Taxable Talk

Today the Tax Court looked at a casualty loss case. Many times when casualty loss cases make their way to Tax Court, there’s a dispute about whether or not there really was a loss. Not today.

A fire destroyed the victim’s office on the university campus where he worked as a Professor of Economics. He lost a litany of belongings, which he detailed as follows:

Books on economics $2,000
Books by “famous authors” 1,000
Books on Africa 5,000
African journals & magazines 3,000
Book manuscript 15,000
Memorabilia (awards, plaques, etc.) 3,000
Briefcases, fans, etc. 2,000
Computer printer 250
Labor/inconvenience/distress 2,000

The unlucky victim did receive $12,000 in compensation from the university’s insurance company. The IRS denied a portion of his casualty loss.

When you have a casualty loss, such as a fire, your loss for tax purposes is based on the lessor of your basis in the assets you lose, or the fair market value of the assets. As the Tax Court notes,

“Petitioner, however, has not produced any evidence as to what his bases or costs in the various items may have been. Indeed, while they may have had value to petitioner, it is clear that the memorabilia had no costs to petitioner, and petitioner would have no bases in these items. With respect to what petitioner describes as “Labor/Inconvenience/Distress”, as we understand petitioner’s testimony, the deduction was for mental upset, having to prepare new lecture notes, etc., and for teaching. These are not items of property the losses of which are deductible as casualty losses.”

One point that the Tax Court made is that the petitioner did not avail himself of any professional advice. As Albert Einstein said, “The hardest thing in the world to understand is the income tax.” When in any doubt, get professional tax advice. Any competent tax professional could have set this professor on the right track.

Case: Ayittey v. Commissioner, T.C. Summary 2006-65

Yesterday, there were three interesting Tax Court decisions. Joe Kristan of Roth Tax Updates has an excellent post on the first case. In that case, Merlo v. Commissioner, the unlucky taxpayer found out the “gotcha” of incentive stock options. If you are the recipient of such options, take a look at Joe’s post on this case now. ISO’s have a wonderful tax advantage…but if the option tanks….

The second case has to do with something quite basic: a change of address. In Pragasm v. Commissioner, the taxpayer wanted to have a hearing on a collection (levy/lien) dispute. The IRS said that they weren’t required to hold one because the taxpayer never responded to their notices. The Court sided with the IRS. Just a reminder, if you move, notify the IRS (and your state tax agency, if applicable); you can download Form 8822 here and mail it (certified mail, return receipt requested, of course) to the IRS.

The third case has to do with regulatory requirements. Last May, the Tax Court ruled in Zapara v. Commissioner that the IRS failed to comply with §6335(f) of the I.R.C. That section requires the IRS to sell seized property within sixty days following a request by the taxpayer (and have the proceeds of the sale credited against the tax, penalties, and interest owed). The taxpayers in that case had, the Court ruled, requested such a sale and the IRS did not sell the property (in this case, stock).

The IRS asked the Tax Court to reconsider their May 2005 decision. The IRS claimed that the taxpayers untimely raised a new issue, that the evidence doesn’t support the decision, and that the Court doesn’t hold the power to make the relief ordered in the earlier decision. The IRS lost on all three counts, and the motion for reconsideration was denied (decision here).

Why is this final case important? The Tax Court usually rules based on regulations and paperwork. If you can show paperwork/backup for your actions, and that you followed the regulations/Tax Code, you will usually win. This holds true for the IRS, too. The IRS’s paperwork showed the request to sell the stock, and the stock wasn’t sold. The moral is clear: document, document, document; and you have an excellent chance of winning your case.

The IRS wants to place a levy or a lien against you. The IRS says they mailed the notice, but it ended up at the wrong prison (you were in Attica, but the letter was sent to Gowanda; both are New York prisons). You request a hearing. The IRS sets a date for a conference (two years later), but the IRS chooses a date while you’re in solitary confinement and attending is out of the question. The IRS goes ahead with the levy. You go to Tax Court claiming you never had your fair hearing.

The Tax Court found that the petitioner had vigorously contested all his legal problems and it was likely he never received the original notice (it did, after all, go to the wrong prison). And the IRS should have rescheduled its conference; heading to New York City while you’re in solitary confinement just isn’t possible. The Tax Court ordered the IRS to give the petitioner a fair hearing.

Case: Butti v. Commissioner, T.C. Memo 2006-66

No joking, that’s the argument a taxpayer used in Tax Court. Joe Kristan of Roth Tax Updates has the humorous details here. This Tax Court case is yet another entry in the “Don’t Try This Yourself” log. When you’re an adult, you get to make your own decisons; blaming your mother and father just doesn’t work. Being disowned by your parents is not a valid excuse to not pay your taxes.

Case: Gillings v. Commissioner, T.C. Memo 2006-65

Many years ago, when I was running west coast operations for a telecommunications company, my office manger approached me with a problem. “There’s a gentleman out here who’s perfect for the in-house tech job, but he’s handed me these sheets for his W-4.” I looked at the sheets and realized that they were (what I now know as) typical tax protester stuff, claiming he wasn’t a citizen of the United States but a citizen of California, and thus exempt from US taxes. My office manger continued, “He refuses to fill out the W-4.”

That company had a policy that until all the employment paperwork had been completed, an employee couldn’t start working. I went to the potential new hire and told him, after introducing myself, “You can either fill out a W-4 or we’ll find someone else.” He protested, and I cut him off, telling him that we were a business and didn’t have time for tax shenanigans. He left and we found someone else.

Today the Tax Court looked at the case of a tax protestor. He submitted similar documentation in his job as a car salesman. He filled in his tax return for two years with all zeroes. The IRS didn’t find this as humorous as you and I would. Neither did the Tax Court. After admonishing the protestor for the error of his ways (and warning that he faced a penalty if he advanced the same groundless arguments in the future), the Court found for the IRS.

You can find the Tax Protestor FAQ here.

Case: Paikowski v. Commissioner, T.C. Summary 2006-48

Assume that you’re a conniving individual. The pesky IRS sends you a notice of non-payment. You decide to either (a) ignore it, or (b) move, but not give the IRS your new address. What will happen? Today, the Tax Court weighed in.

When the IRS sends you a notice, they send it to your last known address. If you move, the IRS has a form for you to file, Form 8822, that you can use to notify them of your new address. (Most state tax agencies have similar forms; California has Form 3533.) It’s your responsibility to notify the IRS. If you filed your tax return with a new mailing address, that also is sufficient notification. By the way, like anything else you send to the IRS (or FTB), you should send your change of address by certified mail, return receipt requested so that you have proof that you mailed the notice.

In the case at issue today the petitioners did none of those things. They claimed that they didn’t receive the IRS’s notices. In their case, they hand’t moved, and it may be that the PO Box they used had horrible service. Or it may be that they did receive the notices, and ignored them. Unfortunately for the petitioners, the Tax Court chose not to accept their testimony of non-receipt, and they lost their case.

Case: Prakasam v. Commissioner, T.C. Memo 2006-53

…But they were phony arguments.

Roy Stallard went before the Tax Court before. In Stallard v. Commissioner (T.C. Memo 1992-593), he was fined $8,000 for making frivolous arguments. Fast forward a few years. Mr. Stallard again finds himself in Tax Court. The IRS found that he owed $52,174; he challenged it by filing a petition in Tax Court. But that petition cited numerous Tax Protester arguments, such as:

“4. Because, with respect to a tax imposed on the transfer of property, the person made liable for its payment may be the transferor, transferee or as in the case of the death tax, a third party, due process requires that Congress identify the person made liable for payment of each tax imposed, and so it usually does. The legal personality of each person made liable for the payment every other tax imposed by Congress is described clearly within the IRC, but such is not the case with regard to the purported tax debt here. There is neither an Act of Congress nor a Treasury Regulation which clearly and unequivocally identifies the person made liable for the payment of the purported tax debt.”
[Reproduced literally.]

Needless to say, the Tax Court wasn’t impressed and gave Mr. Stallard a warning:

“…[The] Court also indicated that the petition contains statements, contentions, and arguments that the Court finds to be frivolous and groundless…In the event that petitioner continues to advance frivolous and/or groundless statements, contentions, and arguments, the Court will be inclined to impose a penalty not in excess of $25,000 on petitioner under section 6673(a)(1), I.R.C.”

Surprise of surprises, Mr. Stallard responded with an amended petition that contained a series of frivolous arguments. It starts, “The notice of deficiency is notice in name only and does not meet due process of law requirements for notice….” It makes for interesting reading.

As we’ve said many times, Yes Virginia, there is an income tax and you must pay it. The Tax Court wasn’t as amused as we are in reading his arguments. The Tax Court judges just don’t have much of a sense of humor about court arguments. They warned Mr. Stallard that he could be fined $25,000. He was.

Case: Stallard v. Commissioner (T.C. Memo 2006-42)

In a recent unpublished opinion, the Eighth Circuit looked at a hobby loss case, Montagne v. Commissioner. One of the points we continually make is to document, document, document. The Montagnes had a horse-breeding “business,” but the Tax Court ruled that it was a hobby. The Eighth Circuit noted that there was no financial projections or business plan, and that they co-mingled their business and personal expenses (one bank account). So if you’re going to have a business, treat it that way: maintain separate records and a separate bank account.

Case: Montagne v. Commissioner, 04-4137

The Tax Court also looked at whether an attorney must go to the closest law library for research. In the case, the petitioner lived fairly close to Southwestern Law School in Los Angeles. However, he preferred the law library at Chapman University in Orange, about 25 miles further than Southwestern. Did the petitioner go to Chapman because it had better facilities or because it was close to his family?

The Tax Court ruled for the petitioner on this issue. “Upon the basis of the record in this case, we find that the primary purpose for petitioner’s trips to Chapman Law School Library was to conduct legal research for his business clients, and, therefore, said travel is directly connected to petitioner’s business. Petitioner’s visits to his family, if such visits occurred, were a secondary consideration.”

Case: Berge v. Commissioner, T.C. Summary 2006-29

Hat Tip: TaxProf Blog