T.C. Memo. 2010-261
UNITED STATES TAX COURT
WENDELL V. AND SHARON T. GARRISON, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 19988-07, 19989-07. Filed December 1, 2010.
Wendell V. and Sharon T. Garrison, pro sese.
Roger W. Bracken, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
GOEKE, Judge: Respondent determined deficiencies in
petitioners’ Federal income tax and additions to tax under
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section 6651(a)(1) for 1998, 1999, and 2000.1 After concessions,
the issues remaining for decision are:2
(1) Whether petitioners’ gains from sales of real property
during tax years 1998-2000 were ordinary income or capital gain;
(2) whether petitioners are liable for self-employment
taxes;
(3) whether petitioners are entitled to deduct additional
costs associated with the gross income received from purchasing
and selling real property;
(4) whether petitioners are liable for income tax on
dividends received;
(5) whether petitioners are liable for income tax on
interest received in 1998;
(6) whether petitioners must reduce their itemized
deductions for all years and their child tax credit for 1998;
(7) whether petitioners are liable for a failure to timely
file addition to tax pursuant to section 6651(a)(1).
We resolve these issues against petitioners, except we hold that
respondent has not carried the burden of proof with respect to
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
2
Respondent concedes the gain on the foreclosure sale of one
property known as the Dumbarton property.
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the increased deficiencies and additions to tax asserted in his
amended answer.
FINDINGS OF FACT
Petitioners resided in Maryland when they filed their
petitions. On March 22, 2002, petitioners filed their delinquent
joint Federal income tax returns for tax years 1998, 1999, and
2000.
On June 8, 2007, respondent issued a notice of deficiency
(notice). On September 4, 2007, petitioners timely filed their
petitions in this Court for tax years 1998, 1999, and 2000. The
notice mailed to petitioners reflects, among other adjustments, a
recharacterization of petitioners’ real estate transactions.
Specifically, respondent classified income from these
transactions as ordinary income from a trade or business rather
than royalty income, or capital gains as petitioners now claim.3
Respondent made additional adjustments, some resulting from his
recharacterization of the income from real estate sales. The
overall adjustments are as follows:
1998 1999 2000
Schedule C: Income $834,000 $604,500 $473,000
Capital gain or loss -0- 27 -0-
Self-employment tax 13,240 13,789 16,439
Self-employment tax deduction (6,620) (6,895) (8,220)
3
Petitioners contend that they incorrectly reported proceeds
from sales of real estate as royalty income on their returns, and
they now argue that the proceeds should be capital gains.
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Cost of goods sold (656,315) (426,000) (212,000)
Dividend income 38 38 37
Interest income 50 -0- -0-
Schedule E: Royalty income (63,991) (47,121) (73,464)
Itemized deductions (44,328) (16,656) 1,478
Exemptions -0- -0- 8,064
During tax years 1998 through 2000, petitioners regularly
purchased and sold real estate within short periods. Petitioner
husband earned not more than $40,000 annually as a mortgage
banker, and petitioners’ purchases and sales of real estate
contributed substantially to their income. Many of the
properties petitioners purchased were in foreclosure.
In 1998 petitioners sold eight parcels of real property.
Petitioners did not claim expenses or repairs for any of these
properties on their 1998 Form 4797, Sales of Business Property.
Petitioners sold all those properties within 2 months of
purchase, with one exception. In 1999 and 2000 petitioners sold
four parcels of real property each year. Petitioners listed
expenses and repairs on their 1999 Form 4797. Petitioners sold
each property within 10 weeks of acquiring it. Over the 3 years
petitioners did not rent any of the properties before selling
them.
Trial was held on December 7 and 9, 2009, in Washington,
D.C. On March 11, 2009, the Court had granted respondent’s
motion for leave to amend the answer. Respondent’s amended
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answer asserted increased deficiencies and section 6651(a)(1)
additions to tax as follows:
Original Increased
Original Increased sec. 6651(a)(1) sec. 6651(a)(1)
Year deficiency deficiency additions to tax additions to tax
1998 $27,118 $69,298 $6,779 $17,324
1999 32,532 84,259 8,133 21,052
2000 65,751 109,348 16,473 35,489
Respondent’s increased deficiencies and additions to tax are
based on property sale proceeds not included in the notice of
deficiency. Those proceeds increased petitioners’ self-
employment taxes and their adjusted gross income. The changes to
petitioners’ adjusted gross income resulted in increased self-
employment tax deductions and reductions in itemized deductions
and exemptions.
On his posttrial brief, respondent again revised his
position regarding unreported income from petitioners’ real
estate transactions as follows (the amounts in the notice of
deficiency are shown as well):
Notice of deficiency
net real estate Revised self-
income adjustment to employment income
self employment per respondent’s
Year income brief
1998 $177,685 $196.138.79
1999 178,729 112,505.08
2000 261,000 196,607.57
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At trial petitioners submitted Forms 1040X, Amended U.S.
Individual Income Tax Return, for these years. Petitioners also
entered into the record Forms 4797 which listed the costs of
repairs and expenses for real estate. Both sets of documents
were admitted to help the Court understand petitioner husband’s
testimony. However, petitioners produced no receipts, invoices,
or any other evidence to substantiate the expenses petitioners
claim they paid on their real estate ventures. Respondent
submitted deeds and Forms HUD-1, Settlement Statement, for the
properties petitioners purchased and sold during the years at
issue and used these documents to calculate the gains by
subtracting from sale proceeds the purchase and settlement costs.
OPINION
I. Burden of Proof
The taxpayer bears the burden of proving by a preponderance
of the evidence that the Commissioner’s determinations in the
notice of deficiency are incorrect. Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933). Deductions are a matter of
legislative grace, and a taxpayer bears the burden of proving
entitlement to any claimed deductions. Rule 142(a)(1); INDOPCO,
v. Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice Co. v.
Helvering, 292 U.S. 435, 440 (1934). In general, the burden of
proof with regard to factual matters rests with the taxpayer.
Under section 7491(a), if the taxpayer produces credible evidence
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with respect to any factual issue relevant to ascertaining the
taxpayer’s liability for tax and meets other requirements, the
burden of proof shifts from the taxpayer to the Commissioner as
to that factual issue. Petitioners have not alleged that section
7491(a) applies or established their compliance with its
requirements.
Section 6214(a) grants the Court jurisdiction to redetermine
a deficiency and to determine whether any additional amounts or
any additions to tax should be assessed. Respondent may assert
an increased amount under section 6214(a); however, with respect
to the increased deficiencies and section 6651(a)(1) additions to
tax, respondent bears the burden of proof. After briefing, the
increased deficiency respondent seeks is for 1998. Petitioners
bear the burden of proof with respect to the deficiencies and
additions to tax determined in the deficiency notice. See Rule
142(a).
II. Issues
A. Capital Gain or Ordinary Income
The first issue is whether petitioners are entitled to
capital gains treatment for proceeds of their property sales.4
Respondent argues that the real estate petitioners purchased and
sold was held primarily for sale to customers in the ordinary
4
Although petitioners claimed royalty income on their
returns, they now claim the income should be treated as capital
gains.
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course of petitioners’ trade or business of real estate
refurbishment and not for investment. If petitioners held the
property primarily for sale to customers in the ordinary course
of business, as respondent argues, petitioners’ gains will be
treated as ordinary income.
1. Section 1221
Petitioners assert they purchased real estate for the
purpose of holding it for investment and with the intent of
renting it. Respondent argues that petitioners’ intent was to
resell the property. A “capital asset” is broadly defined as
property held by the taxpayer, whether or not connected with his
or her trade or business, subject to a number of exceptions.
Sec. 1221(a). These exceptions include stock in trade or other
property of a kind that is properly included in a taxpayer’s
inventory and property held primarily for sale to customers in
the ordinary course of the taxpayer’s trade or business. Id.
The Supreme Court has defined “primarily” as used in this
context to mean “principally” or “of first importance”. Malat v.
Riddell, 383 U.S. 569, 572 (1966); Biedenharn Realty Co. v.
United States, 526 F.2d 409, 422-423 (5th Cir. 1976). The
question of whether property is held primarily for sale to
customers in the ordinary course of a taxpayer’s business begins
with a factual analysis. Pritchett v. Commissioner, 63 T.C. 149,
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162 (1974); Raymond v. Commissioner, T.C. Memo. 2001-96 (citing
Cottle v. Commissioner, 89 T.C. 467, 487 (1987)).
Typically, the factors in making this determination include:
(1) The taxpayer’s purpose in acquiring the property; (2) the
purpose for which the property was subsequently held; (3) the
taxpayer’s everyday business and the relationship of the income
from the property to the total income; (4) the frequency,
continuity, and substantiality of sales of property; (5) the
extent of developing and improving the property to increase the
sales revenue; (6) the extent to which the taxpayer used
advertising, promotion, or other activities to increase sales;
(7) the use of a business office for the sale of property; (8)
the character and degree of supervision or control the taxpayer
exercised over any representative selling the property; and (9)
the time and effort the taxpayer habitually devoted to the sales.
Biedenharn Realty Co. v. United States, supra at 415; United
States v. Winthrop, 417 F.2d 905, 910 (5th Cir. 1969). The Court
of Appeals for the Fifth Circuit elaborated that frequency is
especially probative because “the presence of frequent sales
ordinarily belies the contention that property is being held ‘for
investment’ rather than ‘for sale.’” Suburban Realty Co. v.
United States, 615 F.2d 171, 178 (5th Cir. 1980).
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2. Analysis
We first examine petitioners’ purpose for acquiring and
holding the properties. Petitioner husband testified that sales
of the acquired properties resulted from a difficult market and a
desire for immediate funds. The record demonstrates that
petitioners purchased and sold real estate with the purpose of
receiving the maximum gain within a short period. None of the
alleged investment properties were leased and only one was held
for more than 1 year before being sold. These real estate
transactions were entered into regularly and resulted in
significant gains during the 3 years at issue. We find that the
overall purpose of acquiring the properties was to benefit from
the immediate financial gains in selling them as quickly as
possible.
Although petitioner husband was employed as a mortgage
banker during these years, this employment was secondary to the
real estate transactions he and his wife pursued. Petitioners’
earnings from the real estate transactions constituted their
primary source of income.
We also consider the frequency, continuity, and
substantiality of petitioners’ property sales. See Rice v.
Commissioner, T.C. Memo. 2009-142. Petitioners engaged in at
least 15 sales over 3 years, and most of the sales occurred
within 4 months after they purchased the property.
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Petitioner husband testified: “I’m in the business of
buying material, fixing houses and reselling them.” This
undertaking involved procuring insurance before the title
transfer in order to accelerate the resale. Petitioners did not
hold properties as an investment and did not rely on the services
of a real estate agent or another third party to select, promote,
or sell their properties.
Petitioners’ real estate transactions were conducted in the
ordinary course of a trade or business and not for investment
purposes. Accordingly, we find that respondent correctly treated
petitioners’ real estate activities as giving rise to ordinary
income derived from a trade or business.
3. Self-Employment Tax and Deduction
Section 1401(a) and (b) imposes a tax on the net earnings
from self-employment derived from any trade or business carried
on by the taxpayer. Sec. 1.1401-1(a), Income Tax Regs. The term
“trade or business” has the same meaning under section 1402(a),
defining “net earnings from self-employment”, as under section
162. Petitioners were engaged in the trade or business of
purchasing and selling real property during the years at issue.
On the basis of our finding that petitioners earned income in
their real estate trade or business, they are subject to tax on
their net earnings under section 1401 and to a deduction under
section 164(f).
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4. Adjustment of the Cost of Goods Sold
Section 6001 requires a taxpayer to keep records or render
statements sufficient to establish his gross income, deductions,
and credits. Sec. 1.6001-1(a), Income Tax Regs. The income of a
sole proprietorship must be included in calculating the income
and tax liabilities of the individual owning the business. Sec.
61(a)(2).
Respondent argues that petitioners were in the business of
renovating properties. Respondent describes petitioners’ regular
business activity as finding, purchasing, renovating, and selling
foreclosed properties, and respondent allowed expenses for
settlement and purchase costs. Petitioner husband explained that
the renovation process required procuring insurance, purchasing
materials, and hiring additional labor to assist with the repairs
and improvements. Notwithstanding the description of these
activities, petitioners failed to produce any receipts or other
reliable basis for fixing the amounts of repairs or other
expenditures incurred during their renovation activities. We
therefore find that we cannot approximate allowable amounts for
petitioners’ reported repairs and expenditures because
petitioners provided nothing on which we could rationally base an
estimate. However, to the extent respondent seeks additional
deficiencies, respondent has not shown that petitioners actually
realized net gains from sales of real estate as asserted in his
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amended answer, and we do not uphold the increased deficiencies
sought for 1998. We note that on brief respondent asserts
smaller amounts of gains and self-employment income than in the
notice of deficiency for 1999 and 2000.
B. Miscellaneous Issues
1. Dividend Income
Under section 61(a), gross income means all income from
whatever source derived including dividends. Sec. 61(a)(7).
During tax years 1998, 1999, and 2000, petitioners received
dividends of $38, $38, and $37, respectively, from their stock in
AT&T. Petitioners introduced no evidence to contradict these
adjustments, and, accordingly, respondent’s determination will be
sustained.
2. Interest Income
Under section 61(a)(4), gross income includes interest. For
tax year 1998, petitioners reported no interest income.
Petitioners introduced no evidence to contradict respondent’s
determination that they received interest income in 1998.
Petitioners have not met their burden, and respondent’s
determination is sustained.
3. Itemized Deduction
Petitioners claimed various itemized deductions including
taxes, mortgage interest, charitable contributions, dependency
exemption deductions, and the child tax credit. Respondent
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allowed mortgage interest expenses for years 1998-2000 but
adjusted petitioners’ dependency exemption deductions, itemized
deductions, and child tax credit. Petitioners’ entitlement to
other itemized deductions for each year was automatically
adjusted on the basis of respondent’s calculations of their
adjusted gross income. Petitioners failed to produce receipts,
expense reports, or other records indicating that they qualified
for deductions in excess of the amounts respondent allowed, and
petitioners are not entitled to additional deductions.
C. Section 6651(a)(1) Addition to Tax
Section 6651(a)(1) imposes an addition to tax equal to 5
percent of the amount required to be shown as tax on the return.
An additional 5 percent is imposed for each additional month or
fraction thereof during which the failure to file continues, but
not to exceed 25 percent in the aggregate. Id. Under section
7491(c), the Commissioner must come forward with sufficient
evidence to show that an addition to tax is appropriate but need
not introduce evidence regarding reasonable cause or similar
provisions. Higbee v. Commissioner, 116 T.C. 438, 446 (2001).
The burden of proof for the amounts included in the notice of
deficiency with respect to the additions to tax remains on
petitioners.
This addition to tax may be avoided if the failure to file
timely was due to reasonable cause and not willful neglect.
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United States v. Boyle, 469 U.S. 241, 245-246 (1985). Reasonable
cause exists for late filing if the taxpayer exercised ordinary
care and prudence but was nevertheless unable to file on time.
Sec. 301.6651-1(c)(1), Proced. & Admin. Regs.
Petitioners filed their 1998, 1999, and 2000 Federal income
tax returns in 2002. Petitioner husband acknowledged this error
at trial and stated he had no excuse to explain the delayed
filing. Petitioners did not show reasonable cause or otherwise
indicate that the delay resulted from something other than
neglect resulting in a failure to comply with filing
requirements. We therefore find petitioners did not have
reasonable cause and are liable for the section 6651(a)(1)
addition to tax for failure to file timely for each year at
issue.
III. Conclusion
Petitioners regularly purchased and sold real estate
properties in the ordinary course of their trade or business and
are thus liable for the adjustment to their gross income and
self-employment taxes. Respondent’s assertion of increased
deficiencies and additions to tax based on the inclusion of
income in 1998 in excess of the amounts determined in the notice
of deficiency fails because respondent has not established that
the increased sales were not offset by costs petitioners asserted
at trial. Thus, to the extent that respondent increased the
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amount of income for real property sales during 1998 over the
amounts determined in the notice of deficiency, petitioners are
not liable for either the increased deficiency or the increased
addition to tax. On brief respondent conceded some amounts of
self-employment income from real estate sales for 1999 and 2000,
and these concessions as listed in the Findings of Fact are
accepted. Concerning petitioners’ request for additional expense
deductions in 1998, 1999, and 2000, petitioners have not met
their burden to establish that they qualify for additional
deductions in excess of those allowed. Petitioners are liable
for the section 6651(a)(1) additions to tax for 1998, 1999, and
2000 resulting from the above analysis.
To reflect the foregoing,
Decisions will be entered
under Rule 155.