Samarasinghe v. Comm'r , 103 T.C.M. 1152 ( 2012 )


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  •                         T.C. Memo. 2012-23
    UNITED STATES TAX COURT
    L.A. AND RAYANI SAMARASINGHE, Petitioners v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent
    Docket No. 5082-09.                Filed January 19, 2012.
    Matthew Pollick Cavitch, for petitioners.
    Beth A. Nunnink, for respondent.
    MEMORANDUM FINDINGS OF FACT AND OPINION
    MARVEL, Judge:   Respondent determined deficiencies in
    petitioners’ Federal income tax and accuracy-related penalties
    under section 6662(a)1 for 2005 and 2007 as follows:
    1
    Unless otherwise indicated, all section references are to
    the Internal Revenue Code in effect for the years in issue, and
    all Rule references are to the Tax Court Rules of Practice and
    (continued...)
    - 2 -
    Penalty
    Year            Deficiency            Sec. 6662
    2005             $18,068               $3,614
    2007              29,803                5,961
    After concessions,2 the issues for decision are:   (1)
    Whether rental income attributable to petitioners’ rental of a
    commercial office building they owned to a related professional
    corporation in 2005 and 2007 was passive income under the
    transition rule set forth in section 1.469-11(c)(1)(ii), Income
    Tax Regs., as petitioners contend, or was nonpassive income under
    the self-rental rule of section 1.469-2(f)(6), Income Tax Regs.,
    as respondent determined; and (2) whether petitioners are liable
    for accuracy-related penalties under section 6662(a).   In order
    to decide issue (1), we must decide whether a lease executed in
    1980 between petitioners and petitioner husband’s wholly owned
    professional corporation constituted a written binding contract
    within the meaning of section 1.469-11(c)(1)(ii), Income Tax
    Regs., with respect to 2005 and 2007.
    1
    (...continued)
    Procedure. Monetary amounts have been rounded to the nearest
    dollar.
    2
    The parties stipulated that if the self-rental rule of sec.
    1.469-2(f)(6), Income Tax Regs., is applicable, then petitioners
    are liable for the deficiency. If the self-rental rule is not
    applicable, then petitioners are not liable for the deficiency.
    The parties also stipulated that the Westwood property “was
    rented for use in a business activity in which petitioner-husband
    materially participates.”
    - 3 -
    FINDINGS OF FACT
    Some of the facts have been stipulated and are so found.
    The stipulation of facts is incorporated herein by this
    reference.   Petitioners resided in New Jersey when they
    petitioned this Court.
    Petitioners are husband and wife.   Petitioner L.A.
    Samarasinghe (petitioner) graduated from medical school in 1967.
    After graduation petitioner began to practice medicine.    During
    the years at issue, petitioner, who specializes in internal
    medicine and in critical care, was an employee of his wholly
    owned professional corporation, L.A. Samarasinghe, M.D., P.A.
    (medical corporation).
    In the late 1970s petitioner hired Ramesh Sarva (Mr. Sarva),
    a certified public accountant (C.P.A.), to provide accounting
    services to the medical corporation and to petitioners.    Over the
    years, Mr. Sarva, among other things, (1) helped petitioner
    incorporate his medical practice, (2) performed accounting and
    bookkeeping services for the corporation and for petitioners, (3)
    provided tax planning advice, including advice on tax shelters
    and real estate investments, and (4) prepared tax returns for the
    medical corporation and for petitioners.
    At some point before or during 1979 Mr. Sarva advised
    petitioner to purchase real property for the medical
    corporation’s use.   Mr. Sarva also advised petitioner to purchase
    - 4 -
    the real property in his individual capacity rather than through
    the medical corporation.   In 1979 petitioners purchased an office
    building in Westwood, New Jersey (Westwood property), and titled
    the property in both their names.    The Westwood property is
    conveniently situated only a few blocks from Pascack Valley
    Hospital, which petitioner visits frequently in connection with
    his medical practice.
    After petitioners purchased the Westwood property, Mr. Sarva
    prepared a lease using a standardized lease form that purported
    to lease the Westwood property to the medical corporation in
    exchange for monthly rent payments and other consideration.     The
    lease recited that the medical corporation would use the Westwood
    property as a doctor’s office.    The lease ran from July 1, 1980,
    until June 30, 1981, with the term “to be renewed automatically
    unless sooner terminated as hereinafter provided, at the ANNUAL
    RENT of $30,000.00 with 5% increase every year all payable in
    equal monthly installments in advance on the first day of each
    and every calendar month”.   The lease also provided as follows:
    NINETEENTH.--The Landlord has made no representations
    or promises in respect to said building or to the
    demised premises except those contained herein, and
    those, if any, contained in some written communication
    to the Tenant, signed by the Landlord. This instrument
    may not be changed, modified, discharged or terminated
    orally.
    Petitioners and the medical corporation executed the lease on
    June 30, 1980 (the 1980 lease).    From June 30, 1980, when
    - 5 -
    petitioners and the medical corporation executed the 1980 lease,
    through and including the years at issue, Mr. Sarva had no
    knowledge of the existence of any document that formally amended
    the 1980 lease or of any other written lease regarding the
    Westwood property.3
    The medical corporation maintained its offices in the
    Westwood property through at least 2007.    During its occupancy of
    the Westwood property the medical corporation made numerous
    improvements to the property, including basic renovations and the
    installation of an in-house radiology system and a laboratory.
    The medical corporation paid for all improvements, the aggregate
    cost of which Mr. Sarva estimated to be approximately $100,000.
    The medical corporation used a fiscal year that began on
    December 1 and ended on November 30 for accounting and tax
    purposes.   During the course of a fiscal year the medical
    corporation periodically issued checks to petitioner without
    designating what the checks were for.    The checks typically
    ranged in amount from $1,000 to as much as $43,000 and were made
    payable to petitioner.   The checks did not contain any notation
    regarding the purpose of the payments.    The medical corporation
    3
    Although Mr. Sarva testified that there were no documents
    amending or modifying the 1980 lease and that there was no other
    written lease involving the Westwood property, we decline to find
    these statements as facts because Mr. Sarva can testify only to
    what he knew through personal knowledge. Because petitioners did
    not appear at trial or testify, whatever information they might
    possess is not before us.
    - 6 -
    issued the checks to petitioner whenever petitioner needed or
    wanted money.
    Petitioner’s office periodically sent Mr. Sarva the bank
    statements and canceled checks for the medical corporation, and
    Mr. Sarva’s office would summarize the data using a software
    program called QuickBooks.    The checks made payable to petitioner
    as well as other checks issued by the medical corporation for
    petitioner’s personal expenses such as mortgage, property taxes,
    and estimated tax payments were recorded in general ledger
    account 241, Due Officer.    At the end of the fiscal year Mr.
    Sarva made adjusting entries which allocated the payments made to
    petitioner during the year to specific expense accounts, such as
    salary/payroll and rent.    Mr. Sarva determined the amounts to be
    allocated to salary and to rent.    In making the allocation to
    rent, Mr. Sarva did not consult the 1980 lease, and he assumed
    that the annual rental period coincided with the medical
    corporation’s fiscal year.    With respect to the fiscal years
    ending November 30, 2005 and 2007, Mr. Sarva did not calculate
    what the annual rent should be under the 1980 lease, assuming it
    was in effect for those years, nor did he determine the amount of
    the required monthly lease payment under the lease.    The record
    contains no evidence that the medical corporation made monthly
    rent payments to petitioners during 2005 and 2007 as would have
    - 7 -
    been required by the 1980 lease, assuming that the lease was
    still in effect for those years.
    Mr. Sarva prepared Federal income tax returns for the
    medical corporation for the fiscal years ending November 30, 2004
    through 2009.   At least some of those returns were filed
    electronically.   The medical corporation claimed deductions for
    rental expenses attributable to the Westwood property4 on those
    corporate tax returns as follows:
    FYE Nov. 30          Rental expense deduction
    2004                      $100,000
    2005                       100,000
    1
    2006                        133,319
    2
    2007                        156,224
    2008                         38,621
    2009                       168,940
    1
    The parties stipulated petitioners’ retained copy of the
    medical corporation’s 2006 Federal tax return. The retained copy
    shows a rental expense deduction of $139,989. The parties also
    stipulated a copy of the Tax Return Database electronic return
    information for the medical corporation’s 2006 return. The
    electronic return information summary reflects that the medical
    corporation claimed a rental expense deduction of $133,319 .
    4
    The parties stipulated that the following amounts represent
    the correct amounts of rent required by the 1980 lease if it was
    still in effect for rental terms ending in 2004 through 2009:
    Rental term ending June 30          Rental income
    2004                      $94,449
    2005                       99,172
    2006                      104,130
    2007                      109,337
    2008                      114,804
    2009                      120,554
    - 8 -
    2
    The parties stipulated petitioners’ retained copy of the
    medical corporation’s 2007 Federal tax return. The retained copy
    shows a rental expense deduction of $133,828. The parties also
    stipulated a copy of the Tax Return Database electronic return
    information for the medical corporation’s 2007 return. The
    electronic return information summary reflects that the medical
    corporation claimed a rental expense deduction of $156,224.
    Petitioners timely filed their joint 2004 through 2009
    Federal income tax returns, which Mr. Sarva also prepared.
    Petitioners reported the following rental income attributable to
    the Westwood property lease:
    Year           Rental income
    2004              $100,000
    2005               100,000
    2006                 -0-
    2007               100,000
    2008                 -0-
    2009               123,484
    On Schedule E, Supplemental Income and Loss, of their 2005 and
    2007 returns, petitioners treated the rental income of $100,000
    as passive income, which was taken into account in calculating
    the passive losses for those years.
    On December 3, 2008, respondent mailed petitioners a notice
    of deficiency for 2005 and 2007.    Respondent determined that the
    rental income attributable to the Westwood property constituted
    self-rental income, which is nonpassive income that cannot be
    taken into account in calculating the correct amount of a passive
    loss.    Respondent also determined that petitioners were liable
    for the 20-percent accuracy-related penalty under section 6662(a)
    for each of the years 2005 and 2007.
    - 9 -
    Petitioners timely petitioned this Court to redetermine
    respondent’s determinations, and the case was set for trial on
    June 24, 2010.   Petitioners, who were represented by counsel, did
    not appear or testify at trial, and petitioners’ counsel called
    only one witness, Mr. Sarva.
    OPINION
    I.   Rental Payments as Nonpassive Income
    A.   Burden of Proof
    The Commissioner’s determinations in a notice of deficiency
    are presumed correct, and the taxpayer ordinarily bears the
    burden of proving that those determinations are erroneous.    Rule
    142(a); Welch v. Helvering, 
    290 U.S. 111
    , 115 (1933).     Section
    7491(a), however, provides that the burden of proof with respect
    to a disputed factual issue shifts to the Commissioner if the
    taxpayer produces credible evidence with respect to the issue,
    the taxpayer complied with the substantiation requirements, and
    the taxpayer cooperated with the Secretary5 with regard to all
    reasonable requests for information.     Sec. 7491(a)(2); see also
    Higbee v. Commissioner, 
    116 T.C. 438
    , 440-441 (2001).
    Petitioners do not contend that section 7491(a) applies, and the
    5
    The term “Secretary” means “the Secretary of the Treasury
    or his delegate”, sec. 7701(a)(11)(B), and the term “or his
    delegate” means “any officer, employee, or agency of the Treasury
    Department duly authorized by the Secretary of the Treasury
    directly, or indirectly by one or more redelegations of
    authority, to perform the function mentioned or described in the
    context”, sec. 7701(a)(12)(A)(i).
    - 10 -
    record does not permit us to conclude that petitioners satisfied
    the requirements of section 7491(a)(2).       Accordingly, petitioners
    bear the burden of proving that respondent erroneously determined
    that their 2005 and 2007 rental income attributable to the
    Westwood property was nonpassive income.
    B.     Passive Activity Losses and the Self-Rental Rule
    Generally, a taxpayer may deduct a loss incurred in a trade
    or business.     Sec. 165(c)(1).    However, a taxpayer may not deduct
    a loss from a passive activity.       Sec. 469(a).   Ordinarily, a
    passive activity is an activity involving the conduct of a trade
    or business in which the taxpayer does not materially
    participate.     Sec. 469(c)(1).    However, except as provided in
    section 469(c)(7), the term “passive activity” also includes a
    rental activity regardless of whether a taxpayer materially
    participates in the activity.       Sec. 469(c)(2), (4).
    A passive activity loss is defined as the excess, if any, of
    the aggregate losses from passive activities during a taxable
    year over the aggregate income from passive activities for such
    year.     Sec. 469(d)(1).   In order to calculate a taxpayer’s
    passive activity loss for a taxable year, the taxpayer must
    ascertain whether the taxpayer’s income and losses are from
    - 11 -
    passive activities in accordance with rules set forth in section
    469 and related regulations.6
    Mr. Sarva characterized the rental income attributable to
    petitioners’ rental of the Westwood property to the medical
    corporation during 2005 and 2007 as passive income and, in
    preparing petitioners’ 2005 and 2007 returns, offset that income
    with passive losses to arrive at petitioners’ nondeductible
    passive activity losses for 2005 and 2007.   In the notice of
    deficiency, respondent recharacterized the rental income as
    nonpassive income, determining that the income was self-rental
    income within the meaning of section 1.469-2(f)(6), Income Tax
    Regs.
    While section 469(c)(2) generally characterizes rental
    activity as passive, section 1.469-2(f)(6), Income Tax Regs.,
    provides that net rental income received by the taxpayer for use
    of an item of the taxpayer’s property in a business in which the
    taxpayer materially participates shall be treated as income not
    from a passive activity.   The rule of section 1.469-2(f)(6),
    Income Tax Regs., which is sometimes referred to as the self-
    rental rule or the recharacterization rule, creates an exception
    to the normal rule set forth in section 469(c)(2) and (4) that
    6
    Sec. 469(l)(2) authorizes the Secretary to promulgate
    regulations “which provide that certain items of gross income
    will not be taken into account in determining income or loss from
    any activity (and the treatment of expenses allocable to such
    income)”.
    - 12 -
    income from a rental activity is passive income for purposes of
    section 469 regardless of whether a taxpayer materially
    participates in the activity.    See Carlos v. Commissioner, 
    123 T.C. 275
    , 279-280 (2004).
    The parties stipulated that petitioners rented the Westwood
    property to petitioner’s medical corporation for use in the
    corporation’s business.    The parties also stipulated that
    petitioner materially participated in the business activity of
    the medical corporation.    Because petitioner materially
    participated in the business activity and petitioners rented the
    property for such use, the self-rental rule would appear to
    apply.    Therefore, unless an exception to the rule applies,
    petitioners must characterize the Westwood property rental income
    as nonpassive income and may not offset this income against
    accumulated and unused passive losses.
    C.     Written Binding Contract Exception
    Petitioners contend that the self-rental rule of section
    1.469-2(f)(6), Income Tax Regs., does not apply because they are
    entitled to transitional relief under section 1.469-11(c)(1)(ii),
    Income Tax Regs.    Section 1.469-11(c)(1)(ii), Income Tax Regs.,
    provides that, in applying section 1.469-2(f)(6), Income Tax
    Regs., a taxpayer’s rental income is passive if it is
    attributable to the rental of property “pursuant to a written
    binding contract entered into before February 19, 1988.”      To
    - 13 -
    qualify for transitional relief under the regulation, a taxpayer
    must prove that the rental income in question was paid pursuant
    to a written lease that was entered into before February 19,
    1988, and was still in effect; i.e., was binding and enforceable
    for the year at issue.   Krukowski v. Commissioner, 
    279 F.3d 547
    ,
    550 (7th Cir. 2002), affg. 
    114 T.C. 366
     (2000).      “At a minimum,
    for a lease to be binding on a party, it must be enforceable
    under applicable state law.”   Connor v. Commissioner, 
    218 F.3d 733
    , 740 (7th Cir. 2000), affg. T.C. Memo. 1999-185.
    Petitioners executed a written lease with respect to the
    Westwood property--the 1980 lease.      Because the parties do not
    dispute that the lease was entered into before February 19, 1988,
    and was in writing, the sole issue remaining is whether the 1980
    lease remained in force and was binding under State law for 2005
    and 2007.   We examine relevant State law and the actions of the
    parties to the 1980 lease during the years at issue to decide
    this issue.   The parties agree that the relevant State law is the
    law of the State of New Jersey.7
    Under New Jersey law, an enforceable agreement exists when
    “two parties ‘agree on essential terms and manifest an intention
    7
    The 1980 lease did not specify the law governing the
    interpretation of the lease. In the absence of an agreement by
    the parties to a lease regarding applicable law, we apply the law
    of the State where the property is located. Krukowski v.
    Commissioner, 
    279 F.3d 547
    , 550 (7th Cir. 2002), affg. 
    114 T.C. 366
     (2000); Connor v. Commissioner, 
    218 F.3d 733
    , 740 (7th Cir.
    2000), affg. T.C. Memo. 1999-185.
    - 14 -
    to be bound by those terms.’”      Barak v. Obioha, 74 Fed. Appx.
    164, 166 (3d Cir. 2003).      The essential terms of a lease include
    “an adequate description of the property, a definite term
    (including the commencement date), the agreed rental and the
    manner of payment.”    Brechman v. Adamar of N.J., Inc., 
    440 A.2d 480
    , 482 (N.J. Super. Ct. Ch. Div. 1981).     If the lease term
    exceeds 3 years, the lease also must comply with the statute of
    frauds.    N.J. Stat. Ann. 25:1-5 (West 1997).8   Under the statute
    of frauds, the lease must be in writing and signed by both
    landlord and tenant.    Id.
    Unlike some other jurisdictions, New Jersey does not
    distinguish between a renewal and an extension of a lease.
    Schnakenberg v. Gibraltar Sav. & Loan Association, 
    117 A.2d 191
    ,
    195 (N.J. Super. Ct. App. Div. 1955); see also Balsham v.
    Koffler, 
    73 A.2d 272
    , 274 (N.J. Super. Ct. App. Div. 1950).       If a
    lease provides for renewal, the renewal merely continues the old
    lease.    Schnakenberg v. Gibraltar Sav. & Loan Association, supra
    at 195.    A general covenant to renew “implies a renewal or
    extension for the same term as provided in the original lease,
    and is sufficiently definite and certain to be enforceable.”        Id.
    8
    The parties do not dispute that the 1980 lease complied
    with the statute of frauds at the time of execution. Effective
    Jan. 5, 1996, New Jersey amended its statute of frauds, repealing
    N.J. Stat. Ann. 25:1-1 (1940). See P.L. 1995, c.360 (N.J. 1996).
    The parties agree that the statute of frauds in effect for 1980
    applies to the 1980 lease.
    - 15 -
    No new lease is required.    Jador Serv. Co. v. Werbel, 
    53 A.2d 182
    , 185 (N.J. 1947).
    The 1980 lease contained the essential terms required to
    make it a binding and enforceable agreement when it was executed
    in 1980.    The lease was in writing, contained an adequate legal
    description of the leased premises, and included provisions that
    specified the agreed term of the lease, the rent, and the manner
    in which the rent should be paid.    Its renewal and rent
    adjustment provisions, if followed by the parties to the lease,
    enabled the parties to renew the lease as a binding contract in
    years9 after the initial rental term that ran from July 1, 1980,
    through June 30, 1981.
    The parties do not appear to dispute that the 1980 lease was
    a binding contract that was enforceable under State law when it
    was originally executed in 1980.    The parties’ disagreement
    focuses on whether the 1980 lease was still a binding contract
    with respect to the years 2005 and 2007.    Under New Jersey law,
    parties to a contract may modify, abandon, abrogate, or rescind a
    contract.   Cnty. of Morris v. Fauver, 
    707 A.2d 958
    , 965 (N.J.
    1998).   We consider whether petitioners have proved by a
    preponderance of credible evidence that the 1980 lease was still
    9
    Respondent would have us conclude that the ability to renew
    under the 1980 lease was limited to one additional term. Neither
    the lease as drafted nor any principle of New Jersey law appears
    to support such a conclusion.
    - 16 -
    a binding contract in effect for taxable years ending in 2005 and
    2007.
    Under New Jersey law, the parties to a contract may make
    limited changes to the contract through modification, which can
    be done either by express agreement or by conduct.      Id. at 967.
    For example, a landlord and tenant may alter the rent if the
    lease authorizes modification, the parties comply with any
    provisions regarding modification, and the modification is
    supported by consideration.     Oscar v. Simeonidis, 
    800 A.2d 271
    ,
    276 (N.J. Super. Ct. App. Div. 2002).
    Under New Jersey law, the parties may also rescind the
    initial contract in favor of a subsequent contract.      Rosenberg v.
    D. Kaltman & Co., 
    101 A.2d 94
    , 96 (N.J. Super. Ct. Ch. Div.
    1953).     If the parties enter into a subsequent contract covering
    the same subject matter and the subsequent contract contains
    terms inconsistent with the initial contract, the subsequent
    contract rescinds the initial contract and “becomes the only
    agreement on the part of the parties on the subject matter.”      Id.
    The difference in terms, however, must be so inconsistent that
    the two contracts cannot stand together.      Id.
    Abandonment under New Jersey law refers to actions of
    parties to a formerly binding contract that demonstrate that the
    contract is no longer in effect.     A court may infer abandonment
    from the surrounding circumstances.      Mossberg v. Standard Oil Co.
    - 17 -
    of N.J., 
    237 A.2d 508
    , 516 (N.J. Super. Ct. Law Div. 1967).    For
    example, in Mossberg, the Superior Court of New Jersey found that
    the parties had abandoned a formerly binding contract that the
    parties had executed 30 years before, on the basis of evidence
    that the parties had ignored the contract provisions during the
    period then in dispute.   Id. at 515-516.
    With these principles in mind, we examine the very sparse
    record for what it tells us about whether the 1980 lease was
    still in effect for 2005 and 2007.     Regardless of the
    enforceability of the 1980 lease during the initial rental term,
    which the parties appear to assume, the record contains no
    credible evidence regarding the history and enforceability of the
    1980 lease for periods between June 30, 1981, the end of the
    initial rental term, and November 30, 2004, the earliest fiscal
    year as to which there is evidence in the record of an allocation
    to rental expense by Mr. Sarva.   With respect to 2005 and 2007,
    the record is replete with evidence demonstrating that
    petitioners, the medical corporation, and Mr. Sarva did not pay
    any attention to the terms of the 1980 lease.     The parties to the
    lease ignored the lease provision with respect to the amount of
    required rent.   The parties to the lease ignored the lease
    requirement that monthly rent payments be made.     The term of the
    lease, which originally ran from July 1 through June 30, appears
    to have been changed to a term corresponding to the fiscal year
    - 18 -
    of the medical corporation.   Mr. Sarva, who drafted the 1980
    lease and supervised its execution by petitioners and the medical
    corporation, did not consult the lease in making his annual
    allocation between petitioner’s salary and rental income and his
    determination of the rental income included in petitioners’
    income, and the rental expense deducted on the medical
    corporation’s returns for the taxable years ended in 2005 and
    2007 did not coincide with what should have been reported under
    the 1980 lease if it were still in effect for those years.10    The
    record overwhelmingly demonstrates that, during the taxable years
    ending in 2004 through 2009, the 1980 lease was a meaningless
    document that was simply not followed by petitioners, the medical
    corporation, or Mr. Sarva, who implemented and supervised the
    rental arrangement.
    Petitioners had the burden of convincing us that the 1980
    lease was still a binding contract under New Jersey law in 2005
    and 2007.   They failed to do so.   During the fiscal years ending
    2005 and 2007, neither petitioners nor Mr. Sarva calculated the
    correct amount of rent due under the 1980 lease, and the medical
    10
    In fact, Mr. Sarva did not include any rental income from
    the Westwood property lease on petitioners’ 2006 and 2008 returns
    even though the medical corporation claimed a rental expense
    deduction on its returns for each of the related fiscal years.
    Petitioners argue that their failure to report rental income on
    their 2006 and 2008 returns was a mistake attributable to Mr.
    Sarva and should not be treated as evidence that the 1980 lease
    was no longer in effect.
    - 19 -
    corporation did not make the required monthly rental payments.
    The rental arrangement during those years was completely ad hoc--
    the accountant determined the rent after the fact on the basis of
    his analysis of petitioner’s financial situation at the time.    On
    these facts, we conclude that petitioners have not proved that
    the 1980 lease was a binding contract during 2005 and 2007.
    Because petitioners have not proved that the 1980 lease was a
    binding contract under New Jersey law and in effect for 2005 and
    2007, petitioners have failed to prove that they qualify for
    transitional relief under section 1.469-11(c)(1)(ii), Income Tax
    Regs., and respondent’s determination that the rental income
    petitioners reported on their 2005 and 2007 returns is nonpassive
    income under section 1.469-2(f)(6), Income Tax Regs., is
    sustained.
    II.   Accuracy-Related Penalty Under Section 6662
    Section 6662 authorizes the Commissioner to impose a penalty
    on an underpayment of tax that is attributable to negligence or
    disregard of rules or regulations or any substantial
    understatement of income tax.    Sec. 6662(a) and (b)(1) and (2).
    The Commissioner bears the initial burden of production with
    respect to the taxpayer’s liability for the section 6662 penalty.
    Sec. 7491(c).   At trial the Commissioner must introduce
    sufficient evidence “indicating that it is appropriate to impose
    the relevant penalty.”   Higbee v. Commissioner, 116 T.C. at 446.
    - 20 -
    If the Commissioner satisfies his initial burden of production,
    the burden of producing evidence to refute the Commissioner’s
    evidence shifts to the taxpayer, and the taxpayer must prove that
    the penalty does not apply.   Id. at 447.
    Respondent contends that petitioners are liable for the
    accuracy-related penalties because the underpayments of tax are
    attributable to either negligence or disregard of rules or
    regulations (2005 and 2007) or to a substantial understatement of
    income tax (2007).   Respondent’s contentions necessarily reflect
    alternative grounds for imposing the section 6662 penalty because
    only one section 6662 accuracy-related penalty may be imposed
    with respect to any given portion of any underpayment, even if
    the underpayment is attributable to more than one of the types of
    listed conduct.   New Phoenix Sunrise Corp. v. Commissioner, 
    132 T.C. 161
    , 187 (2009), affd. 408 Fed. Appx. 908 (6th Cir. 2010);
    sec. 1.6662-2(c), Income Tax Regs.
    We turn first to respondent’s contention that the section
    6662 penalties should be imposed because the underpayments for
    2005 and 2007 were attributable to petitioners’ negligence.    See
    sec. 6662(a) and (b)(1).   For purposes of section 6662,
    negligence is any failure to make a reasonable attempt to comply
    with the provisions of the Internal Revenue Code, and disregard
    includes any careless, reckless, or intentional disregard.     Sec.
    6662(c); see also Neely v. Commissioner, 
    85 T.C. 934
    , 947 (1985)
    - 21 -
    (negligence is lack of due care or failure to do what a
    reasonably prudent person would do under the circumstances); sec.
    1.6662-3, Income Tax Regs.     Negligence also includes any failure
    to exercise ordinary and reasonable care in the preparation of a
    tax return, or any failure to keep adequate books and records and
    to properly substantiate items.       Sec. 1.6662-3(b)(1), Income Tax
    Regs.     A return position that has a reasonable basis is not
    attributable to negligence.     Id.
    Respondent introduced evidence at trial establishing that
    the rent paid by the medical corporation during 2005 and 2007 did
    not comply with the terms of the 1980 lease.      Mr. Sarva’s
    testimony confirmed that he made an allocation to rent at the end
    of each taxable year without regard to the terms of the 1980
    lease.     Nevertheless, petitioners took the position on their 2005
    and 2007 returns that the 1980 lease was still binding and
    treated the 2005 and 2007 rental income as passive income under
    the transition rule of section 1.469-11(c)(1)(ii), Income Tax
    Regs.     This evidence was sufficient to satisfy respondent’s
    initial burden of production and shift the burden of production
    to petitioners.     Petitioners did not prove that they were not
    negligent in treating their 2005 and 2007 rental income from the
    medical corporation as passive income under the transition rule
    of section 1.469-11(c)(1)(ii), Income Tax Regs.      Because we hold
    that the underpayments were attributable to negligence, we need
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    not address whether a substantial understatement of income tax
    exists for either or both of the years at issue.11
    We turn then to petitioners’ contention that they are
    entitled to relief under section 6664(c) from the section 6662
    penalties.   A taxpayer may avoid liability for the section 6662
    penalty if the taxpayer demonstrates that he or she had a
    reasonable basis for the underpayment and that he or she acted in
    good faith with respect to the underpayment.     Sec. 6664(c)(1);
    sec. 1.6664-4(a), Income Tax Regs.     Reasonable cause and good
    faith are determined on a case-by-case basis, taking into account
    all pertinent facts and circumstances.     Sec. 1.6664-4(b)(1),
    Income Tax Regs.   The most important factor in determining
    reasonable cause and good faith is the extent of the taxpayer’s
    effort to assess his or her proper income tax liability.      Id.;
    see also Woodsum v. Commissioner, 
    136 T.C. 585
    , 591 (2011).
    A taxpayer may establish reasonable cause and good faith
    within the meaning of section 6664(c) if the taxpayer
    demonstrates that he or she reasonably relied in good faith on
    the informed advice of an independent professional adviser as to
    the proper tax treatment of an item.     Sec. 1.6664-4(c), Income
    11
    A substantial understatement of income tax exists with
    respect to an individual taxpayer if the amount of the
    understatement exceeds the greater of 10 percent of the tax
    required to be shown on the return or $5,000. Sec.
    6662(d)(1)(A). In any event, it would appear that a substantial
    understatement exists for 2007.
    - 23 -
    Tax Regs.; see also United States v. Boyle, 
    469 U.S. 241
    , 250
    (1985); Neonatology Associates, P.A. v. Commissioner, 
    115 T.C. 43
    , 98 (2000), affd. 
    299 F.3d 221
     (3d Cir. 2002).      The taxpayer
    must show that:     (1) The adviser was a competent and qualified
    professional who had sufficient expertise to justify the
    taxpayer’s reliance, (2) the taxpayer provided all necessary and
    accurate information to the adviser, and (3) the taxpayer
    actually relied in good faith on the adviser’s judgment in
    deciding on the proper tax treatment of the item.      See
    Neonatology Associates, P.A. v. Commissioner, supra at 99.
    Mr. Sarva has been a practicing C.P.A. for over 30 years.
    He has extensive experience in tax planning and return
    preparation12 and has advised clients with respect to real estate
    transactions.13     Petitioners relied on Mr. Sarva’s judgment in
    purchasing the Woodside property in 1979, in setting up the
    leasing transaction, and in preparing their and the medical
    corporation’s tax returns each year.      Given Mr. Sarva’s
    credentials and the longstanding professional relationship
    between petitioners and Mr. Sarva, we find that petitioners were
    justified in relying on Mr. Sarva.
    12
    Mr. Sarva testified that he serves approximately 180
    clients residing in 17 States.
    13
    Mr. Sarva also has real estate investment experience.
    - 24 -
    Petitioners depended upon Mr. Sarva to handle their books
    and records and those of the medical corporation, to advise them
    on their tax situation, and to prepare their tax returns.    Mr.
    Sarva was either in possession of all necessary information and
    records, including a copy of the 1980 lease, to perform his work
    for petitioners and the medical corporation competently or could
    get access to the information through petitioners.
    Finally, we are satisfied that, even though petitioners did
    not testify, they nevertheless relied in good faith on Mr.
    Sarva’s judgment regarding the proper tax treatment of the 2005
    and 2007 rental income.   Mr. Sarva testified that he made all of
    the rental expense allocations and that he determined that
    petitioners’ rental income during 2005 and 2007 constituted
    passive income.   Petitioners had no reason not to trust the
    judgment of Mr. Sarva, who has served as their tax professional
    for over two decades.
    Under the circumstances, we find that petitioners reasonably
    relied in good faith on Mr. Sarva’s advice and judgment as
    reflected on petitioners’ 2005 and 2007 returns.   We conclude
    therefore that petitioners are not liable for the section 6662
    accuracy-related penalties for 2005 and 2007.
    We have considered the parties’ remaining arguments and, to
    the extent not discussed above, conclude those arguments are
    irrelevant, moot, or without merit.
    - 25 -
    To reflect the foregoing,
    Decision will be entered for
    respondent as to the deficiencies
    and for petitioners as to the
    accuracy-related penalties under
    section 6662(a).