John M. Coleman v. Commissioner

T.C. Memo. 2020-146

UNITED STATES TAX COURT

JOHN M. COLEMAN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 19540-17. Filed October 22, 2020.

John B. Magee and Eric J. Albers-Fiedler, for petitioner.

William J. Gregg, Bartholomew Cirenza, and Ryan Z. Sarazin, for

respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

LAUBER, Judge: Because petitioner did not file a Federal income tax re-

turn for 2014, the IRS prepared a substitute for return (SFR) and issued him a no-

tice of deficiency. The parties have settled all issues but two: (1) whether peti-

tioner has substantiated gambling losses in excess of $350,241, the amount of his
 -2-

[*2] gambling winnings as reported to the IRS and (2) whether petitioner is

entitled to a deduction on Schedule C, Profit or Loss From Business, for the

purchase of a laptop computer. We find on the basis of his financial records, trial

testimony, and an expert witness report that petitioner has substantiated gambling

losses in excess of his gambling winnings. But we find that he has not met the

heightened substantiation requirements of section 274(d) for deducting the cost of

his computer.1

FINDINGS OF FACT

We draw the following facts from three joint stipulations, the exhibits at-

tached thereto, and the exhibits and testimony presented at trial. Petitioner resided

in Maryland when he filed his petition.

A. Petitioner’s History of Gambling

At the time of trial petitioner was 71 years old. A licensed insurance agent,

he worked for the District of Columbia Department of Insurance, Securities, and

Banking (DISB) for 28 years before retiring in 2004. Upon retiring he started an

insurance consulting business that generated a modest amount of income during

1
Unless otherwise indicated, all statutory references are to the Internal Reve-
nue Code in effect for the year in issue, and all Rule references are to the Tax
Court Rules of Practice and Procedure. We round all dollar amounts to the nearest
dollar.
 -3-

[*3] 2014. His wife, to whom he has been married for 47 years, earned wage

income in 2014 and is not a party to this case.

Petitioner is a compulsive gambler. He started gambling on card games in

high school. During the 1980s he began playing commercial slot machines in At-

lantic City, New Jersey. As more casinos opened closer to his home in Maryland,

he gambled at those locations and did so more frequently. The frequency of his

gambling increased further after he retired from DISB in 2004.

Petitioner acknowledges that he is a compulsive gambler and that his gam-

bling has adversely affected his financial circumstances and his family life. De-

spite receiving substantial income over the years, petitioner has been delinquent in

paying property taxes on the family home, which was exposed to the risk of tax

sales in 2014 and other years. His cell phone service has been disconnected for

failure to pay. He has received numerous final notices threatening to cut off

household utility services. With the help of the attorneys representing him in this

case, petitioner has been receiving treatment for his gambling disorder since

March 2019. He still gambles occasionally, but much less frequently than he did

in 2014.
 -4-

[*4] B. Petitioner’s Gambling Transactions During 2014

The parties have stipulated the amounts of petitioner’s income and deduc-

tions for 2014, apart from the two items that remain in dispute. During 2014 peti-

tioner received taxable nongambling income of $76,784 and a nontaxable personal

injury insurance settlement of $150,000. He also received $350,241 of gambling

winnings, reported to him on 160 separate Forms W-2G, Certain Gambling Win-

nings, by the casinos at which he gambled.

During 2014 petitioner gambled at four casinos: Maryland Live! (ML), Rod

‘N’ Reel Resort (RNR), Dover Downs (DD), and Horseshoe Casino Baltimore

(Horseshoe). He kept a diary that tracked some of his wins and losses, but it was

not submitted into evidence. None of the four casinos kept complete records of

his gambling transactions.

Casinos are required to issue Forms W-2G reporting slot machine jackpots

of $1,200 or more. See sec. 7.6041-1, Temporary Income Tax Regs., 42 Fed. Reg.

33286 (June 30, 1977); Rev. Proc. 77-29, 1977-2 C.B. 538. All four casinos kept

records of every instance in which petitioner won a prize of $1,200 or more.

When that happened, the machine petitioner was using would lock and an attend-

ant would collect petitioner’s information before bringing him his prize and reset-
 -5-

[*5] ting the machine. Casinos are not required to keep track of gambling losses

or smaller winnings.

Besides recording prizes of $1,200 or more, DD and Horseshoe tracked pe-

titioner’s wins and losses when he signed into slot machines using casino-issued

rewards cards (sometimes called players cards). Petitioner used these cards fairly

often, but he did not always use them, either because he forgot or because he be-

lieved that temporarily not using the cards might help change his luck. Combining

petitioner’s prizes of $1,200 or more and his wins and losses when he used his

rewards card, DD’s incomplete records show net gambling winnings of $52,804

during 2014. Horseshoe’s incomplete records, calculated the same way, show net

gambling winnings of $1,501. The other two casinos did not keep records based

on rewards card data.

Petitioner gambled on at least 193 days during 2014, most likely more.

Drawing on the $150,000 insurance settlement he received in 2014, petitioner

gambled more that year than he had been able to in other years because he had

more money available to him. He was regularly away from home gambling for 8-

to 10-hour periods, at all times of day and night. He sometimes visited more than

one casino in a single day, either in an attempt to change his luck or because he

had exhausted his cash advance privileges at his first destination. He sometimes
 -6-

[*6] stayed overnight at a casino so its weekly limit on cash advances would reset,

enabling him to do more gambling the next day. On many occasions the casino

provided him with a free hotel room as a reward for his patronage.

Petitioner gambled almost exclusively on slot machines. At ML he normal-

ly bet $10 per spin but would sometimes bet as much as $100 per spin. At DD his

average bet was $18, but on at least one occasion he gambled in the high rollers

section and bet up to $100 per spin. At RNR he normally bet $5 but would some-

times bet up to $20 per spin. Horseshoe did not open until August 2014 and he

played there less regularly. Like many frequent gamblers, petitioner gambled

quickly and methodically. Without accounting for breaks, he would often spin the

machine (actually, push a button) at least ten times per minute.

If petitioner did not have prize winnings left over from his last gambling ex-

cursion--and he usually did not--he would stop to withdraw cash on the way to the

casino. He typically made such withdrawals, in amounts often ranging between

$2,000 and $3,000, from his account at Industrial Bank. He rarely started any day

of gambling with less than $1,000.

Petitioner had two credit cards and two credit union accounts. If he ran out

of money while gambling, he would withdraw money from an onsite ATM, secure

an advance on a debit or credit card, or get a cash advance from the casino (to be
 -7-

[*7] repaid from his credit union accounts at a later date). He would sometimes go

in search of additional money for gambling several times a day. During 2014 he

made 210 withdrawals from his credit card and credit union accounts while gam-

bling at casinos. These withdrawals, totaling $240,113, are summarized as fol-

lows:

Location Withdrawals Amount

ML 101 $114,717
DD 30 49,676
RNR 79 75,720
Total 210 240,113

The parties have stipulated that petitioner used the cash withdrawn on the prem-

ises of these three casinos, less transaction fees of $2,504, for gambling.

C. Petitioner’s Assets and Net Worth

Petitioner’s financial accounts do not reveal any increase in net worth that

could be traced to net gambling winnings. At the credit union his share draft ac-

count for 2014 had a beginning balance of $1,344 and an ending balance of $125,

and his regular account had a beginning balance of $21 and an ending balance of

$483. At year-end 2014 one of his credit cards had a closing statement balance

due of $14,158, and the other had a closing statement balance due of $14,085.
 -8-

[*8] Petitioner’s account at Industrial Bank had a balance of $233 at the begin-

ning of 2014. On March 14, 2014, he deposited his $150,000 insurance settlement

into that account. He drew down that balance during the rest of the year, chiefly

by withdrawing funds to use at casinos. He made no deposits into his Industrial

Bank account other than the insurance settlement, and the balance of that account

was reduced to $8,598 at year-end 2014.

When petitioner retired from DISB in 2004, he had approximately $75,000

in a retirement plan account. He took numerous distributions from that account

during the ensuing 10 years, chiefly to fund his gambling habit, and by year-end

2014 only $2,725 remained. Petitioner had no other retirement accounts, broker-

age accounts, certificates of deposit, checking accounts, or investment assets. He

made no significant changes to his lifestyle during 2014, took no vacations, made

no large gifts, and purchased no real estate, jewelry, or other expensive personal

property. His wife had separate bank accounts, and there is no evidence that any

of his gambling winnings were deposited into her accounts.2

2
Petitioner’s wife had $59,919 in nonrecurring deposits appearing on her
2014 bank statements, and she was able to identify the specific source of most of
those deposits.
 -9-

[*9] D. IRS Examination

Neither petitioner nor his wife filed a timely return for 2014, and neither

made any estimated tax payments. The IRS prepared an SFR for each of them, see

sec. 6020(b), and issued petitioner a notice of deficiency on the basis of his SFR.

The notice determined a deficiency of $128,886 and additions to tax totaling

$46,025 for failure to timely file, failure to timely pay, and failure to pay estimated

tax. See secs. 6651(a)(1) and (2), 6654.

The deficiency was largely attributable to $350,241 in unreported gambling

winnings, the total reported to the IRS by the casinos on Forms W-2G. On the

basis of other third-party reporting the IRS determined additional unreported in-

come of approximately $40,000, consisting chiefly of retirement income.

Petitioner timely petitioned this Court for redetermination. After securing

representation from pro bono counsel, petitioner attempted to file a Form 1040,

U.S. Individual Income Tax Return, on which he reported his gross income for

2014 and the deductions to which he believed he was entitled. The IRS did not

accept that return, but before trial the parties stipulated the correctness of all items

on the pro forma 2014 return except two: a $350,241 deduction claimed for

gambling losses and a $402 deduction claimed for a laptop computer allegedly

purchased for use in his Schedule C consulting business. Petitioner does not con-
 - 10 -

[*10] test the additions to tax under section 6651(a)(1) or (2) or 6654, so they will

apply to the extent a deficiency remains for 2014.

E. Trial

We tried the case in February 2020 in Washington, D.C. At trial the Court

heard testimony from petitioner, his wife, and the adult daughter who lives with

them. The Court also heard testimony from Mark C. Nicely, whom we recognized

as an expert in mathematics, the casino gaming industry, and casino gaming equip-

ment, particularly slot machines.

Mr. Nicely has a bachelor’s degree from Rensselear Polytechnic Institute,

where he concentrated in electrical, computer, and systems engineering. He has

taken postgraduate classes at Stanford University and the University of California

(Berkeley) in software, software technology, and mathematics (including statistics,

probability, and financial analysis). Before working in casino gaming, Mr. Nicely

had more than ten years’ experience as a computer software engineer specializing

in algorithm development. At the time of trial Mr. Nicely had worked in the gam-

ing industry for 20 years. He has been recognized as an expert witness in more

than a dozen litigated cases involving gambling. In Gagliardi v. Commissioner,

T.C. Memo. 2008-10, 95 T.C.M. (CCH) 1044, 1052 (2008), we recognized Mr.
 - 11 -

[*11] Nicely as a gaming industry expert with expertise in mathematics and slot

machines.

Using established statistical techniques, Mr. Nicely estimated the likely out-

come of petitioner’s gaming transactions during 2014 on the basis of the frequency

with which petitioner gambled and the expected win percentages at the casinos

where he gambled. Mr. Nicely concluded, with a 99% level of certainty, that peti-

tioner had overall net gambling losses of at least $151,690 during 2014. Mr. Nice-

ly based these conclusions on interviews with petitioner, documents in the record,

his gaming industry experience, publicly available information about the casinos’

payout percentages, and statistical analysis.

Mr. Nicely explained that, if a player gambles long enough and does not win

any prizes that are exceptionally large relative to the size of the wager, it would be

virtually impossible for that player to have annual net gambling winnings. The

Maryland and Delaware casinos at which petitioner gambled configured their slot

machines so that the average “return to player” percentages ranged from 87% to

95%. By statute the average “return to player” percentage could not exceed 95%

without written permission from each State lottery. See Del. Code Ann. tit. 29,

sec. 4805(a)(15) (West 2014); Md. Code Ann., State Gov’t sec. 9-1A-22(b) (West

2014); Md. Code Regs. 36.04.01.11.E (2014). Mr. Nicely opined that the odds
 - 12 -

[*12] against petitioner’s having enjoyed even $1 of net gambling profit, for the

entirety of 2014, were at least 140 million to 1.

As for the business expense deduction, petitioner supplied a receipt from

Drop & Fix Computer dated March 6, 2014. The receipt was issued to “Ms. Cole-

man” for a refurbished “Dell 1545 laptop w/charger” and a wireless mouse. Peti-

tioner testified that his wife bought this computer for him with money he gave her

because she had used this vendor before and the store was on her way to work.

OPINION

A. Legal Framework for Gambling Income and Deductions

Gross income includes all income from whatever source derived, including

gambling winnings. Sec. 61(a); Bauman v. Commissioner, T.C. Memo. 1993-112,

65 T.C.M. (CCH) 2165, 2166 (1993). For a taxpayer who does not engage in

gambling as a trade or business, losses from wagering transactions are allowable

as an itemized deduction, but “only to the extent of the gains from such transac-

tions.” Sec. 165(d).3

3
Taxpayers engaged in the trade or business of gambling may deduct their
gambling losses against their gambling winnings as a business expense in arriving
at adjusted gross income. See sec. 62(a)(1). Petitioner does not claim to be in the
trade or business of gambling, and the record does not suggest otherwise.
 - 13 -

[*13] Deductions are a matter of legislative grace, and taxpayers must prove en-

titlement to all deductions claimed. Rule 142(a); INDOPCO, Inc. v. Commission-

er, 503 U.S. 79, 84 (1992). Taxpayers are required to identify each deduction,

show that they have met all relevant requirements, and keep books or records to

substantiate their expenses. See sec. 6001; Roberts v. Commissioner, 62 T.C. 834,

836-837 (1974); sec. 1.6001-1(a), Income Tax Regs.

In practice, not all gamblers keep complete accounts of their gaming wins

and losses. In some circumstances, when a taxpayer establishes that he paid or

incurred a deductible expense but does not establish its precise amount, we may

estimate the amount allowable. See Cohan v. Commissioner, 39 F.2d 540 (2d Cir.

1930). In order for the Court to do this, we must have some basis upon which an

estimate can be made. See Williams v. United States, 245 F.2d 559, 560 (5th Cir.

1957); Vanicek v. Commissioner, 85 T.C. 731, 743 (1985). The question in this

case is essentially one of substantiation: whether petitioner can substantiate his

losses to a degree sufficient for us to estimate, using our best judgment, that his

gambling losses exceeded his gambling winnings. See LaPlante v. Commissioner,

T.C. Memo. 2009-226, 98 T.C.M. (CCH) 305, 308 (2009); Gagliardi, 95 T.C.M.

(CCH) at 1049.
 - 14 -

[*14] In past cases taxpayers have substantiated gambling losses with such evi-

dence as “casino ATM receipts, canceled checks made payable to casinos, * * *

and credit card statements stating that cash was advanced at the casinos.” Jackson

v. Commissioner, T.C. Memo. 2007-373, 94 T.C.M. (CCH) 611, 611 n.2 (2007).

We have also considered transactions appearing on a taxpayer’s bank statements,

the taxpayer’s lifestyle (modest or luxurious), and his overall financial position.

See Gagliardi, 95 T.C.M. (CCH) at 1050; Doffin v. Commissioner, T.C. Memo.

1991-114, 61 T.C.M. (CCH) 2157, 2162 (1991); cf. Jackson, 94 T.C.M. (CCH)

at 612 (noting the taxpayer’s failure to submit the latter forms of evidence). In

Gagliardi, 95 T.C.M (CCH) at 1052, we considered expert testimony from Mr.

Nicely regarding the taxpayer’s likelihood of having net gambling winnings given

the frequency of his gambling.

B. Petitioner’s Gambling Losses

Respondent determined that petitioner in 2014 had gambling winnings of

$350,241. This total was calculated by summing all of petitioner’s winnings re-

ported on Forms W-2G, that is, all individual jackpots equal to or greater than
 - 15 -

[*15] $1,200. We find that petitioner has provided evidence sufficient to

substantiate a deduction for gambling losses of at least $350,241.4

Petitioner’s financial records support his contention that he did not have net

gambling winnings during 2014. He withdrew $240,113 from his credit union and

credit card accounts on the premises of the casinos where he gambled. The parties

have stipulated that he used this money to gamble.

Petitioner’s financial accounts reveal no increase in his net worth that could

be evidence of net gambling winnings during 2014. His credit union accounts for

2014 had aggregate opening balances of $1,365 and aggregate closing balances of

$608. His Industrial Bank account had an opening balance of $233 and a closing

balance of $8,598, despite his having deposited a $150,000 insurance settlement

into that account on March 14, 2014. We found credible petitioner’s testimony

that the bulk of this $150,000 was dissipated gambling.

4
Respondent argues that petitioner may also have won smaller prizes. But
respondent did not assert in the notice of deficiency or in his answer that petitioner
had unreported gambling winnings apart from the $350,241 shown on the Forms
W-2G. See Gagliardi v. Commissioner, T.C. Memo. 2008-10, 95 T.C.M. (CCH)
1044, 1051 (2008) (declining to consider such an argument when it was raised for
the first time at trial). In any event, respondent would have the burden of proof to
show an increased deficiency, see Rule 142(a), and he has not attempted to meet
that burden.
 - 16 -

[*16] Petitioner had no other checking accounts, brokerage accounts, certificates

of deposit, or investment assets. His sole retirement account, worth about $75,000

in 2004, had been depleted to $2,725 by year-end 2014. His credit cards at year-

end 2014 had an aggregate balance due of $28,243. He testified that he did not

pay these debts because he did not have the money to do so, and his bank records

confirm that he did not.

Petitioner maintained a modest lifestyle (apart from gambling), and he made

no significant changes to his lifestyle during 2014. He took no vacations; he pur-

chased no real estate, jewelry, or other expensive personal property; and he made

no large gifts. Indeed, he and his family experienced some financial hardships:

Their house was subject to a tax sale in 2014, and they were often late paying bills.

Collectively this evidence convinces us that petitioner could not have had any net

gambling winnings during 2014.

Mr. Nicely’s report confirms that conviction. Using established statistical

techniques, he concluded with a 99% level of certainty that petitioner not only suf-

fered gambling losses that wiped out his gambling winnings, but that he sustained

at least $151,690 in net gambling losses during 2014. Taking into account the fre-

quency with which petitioner gambled and the expected win percentages at the ca-

sinos where he gambled, Mr. Nicely estimated that the odds against petitioner’s
 - 17 -

[*17] having earned even $1 of net gambling profit during 2014 were 140 million

to 1. On these facts we have no trouble finding that petitioner has provided

sufficient evidence to show that his gambling losses were at least $350,241.

C. Respondent’s Contentions

Respondent urges that records maintained by DD and Horseshoe, the two

casinos at which petitioner gambled the least, see supra pp. 6-7, show that he had

net gambling winnings for 2014. But these records were incomplete: The casinos

kept track only of jackpots of $1,200 or more and other transactions where peti-

tioner was using his rewards card. Petitioner credibly testified that he often did

not use these cards, either because he forgot or because he believed not using the

cards could change his luck. The casinos’ records were thus biased, being more

likely to show wins than losses. See Lutz v. Commissioner, T.C. Memo. 2002-89,

83 T.C.M. (CCH) 1446, 1451 (2002) (declining to give weight to similar casino

records); Mayer v. Commissioner, T.C. Memo. 2000-295, 80 T.C.M. (CCH) 393,

396 (2000) (same), aff’d, 29 F. App’x 706 (2d Cir. 2002).

Respondent criticizes the methodology that Mr. Nicely used in his report,

asserting that it is based on “uncertain or flawed assumptions.” We disagree. The

Court in Gagliardi found persuasive a similar report prepared by Mr. Nicely, in

which he used the same types of casino data and similar statistical techniques to
 - 18 -

[*18] generate his results. Indeed, Mr. Nicely testified that the information

available to him in the instant case was more detailed and complete than the

information available to him in Gagliardi.5

Respondent seeks to portray Mr. Nicely’s conclusions as implausible by ex-

trapolating his results to future years, urging that petitioner could not have sus-

tained annual net gambling losses of $151,690 indefinitely. But Mr. Nicely’s con-

clusions were based on the frequency of petitioner’s gambling during 2014 and the

amounts of money he gambled. Petitioner credibly testified that his gambling var-

ied from year to year depending chiefly on how much cash he had available. In

March 2014 he received an insurance settlement of $150,000, and he appears to

have lost almost all that money gambling. Because petitioner’s income during

2014 was unusually large--the one-time insurance settlement was almost 200% of

his regular income for 2014--his gambling losses in 2014 were unusually large.

The broader point of Mr. Nicely’s report is that, in a game with odds that disfavor

the gambler, the law of large numbers means that a gambler who plays long

5
In his brief respondent renews his motion in limine to exclude Mr. Nicely’s
report. We denied that motion at trial and deny it again here.
 - 19 -

[*19] enough is virtually guaranteed to have net losses. And there is no doubt that

petitioner played long enough.6

Finally, the cases on which respondent relies are distinguishable because in

each instance the taxpayer had a failure of proof. In Schooler v. Commissioner, 68

T.C. 867, 869-870 (1977), the taxpayer could not show that money he borrowed

went towards gambling. Here, petitioner demonstrated a pattern of gambling that

exhausted all of his income, and then some. Cf. Scoccimarro v. Commissioner,

T.C. Memo. 1979-455, 39 T.C.M. (CCH) 486, 487 (1979) (discounting racetrack

betting tickets the taxpayer produced because they appeared inauthentic); Dono-

van v. Commissioner, T.C. Memo. 1965-247, 24 T.C.M. (CCH) 1325, 1326 (1965)

(finding that taxpayer failed to show that money had been spent on gambling as

opposed to living expenses), aff’d, 359 F.2d 64 (1st Cir. 1966).

D. Business Expense Deduction

Section 162(a) allows a deduction for ordinary and necessary expenses paid

or incurred in a trade or business. Petitioner claims a deduction of $402 for the

purchase of a computer allegedly used in his Schedule C consulting business. He

6
Respondent advances a complex argument in an effort to show that Mr.
Nicely, an expert in statistics, improperly computed standard deviation. Because
respondent offered no expert testimony to counter Mr. Nicely’s report, we decline
to consider this argument. Standard deviation was an important element of Mr.
Nicely’s calculations in Gagliardi, and we found his report there persuasive.
 - 20 -

[*20] bears the burden of proving his entitlement to this deduction. See sec. 6001;

INDOPCO, 503 U.S. at 84; sec. 1.6001-1(a), (e), Income Tax Regs.

Section 274(d) imposes relatively strict substantiation requirements for de-

ductions claimed for (among other things) “listed property.” As in effect during

2014, “listed property” included “any computer.” Sec. 280F(d)(4)(A)(iv); sec.

1.280F-6(b)(1)(iv), Income Tax Regs. These heightened substantiation require-

ments did not apply, however, if the computer was used exclusively at a regular

business establishment. See sec. 280F(d)(4)(B); sec. 1.280F-6(b)(5), Income Tax

Regs. A regular business establishment could include “a portion of the dwelling

unit which is exclusively used on a regular basis * * * as the [taxpayer’s] principal

place of business.” Sec. 280A(c)(1)(A).

Petitioner testified that he used the computer for his consulting business and

that he did all his consulting work from home. But he did not attempt to show that

any part of his home was set aside exclusively for such business use. He therefore

must meet the heightened substantiation requirements of section 274(d).

No deduction is allowed under section 274(d) unless the taxpayer substan-

tiates, by adequate records or by sufficient evidence corroborating his own state-

ments, the amount, time and place, and business purpose for each expenditure.

Sec. 1.274-5T(a), (b), and (c), Temporary Income Tax Regs., 50 Fed. Reg. 46016-
 - 21 -

[*21] 46025 (Nov. 6, 1985). Petitioner supplied no records documenting business

use of his laptop, and his wife could not corroborate that he used it solely for

work. His only evidence was his own statement, which we found unconvincing.

In any event his uncorroborated statement does not satisfy the statutory

requirements. See Haskins v. Commissioner, T.C. Memo. 2019-87, at *36-*37

(finding taxpayer’s uncorroborated testimony insufficient to meet the

substantiation requirements of section 274(d)), aff’d, 820 F. App’x 994 (11th Cir.

2020).

To reflect the foregoing,

Decision will be entered under

Rule 155.