Rundlett v. Comm'r

T.C. Memo. 2011-229

UNITED STATES TAX COURT

DOUGLAS AND GINA RUNDLETT, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 13561-09. Filed September 26, 2011.

R issued a notice of deficiency determining
deficiencies in Ps’ Federal income taxes for Ps’ 2005 and
2006 tax years. The deficiencies primarily stem from R’s
determination that Ps could not deduct expenses exceeding
income from their timeshare activity.

Held: Ps are liable for a portion of the deficiency
for each year as decided herein.

Joseph E. Mudd, for petitioners.

Kenneth C. Peterson, for respondent.
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MEMORANDUM FINDINGS OF FACT AND OPINION

WHERRY, Judge: This case is before the Court on a petition

for redetermination of petitioners’ income tax liabilities for

2005 and 2006 as determined by respondent. After concessions,1

the issues for decision are:

(1) Whether $11,821 of the travel expenses petitioners

claimed on their 2005 Schedule C, Profit or Loss From Business,

are nondeductible personal expenses;

(2) whether petitioners are entitled to deduct losses

related to their timeshare operations on the Schedule C for the

1
Petitioners concede that for the 2005 tax year they failed
to report interest income of $574, failed to report capital gain
income of $3,408, overreported ordinary dividends by $732, and
underreported qualified dividends by $448. Respondent concedes
that petitioners are entitled to itemized deductions for interest
and taxes paid on the Rossmoor property of $13,350 for the 2005
tax year. Petitioners concede that they withdrew a certificate
of deposit early and incurred a penalty of $5,671 in 2005 and
that the penalty is not a deductible trade or business expense.
Petitioners concede that of the $52,754 disallowed “Schedule C-
TS” 2005 expenses, legal expenses of $18,565 are not deductible
on Schedule C, interest and taxes of $16,812 are not deductible
on Schedule C, and maintenance expenses of $5,556 related to the
Rossmoor property are not deductible on Schedule C.

Petitioners concede that for the 2006 tax year they
improperly reported $1,849 as ordinary dividends that should have
been reported as qualified dividends and failed to report capital
gains of $4,147. Petitioners concede that they are entitled to
deductions claimed on Schedule A, Itemized Deductions, for taxes
and interest of $16,265 but not Schedule C deductions for the
2006 tax year. Petitioners concede the $22,130 adjustment to
Schedule C expenses for the 2006 tax year.
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timeshare activity (Schedule C-TS) of $14,706 and $34,365 for the

2005 and 2006 tax years, respectively.

FINDINGS OF FACT

Some of the facts have been stipulated, and the stipulation

of settled issues, the stipulated facts, and the accompanying

exhibits are hereby incorporated by this reference. Petitioners

resided in California at the time they filed their petition.

Petitioner wife (Ms. Rundlett) spent 35 to 40 hours per week as

an insurance agent, and petitioner husband (Mr. Rundlett) spent

35 to 40 hours per week in the construction business during the

years at issue.

Petitioners became interested in a timeshare rental activity

in 2005 while staying at a resort where a list of timeshares for

rent and for sale was posted. Ms. Rundlett called the numbers on

the list to find out the cost of those timeshares and how much

they were renting for. On the basis of those calls, she

determined that the return on the timeshare activity was higher

than the interest petitioners were earning on their bank

accounts, so petitioners “gave it a whirl”.

Petitioners purchased their first timeshare unit in 2005 at

Laguna Surf Resort in Laguna Beach, California. By purchasing a

1 week timeshare unit, petitioners owned the right to use a

furnished unit for 7 days during a particular season. The

complexes where the units were located provided onsite
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management, including, but not limited to, maid service, repair

and maintenance, front desk service, distribution and collection

of keys, grounds maintenance, and other guest services. By the

end of 2005, petitioners owned up to four timeshare units at

Laguna Surf Resort.

During 2006 petitioners purchased two more timeshare units

at Laguna Surf Resort and four timeshare units at Laguna Shores

Resort in Laguna Beach, California. Petitioners may have also

purchased one timeshare unit at The Strand in Oceanside,

California. By the end of 2006 petitioners may have owned 11

timeshare units.2

Petitioners and their minor daughter traveled a lot during

2005. They traveled for a variety of reasons, including

previewing timeshares, attending insurance agent classes, and

taking vacations. Petitioners incurred $29,071.72 of expenses

during their stays at about 15 hotels and resorts during 2005.

During their travels related to the timeshare activity,

petitioners attended timeshare previews and met with

representatives who discussed the details of the resorts and gave

them tours. Petitioners were particularly interested in the

postpurchase rental program. Ms. Rundlett compared the income

2
The parties stipulated only “may” have owned a stated
number of units because petitioners did not remember or were
unable to prove exactly how many units they owned at a given
yearend. Petitioners did not present any documents of ownership
for any of the timeshare units.
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that each unit could generate versus the fees that she would have

to pay and the purchase price. The process of viewing the units

and listening to the presentations normally took 4 or 5 hours.

Generally, because of lead time and marketing requirements, a

timeshare unit could not be rented out in the year it was

purchased.

Ms. Rundlett’s ultimate goal with respect to the timeshare

activity is to own 52 units and use the income to supplement the

couple’s retirement income.3 Ms. Rundlett explained that she has

been updating her business plan from the beginning, maintaining a

spreadsheet of what they own, what it generates, and the costs.4

Since its inception in 2005, the activity has never been

profitable.

Each year, in order to rent the timeshare units to third

parties, Ms. Rundlett would reserve a specific week for each unit

during the season that petitioners owned the right to use that

unit. After she had secured the unit for a particular week, Ms.

Rundlett advertised by word of mouth and by posting flyers at the

resorts. It normally took Ms. Rundlett from 6 to 8 hours per

unit per year on average to reserve the unit, market it, and rent

3
There is no evidence in the record that this was Ms.
Rundlett’s original goal in 2005 when she purchased her first
timeshare unit. At that time petitioners were interested in
purchasing one unit to experiment with the activity.
4
Neither the spreadsheet nor the business plan was presented
at trial.
 - 6 -

it out. Ms. Rundlett does not know how the other owners of the

timeshare units used those units during the years at issue.

From 2005 through 2008 petitioners reported on their Federal

income tax returns the following amounts of combined salary

income, gross income from the timeshare activity, expenses from

the timeshare activity, net profit or (loss) from the timeshare

activity, and taxable income.

Mr. and Ms. Gross Net Profit
Rundlett’s Income Expenses or (Loss)
Combined From From From
Salary Timeshare Timeshare Timeshare Taxable
Year Income Activity Activity Activity Income
2005 $168,770 $2,375 $69,835 ($67,460) $19,712
2006 172,725 11,470 67,965 (56,495) 30,515
2007 179,105 11,050 59,087 (48,037) 42,511
2008 196,955 16,100 61,813 (45,713) 33,045

On March 26, 2009, respondent issued petitioners a statutory

notice of deficiency determining income tax deficiencies of

$15,445 and $13,646 for the 2005 and 2006 tax years,

respectively. Petitioners timely filed a petition with this

Court on June 4, 2009. A trial was held in Los Angeles,

California, on June 15, 2010.

OPINION

I. Burden of Proof

The Commissioner’s determination of a deficiency is presumed

correct, and the taxpayer bears the burden of proving that the
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determination is improper. See Rule 142(a);5 Welch v. Helvering,

290 U.S. 111, 115 (1933). However, pursuant to section

7491(a)(1), the burden of proof as to a factual issue that

affects the taxpayer’s tax liability may be shifted to the

Commissioner. This occurs where the “taxpayer introduces

credible evidence with respect to * * * such issue”, and the

taxpayer has, inter alia, complied with substantiation

requirements pursuant to the Code and “maintained all records

required under this title and has cooperated with reasonable

requests by the Secretary for witnesses, information, documents,

meetings, and interviews”. Sec. 7491(a). Petitioners did not

argue that the burden should shift, and they failed to maintain

required records or comply with the substantiation and

cooperation requirements. Accordingly, the burden of proof

remains on petitioners.

II. Respondent’s Contentions

Respondent contends that the $11,821 travel expense

deduction for 2005 comprised nondeductible personal expenses.

Respondent also contends that $14,706 and $34,365 of the losses

from the timeshare activity in 2005 and 2006, claimed on Schedule

C, cannot be deducted because: (1) The expenses were not paid or

5
All section references are to the Internal Revenue Code of
1986 (Code), as amended and in effect for the tax years at issue,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
 - 8 -

incurred in carrying on a trade or business engaged in for profit

pursuant to section 183; (2) the timeshare units were dwelling

units used by petitioners or other owners as residences pursuant

to section 280A; or (3) the timeshare activity losses were

passive losses pursuant to section 469.

III. Travel Expense Deductions

A. General Rules

Deductions are a matter of legislative grace, and the

taxpayer must maintain adequate records to substantiate the

amounts of their income and entitlement to any deductions or

credits claimed. Sec. 6001 (the taxpayer “shall keep such

records”); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992);

sec. 1.6001-1(a), Income Tax Regs.

Section 162(a) authorizes a deduction for “all the ordinary

and necessary expenses paid or incurred during the taxable year

in carrying on any trade or business”. A trade or business

expense is ordinary for purposes of section 162 if it is normal

or customary within a particular trade, business, or industry and

is necessary if it is appropriate and helpful for the development

of the business. Commissioner v. Heininger, 320 U.S. 467, 471

(1943); Deputy v. du Pont, 308 U.S. 488, 495 (1940). In

contrast, “personal, living, or family expenses” are generally

nondeductible. Sec. 262(a).
 - 9 -

In certain circumstances, the taxpayer must meet specific

substantiation requirements to be allowed a deduction under

section 162 or section 212. See, e.g., sec. 274(d). The

heightened substantiation requirements of section 274(d) apply

to: (1) Any traveling expense, including meals and lodging away

from home; (2) any item with respect to an activity in the nature

of entertainment, amusement, or recreation; (3) any expense for

gifts; or (4) the use of “listed property”, as defined in section

280F(d)(4), including any passenger automobiles.

In order to deduct such expenses, the taxpayer must

substantiate “by adequate records or by sufficient evidence

corroborating the taxpayer’s own statement”: (1) The amount of

the expense or other item; (2) the time and place of the travel,

entertainment, amusement, recreation, or use of the property; (3)

the business purpose of the expense or other item, and (4) the

business relationship to the taxpayer of the persons entertained,

using the facility or property, or receiving the described gift.

Sec. 274(d).

To satisfy the adequate records requirement of section 274,

a taxpayer must maintain records and documentary evidence that in

combination are sufficient to establish each element of an

expenditure or use. Sec. 1.274-5T(c)(1) and (2), Temporary

Income Tax Regs., 50 Fed. Reg. 46016, 46017 (Nov. 6, 1985).

Although a contemporaneous log is not required, corroborative
 - 10 -

evidence created at or near the time of the expenditure to

support a taxpayer’s reconstruction “of the elements * * * of the

expenditure or use must have a high degree of probative value to

elevate such statement and evidence” to the level of credibility

of a contemporaneous record. Sec. 1.274-5T(c)(1), Temporary

Income Tax Regs., supra.

B. Schedule C-TS Travel Expense Deduction of $11,821 for
2005

Petitioners claimed an $11,821 expense deduction for travel

in 2005. Although petitioners submitted their credit card bills

and certain receipts and respondent stipulated charges at resorts

for 2005, at trial Ms. Rundlett had difficulty identifying which

of the charges were incurred in connection with the timeshare

activity and which of the charges were personal. While we

appreciate that petitioners’ total charges for travel in 2005

were $29,071.72 and they deducted only $11,821 in connection with

the timeshare activity, in adding up the charges Ms. Rundlett

identified at trial, either $8,239.19 or $15,127.19 of the

charges was connected with petitioners’ timeshare activity.6

At trial Ms. Rundlett explained that of those expenses, the

charges at the Mauian Hotel and Hale Napil in Lahaina, Hawaii;

one of the charges, believed to be the January stay, at the

6
The difference between these two numbers is a July 28,
2005, $6,888 charge at the La Jolla Beach Club. Ms. Rundlett
stated that “a portion of that I’m sure” was related to the
timeshare activity, but she did not elaborate on how much of it
was so related.
 - 11 -

Disney Grand California Resort (although, she did not for certain

remember which of the Disney trips); a charge at Mammoth Mountain

Ski Resort; a charge in July at Laguna Surf Resort; a charge at

the Four Seasons in Los Angeles; and a charge at the W Hotel in

San Francisco were all related to the timeshare activity.

Ms. Rundlett explained that when she originally prepared

information for her return preparer she was very specific about

which charges were for the timeshare activity and which were for

pleasure, but she did not have the documents to demonstrate this

at trial and she had trouble 4 or 5 years later remembering which

trips were which.7 Ms. Rundlett explained that when she prepared

the information she had to “go through all my travel bills and

then go back and determine where we did previews and what

percentage would be appropriate because all the time isn’t for

business, only a portion of the days. We tried to go through and

be fair on what made sense for business.”

The heightened or strict substantiation requirements of

section 274(d), discussed above, apply to travel expenses.

Assuming arguendo that petitioners have met the heightened burden

of section 274(d), section 162(a)(2) specifically excludes from

7
Petitioners did attempt to introduce a document that Ms.
Rundlett prepared during the audit to demonstrate the differences
among the resort charges; however, it was admitted only for the
stipulated purpose of establishing what Ms. Rundlett turned over
during audit. The document was prepared during audit and would
therefore not qualify as contemporaneous documentation even if it
had been unconditionally admitted.
 - 12 -

deduction any amount that is “lavish or extravagant under the

circumstances”. Petitioners’ home was approximately 25 miles

from Newport Beach when they stayed at that Four Seasons,

approximately 15 miles from Anaheim, California (where the Disney

Grand Californian Resort is located), 100 miles from La Jolla,

California (where the La Jolla Beach Club is located), and 38

miles from Laguna Beach, California (where the Laguna Surf Resort

and Laguna Shores Resort are located).

Section 162(a) also requires that the expenses be “ordinary

and necessary” to be allowed as a business expense deduction.

Ms. Rundlett explained that she would bribe her family to tour a

timeshare by staying the night, usually at a lavish resort, and

then going to the beach the next day. In order to get her family

excited about the timeshare activity, Ms. Rundlett would “mix

absolutely business with pleasure * * * and we added on to try to

make it enjoyable for the stay.” We do not find that petitioners

have met the requirements of sections 162 and 274(d); thus the

$11,821 of claimed travel expenses is not deductible.

IV. Section 183 “Hobby Loss”

Respondent next contends that the losses related to

petitioners’ timeshare activity are not deductible because the

activity was not engaged in for profit within the meaning of

section 183. Section 183(a) generally disallows deductions

attributable to activities not engaged in for profit. Section
 - 13 -

183(c) defines an “activity not engaged in for profit” as “any

activity other than one with respect to which deductions are

allowable for the taxable year under section 162 or under

paragraph (1) or (2) of section 212.”

The Court of Appeals for the Ninth Circuit, to which an

appeal in this case would lie absent stipulation to the contrary,

has held that an activity is engaged in for profit if the

taxpayer’s “predominant, primary or principal objective” in

engaging in the activity was to realize an economic profit

independent of tax savings. Wolf v. Commissioner, 4 F.3d 709,

713 (9th Cir. 1993), affg. T.C. Memo. 1991-212. Section 1.183-

2(b), Income Tax Regs., sets forth a nonexclusive list of factors

to be considered in determining whether an activity is engaged in

for profit: (1) The manner in which the taxpayer carries on the

activity; (2) the expertise of the taxpayer or her advisers; (3)

the time and effort expended by the taxpayer in carrying on the

activity; (4) the expectation that assets used in the activity

may appreciate in value; (5) the success of the taxpayer in

carrying on other similar or dissimilar activities; (6) the

taxpayer’s history of income or losses with respect to the

activity; (7) the amount of occasional profits, if any, which are

earned from the activity; (8) the financial status of the

taxpayer; and (9) elements of personal pleasure or recreation.
 - 14 -

No single factor or set of factors is conclusive in

determining whether an activity is engaged in for profit, nor is

the number of these factors for or against the taxpayer

necessarily conclusive in that respect. Golanty v. Commissioner,

72 T.C. 411, 426 (1979), affd. without published opinion 647 F.2d

170 (9th Cir. 1981); sec. 1.183-2(b), Income Tax Regs. All facts

and circumstances with respect to the activity must be taken into

account. Sec. 1.183-2(b), Income Tax Regs.

A. The Manner in Which the Taxpayer Carries On the Activity

The fact that the taxpayer carries on the activity in a

businesslike manner may indicate that the activity is engaged in

for profit. Sec. 1.183-2(b)(1), Income Tax Regs. Three common

inquiries are considered in this context: (1) Whether the

taxpayer maintained complete and accurate books and records for

the activity; (2) whether the taxpayer conducted the activity in

a manner substantially similar to those of other comparable

activities that were profitable; and (3) whether the taxpayer

changed operating procedures, adopted new techniques, or

abandoned unprofitable methods in a manner consistent with an

intent to improve profitability. Giles v. Commissioner, T.C.

Memo. 2005-28; sec. 1.183-2(b)(1), Income Tax Regs.

Ms. Rundlett explained that she has been updating her

business plan from the beginning, maintaining a spreadsheet of

timeshare units petitioners own, what they generate, and the
 - 15 -

costs. Yet none of these documents were presented at trial.

Originally Ms. Rundlett’s business plan seems to have been a fly-

by-the-seat-of-the-pants experiment beginning when she decided to

give “it a whirl” and purchase one timeshare to see how the

activity went. Petitioners stipulated that they did “not have

any written documents showing estimated profit calculations made

prior to purchasing timeshares in 2004 through 2006.” The record

shows that petitioners did not “prepare any business or profit

plans, profit or loss statements, balance sheets, or financial

break-even analyses” for the activity. See Dodge v.

Commissioner, T.C. Memo. 1998-89, affd. without published opinion

188 F.3d 507 (6th Cir. 1999).

There is no evidence in the record that petitioners

conducted the activity in a manner substantially similar to those

of other comparable activities that were profitable or changed

operating procedures, adopted new techniques, or abandoned

unprofitable methods in a manner consistent with an intent to

improve profitability. This factor favors respondent.

B. The Expertise of the Taxpayer or His Advisers

“Preparation for the activity by extensive study of its

accepted business, economic, and scientific practices, or

consultation with those who are expert therein, may indicate that

the taxpayer has a profit motive where the taxpayer carries on

the activity in accordance with such practices.” Sec. 1.183-
 - 16 -

2(b)(2), Income Tax Regs. There is no evidence in the record

that petitioners ever studied the business of renting timeshare

units or consulted with experts. This factor favors respondent.

C. The Time and Effort Expended by the Taxpayer in Carrying
On the Activity

The fact that the taxpayer devotes much of his personal
time and effort to carrying on an activity,
particularly if the activity does not have substantial
personal or recreational aspects, may indicate an
intention to derive a profit. A taxpayer’s withdrawal
from another occupation to devote most of his energies
to the activity may also be evidence that the activity
is engaged in for profit. * * * [Sec. 1.183-2(b)(3),
Income Tax Regs.]

Petitioners did not devote a substantial amount of time to

the timeshare activity. Both petitioners had full-time jobs

requiring between 35 and 40 hours per week. Ms. Rundlett

explained at trial that it took from 6 to 8 hours per unit per

year from the time of reserving the unit to actually renting it

out. This factor favors respondent.

D. The Expectation That Assets Used in the Activity May
Appreciate in Value

“The term ‘profit’ encompasses appreciation in the value of

assets, such as land, used in the activity.” Sec. 1.183-2(b)(4),

Income Tax Regs. The value of the assets used in the timeshare

activity and their anticipated appreciation or depreciation was

not discussed at trial, nor was any evidence submitted on this

issue. This factor is neutral.
 - 17 -

E. The Success of the Taxpayer in Carrying On Other Similar
or Dissimilar Activities

“The fact that the taxpayer has engaged in similar

activities in the past and converted them from unprofitable to

profitable enterprises may indicate that he is engaged in the

present activity for profit, even though the activity is

presently unprofitable.” Sec. 1.183-2(b)(5), Income Tax Regs.

Petitioners did not address this factor at trial, and there is no

evidence that petitioners carried on any successful businesses in

a manner substantially similar to that of the timeshare activity.

This factor is neutral.

F. The Taxpayer’s History of Income or Losses With Respect
to the Activity

A series of losses during the initial or start-up stage
of an activity may not necessarily be an indication
that the activity is not engaged in for profit.
However, where losses continue to be sustained beyond
the period which customarily is necessary to bring the
operation to profitable status such continued losses,
if not explainable, as due to customary business risks
or reverses, may be indicative that the activity is not
being engaged in for profit. * * * [Sec. 1.183-2(b)(6),
Income Tax Regs.]

In the 2 years at issue petitioners claimed $123,955 in

losses from an activity that has never been profitable. We

recognize that the years at issue were the very first 2 years of

the activity and the losses have been decreasing since its

inception. Because the timeshare activity has never made a

profit, but was still in the startup stage during the years at

issue, we find this factor neutral.
 - 18 -

G. The Amount of Occasional Profits, If Any, From the
Activity

“The amount of profits in relation to the amount of losses

incurred, and in relation to the amount of the taxpayer’s

investment and the value of the assets used in the activity, may

provide useful criteria in determining the taxpayer’s intent.”

Sec. 1.183-2(b)(7), Income Tax Regs. The timeshare activity has

yet to earn any profits; however, Ms. Rundlett believed that the

return would be higher than interest on her bank accounts. The

record does show that the amount of the loss is decreasing each

year; however, in the 4 years in the record, the activity has

lost $217,705 and earned only $40,995. We find this factor

favors respondent.

H. The Financial Status of the Taxpayer

“Substantial income from sources other than the activity

(particularly if the losses from the activity generate

substantial tax benefits) may indicate that the activity is not

engaged in for profit especially if there are personal or

recreational elements involved.” Sec. 1.183-2(b)(8), Income Tax

Regs. Petitioners earned substantial income from their full-time

jobs, and the losses from the timeshare activity resulted in

substantial tax benefits. During the years at issue petitioners

earned a combined average in excess of $170,000 a year from their

outside jobs, and they deducted an average amount in excess of

$62,000 per year on their joint Federal income tax returns on
 - 19 -

account of the timeshare activity losses. We find this factor

favors respondent.

I. Elements of Personal Pleasure or Recreation

“The presence of personal motives in carrying on of an

activity may indicate that the activity is not engaged in for

profit, especially where there are recreational or personal

elements involved.” Sec. 1.183-2(b)(9), Income Tax Regs.

However, “We also note that a business will not be turned into a

hobby merely because the owner finds it pleasurable; suffering

has never been made a prerequisite to deductibility.” Jackson v.

Commissioner, 59 T.C. 312, 317 (1972).

Ms. Rundlett testified that her family was mixing business

with pleasure. Petitioners and their daughter spent many nights

and dollars staying in expensive resorts, even when they visited

timeshare units within driving distance from their home. Ms.

Rundlett explained that her family hated going to the previews

for the timeshares and that she would have them stay the night so

that they could go to the beach the next day and make it an

enjoyable trip. Ms. Rundlett did spend work time reserving and

renting the units that we would not classify as pleasurable or

recreational. This factor is neutral.

After considering all of the above factors as applied to the

unique facts and circumstances of this case, and all other facts

we consider relevant, we conclude that the timeshare activity was
 - 20 -

not engaged in for profit within the meaning of section 183.

Therefore petitioners are not entitled to deduct expenses in

excess of gross income from the activity.

V. Section 280A

Because we have found that petitioners were entitled to

deduct the activity’s expenses only to the extent of gross income

under section 183 discussed above, we need not determine whether

the timeshare units were dwelling units used by petitioners or

other owners as residences pursuant to section 280A.

VI. Passive Activity Losses

Because we have found that petitioners were not entitled to

deduct the activity’s expenses beyond the gross income from the

timeshare activity, we do not need to determine whether the

losses were passive.

The Court has considered all of petitioners’ contentions,

arguments, requests, and statements. To the extent not discussed

herein, we conclude that they are meritless, moot, or irrelevant.

To reflect the foregoing,

Decision will be entered

under Rule 155.