T.C. Memo. 2011-134
UNITED STATES TAX COURT
OSCAR C. AND ARANKA M. HAWAII, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12718-08L. Filed June 15, 2011.
Alvaro G. Velez, for petitioners.
Louis H. Hill, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
RUWE, Judge: The petition in this case was filed in
response to a Notice of Determination Concerning Collection
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Action(s) Under Section 6320 and/or 6330 (notice of
determination) for petitioners’ taxable year 2005.1
On September 3, 2007, respondent sent petitioners separate
Letters 1058, Final Notice of Intent to Levy and Notice of Your
Right to a Hearing, regarding their unpaid income tax liability
for 2005. In response, petitioners timely mailed a Form 12153,
Request for a Collection Due Process or Equivalent Hearing, in
which they sought an in-person hearing. At their hearing with
the Internal Revenue Service’s (IRS) Appeals Office, petitioners
submitted a Form 1040X, Amended U.S. Individual Income Tax
Return, that indicated that their total tax should be reduced to
$10,612 from the $56,486 reported on their original return.2 On
the basis of the information in the amended return, petitioners
requested a streamlined installment agreement on the adjusted
balance due. In their amended return petitioners claimed that
they are entitled to a theft loss deduction for the taxable year
2005. Petitioners contended that this deduction would reduce
their tax liability below $25,000, which would allow them to
qualify for a streamlined installment agreement.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended, and all Rule references are
to the Tax Court Rules of Practice and Procedure.
2
Petitioners’ original 2005 Federal income tax return is not
part of the record before the Court. All figures used are based
on petitioners’ amended return for 2005.
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The Appeals officer did not agree with petitioners’ claim
that their 2005 tax liability should be reduced. On April 22,
2008, respondent sent to petitioners a notice of determination
sustaining the proposed levy action. The notice of determination
indicated that respondent rejected petitioners’ request for a
streamlined installment agreement because respondent had
determined that petitioners’ balance due exceeded the $25,000
limit for that payment option. Petitioners never received a
notice of deficiency, nor did they have a prior administrative or
judicial opportunity to challenge the amount of the deficiency,
and respondent has acknowledged that the underlying liability is
properly at issue. See sec. 6330(c)(2)(B); Montgomery v.
Commissioner, 122 T.C. 1, 8 (2004).
The issues for decision are: (1) Whether petitioners
incurred a theft loss of $100,000, and (2) whether respondent
abused his discretion by not accepting petitioners’ request for
an installment agreement.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulation of facts, the supplemental stipulation of facts,
and the attached exhibits are incorporated herein by this
reference.
At the time the petition was filed, petitioners resided in
Ohio.
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During 2005 Oscar C. Hawaii (petitioner) owned and operated
a small trucking business. By early 2005 petitioner, who was
then over 70, had accumulated retirement savings of approximately
$300,000, which he kept in an individual retirement account with
Charles Schwab.3
In January 2005 petitioner was approached about making an
investment in ProCore Group, Inc. (ProCore),4 by Carol Popp, who
was one of ProCore’s primary shareholders. Mr. Popp and
petitioner attended the same church, and it was there that Mr.
Popp initially spoke with petitioner about investing with
ProCore. Petitioner told Mr. Popp that he could not invest in
ProCore because his money was tied up in his retirement account.
Petitioner also told Mr. Popp that he was not knowledgeable about
investments and that Charles Schwab handled his investments. Mr.
Popp assured petitioner that an investment in ProCore would be
advantageous.
Mr. Popp invited petitioner to attend a meeting with some of
the other officers and shareholders of ProCore so that they could
further discuss investment opportunities with him. At the
meeting petitioner was introduced to George Csatary, ProCore’s
chief financial officer. Petitioner was informed that Mr.
3
At the time of trial, petitioner no longer received income
from the trucking business.
4
ProCore Group, Inc. was at all relevant times a California
corporation licensed to do business in the State of Florida.
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Csatary was a certified public accountant. Messrs. Popp and
Csatary convinced petitioner that ProCore was an exceptional
investment that would allow him to make considerable short-term
profits. Petitioner was neither given a prospectus nor shown any
of ProCore’s financial documents or Securities and Exchange
Commission (SEC) filings. Petitioner decided to invest $100,000
of his retirement savings in ProCore. Petitioner made the
investment because he trusted Mr. Popp, since they attended
church together.
On January 24, 2005, Mr. Csatary arranged for a wire
transfer of $100,000 from petitioner’s retirement account to
ProCore. Petitioner told Messrs. Popp and Csatary that he needed
to receive either stock certificates or a return of his funds
within 60 days in order to avoid paying tax on the withdrawal
from his retirement account.
By mid-March 2005 petitioner had not received either the
return of his funds or stock certificates. Petitioner became
increasingly concerned that his investment was in jeopardy. This
prompted petitioner to hire an attorney to help him recover the
money he had invested. On March 17, 2005, petitioner, through
his attorney, sent ProCore a letter demanding the return of his
investment. In response to petitioner’s demand letter, ProCore
presented petitioner with stock certificates for 3,333,333
restricted and unregistered shares in the company. Petitioner
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was told that the shares had been delivered to him at a price
established in a private placement memorandum previously
registered with the SEC. After receiving the stock certificates,
petitioner gave them to Charles Schwab. Charles Schwab has never
informed petitioner, or led him to believe, that the ProCore
stock certificates were fraudulent or otherwise defective.
In May 2005 petitioners’ attorney was instructed to file
suit against various individuals involved with ProCore in an
effort to recover petitioners’ money. Petitioners paid the
attorney $7,500 in exchange for his representation. The attorney
sent a letter to ProCore dated May 26, 2005, demanding that
petitioners’ funds be returned to them. The attorney also
drafted a complaint alleging that ProCore and its officers had
committed securities fraud and negligence and breached their
fiduciary duties. The complaint was never filed.
At a later date during 2005 petitioner invested an
additional $150,000 in Luhan Investment Securities, which was
another venture promoted by some of the individuals behind
ProCore. The outcome of this later investment is not evident
from the record. Petitioner did not contend that this later
investment resulted in any additional deductible losses during
2005.
In 2008 petitioner filed a complaint with the Ohio
Department of Commerce’s Division of Securities requesting that
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ProCore’s officers be investigated and criminally prosecuted for
defrauding him. The Division of Securities declined to pursue
petitioner’s complaint.
In 2009 petitioner hired and paid $15,000 to another
attorney to file suit in Ohio against ProCore’s officers and its
successor entity. On March 10, 2009, a complaint was filed in
the U.S. District Court for the Northern District of Ohio against
the surviving entity of ProCore--Universal Property and
Development Acquisition Corp.--as well as other named defendants
alleging that petitioners were the victims of securities fraud,
breaches of fiduciary duties, negligence, fraud, and breach of
contract. After the filing of the 2009 complaint, petitioner’s
counsel informed him that most of the claims in the complaint
were barred by the statute of limitations in Ohio and that he was
uncertain as to whether petitioner’s money could be retrieved
even if his case was favorably adjudicated.
OPINION
Section 6330(a)(1) provides that no levy may be made on any
property or right to property of any person unless the Secretary
has notified the person in writing of his or her right to a
hearing under this section before the levy is made. The notice
must include in simple and nontechnical terms, inter alia, the
right of the person to request a hearing to be held by the IRS
Office of Appeals. See sec. 6330(a)(3)(B).
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At the hearing the person may raise any relevant issue
relating to the unpaid tax or the proposed levy, including
appropriate spousal defenses, challenges to the appropriateness
of collection actions, and offers of collection alternatives.
Sec. 6330(c)(2)(A). Section 6330(c)(2)(B) further provides that
the person may also raise at the hearing challenges to the
existence or amount of the underlying tax liability for any tax
period if the person did not receive any statutory notice of
deficiency for the tax liability or did not otherwise have an
opportunity to dispute the tax liability. Where the validity of
the underlying tax liability is at issue in a collection review
proceeding, the Court will review that issue de novo. Thornberry
v. Commissioner, 136 T.C. __, __ (2011) (slip op. at 12); Davis
v. Commissioner, 115 T.C. 35, 39 (2000). However, we generally
review other issues regarding the collection action determined by
the Appeals Office for abuse of discretion. Thornberry v.
Commissioner, supra at __ (slip op. at 12); Goza v. Commissioner,
114 T.C. 176 (2000). Section 6330(d)(1) confers jurisdiction on
the Tax Court to review the determination of the Appeals officer.
It is uncontested that the merits of the underlying income
tax liability are properly at issue. Therefore, we must first
decide petitioners’ claim that they are entitled to a loss
deduction of $100,000.
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Section 165(a) permits a deduction against ordinary income
for “any loss sustained during the taxable year and not
compensated for by insurance or otherwise.” For individuals, the
deduction is limited to: (1) Losses incurred in a trade or
business; (2) losses incurred in any transaction entered into for
profit though not connected to a trade or business; or (3) losses
of property not connected with a trade or business or a
transaction entered into for profit, if such losses arise from
“fire, storm, shipwreck, or other casualty, or from theft.”
(Emphasis added.) See sec. 165(c); Lockett v. Commissioner, T.C.
Memo. 2008-5, affd. 306 Fed. Appx. 464 (11th Cir. 2009). A
taxpayer may deduct a theft loss in the year the loss is
sustained. Sec. 165(a). Generally, a theft loss is treated as
sustained during the taxable year in which the taxpayer discovers
it. Sec. 165(a), (e). However, even after a theft loss is
discovered, if a claim for reimbursement exists during the year
of the loss with respect to which there is a reasonable prospect
of recovery, then a theft loss is treated as “sustained” only
when it can be ascertained with reasonable certainty whether such
reimbursement for the loss will be obtained. Jeppsen v.
Commissioner, 128 F.3d 1410, 1414 (10th Cir. 1997), affg. T.C.
Memo. 1995-342; Secs. 1.165-1(d)(2)(i), (3), 1.165-8(a)(2),
Income Tax Regs. Stated differently, a reasonable prospect of
recovery will postpone the theft loss deduction until such time
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as the prospect no longer exists. Petitioners have the burden of
proving they have sustained a theft loss. See Rule 142(a); Welch
v. Helvering, 290 U.S. 111 (1933).
I. Theft
The term “theft” under section 165 is a word of general and
broad meaning that includes any criminal appropriation of
another’s property, including theft by swindling, false
pretenses, and other forms of guile. Edwards v. Bromberg, 232
F.2d 107, 110 (5th Cir. 1956); sec. 1.165-8(d), Income Tax Regs.
The exact nature of a theft, whether it be larceny, embezzlement,
obtaining money by false pretenses, or other wrongful
misappropriation of property of another, is of little importance
provided it constitutes a theft. See Edwards v. Bromberg, supra;
Grothues v. Commissioner, T.C. Memo. 2002-287; see also sec.
1.165-8(d), Income Tax Regs. Whether a theft loss has been
established depends upon the law of the State where the alleged
theft occurred. Bellis v. Commissioner, 540 F.2d 448, 449 (9th
Cir. 1976), affg. 61 T.C. 354 (1973); Luman v. Commissioner, 79
T.C. 846, 860 (1982); Paine v. Commissioner, 63 T.C. 736, 740
(1975), affd. without published opinion 523 F.2d 1053 (5th Cir.
1975). A criminal conviction is not necessary in order for a
taxpayer to demonstrate a theft loss. See Monteleone v.
Commissioner, 34 T.C. 688, 692-694 (1960). Instead, a taxpayer
must prove a theft occurred under applicable State law by only a
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preponderance of the evidence and not beyond a reasonable doubt.
See Allen v. Commissioner, 16 T.C. 163, 166 (1951) (“If the
reasonable inferences from the evidence point to theft, the
proponent is entitled to prevail. If the contrary be true and
reasonable inferences point to another conclusion, the proponent
must fail.”).
Petitioners resided in Ohio when the transaction at issue
occurred, and the solicitation of petitioner’s investment was
initiated within Ohio. Therefore, we will decide whether the
evidence presented allows for us to reasonably infer that a theft
occurred under Ohio law. Ohio Rev. Code Ann. sec. 2913.02
(LexisNexis 2010) provides:
(A) No person, with purpose to deprive the owner of
property or services, shall knowingly obtain or exert
control over either the property or services in any of
the following ways:
(1) Without the consent of the owner or person
authorized to give consent;
(2) Beyond the scope of the express or implied
consent of the owner or person authorized to give
consent;
(3) By deception;
(4) By threat;
(5) By intimidation.
(B)(1) Whoever violates this section is guilty of
theft.
From the evidence and testimony before us, we are unable to
conclude that the transaction in issue resulted in a theft.
Petitioners have failed to satisfy their burden of proving that
the transaction was a theft rather than merely a poor investment
decision.
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At trial petitioner implied throughout his testimony that
his investment was stolen but provided no specific evidence in
support of that conclusion. The record indicates that
petitioners made a $100,000 payment for an investment in ProCore,
in exchange for which they received 3,333,333 shares of stock in
the company.5 There is no evidence that the 3,333,333 shares of
stock ProCore issued are not valid and legitimate shares of
stock. Petitioner testified that the shares had been accepted by
Charles Schwab and that he was never notified that the shares
were in any way irregular or deficient.
Petitioners provided no evidence, other than petitioner’s
testimony, to establish that the 3,333,333 shares of ProCore
stock were valueless in 2005 or that they ever became valueless.
In fact, in 2009 petitioner paid an attorney $15,000 to file suit
against ProCore’s successor and other individuals in an attempt
to recover their investment.6
In sum, the record before us is insufficient to determine
that petitioners were the victims of theft. As a result, we hold
5
Petitioner testified that after his investment in ProCore,
at some later point during 2005, he decided to invest an
additional $150,000 in Luhan Investment Securities, another
venture backed by the same individuals who had introduced him to
ProCore.
6
Paying an attorney $15,000 in 2009 to institute a lawsuit
to recover his investment raises an inference that petitioner
believed as recently as 2009 that there was a reasonable prospect
of recovery.
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that petitioners have failed to meet their burden of proving that
a theft occurred during 2005.
II. Installment Agreement
We review respondent’s Appeals Office determination with
respect to collection alternatives for abuse of discretion. See
McCall v. Commissioner, T.C. Memo. 2009-75. In reviewing for
abuse of discretion, we do not conduct an independent review of
whether any collection alternative proposed by a taxpayer was
acceptable or substitute our judgment for that of the Appeals
Office. Id. Rather, we must uphold the Appeals Office
determination unless it is arbitrary, capricious, or without
sound basis in fact or law. See id.; see also Murphy v.
Commissioner, 125 T.C. 301, 320 (2005), affd. 469 F.3d 27 (1st
Cir. 2006). In making a determination following a collection due
process hearing, the Appeals officer must consider: (1) Whether
the requirements of any applicable law or administrative
procedure have been met; (2) any relevant issues raised by the
taxpayer; and (3) whether the proposed collection action balances
the need for efficient collection with legitimate concerns that
the collection action be no more intrusive than necessary. Sec.
6330(c)(3). The Appeals officer considered those factors, and
there is no evidence to indicate that he abused his discretion in
making his determination.
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During their face-to-face conference with the Appeals
officer, petitioners requested that they be granted a streamlined
installment agreement to satisfy the balance due on their
account. Respondent denied petitioners’ request because their
liability exceeded $25,000.
Section 6159(a) authorizes the Secretary to enter into
written agreements with any taxpayer under which the taxpayer is
allowed to make payment on any tax in installment payments if the
Secretary determines that an agreement will facilitate full or
partial collection of the liability. The Commissioner has the
discretion to accept or reject an installment agreement proposed
by a taxpayer. See sec. 301.6159-1(b)(1)(i), Proced. & Admin.
Regs. A streamlined installment agreement is an installment
agreement that may be processed quickly and without financial
analysis or managerial approval and is available for taxpayers
whose aggregate unpaid balance of assessments is $25,000 or less.
Internal Revenue Manual (IRM) pt. 5.14.5.1(1) (Mar. 30, 2002);
IRM pt. 5.14.5.2(1) (July 12, 2005). Because petitioners’
outstanding liability exceeded $25,000, they were not eligible to
enter into a streamlined installment agreement. See Shaw v.
Commissioner, T.C. Memo. 2010-210; McCall v. Commissioner, supra;
see also IRM pt. 5.14.1.2(4), 5.14.5.2(1) (Sept. 26, 2008).
Respondent’s Appeals Office verified that “the requirements of
any applicable law or administrative procedure have been met” as
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required by section 6330(c)(1) and balanced the need for the
efficient collection of taxes with petitioners’ concern that the
collection action be no more intrusive than necessary as required
by section 6330(c)(3)(C). Therefore, we have no basis upon which
to find that respondent abused his discretion in rejecting
petitioners’ request for a streamlined installment agreement.
To reflect the foregoing,
Decision will be entered
for respondent.