Kambiz Ayria ( 2022 )

United States Tax Court
T.C. Memo. 2022-123KAMBIZ AYRIA,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent
—————
Docket No. 13745-20. Filed December 19, 2022.
—————
Kambiz Ayria, pro se.
Hans Famularo and Stephen O. Abanise, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LAUBER, Judge: With respect to petitioner’s Federal income tax
for 2017, the Internal Revenue Service (IRS or respondent) determined
a deficiency of $30,077 and an accuracy-related penalty of $6,015. We
held a trial to determine whether petitioner was entitled to deduct
$86,925 of business expenses reported on Schedule C, Profit or Loss
From Business. Answering this question in the negative, we will sustain
the deficiency and most of the penalty.
FINDINGS OF FACT
These findings are based on the parties’ pleadings and the docu-
ments and testimony admitted into evidence at trial. Petitioner resided
in Irvine, California, during the tax year at issue and when his Petition
was timely filed.
Petitioner completed high school and received some college-level
training. He has been involved in the automobile industry since 1982,
mainly as a car salesman. He provided little detail about his pre-2017
Served 12/19/22
2
[*2] career. In 2017 he became the manager of a Honda dealership in
Santa Monica, California. He often worked 60 hours a week in that ca-
pacity.
During 2017 petitioner received wages of $295,693 as a salaried
employee. These wages were reported on a Form W–2, Wage and Tax
Statement, issued to him by the dealership. At issue in this case are
deductions for expenses petitioner allegedly incurred in connection with
his work for the dealership. Petitioner contends that these expenditures
enhanced his productivity and his ability to earn commissions.
Petitioner’s home in Irvine was roughly 60 miles from the dealer-
ship. To avoid lengthy commuting times he often spent weeknights at
the Ocean View Hotel in Santa Monica. He testified that staying over-
night at the hotel not only saved him time but also facilitated commu-
nity contacts in Santa Monica and dinners with clients. To succeed as
the manager of a car dealership, he said, “[y]ou got to do something
above and beyond to take you to the next level.” Petitioner credibly tes-
tified that spending so many nights at the same hotel was “not fun,” but
it enabled him to work longer hours and “keep his job.”
Petitioner allegedly used his personal automobile to transport
Honda employees and clients to meetings, auctions, and other dealer-
ships. He allegedly made gifts to clients and used his personal cellphone
and internet connection to help discharge his dealership responsibilities.
During his hotel stays he incurred expenses for dry cleaning of the
clothes he wore to work.
Petitioner had his 2017 Form 1040, U.S. Individual Income Tax
Return, prepared by a professional return preparer. The return in-
cluded a Schedule C that described petitioner’s sole proprietorship ac-
tivity as “consulting.” It reported gross receipts of $3,600 and claimed
deductions of $86,925. The evidence at trial established that petitioner
did little if any “consulting” apart from whatever consulting he per-
formed in his capacity as an employee of the Honda dealership. All the
expenses reported on his Schedule C, to the extent incurred, were actu-
ally incurred in connection with his work as manager of the dealership.
The Schedule C reported vehicle expenses of $15,896, allegedly
incurred to transport clients, prospective clients, and employees of the
dealership, and other expenses of $71,029. The latter consisted of
$40,174 for lodging and parking at the hotel, $22,141 for client enter-
tainment, $4,010 for gifts to customers, $1,958 for cellphone expenses,
3
[*3] $1,225 for internet service, and $1,521 for dry cleaning. Petitioner
did not deduct any unreimbursed employee expenses on his Schedule A,
Itemized Deductions.
The IRS selected petitioner’s 2017 return for examination and
proposed to disallow the Schedule C deductions in their entirety. The
examination was conducted under the Correspondence Examination Au-
tomation Support (CEAS) program, which automatically calculated the
deficiency and a penalty for a substantial understatement of income tax.
See § 6662(b)(2), (d). 1 On November 18, 2019, CEAS sent petitioner a
Letter 525–T setting forth the proposed adjustments, listing Revenue
Agent (RA) Ramos as the person to contact. Three days previously, RA
Ramos’s immediate supervisor, Robert Morse, had supplied digital ap-
proval for assertion of the substantial understatement penalty. The Let-
ter advised petitioner that he needed to contact the IRS before December
18, 2019, if he disagreed with the proposed changes.
Petitioner telephoned the IRS on December 3, 2019, and was told
that he needed to supply additional documentation to substantiate items
underlying his claimed deductions. The record does not establish
whether petitioner submitted any additional information. On March 10,
2020, Mr. Morse again supplied digital approval for assertion of the sub-
stantial understatement penalty.
On September 28, 2020, the IRS mailed petitioner a timely notice
of deficiency. The notice disallowed all of the claimed Schedule C deduc-
tions. It also made several computational adjustments (to itemized de-
ductions, the personal exemption, and the alternative minimum tax)
that are not in dispute.
We tried the case in Los Angeles on March 28, 2022. At the con-
clusion of trial we set a briefing schedule, which we later revised. Re-
spondent timely filed his opening brief on July 26, 2022. Petitioner
failed to file a brief by the due date or subsequently. Because he failed
to file a brief, we could rule against him for that reason alone. See Rule
123. We will nevertheless decide the case on its merits.
1 Unless otherwise indicated, all statutory references are to the Internal Reve-
nue Code, Title 26 U.S.C. (Code), in effect at all relevant times, all regulation refer-
ences are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all
relevant times, and all Rule references are to the Tax Court Rules of Practice and Pro-
cedure. We round all monetary amounts to the nearest dollar.
4
[*4] OPINION
A. Burden of Proof
The Commissioner’s determinations in a notice of deficiency are
generally presumed correct, and the taxpayer bears the burden of prov-
ing them erroneous. See Rule 142(a). Section 7491(a) provides that the
burden of proof may shift to respondent if the taxpayer “introduces cred-
ible evidence with respect to [a relevant] factual issue” and satisfies
three additional conditions. Petitioner does not contend section 7491(a)
applies to shift the burden of proof.
B. Governing Legal Principles
Deductions are a matter of legislative grace, and taxpayers bear
the burden of proving their entitlement to any deduction claimed. Rule
142(a); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992). A tax-
payer must show that he has met all requirements for each deduction
and kept books or records that substantiate the expenses underlying it.
§ 6001; Roberts v. Commissioner, 62 T.C. 834, 836 (1974). Failure to
keep and present such records counts heavily against a taxpayer’s at-
tempted proof. Rogers v. Commissioner, T.C. Memo. 2014-141, 108
T.C.M. (CCH) 39, 43.
Section 162(a) allows a deduction for “ordinary and necessary ex-
penses paid or incurred . . . in carrying on any trade or business.” Per-
forming services as an employee may constitute a “trade or business.”
See Primuth v. Commissioner, 54 T.C. 374, 377 (1970). Whether an ex-
penditure is “ordinary and necessary” is generally a question of fact.
Commissioner v. Heininger, 320 U.S. 467, 475 (1943). To be “ordinary,”
the expense must be a common or frequent occurrence for the taxpayer’s
type of business. Deputy v. DuPont, 308 U.S. 488, 495 (1940). An ex-
penditure is “necessary” if it is “appropriate and helpful” to the tax-
payer’s business,” Welch v. Helvering, 290 U.S. 111, 113 (1933), but it
must also be “directly connected with or pertaining to the taxpayer’s
trade or business,” Treas. Reg. § 1.162-1(a). On the other hand, “per-
sonal, living, or family expenses” are not deductible. § 262(a).
Under Cohan v. Commissioner, 39 F.2d 540, 543–44 (2d Cir.
1930), if a taxpayer claims a deduction but cannot fully substantiate the
underlying expense, the Court in certain circumstances may approxi-
mate the allowable amount, “bearing heavily if it [so] chooses upon the
taxpayer whose inexactitude is of his own making.” The Court must
have some factual basis for its estimate, however, else the allowance
5
[*5] would amount to “unguided largesse.” Williams v. United States,
245 F.2d 559, 560 (5th Cir. 1957).
Section 274(d) sets forth heightened substantiation requirements
(and overrides the Cohan rule) for certain types of expenses. As in effect
during 2017, section 274(d) made these strict requirements applicable
for “any traveling expense (including meals and lodging while away from
home),” “any item with respect to an activity which is of a type generally
considered to constitute entertainment,” “any expense for gifts,” and
“any listed property (as defined in section 280F(d)(4)).” “Listed prop-
erty” was defined to include “any passenger automobile.”
§ 280F(d)(4)(A)(i); Treas. Reg. § 1.280F-6(b)(1)(i). 2
As in effect during 2017, section 274(d) provided that no deduc-
tion shall be allowed for the expenses set forth above “unless the tax-
payer substantiates by adequate records or by sufficient evidence cor-
roborating the taxpayer’s own statement” the following facts:
(A) The amount of such expense or other item;
(B) The time and place of the travel or entertainment, or the date
and description of the gift;
(C) The business purpose of the expense or other item; and
(D) The business relationship to the taxpayer of persons enter-
tained or receiving the gift.
§ 274(d); see Temp. Treas. Reg. § 1.274-5T(c).
For expenses governed by section 274(d), “[w]ritten evidence has
considerably more probative value than oral evidence,” and “the proba-
tive value of written evidence is greater the closer in time it relates to
the expenditure.” Temp. Treas. Reg. § 1.274-5T(c)(1). Substantiation
by “adequate records” generally requires the taxpayer to “maintain an
account book, diary, log, statement of expense, trip sheets, or similar
record,” as well as evidence documenting the expenditures. Id. subpara.
(2). To substantiate business use of vehicles an actual contemporaneous
log is not strictly required, but records made at or near the time of the
2 Section 274(d) was amended by the Tax Cuts and Jobs Act of 2017, Pub. L.
No. 115-97, § 13304(a)(2)(A), 131 Stat. 2054, 2124. That amendment was effective for
amounts paid or incurred after December 31, 2017. Id. § 13304(e), 131 Stat. at 2126.
6
[*6] expenditure have greater probative value than records created sub-
sequently. Id. subparas. (1) and (2).
C. Analysis
Petitioner confronts a threshold obstacle given the nature of the
expenses in question. Although these expenses were reported on a
Schedule C in connection with an alleged consulting business, the evi-
dence at trial established that petitioner did little if any “consulting”
apart from advice he rendered to customers in his capacity as a Form
W–2 employee of the Honda dealership. He admitted at trial that all of
the expenses listed on the Schedule C were actually incurred in connec-
tion with his work as the dealership’s manager.
The expenses at issue would thus be deductible (if at all) only as
unreimbursed employee expenses. Such expenses are treated as “mis-
cellaneous itemized deductions” under section 67(b), and they are de-
ductible under section 67(a) “only to the extent that the aggregate of
such deductions exceeds 2 percent of adjusted gross income.” See gener-
ally Knight v. Commissioner, 552 U.S. 181, 184 (2008).
To be entitled to such deductions the employee must show that he
was neither reimbursed nor entitled to be reimbursed for the expenses
by his employer. Orvis v. Commissioner, 788 F.2d 1406, 1408 (9th Cir.
1986), aff’g T.C. Memo. 1984-533; Leamy v. Commissioner, 85 T.C. 798,
810 (1985); Lucas v. Commissioner, 79 T.C. 1, 7 (1982); Spielbauer v.
Commissioner, T.C. Memo. 1998-80. If the taxpayer’s employer has a
reimbursement policy that covers the expenses, the taxpayer must show
that he sought reimbursement from his employer. Orvis v. Commis-
sioner, 788 F.2d at 1408. The taxpayer bears the burden of proving that
he was not entitled to reimbursement. See Fountain v. Commissioner,
59 T.C. 696, 708 (1973).
Petitioner submitted no evidence as to whether the Honda deal-
ership had a reimbursement policy for job-related employee expenses.
If it did, he submitted no evidence that he sought reimbursement for any
expenses that qualified for reimbursement. He would thus fail to meet
his burden of proof even if he could show that the expenditures were
actually incurred, were “ordinary and necessary,” and were otherwise
allowable as deductions. See § 162(a). But he failed to establish those
facts as well.
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[*7] 1. Lodging in Santa Monica
Petitioner substantiated at least $40,174 of expenses at the Santa
Monica hotel. He elected to incur these expenses as an alternative to
commuting from his home in Irvine, which was about 60 miles from the
dealership. Given rush-hour traffic in Los Angeles, this may well have
been a rational choice, but it was a personal choice.
It is well established that the expenses of commuting to and from
work are not “ordinary and necessary” business expenses deductible un-
der section 162. Fausner v. Commissioner, 413 U.S. 838, 838–39 (1973);
Commissioner v. Flowers, 326 U.S. 465, 470 (1946); Feistman v. Com-
missioner, 63 T.C. 129, 134–35 (1974); Treas. Reg. §§ 1.162-2(e), 1.262-
1(b)(5). That is because the decision about where to live is typically a
personal decision, not a job requirement imposed by one’s employer.
Commissioner v. Flowers, 326 U.S. at 470–74. Petitioner’s hotel ex-
penses in Santa Monica were essentially a substitute for the expense of
daily commuting from Irvine. Therefore, they were “personal, living, or
family expense[s]” nondeductible under section 262. See Daly v. Com-
missioner, 72 T.C. 190, 196–98 (1979) (denying deduction for overnight
lodging expenses in Philadelphia where sales manager commuted
weekly to Philadelphia from his home in Virginia), aff’d, 662 F.2d 253(4th Cir. 1981).
Petitioner’s hotel expenses in Santa Monica may have been larger
than the vehicle expenses he would otherwise have incurred by commut-
ing daily. But that too was a personal decision, reflecting his disinclina-
tion to spend many hours on the road. And his lodging expenses cannot
be rationalized as “traveling expenses . . . while away from home in the
pursuit of a trade or business.” See § 162(a)(2); Commissioner v. Flow-
ers, 326 U.S. at 470. Petitioner’s tax home was Santa Monica, his place
of business, and he was not “away from home” when staying at the
Ocean View Hotel. See Coombs v. Commissioner, 608 F.2d 1269, 1275
(9th Cir. 1979), aff’g in part, rev’g and remanding in part 67 T.C. 426(1976); Daly, 72 T.C. at 196–97. We accordingly sustain disallowance of
the $40,174 deduction for lodging expenses.
2. Vehicle Expenses
Petitioner deducted $15,896 for car and truck expenses. Passen-
ger vehicle expenses are subject to the strict substantiation require-
ments of section 274(d). Petitioner did not explain, either in his tax re-
turn or at trial, how this amount was calculated. He maintained no
8
[*8] odometer readings to keep track of mileage, and he kept no “trip
sheets, or similar record” of his business-related travel. Temp. Treas.
Reg. § 1.274-5T(c)(2). He admitted that he “didn’t do a good job of log-
ging” his travel but “just averaged things out basically, in a lump sum.”
We find that petitioner has not substantiated, “by adequate records or
by sufficient evidence corroborating [his] own statement,” the amount or
business purpose of his reported vehicle expenses. See § 274(d). We
accordingly sustain disallowance of the $15,896 deduction for car and
truck expenses.
3. Meals and Entertainment
Petitioner deducted $22,141 for “client entertainment.” He testi-
fied that these expenses were incurred for “entertaining our clients, tak-
ing them out for dinners and meet[ing] for drinks.” Business entertain-
ment expenses incurred during 2017 were subject to the strict substan-
tiation requirements of section 274(d). By way of substantiation peti-
tioner submitted bank and credit card statements showing roughly
$25,000 of expenses at cafes, bars, and restaurants. These expenses
were incurred, chiefly at locations in or near Santa Monica, on at least
200 separate occasions during 2017.
Petitioner submitted no evidence to show which (if any) of these
expenses were incurred for business as opposed to personal purposes.
He did not establish “the time and place of the [client] entertainment,”
“the business purpose of the expense,” or the “business relationship to
the taxpayer of [the] persons entertained.” See § 274(d). We accordingly
sustain disallowance of the $22,141 deduction for client entertainment
expenses.
4. Gifts
Petitioner deducted $4,010 for “gifts to customers.” He testified
that these were “basically Christmas presents” and other gifts “once in
a while here and there.” Expenses for business gifts incurred during
2017 were subject to the strict substantiation requirements of section
274(d).
Petitioner could not identify any entries in his bank and credit
card statements that could be linked to business gifts in the aggregate
amount of $4,010 (or any other amount). He did not establish “the date
and description of the gift,” “the business purpose of the expense,” or the
“business relationship to [him] of [the] person . . . receiving the gift.” See
9
[*9] ibid. We accordingly sustain disallowance of the $4,010 deduction
for client gifts.
5. Telephone and Internet Charges
Petitioner deducted $1,958 and $1,225 for “telephone” and “Inter-
net connection,” respectively. He testified that these expenditures were
for his personal cell phone (he had only one) and his “home Internet.”
He supplied almost no substantiation regarding the total amounts of
these expenses and no documentation or testimony to establish what (if
any) portion was for business, as opposed to personal, use.
In a proper case, business expenses of this sort may be subject to
estimate under the Cohan rule. But the Court must have some factual
basis for its estimate, or the allowance would amount to “unguided lar-
gesse.” Williams, 245 F.2d at 560. Because petitioner has supplied no
factual basis on which to predicate an estimate, we will sustain disal-
lowance of these deductions.
6. Dry Cleaning
Petitioner deducted $1,521 for dry cleaning of the suits, shirts,
and ties he wore to work. He submitted no evidence to support this de-
duction. We grant that the manager of an automobile dealership must
make a good impression on customers. But it is well established that
the costs of purchasing and maintaining ordinary street attire are not
deductible merely because those clothes are worn to the office. Popov v.
Commissioner, 246 F.3d 1190, 1192 n.2 (9th Cir. 2001), aff’g in part,
rev’g in part and remanding T.C. Memo. 1998-374; Pevsner v. Commis-
sioner, 628 F.2d 467, 469–71 (5th Cir. 1980), rev’g T.C. Memo. 1979-311.
The result may be different for uniforms required as a condition
of employment. See Yeomans v. Commissioner, 30 T.C. 757, 767 (1958).
But petitioner does not contend that those circumstances apply here.
We accordingly sustain disallowance of this deduction.
D. Accuracy-Related Penalty
The Code imposes a 20% penalty upon the portion of any under-
payment that is attributable to (among other things) a “substantial un-
derstatement of income tax.” § 6662(a) and (b)(2). Section 6662(d)(2)(A)
generally defines the term “understatement” as the excess of the tax re-
quired to be shown on the return over the amount shown on the return
as filed. An understatement of income tax is “substantial” if it exceeds
10
[*10] the greater of $5,000 or 10% of the tax required to be shown on the
return. See § 6662(d)(1)(A). In 2017 petitioner reported tax of $43,977,
but his correct tax—as determined in the notice of deficiency, the adjust-
ments in which we have sustained—is $72,851. There was thus a sub-
stantial understatement of income tax.
Under section 7491(c) the Commissioner bears the burden of pro-
duction with respect to the liability of an individual for any penalty. See
Higbee v. Commissioner, 116 T.C. 438, 446 (2001). Respondent has car-
ried that burden here by showing that petitioner claimed Schedule C
deductions to which he was not entitled and that the substantial under-
statement referenced above is attributable to those erroneous deduc-
tions.
The Commissioner must also show compliance with the proce-
dural requirements of section 6751(b)(1). See § 7491(c); Graev v. Com-
missioner, 149 T.C. 485, 493 (2017), supplementing and overruling in
part 147 T.C. 460 (2016). Section 6751(b)(1) provides that no penalty
shall be assessed unless “the initial determination” of the assessment
was “personally approved (in writing) by the immediate supervisor of
the individual making such determination.” 3
Respondent established that Robert Morse, the immediate super-
visor of RA Ramos, supplied digital approval for assertion of the sub-
stantial understatement penalty on November 15, 2019, three days be-
fore CEAS mailed the Letter 525–T notifying petitioner of the proposed
adjustments. See Clay v. Commissioner, 152 T.C. 223, 249 (2019) (re-
quiring that approval be secured before penalty adjustment is first for-
mally communicated to taxpayer), aff’d, 990 F.3d 1296 (11th Cir. 2021).
3 The supervisory approval requirement does not apply to “any other penalty
automatically calculated through electronic means.” § 6751(b)(2)(B). We have held
that a substantial understatement penalty automatically calculated by the CEAS soft-
ware program qualifies for this exception. Walquist v. Commissioner, 152 T.C. 61(2019). But this conclusion follows only if the penalty is “determined by an IRS com-
puter program without human input or review.” Id. at 73. Although the substantial
understatement penalty in this case was calculated initially by the CEAS program,
petitioner contacted the IRS to challenge the adjustments proposed in the Letter 525-
T. See supra p. 3. In 2018 the IRS amended the Internal Revenue Manual (IRM) to
clarify that supervisory approval is required when “the taxpayer submits a response,
written or otherwise, that challenges the penalty, or the amount of tax to which the
penalty is attributable.” IRM 4.19.13.6.2(5) (Feb. 9, 2018), quoted in Walquist, 152
T.C. at 70–71. This appears to be why Mr. Morse, RA Ramos’s immediate supervisor,
approved the penalty for a second time on March 10, 2020, following petitioner’s com-
munication about the proposed adjustments.
11
[*11] Mr. Morse approved assertion of the penalty a second time on
March 10, 2020, ten months before the notice of deficiency was issued.
Respondent has thus demonstrated timely supervisory approval. 4
No penalty is imposed under section 6662 with respect to any por-
tion of an underpayment “if it is shown that there was a reasonable
cause for such portion and that the taxpayer acted in good faith with
respect to [it].” § 6664(c)(1). “The determination of whether a taxpayer
acted with reasonable cause and in good faith is made on a case-by-case
basis, taking into account all pertinent facts and circumstances.” Treas.
Reg. § 1.6664-4(b)(1). Generally, “the most important factor is the ex-
tent of the taxpayer’s effort to assess [his] proper tax liability.” Ibid.Circumstances that may indicate reasonable cause and good faith in-
clude “an honest misunderstanding of fact or law that is reasonable in
light of all of the facts and circumstances, including the experience,
knowledge, and education of the taxpayer.” Ibid.Petitioner has devoted his career to the car business and has no
knowledge of tax law. His 2017 return was prepared by a professional
return preparer. Although that return erroneously claimed deductions
on Schedule C, rather than on Schedule A as miscellaneous itemized
deductions subject to the 2%-of-AGI floor, we do not believe this error
was chargeable to petitioner.
For most of the deductions at issue, petitioner had some substan-
tiation of the amounts incurred but no contemporaneous (or other) rec-
ords to establish their business purpose. For the vehicle expenses, peti-
tioner admitted that he “didn’t do a good job of logging” his travel but
“just averaged things out basically, in a lump sum.” We find that essen-
tially the same was true for the meals and entertainment, telephone and
4 The U.S. Court of Appeals for the Ninth Circuit has held that, for an assess-
able penalty, supervisory approval is timely if secured before the penalty is assessed
or (if earlier) “before the relevant supervisor loses discretion whether to approve the
penalty assessment.” Laidlaw’s Harley Davidson Sales, Inc. v. Commissioner, 29 F.4th
1066, 1074 (9th Cir. 2022), rev’g and remanding 154 T.C. 68 (2020); see also Kroner v.
Commissioner, 48 F.4th 1272, 1276 (11th Cir. 2022) (holding in a deficiency case that
approval would be timely if secured before assessment of the deficiency), rev’g T.C.
Memo. 2020-73. Because Mr. Morse approved assertion of the penalty before the Let-
ter 525‒T was mailed, he necessarily granted approval before the penalty was as-
sessed. See Laidlaw’s Harley Davidson Sales, Inc. v. Commissioner, 29 F.4th at 1074;
Kroner v. Commissioner, 48 F.4th at 1276. Under the standards employed by the Ninth
and Eleventh Circuits, therefore, Mr. Morse’s approval was timely.
12
[*12] internet expenses, and client gifts. And we do not think petitioner
really believed that he could deduct his dry cleaning costs.
We reach the opposite conclusion regarding the hotel expenses in
Santa Monica. Petitioner had comprehensive and accurate documenta-
tion for these expenditures. His trial testimony convinced us of his belief
that he could not successfully discharge his duties as manager of the
Honda dealership if he spent three to four hours every day commuting
from Irvine. He understood that he could not deduct commuting ex-
penses. But we think he genuinely believed that his lodging expenses
were different and had a logical business nexus, enabling him to work
the 60 hours per week required to hold on to his managerial job. We
accordingly conclude that petitioner is not subject to penalty on the por-
tion of the underpayment attributable to disallowance of his $40,174
lodging expense deduction.
To reflect the foregoing,
Decision will be entered under Rule 155.