T.C. Memo. 2012-334
UNITED STATES TAX COURT
JOHN A. SERNETT, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 25295-10. Filed December 3, 2012.
Michael J. Dwyer, Ward Rollin Anderson, and Rebecca S. Christensen, for
petitioner.
Blaine Charles Holiday, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
MARVEL, Judge: Respondent determined deficiencies in petitioner’s
Federal income tax of $25,190, $32,122, and $19,892 for 2005, 2006, and 2007,
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[*2] respectively. After a concession by respondent,1 the sole issue for decision is
whether petitioner’s sprint car racing activity during 2005-07 constituted an activity
not engaged in for profit within the meaning of section 183.2
FINDINGS OF FACT
Some of the facts have been stipulated. The stipulation of facts is
incorporated herein by this reference. Petitioner resided in Minnesota when he
petitioned this Court.
I. Background
During the years in issue petitioner was a successful, fully commissioned
telecommunications equipment salesperson for North American Communications
Resource, Inc. (NACR). Petitioner also raced sprint cars and operated a sprint car
racing activity (Sernett Motorsports).
Petitioner began racing sprint cars in 1975, when he was 19. Petitioner
earned his bachelor’s degree in business administration from Creighton University
in 1978. While at Creighton, petitioner drove sprint cars as a summer job. During
1
Respondent concedes that petitioner substantiated his claimed sprint car
racing expenses for 2005-07.
2
Unless otherwise indicated, all section references are to the Internal Revenue
Code (Code) for the years in issue, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
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[*3] 1982-83 petitioner earned all of his income driving sprint cars for others. In the
early 1980s petitioner worked for C.L. Boyd Co., managing its racing team and
marketing its construction equipment business. In all, petitioner raced for various
racing groups for 15 years before purchasing his own equipment in 1992.
II. Petitioner’s Racing Activity
In 1992 petitioner purchased his own sprint car and transporter to begin
Sernett Motorsports. Petitioner set up a separate business account for Sernett
Motorsports, and all income and expenses of the activity were paid into and out of
that account.
During the years in issue petitioner owned three sprint race cars and a full-
sized semitrailer for hauling his cars to racing events. At the time of trial petitioner
owned two cars and the semitrailer, which he estimated were worth a total of
$155,000. Petitioner also owned or leased a shop in Lakeville, Minnesota, where he
maintained his cars and prepared them for racing events.
During the years in issue petitioner kept the following records with respect
to Sernett Motorsports: (1) maintenance logs for the cars, (2) a journal
documenting his racing performance and how he tuned the cars for each race,
and (3) handwritten business records. Petitioner’s handwritten business records
consisted of one sheet of paper per year on which he recorded Sernett
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[*4] Motorsports’ racing income and between 18 and 30 envelopes into which he
placed receipts for various racing expenses.
Petitioner did not have a written business plan for Sernett Motorsports until
he was asked during the audit whether he had one. The business plan that petitioner
wrote during the audit identified four main sources of revenue and profit: (1) using
the novelty and marketing of Sernett Motorsports to brand himself and his full-time
employer, NACR; (2) strategically racing at events that would maximize prize
money and marketing potential; (3) building equity in racing equipment; and (4)
pursuing associate sponsorships.
To help Sernett Motorsports earn prize money, petitioner enlisted the help of
several racing colleagues when competing at events. His brother, Tim Sernett,
raced Sernett Motorsports’ second car. Dick Groenwald, a race car mechanic with
approximately 30 years of experience, and Scott Mudra, a professional race car
mechanic, provided technical advice on, and assistance with, tuning the cars to track
conditions. Petitioner also frequented racing supply shops and attended the
Performance Racing Industry Trade Show in Orlando, Florida.
In 2005 Sernett Motorsports competed in 10 events, earning total prize
money of $8,445. In 2006 Sernett Motorsports competed in 21 events, earning
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[*5] total prize money of $15,550. And in 2007 Sernett Motorsports competed in
16 events, earning total prize money of $7,435.
To help Sernett Motorsports secure corporate sponsorships, petitioner
engaged a professional design firm to design a full-color marketing brochure titled
“Marketing On The Move” in 2002. The brochure highlighted the marketing
opportunities available to potential corporate sponsors of Sernett Motorsports.
Petitioner used the brochure to solicit corporate sponsorships during the years in
issue.
Petitioner’s previous employer, Progressive Technologies (Progressive),
agreed to build a marketing strategy around Sernett Motorsports, and it sponsored
Sernett Motorsports for several years during the 1990s. In exchange Sernett
Motorsports displayed Progressive’s logo on its sprint cars and uniforms.
Petitioner secured commercial sponsors for Sernett Motorsports for 2005-06
from two local companies. In 2005 Advanced Manufacturing Concepts (AMC) and
Fast Arch paid $3,750 and $500, respectively, to sponsor Sernett Motorsports, and
in 2006 AMC paid $1,800 to sponsor Sernett Motorsports.
From 1992 to 2009 petitioner reported losses from Sernett Motorsports on
his Schedules C, Profit or Loss From Business. Petitioner first reported a profit
from Sernett Motorsports in 2010, after petitioning the Court in this case.
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[*6] Petitioner reported Sernett Motorsports’ gross income, total expenses, and net
profit or loss on the Schedules C attached to his 2000-10 Forms 1040, U.S.
Individual Income Tax Return (2000-10 returns), as follows:
Year Gross income Total expenses Net profit or loss
2000 $54,195 $111,164 ($56,969)
2001 31,990 117,381 (85,391)
2002 31,645 127,762 (96,117)
2003 11,360 91,777 (80,417)
2004 22,419 88,261 (65,842)
2005 14,795 76,998 (62,203)
2006 24,939 96,126 (71,187)
2007 8,620 61,208 (52,588)
1
2008 89,889 136,049 (46,160)
2009 5,230 25,186 (19,956)
2010 21,812 14,452 7,360
Total 316,894 946,364 (629,470)
1
Petitioner concedes he overstated Sernett Motorsports’ gross receipts and
expenses by $83,384 each on the Schedule C attached to his 2008 return.
III. Petitioner’s Employment as a Salesperson
Petitioner began working for Progressive as a telecommunications
equipment salesperson in 1992. In 2003 NACR acquired Progressive, and NACR
has employed petitioner as a fully commissioned salesperson ever since. Because
of liability concerns, NACR did not allow petitioner to display NACR’s logo on
any of Sernett Motorsports’ racing equipment during live events, but it allowed
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[*7] petitioner to photoshop NACR’s logo onto photographs of Sernett
Motorsports’ equipment and to send the altered photographs to his customers.
Petitioner has enjoyed significant success as a salesperson. He attained
“President’s Club” status, which is awarded to approximately the top 20% of
producers in the industry, for his efforts in 15 of the 18 years preceding trial in this
case. As reported on his 2005-10 Forms 1040 petitioner received wages and
deferred compensation from NACR as follows:
Deferred
Year Wages compensation
2005 $209,434 $11,326
2006 235,835 20,000
2007 194,593 20,500
2008 261,569 20,500
2009 87,322 16,500
2010 133,318 22,000
IV. Petitioner’s 2005-07 Federal Income Tax Returns
Petitioner timely filed his 2005-07 returns. Petitioner reported Sernett
Motorsports’ income and expenses on the Schedules C attached to his 2005-07
returns. The Schedules C listed petitioner as the proprietor of, and petitioner’s
home address as the business address for, Sernett Motorsports. The principal
business of Sernett Motorsports was reported as “Auto Racing Sales” for 2005 and
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[*8] 2007 and as “Auto Racing & Sales” for 2006. Petitioner reported Sernett
Motorsports’ gross income and total expenses for 2005-07 on his Schedules C as
follows:
2005 2006 2007
Gross income $14,795 $24,939 $8,620
Total expenses 76,998 96,126 61,208
Respondent examined petitioner’s 2005-07 returns and issued a notice of
deficiency to petitioner. In the notice of deficiency respondent determined that
petitioner did not operate Sernett Motorsports for profit, reclassified petitioner’s
Schedule C income as other income, and disallowed petitioner’s Schedule C
expense deductions in their entirety.3
OPINION
I. Burden of Proof
Generally, the Commissioner’s determination of a deficiency is presumed
correct, and the taxpayer bears the burden of proving that the determination is
improper. Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933). If,
3
We note that under sec. 183(b)(2), expenses attributable to an activity not
engaged in for profit are deductible to the extent of gross income derived from the
activity. Accordingly, petitioner is entitled to deduct Sernett Motorsports’ expenses
to the extent of its gross income even if we find that he did not operate Sernett
Motorsports for profit.
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[*9] however, a taxpayer produces credible evidence4 with respect to any factual
issue relevant to ascertaining the taxpayer’s tax liability for any tax imposed by
subtitle A or B and satisfies the requirements of section 7491(a)(2), the burden of
proof on any such issue shifts to the Commissioner. Sec. 7491(a)(1). Section
7491(a)(2) requires a taxpayer to demonstrate that he or she (1) complied with
requirements under the Code to substantiate any item, (2) maintained all records
required under the Code, and (3) cooperated with reasonable requests by the
Secretary5 for witnesses, information, documents, meetings, and interviews. See
also Higbee v. Commissioner, 116 T.C. 438, 440-441 (2001).
Petitioner argues that the burden of proof should shift to respondent under
section 7491(a) because he produced credible evidence and satisfied the
requirements of section 7491(a)(2). However, because we decide this case on the
preponderance of the evidence, the burden of proof is irrelevant. See Blodgett v.
4
“‘Credible evidence is the quality of evidence which, after critical analysis,
the court would find sufficient upon which to base a decision on the issue if no
contrary evidence were submitted (without regard to the judicial presumption of IRS
correctness).’” Higbee v. Commissioner, 116 T.C. 438, 442 (2001) (quoting H.R.
Conf. Rept. No. 105-599, at 240-241 (1998), 1998–3 C.B. 747, 994-995).
5
The term “Secretary” means the Secretary of the Treasury or his delegate.
Sec. 7701(a)(11)(B).
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[*10] Commissioner, 394 F.3d 1030, 1039 (8th Cir. 2005), aff’g T.C. Memo.
2003-212; Knudsen v. Commissioner, 131 T.C. 185, 188-189 (2008).
II. Whether Sternett Motorsports Was Operated for Profit
A. Section 183 Generally
A taxpayer who is carrying on a trade or business may deduct ordinary and
necessary expenses incurred in connection with the operation of the business. Sec.
162(a). However, a taxpayer generally may not deduct expenses incurred in
connection with a hobby or other nonprofit activity to offset taxable income from
other sources. Sec. 183(a) and (b). Section 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.” An activity constitutes a “trade or business” within the
meaning of section 162 if it is conducted with continuity, regularity, and for the
primary purpose of realizing income or profit. Commissioner v. Groetzinger, 480
U.S. 23, 35 (1987). The U.S. Court of Appeals for the Eighth Circuit, to which an
appeal in this case would lie absent a stipulation to the contrary, see sec.
7482(b)(1)(A), (2), has stated that “[a]n activity is engaged in for profit if the
taxpayer has an actual, honest profit objective, even if it is unreasonable or
unrealistic.” Keating v. Commissioner, 544 F.3d 900, 904 (8th Cir. 2008), aff’g
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[*11] T.C. Memo. 2007-309; see also sec. 1.183-2(a), Income Tax Regs. Whether
the requisite profit objective exists is determined by looking at all the facts and
circumstances, Evans v. Commissioner, 908 F.2d 369, 373 (8th Cir. 1990), rev’g
T.C. Memo. 1988-468; sec. 1.183-2(a), Income Tax Regs., and greater weight is
given to objective facts than to a taxpayer’s statement of intent, Thomas v.
Commissioner, 84 T.C. 1244, 1269 (1985), aff’d, 792 F.2d 1256 (4th Cir. 1986);
sec. 1.183-2(a), Income Tax Regs.
Section 1.183-2(b), Income Tax Regs., provides a list of factors to be
considered in the evaluation of a taxpayer’s profit objective: (1) the manner in
which the taxpayer carries on the activity; (2) the expertise of the taxpayer or his
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 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, from the activity; (8) the financial status of
the taxpayer; and (9) elements of personal pleasure or recreation. This list is
nonexclusive, and the number of factors for or against the taxpayer is not
necessarily determinative. Rather, all facts and circumstances must be taken into
account, and more weight may be given to some factors than to others. See Dunn
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[*12] v. Commissioner, 70 T.C. 715, 720 (1978), aff’d, 615 F.2d 578 (2d Cir.
1980); sec. 1.183-2(b), Income Tax Regs.
B. Petitioner’s Racing Activity
We apply the factors listed in section 1.183-2(b), Income Tax Regs., as
follows.
1. The Manner in Which Petitioner Conducted the Activity
In deciding whether a taxpayer has conducted an activity in a businesslike
manner we consider whether the taxpayer: (1) maintained complete and accurate
books and records; (2) conducted the activity in a manner substantially similar to
other activities of the same nature that were profitable; and (3) changed operating
methods, adopted new techniques, or abandoned unprofitable methods in a manner
consistent with an intent to improve profitability. See Engdahl v. Commissioner, 72
T.C. 659, 666-668 (1979); sec. 1.183-2(b)(1), Income Tax Regs.
Petitioner contends that he operated Sernett Motorsports in a businesslike
manner by (1) investing heavily in capital assets, (2) analyzing his performance
after each season, (3) consulting with various advisers, (4) racing only in races
offering significant prize money, (5) maintaining accurate records, and (6)
maintaining a separate checking account for Sernett Motorsports. Respondent
contends that Sernett Motorsports was not operated in a businesslike manner
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[*13] because petitioner (1) failed to maintain comprehensive books and records for
evaluating his racing activity, (2) lacked a written or credible business plan, (3)
commingled his personal funds with his business funds in Sernett Motorsports’
checking account, and (4) failed to take steps to reduce costs or to increase
profitability.
Although petitioner invested heavily in capital assets, such investment is
consistent with respondent’s theory that petitioner’s racing activity was simply an
expensive hobby. Petitioner kept accurate records, but he seemingly did so to
satisfy the Code’s recordkeeping requirements rather than as a tool to achieve
profitability. See Golanty v. Commissioner, 72 T.C. 411, 430 (1979), aff’d without
published opinion, 647 F.2d 170 (9th Cir. 1981); Nissley v. Commissioner, T.C.
Memo. 2000-178, 79 T.C.M. (CCH) 2105, 2110 (2000). Similarly, petitioner
testified that he consulted with his C.P.A. regarding various tax matters but he could
not testify with specificity regarding any financial advice that his C.P.A. may have
provided. We find, however, that there is no indication that he commingled his
personal funds with those of his racing activity.
Petitioner obtained marketing materials from a professional design firm to
help secure corporate sponsorships for Sernett Motorsports. These materials
indicate that he operated Sernett Motorsports in a businesslike manner.
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[*14] Petitioner did not have a written business plan during the years in issue.
Petitioner’s lack of a written business plan indicates that he did not operate Sernett
Motorsports in a businesslike manner.
We find credible petitioner’s testimony that he tried to minimize expenses and
maximize his chances of winning races. However, this is also consistent with
respondent’s theory that petitioner’s racing activity was an expensive hobby. Sprint
car racing is a competitive sport, and petitioner, no doubt, did whatever he could to
win races and minimize his expenses.
In short, petitioner conducted Sernett Motorsports in a manner consistent
both with the operation of a profit-seeking enterprise and with the enjoyment of an
expensive hobby. Accordingly, this factor is neutral.
2. The Expertise of Petitioner or His Advisers
Preparation for an activity by an extensive study of its accepted business,
economic, and scientific practices, or consultation with those who are experts
therein, may indicate a profit objective. Engdahl v. Commissioner, 72 T.C. at 668;
sec. 1.183-2(b)(2), Income Tax Regs. Efforts to gain experience and a willingness
to follow expert advice may also indicate a profit objective. See, e.g., Dworshak v.
Commissioner, T.C. Memo. 2004-249, 88 T.C.M. (CCH) 403, 406 (2004).
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[*15] Petitioner contends that his expertise and the expertise of those with whom he
consulted are indicative of a profit motive. Respondent contends that petitioner
lacked expertise with respect to creating a profitable racing enterprise and failed to
seek advice from experts on making Sernett Motorsports profitable.
Petitioner has a bachelor’s degree in business administration from Creighton
University and is a successful salesperson. He managed a racing team for C.L.
Boyd during the early 1980s and raced sprint cars for others for 15 years before
starting his own sprint car racing activity. Since then petitioner has been racing for
and managing Sernett Motorsports. Petitioner regularly consulted with a close
network of sprint car racing enthusiasts, frequented racing supply shops, and
attended the Performance Racing Industry Trade Show in Orlando, Florida. We are
satisfied that petitioner had the requisite expertise to run a sprint car racing business.
Accordingly, this factor favors petitioner.
3. Petitioner’s Time and Effort Devoted to the Activity
The fact that a taxpayer devotes personal time and effort to carry on an
activity may indicate an intention to derive a profit, particularly where there are no
substantial personal or recreational elements associated with the activity. Sec.
1.183-2(b)(3), Income Tax Regs.
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[*16] Petitioner contends that he spent significant time racing and preparing to race
and reduced the hours he worked for NACR during the racing season. Respondent
contends that petitioner’s testimony with respect to the amount of time he spent on
his racing activity is uncorroborated and self-serving and that it is anyway
insufficient to show that his racing activity was conducted with a profit motive.
Petitioner credibly testified that he spent 15-20 hours during the week before
a racing event preparing for the event. Petitioner explained that he disassembled the
cars after each race and then cleaned, inspected, and replaced various parts, as
required. He credibly testified that, during the years in issue, he raced between 10
and 16 weekends per racing season6 and that he traveled to events up to five hours
away from his shop in Lakeville, Minnesota. Petitioner also credibly testified that
he reduced the number of hours that he spent working for NACR from 40-50 per
week during the off-season to 20-25 per week during the racing season.
Although, as we find infra pp. 26-27, petitioner enjoys racing, we find that
petitioner also spent significant personal time and effort preparing his cars for
6
Petitioner’s records show that he raced on 6, 18, and 10 weekends in 2005,
2006, and 2007, respectively.
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[*17] racing events. See Foster v. Commissioner, T.C. Memo. 2012-207, slip op. at
18. Additionally, petitioner significantly reduced the hours he spent working his
lucrative, fully commissioned job for NACR so that he could prepare his cars for
racing events. Accordingly, this factor favors petitioner.
4. Expectation That Assets Used in the Activity May Appreciate
An activity may produce an overall economic profit, even if there is no
operational profit, when appreciation of the assets of the activity is taken into
account. Sec. 1.183-2(b)(4), Income Tax Regs.
Petitioner contends that his equipment should not have to appreciate for him
to show a profit motive. Respondent contends that petitioner introduced no
evidence that his equipment appreciated, and the record supports an inference that
petitioner’s equipment was not appreciating.
Petitioner has introduced no evidence that any of his racing equipment or
assets appreciated. See Rule 142(a)(1). However, the absence of asset
appreciation does not indicate that petitioner lacked a profit motive. See Foster v.
Commissioner, slip op. at 19. Accordingly, this factor is neutral.
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[*18] 5. Success in Carrying On Similar or Dissimilar Activities
The fact that a taxpayer engaged in similar activities and converted them from
unprofitable to profitable enterprises may indicate that the taxpayer is engaged in the
present activity for a profit, even though the activity is presently unprofitable. Sec.
1.183-2(b)(5), Income Tax Regs.
To support his contention that he had success in carrying on similar activities,
petitioner merely points to his experience in the racing industry. Respondent
contends that petitioner produced no evidence showing that he successfully operated
similar activities.
Petitioner has introduced no evidence showing that he engaged in similar
activities and converted them from unprofitable to profitable enterprises. See Rule
142(a)(1). Accordingly, this factor is neutral. See Pirnia v. Commissioner, T.C.
Memo. 1989-627, 58 T.C.M. (CCH) 740, 743 (1989).
6. Petitioner’s History of Income or Loss From the Activity
A taxpayer’s history of income or loss with respect to an activity may
indicate the presence or absence of a profit objective. See Golanty v.
Commissioner, 72 T.C. at 426; sec. 1.183-2(b)(6), Income Tax Regs. However, a
series of startup losses or losses sustained because of unforeseen circumstances
beyond the control of the taxpayer does not necessarily indicate a lack of profit
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[*19] motive. Engdahl v. Commissioner, 72 T.C. at 669; Kahla v. Commissioner,
T.C. Memo. 2000-127, 79 T.C.M. (CCH) 1846, 1852 (2000), aff’d without
published opinion, 273 F.3d 1096 (5th Cir. 2001); sec. 1.183-2(b)(6), Income Tax
Regs.
Respondent contends that (1) petitioner’s racing activity has produced
persistent and significant losses since 1992 and (2) petitioner’s use of his racing
activity to boost his sales performance with NACR contradicts his claim of a profit
motive for his racing activity.
Sernett Motorsports lost money from 1992 through 2009. From 2000 through
2007 Sernett Motorsports had gross receipts of $199,963, total expenses of
$770,677, and total losses of $570,714. This history of significant, sustained losses
is persuasive evidence that petitioner did not operate Sernett Motorsports with a
profit motive. See Golanty v. Commissioner, 72 T.C. at 427.7
7
Petitioner’s returns show that Sernett Motorsports suffered losses of $46,160
and $19,956 for 2008 and 2009, respectively, and earned a profit of $7,360 for
2010. However, we give less weight to the reduced losses for 2008-09 and the
small profit for 2010 because the returns for 2008-09 were filed after respondent
began examining petitioner’s 2005-07 returns and the return for 2010 was filed after
the petition was filed in this case. See Easter v. Commissioner, T.C. Memo.
1992-188, 63 T.C.M. (CCH) 2590, 2593, 2595 (1992).
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[*20] To rebut this evidence petitioner points to his success as a salesperson for
NACR, arguing that some of this success is attributable to his operation of Sernett
Motorsports.8
Petitioner credibly testified that part of his success as a salesperson was
attributable to his operation of Sernett Motorsports. Petitioner explained that he
used Sernett Motorsports as a “marketing, promotional, bonding vehicle” and that
he used the racing activity to build long-term relationships with his telephone
equipment buyers. Petitioner introduced emails showing that he used Sernett
Motorsports as a marketing tool, and NACR’s president and CEO, Thomas M.
Roles, wrote in a letter dated April 29, 2008, that “Sernett Motorsports has a direct
contribution to * * * success in the telephone equipment business from a marketing
standpoint and is an important part of his overall success as a sales representative”.
We therefore find that petitioner continued operating Sernett Motorsports, at least in
part, because Sernett Motorsports helped him succeed in his job as a salesperson for
NACR.
Although Sernett Motorsports may have increased petitioner’s income from
NACR, the significant, sustained losses that it produced indicate that petitioner did
8
The parties stipulated that petitioner’s 35% commission rate with NACR
was not contingent upon his operation of Sernett Motorsports.
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[*21] not operate Sernett Motorsports with a profit motive. See Morken v.
Commissioner, T.C. Memo. 1986-535, 52 T.C.M. (CCH) 969, 972 (1986). To the
contrary, petitioner’s belief that his racing activity increased his income from NACR
lessened his concern about his losses from Sernett Motorsports. See id.9 Moreover,
petitioner’s generalized belief that his racing activity helped increase his income as a
salesperson is insufficient to overcome the objective evidence of significant,
sustained losses from 1992 through 2009, particularly when petitioner could not
quantify the effect of the racing activity on his commission income.
Petitioner does not contend, and the record does not suggest, that Sernett
Motorsports’ significant, sustained losses were startup losses or losses sustained
because of unforeseen circumstances beyond his control. Accordingly, this factor
favors respondent.
7. Amount of Occasional Profits
The amount of profits earned in relation to the amount of losses incurred,
the amount of the investment, and the value of the assets in use may indicate a
profit objective. See sec. 1.183-2(b)(7), Income Tax Regs. The opportunity to
earn substantial profits in a highly speculative venture may be sufficient to
9
Petitioner does not argue that his racing activity and his sales activity were
one activity within the meaning of sec. 1.183-1(d)(1), Income Tax Regs.
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[*22] indicate that the activity is engaged in for profit even though only losses are
produced. See id.
Petitioner contends that he had opportunities to earn significant profit from
prize money and sponsorship contracts. Respondent contends that petitioner’s
claimed expectations for earning significant profit were unrealistic.
a. Prize Money
Sernett Motorsports earned $31,430 in prize money during the years in issue.
The $15,000 purse structure that petitioner typically raced for had a top prize of
$2,250 and a second prize of $1,750. Petitioner testified that, had he placed higher
in the events, he could have earned between $225,000 and $350,000 in prize money
during the years in issue.10 However, petitioner testified that, before the years in
issue, he raced in the Knoxville Nationals for a top prize of $140,000 but that he had
stopped racing in that event because he did not feel that he was “competitive enough
to make money at that event.” Petitioner also testified at trial, in March 2012, that
he expected to earn prize money of approximately $25,000 in 2012.
10
Petitioner raced in 10, 21, and 16 events in 2005, 2006, and 2007,
respectively. Even if petitioner’s cars had finished first and second in each event, he
would have earned only $188,000 during the years in issue.
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[*23] As petitioner’s reason for not competing in the Knoxville Nationals during the
years in issue and petitioner’s more modest expectations for the then-upcoming
2012 racing season show, petitioner is capable of rationally judging his
competitiveness. Additionally, we find that petitioner could not have rationally
expected that Sernett Motorsports would earn significantly more prize money than it
earned during the years in issue.
b. Sponsorships
Sernett Motorsports earned $6,050 in corporate sponsorships from two local
businesses during the years in issue. Petitioner testified that he also sought more
lucrative sponsorships but was ultimately unsuccessful. Petitioner testified with
some detail regarding two of his proposals.
With respect to the first proposal, petitioner testified that he pursued a
$125,000, three-year sponsorship from Tires Plus in May 2004. Petitioner further
testified that he believed that he had a good chance of obtaining the sponsorship
from Tires Plus and that the proposal was dropped when Bridgestone acquired
Tires Plus in fall 2004. However, in a summary of his solicitations of corporate
sponsorships for Sernett Motorsports, petitioner wrote that he met with Tires Plus
in April 2003. Additionally, the written proposal for the sponsorship from Tires
Plus states that petitioner was then employed as a national account manager for
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[*24] Progressive, and NACR acquired Progressive in 2003. The written proposal
also states that petitioner had 25 years of racing experience. Petitioner started
racing in 1975, giving him 25 years experience by 2000. The proposal also has
several dated quotes, and all of them predate 2000.11 Accordingly, although we are
satisfied that petitioner proposed a sponsorship to Tires Plus, the record does not
reliably establish when this proposal was made.
With respect to the second proposal, petitioner testified that he pitched a
corporate sponsorship proposal to Jack Links in Laurens, Iowa, in September 2005.
The division manager at Jack Links, Karl Paepke, was impressed and arranged for
petitioner to meet with Jack Links’ marketing director, Peachy Hall, in Minong,
Wisconsin, in May 2006. Jack Links ultimately decided not to sponsor Sernett
Motorsports because Sernett Motorsports’ demographics did not correspond with
Jack Links’ target demographics at the time. Petitioner did not testify regarding the
terms of the proposed Jack Links sponsorship.
11
We also note, pursuant to Fed. R. Evid. 201(c)(1), that Bridgestone
Americas, Inc., then Bridgestone/Firestone, Inc., purchased a controlling stake in
Morgan Tire & Auto, Inc. (Morgan), in August 2001. See “Bridgestone/Firestone,
Inc. Announces Strategic Alliance With Morgan Tire & Auto”, Bridgestone, The
Americas, Media Center (Aug. 9, 2001),
http://www.bridgestoneamericas.com/news/news_index.asp?id=2001/010809a (last
visited Oct. 15, 2012). Under the terms of Morgan’s agreement with Bridgestone,
Morgan agreed to rename its retail centers “Tires Plus”. See id.
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[*25] We note that even if petitioner had secured a three-year sponsorship along
the lines of the unsuccessful Tires Plus proposal for the years in issue, Sernett
Motorsports would still have lost money. There is no credible evidence in the
record that any of petitioner’s other proposals would have brought Sernett
Motorsports close to returning a profit. Accordingly, we find that there was little or
no likelihood that Sernett Motorsports would earn significantly more sponsorship
money than it earned during the years in issue.
Because there is no credible evidence that the substantial losses sustained by
Sernett Motorsports were likely to be offset by greater amounts of prize money and
sponsorship income during the years in issue, this factor favors respondent.
8. Petitioner’s Financial Status
The fact that a taxpayer does not have substantial income or capital from
sources other than the activity in question may indicate that the activity is engaged
in for profit. See sec. 1.183-2(b)(8), Income Tax Regs. Substantial income from
sources other than the activity (especially if the losses from the activity would
generate substantial tax benefits) may indicate a lack of profit motive, particularly
where elements of personal pleasure or recreation are involved. See id.
Petitioner contends that his success selling telecommunications equipment
for NACR depends on his involvement with Sernett Motorsports and sprint car
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[*26] racing. Respondent contends that petitioner’s financial status indicates that he
did not operate Sernett Motorsports with a profit motive because he received
significant compensation from his employment with NACR during the years in issue
and Sernett Motorsports’ losses generated large tax savings.
During the years in issue, petitioner earned a significant income as a fully
commissioned salesperson for NACR. The losses petitioner incurred from operating
Sernett Motorsports provided substantial tax benefits. And, as we find infra pp. 26-
27, petitioner enjoyed racing. Accordingly, this factor favors respondent.
9. Elements of Personal Pleasure or Recreation
The existence of personal pleasure or recreation relating to an activity may
indicate the absence of a profit objective. See sec. 1.183-2(b)(9), Income Tax Regs.
However, an activity is not treated as an activity not engaged in for profit merely
because the activity may have recreational or pleasurable elements. Id.
Petitioner contends that he no longer enjoys racing as he once did and that he
raced solely for profit during the years in issue. Respondent contends that the
record shows that petitioner’s lifelong involvement in sprint car racing is motivated,
not by a desire to make a profit, but by his love of the sport.
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[*27] Petitioner testified that maintaining his cars has become a chore and that “the
thrill is basically gone”. Petitioner further testified that he continues racing because
“it makes me money”. We do not find petitioner’s self-serving, uncorroborated
testimony to be credible. See Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).
Accordingly, this factor favors respondent.
10. Conclusion
Of the nine factors listed in section 1.183-2(b), Income Tax Regs., four favor
respondent, two favor petitioner, and three are neutral. Because Sernett
Motorsports was a mature activity during the years in issue, we place particular
emphasis in our analysis on its history of significant, sustained losses and on
petitioner’s inability to reduce Sernett Motorsports’ expenses or increase its income.
See Golanty v. Commissioner, 72 T.C. at 427 (history of sustained losses is
persuasive evidence of activity not entered into with profit motive). After
considering the factors, and the facts and circumstances of this case, we conclude
that petitioner did not have an actual, honest profit objective in operating Sernett
Motorsports during the years in issue. Accordingly, petitioner’s deductions for
expenses incurred with respect to Sernett Motorsports are subject to the limitations
of section 183.
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[*28] We have considered the parties’ remaining arguments, and to the extent not
discussed above, conclude those arguments are irrelevant, moot, or without merit.
To reflect the foregoing and respondent’s concession,
Decision will be entered
under Rule 155.