FAVERO v. COMMISSIONER ( 2001 )

T.C. Memo. 2001-219
UNITED STATES TAX COURT
JOHN NORMAN FAVERO AND PATRICIA CAROLYN FAVERO, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10427-99. Filed August 13, 2001.
John Norman Favero and Patricia Carolyn Favero, pro sese.
Roger W. Bracken, for respondent.
MEMORANDUM OPINION
DEAN, Special Trial Judge: Respondent determined
deficiencies of $3,154, $3,881, and $6,723 in petitioners’
Federal income taxes for taxable years 1995, 1996, and 1997,1
1
The statutory notice of deficiency for 1997 pertains only
to petitioner John Favero (Mr. Favero). Petitioners filed
jointly their Federal income tax returns for 1995 and 1996, but
Mr. Favero filed separately for 1997.
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respectively. In addition, respondent determined accuracy-
related penalties under section 6662(a)2 of $630.80, $776.20, and
$1,344.60 for taxable years 1995, 1996, and 1997, respectively.
After concessions,3 the issues for decision are: (1)
Whether petitioners may exclude from gross income the amounts
petitioner John Favero (Mr. Favero) received as compensation in
1996 and 1997 working as a merchant seaman for various U.S.
corporations and/or businesses as either combat zone compensation
or foreign earned income; (2) whether petitioners are entitled to
deduct expenses on Schedule C, Profit or Loss From Business, of
$12,087 in 1995; (3) whether petitioners are entitled to deduct
expenses on Schedule E, Supplemental Income and Loss, beyond
those allowed by respondent in 1995 and 1996; (4) whether
2
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years in issue.
3
Petitioners concede that they are not entitled to a
capital loss in 1995, they are not entitled to deductions for
moving expenses in 1995 or 1996, and they are not entitled to the
mortgage interest expense deductions of $2,000 and $1,800 claimed
as itemized deductions in 1995 and 1996, respectively. Mr.
Favero concedes that he is not entitled to expenses, other than a
mortgage interest expense of $1,459, claimed as deductions on
Schedule E of his 1997 return; he is not entitled to the mortgage
interest expense deduction of $1,800 claimed as an itemized
deduction in 1997; and he is not entitled to the real estate tax
deduction of $500 claimed as an itemized deduction on his 1997
return. Petitioners concede that Mr. Favero received
unemployment compensation of $3,003 in 1995 and that Mrs. Favero
received Social Security payments of $5,247 in 1995 and $5,890 in
1996. Other adjustments in the notices of deficiency are
computational adjustments to petitioners’ itemized deductions
based on respondent’s other adjustments. These computational
adjustments are not contested and therefore not before the Court.
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petitioners may file a joint return after filing separate returns
for the 1997 tax year; and (5) whether petitioners are liable for
the accuracy-related penalty under section 6662(a) for 1995,
1996, and 1997.
Background
The stipulation of facts and the accompanying exhibits are
incorporated herein by reference. Petitioners resided in
Virginia Beach, Virginia, at the time their petition was filed
with the Court.
Petitioners are a married couple who filed joint Federal
income tax returns for tax years 1995 and 1996. Petitioners,
however, filed 1997 returns separately. Petitioner Patricia
Favero’s (Mrs. Favero) 1997 return is not in issue in this case.
Since December 31, 1994, petitioners have been citizens and
residents of the United States.
During the years in issue, Mr. Favero was employed by U.S.
corporations and/or businesses as a sailor on board merchant
ships. He was a member of the Seafarers International Union
(SIU) and received his ship assignments from the union hall
located in Norfolk, Virginia. The headquarters of SIU is located
in Camp Springs, Maryland. Mr. Favero has not filed any tax
returns for any tax period since December 31, 1994, with any
foreign country, nor has he paid tax to any foreign country.
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Mr. Favero filed Forms 1116, Foreign Tax Credit, with his
1995, 1996, and 1997 tax returns and claimed foreign tax credits
in the approximate amount of the wages he earned as a merchant
seaman.4 In 1996 and 1997, Mr. Favero claimed foreign earned
income exclusions for the approximate amount of wages he earned
as a merchant seaman.
In 1995, petitioners filed a Schedule C claiming a loss of
$13,210. The principal business listed on the Schedule C is
“Other Apparel + Accessory Stores”. No income was reported from
the business. In 1995 and 1996, petitioners filed Schedules E
reporting net losses of $1,420 in 1995 and $2,870 in 1996 from
the rental of real estate.
Respondent determined petitioners are not entitled to
foreign earned income exclusions for the years in issue and
disallowed $12,087 of the Schedule C deduction petitioners
claimed in 1995. Respondent also disallowed the following
expenses petitioners claimed on their Schedules E: (1) Auto and
travel expenses of $2,000 in 1995 and $1,500 in 1996; (2) an
insurance expense of $2,000 in 1996; and (3) mortgage interest
expenses of $388 in 1995 and $244 in 1996.
4
Because petitioners had taxable income of zero after
claiming itemized deductions and exemptions for each of the 3
years, they were unable to use the foreign tax credit to offset
their U.S. income tax liability. Respondent, therefore, made no
adjustments in the notices of deficiency for the foreign tax
credits petitioners claimed.
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Petitioners argue that they are entitled to exclude Mr.
Favero’s wages as combat zone compensation or as foreign earned
income. They also argue that they are entitled to Schedule C
deductions for Mrs. Favero’s “cottage industries”.
Discussion
Gross income includes all income from whatever source
derived unless otherwise specifically excluded. Sec. 61(a).
Section 112 provides that certain compensation received by
members of the Armed Forces of the United States serving in
combat zones or hospitalized as a result of injuries received in
such zones shall not be included in gross income. Section
7701(a)(15) defines “Armed Forces of the United States” to
include “all regular and reserve components of the uniformed
services which are subject to the jurisdiction of the Secretary
of Defense, the Secretary of the Army, the Secretary of the Navy,
or the Secretary of the Air Force, and each term also includes
the Coast Guard.” Mr. Favero does not allege that he falls
within this definition. Mr. Favero was a civilian employed as a
merchant seaman by U.S. businesses in 1995, 1996, and 1997. Mr.
Favero was not a member of the Armed Forces of the United States
during the years in issue; thus he does not qualify for the
section 112 combat zone exclusion. See Land v. Commissioner, 61
T.C. 675, 679 (1974).
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Likewise, Mr. Favero does not qualify for the foreign earned
income exclusion. Section 911(a) provides that a qualified
individual may exclude from gross income a certain amount of his
foreign earned income. Sec. 911(b)(2)(A). A qualified
individual is an individual whose tax home is in a foreign
country and who is either: (1) A citizen of the United States
who establishes to the satisfaction of the Secretary that he has
been a bona fide resident of a foreign country or countries for
an uninterrupted period which includes an entire taxable year; or
(2) a citizen or resident of the United States who, during any
period of 12 consecutive months, is present in a foreign country
or countries during at least 330 full days in such period. Sec.
911(d)(1). An individual’s tax home for purposes of applying
section 911 is the same as an individual’s tax home for purposes
of section 162(a)(2), relating to traveling expenses while away
from home. Sec. 911(d)(3). An individual does not have a tax
home in a foreign country for any period for which his abode is
within the United States. Id. Petitioners have not provided any
evidence suggesting that Mr. Favero is a qualified individual or
that his wages during the years in issue constitute foreign
earned income. Petitioners, therefore, do not qualify for the
section 911(a) foreign earned income exclusion.
With respect to the Schedule C deduction petitioners claimed
on their 1995 return for Mrs. Favero’s “cottage industries”,
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petitioners have failed to provide any evidence establishing that
Mrs. Favero’s claimed expenses were incurred for business
purposes. Section 162(a) allows a deduction for all the ordinary
and necessary expenses paid or incurred during the taxable year
in carrying on a trade or business. Section 262(a), however,
provides that no deduction is allowed for personal, living, or
family expenses. Taxpayers are required to maintain records
sufficient to substantiate their claimed deductions. Sec. 6001;
sec. 1.6001-1(a), Income Tax Regs. Mrs. Favero’s testimony was
vague, and the copies of checks and receipts submitted as
evidence of her business expenses provide no basis to determine
the nature of the expenditures. Petitioners, therefore, are not
entitled to the Schedule C deductions disallowed by respondent.
Petitioners likewise have failed to establish they are
entitled to Schedule E expenses beyond those allowed by
respondent. Although section 212 allows a deduction for ordinary
and necessary expenses paid or incurred during the taxable year
for the management, conservation, or maintenance of property held
for the production of income, nothing in the record establishes
that the expenses disallowed by respondent were incurred. At
trial, Mrs. Favero indicated that some of the copies of checks
and receipts she submitted into evidence related to the
automobile expenses claimed on petitioners’ Schedule E. As with
the Schedule C expenses, the copies of checks and receipts
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provide no basis to determine the nature of the expenditures.
The records fall far short of meeting the strict substantiation
requirements of section 274(d) which apply to deductions relating
to the use of passenger automobiles. Secs. 274(d)(4),
280F(d)(4)(A)(i); 1.274-5T(c)(1) and (2), Temporary Income Tax
Regs., 50 Fed. Reg. 46016, 46017 (Nov. 6, 1985). Petitioners
failed to address any of the other Schedule E expenses disallowed
by respondent. Consequently, we uphold respondent’s
determinations regarding petitioners’ Schedule E expenses in 1995
and 1996.
At trial Mr. Favero stated that petitioners would like to
file their 1997 Federal income tax returns jointly. Petitioners
filed separate 1997 returns. Mr. Favero was issued a notice of
deficiency for his 1997 tax year, and Mr. Favero filed a petition
with the Court challenging respondent’s determinations with
respect to his 1997 tax year. Section 6013(b)(2)(B) provides
that a joint return may not be filed after a separate return has
been filed and “after there has been mailed to either spouse,
with respect to such taxable year, a notice of deficiency under
section 6212, if the spouse, as to such notice, files a petition
with the Tax Court within the time prescribed in section 6213”.
Petitioners, therefore, may not file a joint return for their
1997 tax year.
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Respondent determined that petitioners are liable for
accuracy-related penalties under section 6662(a) for each of the
years at issue. Section 6662(a) imposes a penalty of 20 percent
of the portion of an underpayment attributable to negligence or
disregard of rules or regulations. Sec. 6662(b)(1).
“Negligence” is defined as any failure to make a reasonable
attempt to comply with the provisions of the Internal Revenue
Code, and “disregard” is defined as any careless, reckless, or
intentional disregard. Sec. 6662(c). Negligence also includes
any failure by the taxpayer to keep adequate books and records or
to substantiate items properly. Sec. 1.6662-3(b), Income Tax
Regs.
The accuracy-related penalty does not apply if petitioners
had reasonable cause for the underpayment and acted in good faith
with respect to the underpayment. Sec. 6664(c)(1). Whether a
taxpayer acted with reasonable cause and in good faith is
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 generally is the extent of
the taxpayer’s effort to assess his proper tax liability. Id.
An honest misunderstanding of fact or law that is reasonable in
light of all the facts and circumstances may indicate reasonable
cause. Id.
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Petitioners did not address the accuracy-related penalties
at trial. Petitioners claimed double deductions for the same
expenses, moving expenses when they never moved, a capital loss
when no such loss occurred, Schedule C and Schedule E deductions
for which they kept no decipherable records, and foreign earned
income exclusions for which they did not qualify. Nothing in the
record establishes that petitioners had reasonable cause to claim
these deductions and exclusions, and we are not persuaded
petitioners acted in good faith. Petitioners therefore are
liable for the accuracy-related penalties as determined by
respondent.
To reflect the foregoing,
Decision will be entered
for respondent.