, 77 T.C. 708, 725-728, 724 n.11 (1981)
(beneficiary of an Illinois land trust possessed most attributes
of ownership). Petitioner, therefore, is entitled to the
mortgage interest deductions. Respondent’s determinations are
not sustained.
II. Section 6651(a)(1) Additions to Tax
The section 6651(a)(1) additions to tax were based on the
deficiencies. Because of our holding that petitioner is entitled
to the mortgage interest deductions and because respondent
conceded the other deductions that he had disallowed in the
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notice of deficiency, see supra p. 3, petitioner is not liable
for the deficiencies. As there are no deficiencies, petitioner
is not liable for the additions to tax.
III. Section 6662(a) Accuracy-Related Penalties
Because of our holding that petitioner is entitled to the
mortgage interest deductions and because respondent conceded the
other deductions that he had disallowed in the notice of
deficiency, see supra p. 3, there are no underpayments16 of tax.
Therefore, petitioner is not liable for the section 6662(a)
accuracy-related penalties. Respondent’s determinations are not
sustained.
To reflect the foregoing,
Decision will be entered
under Rule 155.
16
An “underpayment” is the amount by which the tax imposed
exceeds the excess of the sum of the amount shown as the tax by
the taxpayer on his return, plus amounts not so shown that were
previously assessed (or collected without assessment), over the
amount of rebates made. Sec. 6664(a).