T.C. Memo. 2011-234
UNITED STATES TAX COURT
HENRICUS C. AND PAMELA VAN DER LEE, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 19804-08. Filed September 29, 2011.
Leon J. Greenspan, for petitioners.
Frederick C. Mutter, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
MARVEL, Judge: Respondent determined a deficiency of
$620,235 in petitioners’ Federal income tax and an accuracy-
related penalty under section 6662(a)1 of $7,624 for 2002. After
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code (Code), as amended and in effect for
the year at issue, and all Rule references are to the Tax Court
(continued...)
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concessions,2 the issues for decision are: (1) Whether
petitioner husband Henricus C. van der Lee (Mr. van der Lee) was
a trader in securities during 2002; (2) whether losses
attributable to Mr. van der Lee’s purchases and sales of
securities are deductible against petitioners’ ordinary income;
(3) whether petitioners are entitled to deduct certain charitable
contributions; and (4) whether petitioners are liable for the
accuracy-related penalty under section 6662(a) for 2002.
FINDINGS OF FACT
Some of the facts have been stipulated. We incorporate the
stipulated facts into our findings by this reference.
Petitioners resided in New York when they filed their petition.
I. Securities Transactions
Mr. van der Lee holds an undergraduate degree from Rollins
College and a master of business administration degree from Duke
University. By 2002 Mr. van der Lee had acquired substantial
1
(...continued)
Rules of Practice and Procedure. All amounts have been rounded
to the nearest dollar.
2
Petitioners concede that the $17,550 of tuition paid to the
Tuxedo Park School, an independent school, is not deductible as a
charitable contribution. The parties stipulated that petitioners
are entitled to deduct investment interest of $29,023 rather than
$12,493. Because respondent allowed the additional interest
deduction in the notice of deficiency, we do not construe this
stipulation as respondent’s further concession.
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trading experience during his career3 as a trader at investment
banks Morgan Stanley, Goldman Sachs, and Merrill Lynch. He
traded mostly mortgage-backed securities, U.S. Treasury bonds,
interest rate swaps, and commodities and also was involved in
credit and foreign exchange trading. Because of industry
regulations, before 2002 Mr. van der Lee was prohibited from
trading securities for his own account.
In the first quarter of 2002 Mr. van der Lee’s career at
Merrill Lynch was coming to an end, and later in 2002 he formally
left his employer. Starting with the second quarter of 2002 he
stopped spending a significant amount of time at Merrill Lynch,
and after the first quarter of 2002, many of the trading
restrictions were lifted. After April 15, 2002, Mr. van der Lee
decided to start trading for his own account.4
Mr. van der Lee conducted most of his trading activities
from home using an account with Merrill Lynch, through which he
traded stocks and options. Between April 15 and December 31,
3
Petitioners state in the petition that Mr. van der Lee had
been employed as a securities trader for over 12 years, but Mr.
van der Lee testified that he had worked as a securities trader
for 15 years by 2002.
4
Before starting the trading, Mr. van der Lee asked
petitioners’ return preparer, Jerome Camiola (Mr. Camiola), to
look into rules regarding trading. Mr. Camiola researched the
rules and in late April 2002 conveyed the results of his research
to Mr. van der Lee.
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2002, his trading activity in the Merrill Lynch account was as
follows:
Month No. of transactions
April 4
May 25
June 29
July 6
August 8
September 7
October 13
November 15
December 41
Total 148
Of the 148 transactions, Mr. van der Lee executed 30 sales and
purchases of stock pursuant to options that he had written or
acquired.5 Mr. van der Lee never sold any stock on the day he
acquired it.
Mr. van der Lee also had an account with Prudential Bache
(Prudential) through which he traded options and futures.
Between April 15 and December 31, 2002, Mr. van der Lee executed
11 trades through the Prudential account. Mr. van der Lee’s
trading activity in the Prudential account was as follows:
5
The table does not include the 30 option transactions
because their dates are unclear. See infra pp. 14-15 note 7.
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Month Trading days No. of transactions
April 0 0
May 0 0
June 0 0
July 0 0
August 0 0
September 1 5
October 4 4
November 1 1
December 1 1
Total 7 11
At the end of 2002 Mr. van der Lee realized that even with
sophisticated communication devices that allowed him to monitor
securities prices, he did not have sufficient information to
trade successfully. Consequently, he decided to concentrate on
purchasing and selling securities as an investor.
II. Charitable Contributions
During 2002, in addition to her employment, petitioner wife
Pamela van der Lee (Mrs. van der Lee) became a consultant pro
bono to nonprofit organizations. She was a board member for the
Rollins College Alumni Association (alumni association), the
National Down Syndrome Society (NDSS), and the Tuxedo Park
School. She provided her expertise in marketing and strategic
planning, for example by making presentations on soliciting
donors. To carry out her charitable work, in 2002 Mrs. van der
Lee established a home office “with a computer, with telephones,
with fax machines, with copiers, all of that”. She also incurred
expenses for taxicabs, copying, office supplies, travel, and
courting donors.
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Mrs. van der Lee traveled extensively for the charities, and
her travel was either expected or required. She traveled to
attend national conferences for NDSS and quarterly meetings,
dinners, and other fundraising events for the alumni association.
Mrs. van der Lee also traveled to Washington, D.C., for meetings
on strategic planning for the alumni association and the NDSS.
She did not seek reimbursement of her expenses from the
charitable organizations.
During 2002 petitioners owned a 3-week timeshare interest in
a residence at the Ritz Carlton in St. Thomas (Caribbean
residence). In 2002 they donated a 1-week use of the Caribbean
residence to NDSS, which raised money by auctioning a vacation at
the Caribbean residence at a fundraising gala.
Around 2002 petitioners renovated the kitchen in their home.
In 2002 they donated their used range to the Tuxedo Park School
and other used kitchen appliances, cabinets, faucets, and similar
items to Hudson Valley Materials Exchange. Hudson Valley
Materials Exchange is an environmental section 501(c)(3)
organization that focuses on waste management and distributes
collected items to school districts.
III. Procedural History
A. Return Positions
Mr. Camiola has prepared petitioners’ returns since the late
1980s, including the 2002 Federal income tax return. Mr. Camiola
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received a degree in history in 1976, and after working as an
accountant, in 1985 he started his own business as a return
preparer. Mr. Camiola gives his clients guidelines but does not
examine receipts. Mr. van der Lee provided Mr. Camiola with
totals by category of all receipts.
Petitioners signed the 2002 return and filed it as married
taxpayers filing jointly. The taxable year 2002 was the first
and only year for which Mr. van der Lee claimed to be a trader.
Petitioners attached a Schedule C, Profit or Loss From Business,
to the 2002 return. On the Schedule C petitioners reported gross
receipts from the securities trading activity of $3,710,378. To
calculate this amount, Mr. Camiola totaled all gross proceeds
using petitioners’ brokerage statements. Petitioners reported
$5,098,705 as the cost of goods sold, which equaled their total
bases in those securities. According to the Schedule C,
petitioners’ loss was $1,388,327. On the Schedule C petitioners
also reported expenses totaling $91,872 as follows:
Expense Amount
Legal and professional services $750
Office expense 34,313
Travel 26,726
Meals and entertainment 16,695
Utilities 13,388
Total 91,872
Petitioners offset the net loss on Schedule C of $1,480,199
against their wages.
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Petitioners did not attach to their 2001 or 2002 return a
statement making the mark-to-market election or a Form 3115,
Application for Change in Accounting Method. Petitioners did not
report on their 2002 return any unrealized profit or loss from
securities held at the close of 2002.
With respect to the reporting of charitable contributions,
Mr. Camiola did not explain to petitioners that cash and noncash
contributions must be reported separately. Petitioners reported
their charitable contributions of $165,026 as gifts by cash or
check.
B. Respondent’s Determinations
In the notice of deficiency respondent determined that Mr.
van der Lee “did not qualify as a trader in securities under
I.R.C. section 475(f) during the 2002 tax year” and that he was
not eligible to elect the use of the mark-to-market accounting
method for the securities activity. Respondent also determined
that petitioners failed to make a timely and effective mark-to-
market election under section 475(f). As a result, respondent
determined that the $1,388,327 loss on the sale of securities
should be reported as a capital loss on Schedule D, Capital Gains
and Losses, that is deductible only to the extent of $3,000 under
sections 165(f) and 1211(b)(1). Respondent also disallowed all
Schedule C expenses.
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Respondent disallowed $98,752 of the charitable contribution
deduction and determined that a 20-percent accuracy-related
penalty under section 6662(a) applied.
OPINION
I. Burden of Proof
Generally, the Commissioner’s determinations are presumed
correct, and the taxpayer bears the burden of proving them
erroneous. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115
(1933). Also, deductions are a matter of legislative grace, and
the taxpayer has the burden of showing entitlement to any
deduction claimed. See Rule 142(a); INDOPCO, Inc. v.
Commissioner, 503 U.S. 79, 84 (1992).
Petitioners contend that the burden of proof shifts to
respondent pursuant to section 7491(a). Section 7491(a)(1) may
shift the burden to the Commissioner with respect to factual
issues affecting liability for tax where the taxpayer introduces
credible evidence with respect to any factual issue relevant to
ascertaining tax liability. However, the taxpayer must establish
that he or she has complied under section 7491(a)(2) with all
substantiation requirements, has maintained all required records,
and has cooperated with reasonable requests for witnesses,
information, documents, meetings, and interviews. Sec.
7491(a)(2).
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The record does not establish that the requirements for
shifting the burden of proof to respondent are met. In any case,
we base our conclusions on the preponderance of the evidence and
not on the allocation of the burden of proof. See Knudsen v.
Commissioner, 131 T.C. 185, 188-189 (2008).
II. Purchases and Sales of Securities
A. Trader or Investor
Section 165 generally allows a deduction for any loss
sustained during the taxable year and not compensated by
insurance or otherwise. However, section 165(f) provides that
losses from sales or exchanges of capital assets are allowed only
to the extent allowed under sections 1211 and 1212. Section
1211(b) limits the allowance of such losses to the extent of
gains from such sales or exchanges, plus the lower of (1) $3,000
($1,500 in the case of a married individual filing a separate
return), or (2) the excess of such losses over such gains.
Section 1221 defines capital assets as any property held by
the taxpayer, whether or not connected with his trade or
business. Section 1221(a)(1) creates an exception to the
definition of the capital asset:
(1) stock in trade of the taxpayer or other
property of a kind which would properly be included in
the inventory of the taxpayer if on hand at the close
of the taxable year, or property held by the taxpayer
primarily for sale to customers in the ordinary course
of his trade or business * * *
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Accordingly, taxpayers who are not dealers generally recognize
capital gain or loss upon the sale or exchange of their stock,
rather than ordinary gains or losses.
However, if a taxpayer who is not a dealer is engaged in
business as a securities trader, section 475(f) allows such
taxpayer to elect the mark-to-market method of accounting for
securities held in his business.6 Under the mark-to-market
method of accounting a trader generally recognizes at the end of
the year ordinary gain or loss on all securities held in the
business as if the securities were sold at the end of the year
for fair market value. Sec. 475(d)(3)(A), (f)(1)(A)(i); Knish v.
6
A securities trader electing under sec. 475(f) to use the
mark-to-market method of accounting for securities held in his
business is required to file with the Commissioner a statement
making the election, identifying the first taxable year for which
the election is effective, and describing the business. See
Knish v. Commissioner, T.C. Memo. 2006-268; Rev. Proc. 99-17,
sec. 5.03(1), 5.04, 1999-1 C.B. 503, 504-505. The taxpayer must
file the statement no later than the due date of the trader’s
original Federal income tax return for the year immediately
preceding the election year, and if the election entails a change
in the accounting method, the trader must also attach a Form
3115, Application for Change in Accounting Method, to the
original return for the election year. Rev. Proc. 99-17, secs.
5.03(1), 5.04, 6.02(2), 1999-1 C.B. at 504, 505.
For a trader’s first year of business, the trader may make
the sec. 475(f) election by placing in the books and records of
the business, no later than 2 months and 15 days after the first
day of the year, a written statement making the mark-to-market
election, identifying the first taxable year for which the
election is effective, and describing the business to which the
election relates. Rev. Proc. 99-17, sec. 5.03(2), 1999-1 C.B. at
505. The trader must attach a copy of the statement to the
trader’s Federal income tax return for the election year. Id.
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Commissioner, T.C. Memo. 2006-268; Lehrer v. Commissioner, T.C.
Memo. 2005-167, affd. 279 Fed. Appx. 549 (9th Cir. 2008). Where
the trader has not made a proper election, the losses are treated
as capital losses and are deductible only to the extent of
capital gains plus $3,000. Secs. 165(a), (c), (f), 1211(b)(1);
Knish v. Commissioner, supra.
As follows from the foregoing, the proper taxation of gains
and losses from the taxpayer’s securities activity depends on
whether he is a dealer, a trader, or an investor. See Estate of
Yaeger v. Commissioner, 889 F.2d 29 (2d Cir. 1989), affg. in
part, revg. in part on another issue and remanding T.C. Memo.
1988-264; King v. Commissioner, 89 T.C. 445, 458-459 (1987).
Petitioners contend that Mr. van der Lee was a trader in 2002,
and respondent contends he was an investor.
Generally, traders are engaged in the trade or business of
selling securities for their own account. See King v.
Commissioner, supra at 457-458. Although investors also buy and
sell securities for their own account, they are not considered to
be in the trade or business of selling securities. See Kay v.
Commissioner, T.C. Memo. 2011-159; Arberg v. Commissioner, T.C.
Memo. 2007-244. Unlike an investor’s expenses, a trader’s
expenses are deducted in determining adjusted gross income rather
than as itemized expenses. See, e.g., Kay v. Commissioner,
supra. Whether a taxpayer’s activities constitute a trade or
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business is a question of fact. See Higgins v. Commissioner, 312
U.S. 212, 217 (1941).
In distinguishing a trader from an investor, courts consider
the following nonexclusive factors: (1) The taxpayer’s intent,
(2) the nature of the income to be derived from the activity, and
(3) the frequency, extent, and regularity of the taxpayer’s
securities transactions. See Estate of Yaeger v. Commissioner,
supra at 32 (quoting Moller v. United States, 721 F.2d 810, 813
(Fed. Cir. 1983)); see also Purvis v. Commissioner, 530 F.2d
1332, 1334 (9th Cir. 1976), affg. T.C. Memo. 1974-164. The Court
of Appeals for the Second Circuit, where the appeal in this case
would lie absent a stipulation to the contrary, see sec.
7482(b)(1)(A), (2), has held that the length of the holding
period and the source of profit are the two fundamental
distinguishing criteria, see Estate of Yaeger v. Commissioner,
supra at 33. Investors derive profit from interest payments,
dividends, and capital appreciation of securities. Id. Traders
buy and sell securities with reasonable frequency with the
purpose of catching the swings in the daily market movements and
profiting on a short-term basis. Id.
The length of time Mr. van der Lee held stocks before
selling suggests that in 2002 he was an investor rather than a
trader. He never sold stocks on the day of their acquisition.
Of the 76 sales of stocks between April 15 and December 31, 2002,
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35 involved shares that Mr. van der Lee had acquired before 2002.
His potential source of profit, if any, was asset appreciation
rather than short-term price variation. Mr. van der Lee did not
seek to profit from the swings in the daily market movements and
instead intended to profit from the longer term holding of
investments.
Mr. van der Lee also did not trade with sufficient frequency
to qualify as a trader. The brokerage statements show that
between April 15 and December 31, 2002, Mr. van der Lee executed
148 trades through the Merrill Lynch account and 11 trades
through the Prudential account. Of the 148 trades, 30 were
executed pursuant to options that Mr. van der Lee had written or
acquired.7 Mr. van der Lee’s total number of trades was
7
The parties stipulated that in 2002 there were a total of
94 purchases and 94 sales in the Merrill Lynch account. However,
Mr. van der Lee testified that from April through December 2002
he executed 171 trades. Mr. van der Lee commenced his securities
activity after Apr. 15, 2002, but the parties’ stipulations are
unclear as to whether they cover the full calendar year. In
addition, the parties’s stipulations are unclear regarding the
extent, if any, to which they include options pursuant to which
the parties sold or acquired stocks.
The record contains the yearend statement and the December
2002 statement issued by Merrill Lynch. For our findings of fact
we employed the following methodology. First, we ignored certain
transactions involving shares of Viacom. Until Dec. 31, 2002,
Mrs. van der Lee had worked for Viacom for 14 years. She
received Viacom stock options and exercised them, acquiring 8,000
Viacom shares. On Apr. 23, 2002, petitioners sold the Viacom
stock in three transactions. These transactions, namely the
purchase of the shares pursuant to the options and the sales of
the shares, did not relate to Mr. van der Lee’s trading activity.
(continued...)
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therefore 189. In April, July, August, and September, almost
one-half of the time he engaged in the securities activity Mr.
van der Lee placed between four and eight trades. In June 2002
he executed 29 trades, but on only 5 days. In addition, Mr. van
der Lee traded on only 11 days in the Prudential account,
averaging 3 or 4 trading days per month. Mr. van der Lee had a
spurt of trading activity in the Merrill Lynch account in
December, but overall his activity was sporadic.
Mr. van der Lee’s number of trades also does not support a
conclusion that in 2002 he was a trader. See Kay v.
Commissioner, supra (313 trades held insubstantial); Holsinger v.
Commissioner, T.C. Memo. 2008-191 (289 trades with aggregate
7
(...continued)
Second, we identified all transactions pursuant to which Mr.
van der Lee purchased or sold shares, including the purchases of
shares that he held at yearend. On the basis of the December
2002 statement, we also identified all options that Mr. van der
Lee purchased or wrote that were held open as of Dec. 31, 2002.
We then identified all options that Mr. van der Lee wrote or
acquired that expired and included the original option
transaction as a trade. We did so using the December 2002 and
the yearend statements, which together show that on the yearend
statement under “short-term capital gains” Merrill Lynch reported
gains and losses with respect to expired options. With respect
to options that Mr. van der Lee wrote or acquired between Apr. 15
and Dec. 31, 2002, that were exercised, we relied on the yearend
statement. If the yearend statement shows the basis and/or the
sale price of the underlying stock includes an option premium, we
counted the option itself as a trade in addition to the trade of
the underlying stock. The yearend statement does not identify
the date on which Mr. van der Lee acquired or wrote the options
that were exercised, and we therefore are unable to find his
monthly number of trades with precision.
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sales of $754,277 in 1 year held insubstantial).8 We conclude
that Mr. van der Lee was not a trader in 2002, and petitioners
are limited to a $3,000 deduction of losses arising from the
purchase and sale of securities under section 1211(b).
B. Respondent’s Motion for Summary Judgment
Respondent filed a motion for partial summary judgment on
the issue of whether petitioners were permitted to use the mark-
to-market method of accounting for 2002. Respondent contends
that regardless of whether Mr. van der Lee was a trader in 2002,
petitioners failed to make the mark-to-market election and
therefore are not entitled to claim ordinary losses. Respondent
also contends that petitioners are not entitled to administrative
relief for failing to make a valid election under section
301.9100-3, Proced. & Admin. Regs.9 Petitioners argue that
8
We note, however, that in any case the Court of Appeals for
the Second Circuit does not consider a large number of trades
determinative of whether the taxpayer was a trader or an
investor. See Estate of Yaeger v. Commissioner, 889 F.2d 29, 33-
34 (2d Cir. 1989) (holding the taxpayer was an investor when he
executed over 2,000 trades in 1979 and 1980 but held most stocks
for over 1 year), affg. in part, revg. in part on another issue
and remanding T.C. Memo. 1988-264.
9
Under sec. 301.9100-3, Proced. & Admin. Regs., the
Commissioner may grant administrative relief to a securities
trader with regard to an improper mark-to-market election if the
trader, among other things, requests sec. 9100 relief and
demonstrates that he acted reasonably and in good faith in
failing to make a timely election under sec. 475(f). A trader
has not acted reasonably and in good faith if the trader uses
hindsight in requesting relief by attempting to make a sec.
475(f) mark-to-market election after the election was due.
(continued...)
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because in 2002 Mr. van der Lee was a new trader rather than a
continuing trader, the rules on filing the mark-to-market
election do not apply. Petitioners also contend that the failure
to elect the mark-to-market method of accounting does not
preclude Mr. Van Der Lee from using “the ordinary accounting
method of deducting losses”. According to petitioners, section
475(f), if elected, creates a rebuttable presumption that the
taxpayer is a trader, but if the taxpayer made no such election,
he bears the burden of proving his trader status.
We held a hearing on the motion and announced an intention
to grant respondent’s motion partially in that the election under
section 301.9100-3, Proced. & Admin. Regs., does not apply.
Thereafter a trial was held in New York. In the light of our
conclusion that Mr. van der Lee was not a trader, we will deny
respondent’s motion as moot. For the same reason, we do not
address petitioners’ arguments.
C. Expenses Related to the Activity
1. In General
Section 162 generally allows as a deduction all ordinary and
necessary expenses paid or incurred during the taxable year in
carrying on any trade or business. As discussed above, in 2002
9
(...continued)
Kantor v. Commissioner, T.C. Memo. 2008-297.
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Mr. van der Lee was not a trader, and therefore he is not
entitled to the deductions under section 162.
Nevertheless, under section 212 individuals are allowed to
deduct ordinary and necessary expenses paid or incurred during
the taxable year for the production or collection of income or
for the management, conservation, or maintenance of property held
for the production income. To be deductible under section 212,
expenses must be ordinary and necessary. See sec. 1.212-1(d),
Income Tax Regs. Section 1.212-1(d), Income Tax Regs., provides
that expenses are deductible under section 212 only if they are
reasonable in amount and bear a reasonable and proximate relation
to the production or collection of income or to the management,
conservation, or maintenance of property held for the production
of income. No deduction is allowed for personal expenditures.
Sec. 262(a). Expenses under section 212 are allowed as
miscellaneous itemized deductions only to the extent that in the
aggregate itemized deductions exceed 2 percent of adjusted gross
income. Sec. 67(a). We now consider petitioners’ specific
expenses.
2. Legal and Professional Services Expenses
Respondent disallowed a deduction for legal and professional
services expenses of $750. The record contains two bills
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totaling $782 issued by the law firm of Norton & Christensen.10
However, the record contains no credible evidence establishing
that the legal advice pertained to Mr. van der Lee’s activity of
purchasing and selling stocks, as opposed to personal matters.
We sustain respondent’s determination disallowing legal and
professional services expenses.
3. Travel and Meals and Entertainment Expenses
Generally, a deduction is not allowed for travel expenses,
meals and entertainment expenses, and any expenses for gifts or
listed property unless the taxpayer properly substantiates: (1)
The amount of such expense; (2) the time and place of the
expense; (3) the business purpose; and (4) in the case of meals
and entertainment, the business relationship between the taxpayer
and the persons being entertained. Sec. 274(d). Deductions for
expenses that are subject to the strict substantiation
requirements of section 274(d) must be disallowed in full unless
the taxpayer satisfies every element. Sanford v. Commissioner,
50 T.C. 823, 827-828 (1968), affd. per curiam 412 F.2d 201 (2d
Cir. 1969).
A taxpayer may substantiate his deductions by either
adequate records or sufficient evidence corroborating the
taxpayer’s statement. Sec. 274(d). To satisfy this requirement,
10
Petitioners explain that they deducted these expenses
under the category of office expenses.
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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)(2)(i), Temporary Income Tax
Regs., 50 Fed. Reg. 46017 (Nov. 6, 1985). In the absence of
adequate records, a taxpayer may establish an element of an
expenditure by his or her statement, written or oral, containing
specific information as to such element. Larson v. Commissioner,
T.C. Memo. 2008-187; sec. 1.274-5T(c)(3), Temporary Income Tax
Regs., 50 Fed. Reg. 46020 (Nov. 6, 1985).
To substantiate this category of deductions, petitioners
submitted credit card statements and summaries on which they
circled purportedly deductible items. However, these documents
substantiate only the amounts of the expenses but not the other
elements of section 274(d), such as the business purpose or the
business relationship between Mr. van der Lee and persons being
entertained. The record is devoid of any details of Mr. van der
Lee’s travel or the business purpose of each trip.11 We sustain
respondent’s determination disregarding this category of
expenses.
4. Office and Utilities Expenses
To substantiate the deductions for office and utilities
expenses, petitioners submitted bank and credit card statements,
11
Mr. van der Lee stated at trial that he provided to the
IRS the list of contacts showing with whom he met. The list was
not organized by date and is not part of the record.
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invoices, payment confirmations, and receipts.12 With respect to
the charges for utilities and security, house cleaning, and
exterminator services, generally, under section 280A13 no
deduction is allowable for use of a home in connection with an
activity which is merely for the production of income within the
meaning of section 212 but is not a trade or business under
section 162. Curphey v. Commissioner, 73 T.C. 766, 770 (1980).
With respect to the charges for PC Warehouse, Radio Shack,
PalmNet, Gateway, CompUSA, and Best Buy, petitioners failed to
present credible evidence establishing what Mr. van der Lee
purchased and that the items he purchased were not for personal
use. Although Mr. van der Lee testified that when he decided to
start trading, he researched the technology side of the
12
The expenses were: Direct TV ($444), Cottage Care
cleaning services ($2,385), S&B Total Home ($3,850), land
surveyor services ($2,400), payments to Bruce McKinnon and Mr.
Tammaro ($1,050), New York Post subscription ($372), Radio Shack
and PalmNet ($364), Gateway ($2,418), cable ($1,200), Cablevision
($1,368), PC Warehouse ($154), Staples, CompUSA, and Best Buy
($691), Chubb Insurance ($1,421), security services ($2,799),
shipping ($1,243), Bug Runner Exterminator ($729), water ($196),
Brazilian American ($125), House and Garden and Renovation Style
magazines ($55), Suburban Propane ($2,226), Rockland Electric
($1,200), and communications charges, such as AT&T Services,
Palmnet service, GTE Airfone, and others ($8,875).
13
Sec. 280A(a) generally disallows deductions for expenses
with respect to a “dwelling unit” used by a taxpayer as a
residence unless an exception applies. Sec. 280A(c) exempts from
the general disallowance rule expenses attributable to a dwelling
unit which is exclusively used on a regular basis as a principal
place of business for any trade or business of the taxpayer.
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operations and set up a trading floor, such general testimony is
insufficient to substantiate the claimed deductions.
With respect to the payments to Mr. McKinnon and Mr. Tammaro
and the payments for the land surveyor services, New York Post,
House and Garden and Renovation Style magazines, shipping, and
various communications services, the record contains no credible
evidence regarding the ordinary and necessary and nonpersonal
nature of the expenses. We sustain respondent’s determinations
disallowing the deductions for these expenses. See sec. 262.
III. Charitable Contribution Deduction
The following charitable contributions remain at issue:
Description Amount
Underage $1,613
Percentage of home used for charity 6,000
Partial interest in the Caribbean residence 1,356
Charitable use of the Caribbean residence 11,500
NDSS expenses 32,635
Bug Runners 500
Rockland Occupational Therapy for Kids 1,475
Hudson Valley Materials Exchange and Tuxedo Park
School
Fridge and freezer 2,800
Cabinets and granite countertops 27,729
Sink, faucet, dishwasher 680
Toilet, sink, and vanity 550
Range 1,250
Total 88,088
Generally, section 170(a) allows a deduction for any “charitable
contribution” made by the taxpayer. A “charitable contribution”
is defined as “a contribution or gift to or for the use of” a
charitable organization. Sec. 170(c). Because the recordkeeping
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requirements under the Code and the regulations vary depending on
the amount and nature of the contribution, we address each
category separately.
A. NDSS Expenses
Mrs. van der Lee testified about her pro bono work for the
charitable organizations. We find her testimony credible on this
point, and we find that she rendered services to NDSS. No
deduction is allowable under section 170 for a contribution of
services, but “unreimbursed expenditures made incident to the
rendition of services to an organization contributions to which
are deductible may constitute a deductible contribution.” Sec.
1.170A-1(g), Income Tax Regs.
Recently in Van Dusen v. Commissioner, 136 T.C. ___ (2011),
we have addressed the deductibility of expenses incident to the
rendition of services to a charitable organization and the
recordkeeping requirements. To be deductible, unreimbursed
expenses must be directly connected with and solely attributable
to the rendition of services to a charitable organization. See
id. at ___ (slip op. at 22-23); Saltzman v. Commissioner, 54 T.C.
722, 724 (1970). Charitable contributions are subject to the
recordkeeping requirements of section 1.170A-13(a), Income Tax
Regs., for monetary contributions, or section 1.170A-13(b),
Income Tax Regs., for contributions of property other than money.
In Van Dusen v. Commissioner, supra at ___ (slip op. at 37-38),
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we held that contributions through the payment of unreimbursed
volunteer expenses of less than $250 are subject to the
requirements for contribution of money set forth in section
1.170A-13(a), Income Tax Regs. Section 1.170A-13(a)(1), Income
Tax Regs., requires the taxpayer to maintain a canceled check or
a receipt from the donee organization. In the absence of a
canceled check or a receipt from the donee organization, the
taxpayer must maintain other reliable written records showing the
name of the donee and the date and the amount of the
contribution. Id.
To claim a charitable contribution deduction of $250 or
more, the taxpayer must substantiate the contribution with a
contemporaneous written acknowledgment from the donee
organization. Sec. 170(f)(8)(A); sec. 1.170A-13(f)(1) and (2),
Income Tax Regs. A taxpayer who incurs unreimbursed expenses
“incident to the rendition of services” is deemed to have
obtained such acknowledgment if the taxpayer (1) has adequate
records to substantiate the amount of the expenditures and (2)
obtains by a prescribed date a statement prepared by the donee
organization containing specified information. See sec. 1.170A-
13(f)(10), Income Tax Regs.; see also Van Dusen v. Commissioner,
supra at ___ (slip op. at 37-38). Contributions of less than
$250 to the same donee are not subject to these additional
requirements even if the aggregate donations to the donee exceed
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$250 within the same taxable year. See Van Dusen v.
Commissioner, supra at ___ n.26 (slip op. at 26 n.26); sec.
1.170A-13(f)(1), Income Tax Regs.
Even if we assume that Mrs. van der Lee’s expenditures were
directly connected with and solely attributable to her services
to NDSS, petitioners failed to satisfy the substantiation
requirements. The record contains no list of expenses or
receipts. There is no trip log or written acknowledgment from
NDSS describing Mrs. van der Lee’s services and other information
as required by section 1.170A-13(f)(10)(ii), Income Tax Regs.
Mrs. van der Lee testified that the credit card statements in the
record show some of these expenses. However, petitioners
submitted those credit card statements with circled items to
substantiate Mr. van der Lee’s deductions for expenses related to
his securities activity.
Because the record contains only the total amount of
expenses incurred for NDSS, it is not clear whether any of the
expenses were more than $250. Even if we erred on petitioners’
side and concluded that the less stringent substantiation
requirements of section 1.170A-13(a), Income Tax Regs., applied,
we would nevertheless conclude that petitioners fail even those
requirements. In the absence of receipts, the taxpayer must
provide reliable written records showing the names of the donees
and the dates and amounts of the contributions or, in this case,
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expenses. Sec. 1.170A-13(a)(1)(iii), Income Tax Regs. The
record contains no such reliable written records. We sustain
respondent’s determination regarding a deduction for
contributions to NDSS.
B. Charitable Use of the Caribbean Residence
With respect to the charitable use of the Caribbean
residence, petitioners deducted the rental value of the residence
for the length of the charitable use. They also deducted a
portion of the maintenance expenses they paid. Mr. van der Lee
explained at trial that because petitioners own a 3-week share of
the Caribbean residence and they donated 1 week to NDSS, they
claimed 30 percent of applicable maintenance fees as a charitable
contribution.14 Mr. van der Lee testified that they received a
document from NDSS acknowledging the donation of the use of the
Caribbean residence, but petitioners introduced no credible
documentary evidence regarding this deduction at trial.
Generally, subject to certain exceptions, section
170(f)(3)(A) disallows a charitable contribution deduction for a
gift of a partial interest in property not in trust. Petitioners
do not argue that any of the exceptions under section
14
Mrs. van der Lee testified that they donated the use of
the Caribbean residence to two different organizations in 2002.
The record contains no other reference to a second donee
organization. Because Mrs. van der Lee’s testimony on the point
was vague, on the basis of Mr. van der Lee’s testimony we find
that the donated use was 1 week.
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170(f)(3)(B)15 apply, and we conclude none are applicable.
Accordingly, we sustain respondent’s determination regarding the
deduction for the charitable use of the Caribbean residence.
C. Hudson Valley Materials Exchange
As described above, for a charitable contribution deduction
of $250 or more, the taxpayer must substantiate the contribution
with a contemporaneous written acknowledgment from the donee
organization. Sec. 170(f)(8)(A); sec. 1.170A-13(f), Income Tax
Regs. For contributions of property other than money, the
written acknowledgment must provide, among other information, a
description of the property and a statement of whether the donee
organization provided any goods or services in consideration for
the property. See sec. 1.170A-13(f)(2), Income Tax Regs.
Besides the written acknowledgment requirement, the
regulations establish an additional three-tier recordkeeping
system for contributions of property other than money. In the
case of a deduction of less than $500 for a contribution of
property other than money, the taxpayer must maintain a receipt
from the donee showing the name of the donee, the date and
15
The exceptions are: (1) A contribution of a remainder
interest in a personal residence or farm, (2) a contribution of
an undivided portion of the taxpayer’s entire interest in
property, and (3) a qualified conservation contribution. Sec.
170(f)(3)(B). The second exception does not apply because an
undivided portion must consist of a fraction or percentage or
each substantial right and “must extend over the entire term of
the donor’s interest in such property”. Sec. 1.170A-7(b)(1),
Income Tax Regs.
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location of the contribution, and a detailed description of the
property. See sec 1.170A-13(b)(1), Income Tax Regs. A letter or
other written communication from the donee acknowledging receipt
of the contribution constitutes such receipt. Id. A receipt is
not required if it is impractical to obtain, for example, when
the taxpayer deposits property at a charity’s unattended drop
site. Id. In such a case the taxpayer must maintain reliable
written records with respect to each item of donated property.
Id.
If a taxpayer makes a charitable contribution of property
other than money and claims a deduction in excess of $500, the
taxpayer must maintain written records showing the manner of
acquisition of the item and the approximate date of the
acquisition. See sec. 1.170A-13(b)(3), Income Tax Regs. Lastly,
if the deduction exceeds $5,000, the taxpayer must (1) obtain a
qualified appraisal for the contributed property, (2) attach a
fully completed appraisal summary (i.e., Form 8283, Noncash
Charitable Contributions) to the tax return on which the
deduction is claimed, and (3) maintain records pertaining to the
claimed deduction in accordance with section 1.170A-13(b)(2)(ii),
Income Tax Regs. See sec. 1.170A-13(c)(2), Income Tax Regs. A
qualified appraisal must include, among other things, a detailed
description of the property, its physical condition, the
valuation method used to determine the fair market value, and the
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specific basis for the valuation. See sec. 1.170A-13(c)(3)(ii),
Income Tax Regs. A qualified appraisal must be performed by a
qualified appraiser no earlier than 60 days before the date of
the contribution and no later than the due date of the return.
Sec. 1.170A-13(c)(3)(i)(A) and (B), Income Tax Regs.
Generally, the amount reported as a deduction for
contributions of property is an aggregate amount for all similar
items of property. See sec. 1.170A-13(c)(1)(i), Income Tax Regs.
We find the donated kitchen items were similar items of property.
Accordingly, we aggregate all items in this category and consider
the deduction to exceed $5,000. Petitioners therefore need to
establish that they met the substantiation requirements
applicable to deductions over $5,000.
Petitioners failed to attach a Form 8283 to their return.
They obtained an appraisal by Masterwork Kitchens dated July 27,
2001.16 The appraisal was not a qualified appraisal because it
was untimely. See Friedman v. Commissioner, T.C. Memo. 2010-45.
Petitioners did not present written acknowledgments of the
contributions by the donees and receipts from the donees. They
therefore failed to establish that they met the requirements of
the three-tier recordkeeping system described supra pp. 27-28.
16
The appraisal did not include the refrigerator, the
freezer, the toilet, and the vanity, the values of which
petitioners also deducted as charitable contributions.
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However, petitioners met the general recordkeeping
requirements for a charitable contribution deduction of less than
$250 because no written acknowledgment from the donee
organization is required for contributions of property valued at
$250 or less. See sec. 1.170A-13(f)(1), Income Tax Regs.
Petitioners’ records for the contribution of the kitchen items
meet the requirements for substantiating contributions of $250 or
less. We allow petitioners a $250 deduction for their
contribution of the kitchen items and sustain respondent’s
determination disallowing the deduction of the remaining amount.
D. Percentage of Home Used for Charity
Mrs. van der Lee testified that she calculated this
deduction on the basis of various expenses to establish a home
office, such as the cost of a computer, telephones, fax machines,
and copiers for her charitable work. Petitioners did not
introduce any credible documentary evidence substantiating these
expenses and are not entitled to the claimed deduction.
E. Underage, Rockland Occupational Therapy for Kids, and
Bug Runners
Mrs. van der Lee testified that she did not know what the
contribution identified as “Underage” was. She testified that
Bug Runners is an exterminator and that she did not know why that
expense was reported as a charitable contribution, other than the
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fact that she performed her charitable work from home.17 With
respect to the contribution to Rockland Occupational Therapy for
Kids, Mrs. van der Lee did not recall the details.
Petitioners presented no credible evidence to substantiate
these contributions. Because each of these contributions is over
$250 and the record contains neither written acknowledgment of
the contributions by the donees nor petitioners’ reliable written
records, we sustain respondent’s disallowance of these
deductions.
IV. The Accuracy-Related Penalty Under Section 6662(a)
Respondent determined that the portion of the underpayment
resulting from improper reporting of charitable contributions is
attributable to negligence and imposed the accuracy-related
penalty under section 6662(a) and (b)(1).
Generally, section 6662(a) and (b)(1) authorizes the
Commissioner to impose a 20-percent penalty on the portion of an
underpayment of income tax attributable to negligence or
disregard of rules or regulations. The term “negligence”
includes any failure to make a reasonable attempt to comply with
the provisions of the internal revenue laws, and the term
“disregard” includes any careless, reckless, or intentional
17
The record contains a credit card statement showing a
charge for Bug Runner Exterminator. However, petitioners
attempted to use this receipt to substantiate Mr. van der Lee’s
office expense deduction.
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disregard. Sec. 6662(c); sec. 1.6662-3(b)(1) and (2), Income Tax
Regs. Disregard of rules or regulations is careless if “the
taxpayer does not exercise reasonable diligence to determine the
correctness of a return position” and is reckless if “the
taxpayer makes little or no effort to determine whether a rule or
regulation exists, under circumstances which demonstrate a
substantial deviation from the standard of conduct that a
reasonable person would observe”. Sec. 1.6662-3(b)(2), Income
Tax Regs.; see also Neely v. Commissioner, 85 T.C. 934, 947
(1985).
The Commissioner bears the burden of production with respect
to the taxpayer’s liability for the section 6662(a) penalty and
must produce sufficient evidence indicating that it is
appropriate to impose the penalty. See sec. 7491(c). Once the
Commissioner meets his burden of production, the taxpayer must
come forward with persuasive evidence that the Commissioner’s
determination is incorrect or that the taxpayer had reasonable
cause or substantial authority for the position. See Higbee v.
Commissioner, 116 T.C. 438, 447 (2001).
Respondent met his burden of production. He introduced
evidence that petitioners failed the substantiation requirements
of section 170 and regulations thereunder. Accordingly,
petitioners had the burden of producing sufficient evidence to
prove that respondent’s penalty determination is incorrect. See
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Higbee v. Commissioner, supra at 446-447. Petitioners did not
carry that burden. The failure to properly substantiate their
claimed deductions evidences negligence and careless disregard of
the rules and regulations.
Petitioners contend that they should not be liable for the
section 6662(a) penalty because they relied on Mr. Camiola to
properly report the deductions. Generally, section 6664(c)(1)
provides an exception to the section 6662(a) accuracy-related
penalty with respect to any portion of an underpayment if the
taxpayer shows that there was reasonable cause for such portion
and that the taxpayer acted in good faith with respect to such
portion. Reliance on the advice of a tax professional may
establish reasonable cause and good faith. See United States v.
Boyle, 469 U.S. 241, 250 (1985). A taxpayer claiming reliance on
professional advice must show that: (1) The adviser was a
competent professional who had sufficient expertise to justify
reliance, (2) the taxpayer provided necessary and accurate
information to the adviser, and (3) the taxpayer actually relied
in good faith on the adviser’s judgment. Neonatology Associates,
P.A. v. Commissioner, 115 T.C. 43, 99 (2000), affd. 299 F.3d 221
(3d Cir. 2002).
Petitioners failed to provide Mr. Camiola with all relevant
information. They gave him only the total of the charitable
contributions and did not tell him that a large portion of the
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contributions was not gifts by cash or check. Petitioners have
failed to carry their burden of proving that there was reasonable
cause for, and that they acted in good faith with respect to, any
portion of the underpayment in tax. In addition, we disallow the
charitable contribution deduction on the ground of the lack of
credible evidence in the record. We sustain respondent’s
determination of the accuracy-related penalty.
We have considered the remaining arguments the parties made
and to the extent not discussed above, conclude those arguments
are irrelevant, moot, or without merit.
To reflect the foregoing,
An appropriate order and
decision under Rule 155 will be
entered.