Bass v. Comm'r ( 2007 )


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  •                         T.C. Memo. 2007-361
    UNITED STATES TAX COURT
    WILLIAM R. AND BETTY O. BASS, Petitioners v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent
    Docket No. 19207-06.             Filed December 5, 2007.
    William R. and Betty O. Bass, pro se.
    James H. Brunson III, for respondent.
    MEMORANDUM FINDINGS OF FACT AND OPINION
    COHEN, Judge:   In an “affected items” notice of deficiency
    sent June 19, 2006, respondent determined that petitioners are
    liable for additions to tax for 1982 as follows:
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    Additions to Tax
    Year      Sec. 6653(a)(1)      Sec. 6653(a)(2)      Sec. 6661
    1982           $351                  *               $1,755
    *    50 percent of the interest on $7,020.
    The notice also included a statement that interest would accrue
    and be assessed at 120 percent of the underpayment rate in
    accordance with section 6621(c).     The additions to tax resulted
    from a final partnership proceeding involving a jojoba plant
    venture known as Cal-Neva Partners (Cal-Neva).        Unless otherwise
    indicated, all section references are to the Internal Revenue
    Code in effect for the year in issue, and all Rule references are
    to the Tax Court Rules of Practice and Procedure.
    FINDINGS OF FACT
    Petitioners resided in Georgia at the time that they filed
    their petition.    In 1982, William R. Bass (petitioner) was
    employed by Lockheed Corp. as an accountant, and Betty O. Bass
    was employed by the Institute of Basic Youth Conflict as a
    typist.
    On or about December 23, 1982, petitioners paid $5,000 for a
    limited partnership interest in Cal-Neva.     The $5,000 was paid in
    reliance on representations by two persons associated with Cal-
    Neva whom petitioner met during a business trip to Nevada.
    Petitioner did not consult any independent persons regarding the
    viability of the jojoba plant venture or the claimed tax
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    consequences related to the venture, and he relied solely on
    promoters who had no known experience in jojoba plant farming.
    Petitioner prepared a joint 1982 Form 1040, U.S. Individual
    Income Tax Return.    As a result of losses claimed, petitioners
    requested a refund of $3,742.07, which had been paid by
    withholding and estimated tax payments.    On Schedule C, Profit or
    (Loss) From Business or Profession, petitioner reported his
    business as Bass Enterprises, with gross receipts of $444.30 and
    a net loss of $25,827.79.    Among the items shown as constituting
    the loss was a “Write-off of Farming Venture $13,150".
    Petitioner did not have a Schedule K-1, Partner’s Share of
    Income, Credits, Deductions, etc., from Cal-Neva when he filed
    the 1982 return.   The amount that petitioner deducted on
    Schedule C was his estimate of the amount to be claimed based on
    his conversations with the promoters of Cal-Neva at the time that
    he paid the $5,000.
    On February 11, 1987, a Notice of Final Partnership
    Administrative Adjustment was sent to petitioners as a partner in
    Cal-Neva.   In the notice, research and development expenses of
    $193,150 and amortization of organizational costs of $42 were
    disallowed to Cal-Neva.    A petition on behalf of Cal-Neva was
    filed by Yolanda J. Benham (Benham), tax matters partner, as
    docket No. 6594-87.    On October 18, 1993, the parties in docket
    No. 6594-87 filed a Stipulation to be Bound setting forth their
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    agreement that the outcome of the Cal-Neva case was to be
    determined in accordance with the outcome of Utah Jojoba I
    Research v. Commissioner, docket No. 7619-90.    On January 5,
    1998, the Court’s opinion in Utah Jojoba I Research v.
    Commissioner, T.C. Memo. 1998-6 (Utah Jojoba I Research), was
    filed, and, pursuant to that opinion, a decision sustaining
    respondent’s adjustments was entered on January 8, 1998, in that
    case.
    At the time the decision in Utah Jojoba I Research became
    final, the tax matters partner in the Cal-Neva case, Benham,
    could not be located.   Ultimately, respondent filed a Motion for
    Entry of Decision in accordance with the Stipulation to be Bound.
    By order dated February 1, 2005, the partners of Cal-Neva were
    directed to show cause why respondent’s Motion for Entry of
    Decision should not be granted.   No response to the Court’s order
    was received.    Decision in the Cal-Neva case, docket No. 6594-87,
    was entered April 11, 2005.   A copy of the decision was served on
    petitioner.   The decision in docket No. 6594-87 became final
    July 11, 2005.   The notice in the instant case was sent June 19,
    2006, within 1 year of finality of the partnership proceeding.
    The additions to tax in issue here were based on $7,020, which
    the Internal Revenue Service (IRS) determined to be the
    deficiency in income tax attributable to the Cal-Neva deductions
    claimed by petitioners on Schedule C of their 1982 return.
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    Because miscellaneous deductions were not identified on
    Schedule C as attributable to Cal-Neva or to some other activity
    on the part of petitioners, the IRS estimated disallowed amounts
    as 50 percent of the miscellaneous expenses shown on Schedule C.
    Thus, the adjustment on which the additions to tax were
    calculated totaled $14,783.69, including the $13,150 attributable
    to Cal-Neva.
    OPINION
    Petitioners contend that they were not negligent and that
    the additions to tax are inappropriate in this case.    They also
    assert that the tax on which the additions to tax are computed
    was overstated because of the manner in which the disallowed
    expenses attributable to Cal-Neva were determined, because items
    above and beyond $13,150 were not related to Cal-Neva but to
    other activities in which petitioner engaged.    We accept
    petitioner’s testimony in this regard.    Our findings, however,
    are otherwise sparse.    Petitioner provided no details concerning
    the partnership.    His testimony at trial as to the extent of his
    investigation of Cal-Neva consisted of the following:
    I don’t recall exactly how the investment
    possibility came into being. I don’t know whether it
    was a phone call, letter, or what, but anyway, we were
    contacted regarding the investment.
    Since I grew up on a farm, I thought that it had
    some   potential. I combined a trip to Nevada to meet
    with   them with a trip by my employer, and I did meet
    with   them. They seemed to be honest people. He had
    been   in the airline industry, and she had worked as an
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    attorney. I don’t know whether exactly she was a
    practicing attorney or what.
    But they seemed to be people that understood
    enough about the investment, and that it was viable,
    and so I know at some point, having some knowledge of
    taxes on some of the past investments, I thought it
    would be a viable investment.
    So I did enter into the investment, and paid the
    $5,000 initial investment amount, and the rest was
    financed, and interest payments were made for several
    years, five or six years, and ultimately the
    partnership went under.
    Of course, if I had known that at the beginning, I
    definitely would not have been involved in it,
    especially since it looks like it was creating a
    problem from the standpoint of taxability. But at the
    time, it seemed to me that it was not an unusual
    investment to make.
    And so after doing the limited amount of checking
    that I was able to do without spending days and days, I
    guess, in the area where they resided. I think it was
    during that time that they subsequently moved to
    Hawaii.
    So my investigating from a due diligence to me was
    sufficient to let me know that it was a viable
    investment and it would stand up from a tax standpoint,
    and so that’s basically my statement and my testimony
    in that regard.
    In other reported cases, notably the opinion in Utah
    Jojoba I Research, the programs concerning Jojoba plants are
    described in detail.   As summarized in Lopez v. Commissioner,
    T.C. Memo. 2001-278, affd. 
    92 Fed. Appx. 571
    (9th Cir. 2004):
    In the decided case, this Court held that the
    partnerships did not directly or indirectly engage in
    research or experimentation and that the partnerships
    lacked a realistic prospect of entering into a trade or
    business. In upholding respondent’s disallowance of
    research and experimental expenditures, the Court found
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    that the agreements between the partnerships and the
    proposed research and development contractor, U.S. Agri
    Research & Development Corp. (U.S. Agri), had been
    designed and entered into solely to provide a mechanism
    to disguise the capital contributions of limited
    partners as currently deductible expenditures. The
    Court stated that the activities of the partnerships
    were “another example of efforts by promoters and
    investors in the early 1980's to reduce the cost of
    commencing and engaging in the farming of jojoba by
    claiming, inaccurately, that capital expenditures in
    jojoba plantations might be treated as research or
    experimental expenditures for purposes of claiming
    deductions under section 174.” * * * [Fn. ref.
    omitted.]
    More details concerning the partnerships and the investors are
    found in the records and in the opinions in other cases in which
    we have sustained additions to tax arising out of investments in
    the jojoba plant partnerships.    As the Court stated in Kellen v.
    Commissioner, T.C. Memo. 2002-19:
    We have decided many jojoba cases involving
    additions to tax for negligence and substantial
    understatement of tax liability. 15/ We have found the
    taxpayers liable for additions to tax for negligence in
    all of those cases; likewise, we have found the
    taxpayers liable for the addition to tax for
    substantial understatement of tax liability in all of
    those cases that have presented that issue.
    __________________
    15/ See, e.g., Lopez v. Commissioner, T.C. Memo.
    2001-278; Christensen v. Commissioner, T.C. Memo. 2001-
    185; Serfustini v. Commissioner, T.C. Memo. 2001-183;
    Carmena v. Commissioner, T.C. Memo. 2001-177; Nilsen v.
    Commissioner, T.C. Memo. 2001-163; Ruggiero v.
    Commissioner, T.C. Memo. 2001-162; Robnett v.
    Commissioner, T.C. Memo. 2001-17; Harvey v.
    Commissioner, T.C. Memo. 2001-16; Hunt v. Commissioner,
    T.C. Memo. 2001-15; Fawson v. Commissioner, T.C. Memo.
    2000-195; Downs v. Commissioner, T.C. Memo. 2000-155;
    Glassley v. Commissioner, T.C. Memo. 1996-206;
    Stankevich v. Commissioner, T.C. Memo. 1992-458.
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    In Lopez v. 
    Commissioner, supra
    , as in this case, the
    partnership in which the taxpayers invested had signed a
    Stipulation to be Bound by the outcome of Utah Jojoba I Research.
    Petitioners have not shown any facts that would distinguish this
    case from the others involving jojoba plant ventures.
    Section 6653(a)(1) imposes an addition to tax in an amount
    equal to 5 percent of the underpayment of tax if any part of the
    underpayment is due to negligence or intentional disregard of
    rules or regulations.   Section 6653(a)(2) imposes another
    addition to tax in an amount equal to 50 percent of the interest
    due on the portion of the underpayment attributable to negligence
    or intentional disregard of rules or regulations.
    Negligence is defined as the failure to exercise the due
    care that a reasonable and ordinarily prudent person would
    exercise under like circumstances.     See Anderson v. Commissioner,
    
    62 F.3d 1266
    , 1271 (10th Cir. 1995), affg. T.C. Memo. 1993-607;
    Neely v. Commissioner, 
    85 T.C. 934
    , 947 (1985).     The focus of
    inquiry is the reasonableness of the taxpayer’s actions in light
    of the taxpayer’s experience and the nature of the investment.
    See Henry Schwartz Corp. v. Commissioner, 
    60 T.C. 728
    , 740
    (1973); see also Sacks v. Commissioner, 
    82 F.3d 918
    , 920 (9th
    Cir. 1996) (whether a taxpayer is negligent in claiming a tax
    deduction “depends upon both the legitimacy of the underlying
    investment, and due care in the claiming of the deduction.”),
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    affg. T.C. Memo. 1994-217; Turner v. Commissioner, T.C. Memo.
    1995-363.   In this regard, the determination of negligence is
    highly factual.
    In his testimony quoted above, petitioner indicated that he
    spent very little time investigating the viability of an
    investment in jojoba farming or the likely tax treatment of that
    investment, relying on his experience in similar investments.    He
    offered in evidence at trial tax returns from earlier years on
    which he had deducted various partnership losses.    Among the
    papers that he presented, however, was a decision where this
    Court determined that he owed a deficiency and a negligence
    addition to tax for 1981.   Petitioner’s experience is not
    persuasive evidence that he was qualified to assess the viability
    and the proper treatment of the Cal-Neva partnership, relying
    solely on the promoters.    Based on the limited effort described
    by petitioner and consistent with all opinions in similar cases,
    we conclude that petitioners failed to exercise reasonable care
    and are liable for the additions to tax for negligence.
    Section 6661(a), as amended by the Omnibus Budget
    Reconciliation Act of 1986, Pub. L. 99-509, sec. 8002, 100 Stat.
    1951, provides for an addition to tax of 25 percent of the amount
    of any underpayment attributable to a substantial understatement
    of income tax for the taxable year.     A substantial understatement
    of income tax exists if the amount of the understatement exceeds
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    the greater of 10 percent of the tax required to be shown on the
    return, or $5,000.   Sec. 6661(b)(1)(A).   Generally, the amount of
    an understatement is reduced by the portion of the understatement
    that the taxpayer shows is attributable to either (1) the tax
    treatment of any item for which there was substantial authority,
    or (2) the tax treatment of any items with respect to which the
    relevant facts were adequately disclosed on the return.      Sec.
    6661(b)(2)(B).    If an understatement is attributable to a tax
    shelter item, however, different standards apply.    First, in
    addition to showing the existence of substantial authority, a
    taxpayer must show that he reasonably believed that the tax
    treatment claimed was more likely than not proper.    Sec.
    6661(b)(2)(C)(i)(II).   Second, disclosure, whether or not
    otherwise adequate, will not reduce the amount of the
    understatement.   Sec. 6661(b)(2)(C)(i)(I).
    Substantial authority exists when “the weight of the
    authorities supporting the treatment is substantial in relation
    to the weight of authorities supporting contrary positions.”
    Sec. 1.6661-3(b)(1), Income Tax Regs.    Petitioner has failed to
    show that substantial authority existed for the tax treatment of
    the Cal-Neva loss on his 1982 return.
    Petitioner has not satisfied any of the conditions for
    avoiding application of the section 6661 addition to tax.      His
    inclusion of the loss on Schedule C without identification of the
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    Cal-Neva partnership does not constitute adequate disclosure.
    Accepting his testimony and concluding that the correct amount of
    the underpayment should have been calculated based on $13,150 in
    disallowed losses rather than $14,783.69, the underpayment would
    still be substantial for purposes of section 6661.
    Petitioners have made several arguments that we address
    briefly.    First, in their answering brief, petitioners argue for
    the first time that the notice in this case was sent after the
    expiration of the period of limitations.     In this context,
    however, the period of limitations was suspended during the time
    that the partnership action was pending and for 1 year
    thereafter.   Sec. 6229(d).   The decision in the partnership
    action did not become final until the expiration of the time for
    filing a notice of appeal, which was 90 days after entry of the
    decision.   Secs. 7481(a)(1), 7483.     Thus, the notice in this case
    was sent approximately 3 weeks before the expiration of the
    period of limitations.
    Second, petitioners argue that the underpayment should be
    further reduced by allowance of $5,000 as their out-of-pocket
    expenses in relation to the Cal-Neva investment.     There is no
    authority, however, that would allow them to deduct their out-of-
    pocket amounts in the year of the investments.     See, e.g., Marine
    v. Commissioner, 
    92 T.C. 958
    , 974-980 (1989), affd. without
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    published opinion 
    921 F.2d 280
    (9th Cir. 1991); Viehweg v.
    Commissioner, 
    90 T.C. 1248
    , 1253-1255 (1988).
    Third, following up on an inquiry made by the Court to
    respondent’s counsel at the time of trial, petitioners assert
    that section 7491(c) should impose on respondent the burden of
    production with respect to the additions to tax in this case.
    That section applies to examinations commenced after July 22,
    1998.   Internal Revenue Service Restructuring and Reform Act of
    1998, Pub. L. 105-206, sec. 3001(c), 112 Stat. 685, 727.
    Respondent contends that the affected items in this case are
    merely a continuation of the proceeding commenced with respect to
    the partnership long before the effective date of section
    7491(c).   Under the circumstances of this case, it is arguable
    that an examination of petitioners’ return commenced after that
    effective date, because, due to petitioners’ failure to attach a
    Schedule K-1, the disallowed deductions were determined only
    after examining petitioners’ Schedule C.   This is not the normal
    proceeding in which adjustments based on the partnership
    proceeding and Schedules K-1 are automatically made and assessed
    with respect to the individual partners.   We offer no opinion,
    however, about whether the determination of additions to tax as
    affected items resulting from a partnership examination is a
    separate examination for purposes of the effective date of
    section 7491, and we need not decide whether the circumstances of
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    this case would lead to the conclusion that examination of
    petitioners’ Schedule C was a separate examination.    The record
    in this case supports the application of the additions to tax
    without regard to the burden of production.    If the burden of
    production were on respondent, it would be satisfied in this case
    by the tax return, petitioner’s testimony, and other evidence in
    the record.
    Petitioners also ask that we reduce the amount of tax that
    was assessed after the partnership-level proceedings became
    final, which is not a part of the determination in the statutory
    notice in this case.   That assessment was a computational
    adjustment that the Commissioner is permitted to assess against
    the partner without issuing a notice of deficiency.    Secs. 6225,
    6230(a)(1); N.C.F. Energy Partners v. Commissioner, 
    89 T.C. 741
    ,
    744 (1987); Maxwell v. Commissioner, 
    87 T.C. 783
    , 792 n.7 (1986).
    We have no jurisdiction in this case over that computational
    adjustment.   For purposes of the additions to tax, however, we
    are satisfied by the evidence in this case that the correct
    amount of the underpayment is less than the amount assessed and
    that the correct amount should be used in computing the additions
    to tax.   That amount will be computed by determining the tax
    based on disallowance of the sum of $13,150.
    Finally, petitioners assert that the investment in Cal-Neva
    was not a “tax-motivated transaction” for purposes of section
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    6621(c).     The increased rate of interest under section 6621(c) is
    120 percent of the statutory rate imposed on underpayments under
    section 6601 if the underpayment exceeds $1,000 and is
    attributable to a tax-motivated transaction (as defined in
    section 6621(c)(3)).     The increased interest is effective only
    with respect to interest accruing after December 31, 1984,
    notwithstanding that the transaction was entered into before that
    date.     Solowiejczyk v. Commissioner, 
    85 T.C. 552
    (1985), affd.
    per curiam without published opinion 
    795 F.2d 1005
    (2d Cir.
    1986).
    This Court generally does not have jurisdiction to review
    assessment of section 6621(c) tax-motivated interest in affected
    item proceedings, even though the tax-motivated interest is an
    affected item that requires a partner-level determination.     See
    White v. Commissioner, 
    95 T.C. 209
    (1990); Korchak v.
    Commissioner, T.C. Memo. 2005-244; see also Ertz v. Commissioner,
    T.C. Memo. 2007-15.     A narrow exception to this rule applies if a
    taxpayer has paid the assessed tax-motivated interest and
    subsequently invokes the overpayment jurisdiction of this Court
    under section 6512(b).     See Barton v. Commissioner, 
    97 T.C. 548
    (1991).     Petitioners do not claim that they have paid the
    interest.
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    Petitioners nevertheless argue that this Court has
    jurisdiction to review interest assessments under section
    6621(c)(4).   Section 6621(c)(4) provides as follows:
    (4) Jurisdiction of Tax Court.–-In the case of any
    proceeding in the Tax Court for a redetermination of a
    deficiency, the Tax Court shall also have jurisdiction
    to determine the portion (if any) of such deficiency
    which is a substantial underpayment attributable to tax
    motivated transactions.
    Respondent presumably determined that the underlying deficiency
    in this case was a substantial underpayment attributable to a
    tax-motivated transaction.   As explained above, this Court does
    not have jurisdiction to review the underlying deficiency.
    Because the underlying deficiency is not before this Court,
    section 6621(c)(4) cannot confer jurisdiction to determine what
    portion of such underlying deficiency is attributable to a tax-
    motivated transaction.   Although each addition to tax at issue in
    this case is a “deficiency” within the meaning of section
    6621(c)(4), section 6621(c)(2) excludes additions to tax from the
    definition of “substantial underpayment attributable to tax
    motivated transactions”, thereby precluding review under section
    6621(c)(4).   White v. 
    Commissioner, supra
    at 216; see Robnett v.
    Commissioner, T.C. Memo. 2001-17; Hunt v. Commissioner, T.C.
    Memo. 2001-15 (both involving jojoba venture partnerships).
    We have considered the other arguments of the parties, and
    they are either irrelevant to our decision or lacking in merit.
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    To take account of the necessary recomputation of the additions
    to tax,
    Decision will be entered
    under Rule 155.