DocketNumber: Docket No. 28429-90.
Citation Numbers: 63 T.C.M. 2200, 1992 Tax Ct. Memo LEXIS 138, 1992 T.C. Memo. 117
Judges: GUSSIS
Filed Date: 2/26/1992
Status: Non-Precedential
Modified Date: 11/21/2020
1992 Tax Ct. Memo LEXIS 138">*138 Decision will be entered for respondent
MEMORANDUM OPINION
GUSSIS,
Respondent determined a deficiency in petitioner's income tax for 1988 in the amount of $ 4,858 and an addition to tax under section 6653(a)(1) of $ 242.90. The issues presented are: (1) Whether petitioner is entitled to deduct certain employee business expenses in 1988; (2) whether petitioner's fishing activity was an activity engaged in for profit within the meaning of section 183 and if so, whether petitioner is entitled to deduct claimed Schedule C losses of $ 10,828 generated by this activity and; (3) whether petitioner is liable for the addition to tax based on negligence.
Some of the facts were stipulated and they are so found. The stipulation of facts and attached exhibits are incorporated1992 Tax Ct. Memo LEXIS 138">*139 by this reference. Petitioner was a resident of Bradenton, Florida; when the petition herein was filed.
In 1988, petitioner was employed full time by Enterprise Fleets, Inc. (EFI). During the period here involved, EFI had a company policy of reimbursing its employees for any legitimate expense incurred for EFI, without limit or ceiling, upon submission of the proper expense reports. In 1988 petitioner incurred employee business expenditures in excess of $ 14,000 for which he did not seek reimbursement. These expenditures include such items as vehicle expenses ($ 6,336), parking fees and tolls ($ 1,320), travel and lodging ($ 1,040), phone costs ($ 690), stationery ($ 490), office rent and utilities ($ 2,600), meals and entertainment ($ 2,680), and business publications ($ 320). Petitioner claimed these deductions on his 1988 return as employee business expenses which were disallowed by respondent.
In 1988 petitioner owned a 1987 Chris Craft Sea Hawk which was 21 feet 6 inches long and was powered by a 200-horsepower Johnson outboard motor. In 1988 petitioner began a charter fishing activity under the name of Captain Tom's Fishing Fleet. On Schedule C of his 1988 return, petitioner1992 Tax Ct. Memo LEXIS 138">*140 claimed a loss of $ 10,828 with respect to the charter fishing activity which was disallowed by respondent.
Petitioner bears the burden of proving that respondent's determinations are erroneous. Rule 142(a);
Petitioner also claimed a $ 10,828 deduction on his 1988 Federal return for a loss he sustained in operating Captain Tom's Fishing Fleet. The deductibility of this loss turns on whether petitioner's fishing activities were engaged in for profit as required by section 183. Section 183(a) provides that if an activity is not engaged in for profit, no deduction attributable to such activity shall be allowed except as otherwise provided in section 183(b). In determining whether an activity is one engaged in for profit, petitioners must prove an "actual and honest objective 1992 Tax Ct. Memo LEXIS 138">*142 of making a profit."
The regulations set forth a number of factors for consideration when making a profit objective determination. They are: (1) The manner in which the taxpayer carries on the activity; (2) the expertise of the taxpayer or his advisors; (3) the time and effort expended by the taxpayer in carrying on the activity; (4) the expectation that assets used in the activity may appreciate in value; (5) the success of the taxpayer in carrying on the activity; (6) the taxpayer's history of income or losses with respect to the activity; (7) the amount of occasional profits, if any, which are earned; (8) the financial status of the taxpayer; and (9) elements of personal pleasure or recreation.
It is apparent from the facts and circumstances of the present case that petitioner did not engage in his charter fishing activities in 1988 with the requisite profit objective. Petitioner carried on his fishing activities in a haphazard and casual manner. The only record petitioner kept regarding his charter fishing activity was a spiral notebook which he could not locate at the time of trial. There is no indication in the record that the missing notebook did in fact constitute an appropriate business record. There is little indication in the record to show that petitioner made any serious effort to make an informed business judgment on the economic prospects for the venture. Although petitioner did obtain a Coast Guard license, his preliminary investigation of the charter fishing business was superficial. There is no evidence that petitioner realistically sought any professional advice with respect to the commercial merits of his venture. If petitioner was indeed interested in making a profit one would assume he would have investigated the business1992 Tax Ct. Memo LEXIS 138">*144 in greater depth, especially since he had no prior experience in the business. As for the time petitioner was able to devote to the business, the record indicates it was insubstantial. During the time in issue petitioner not only worked full time for EFI but also worked as a bartender at night and on weekends. The record gives no indication that petitioner employed anyone to help him manage the charter fishing activity. The record does indicate that petitioner enjoyed boating activities. The Chris Craft yacht petitioner owned in 1988 was the third boat owned by him. Petitioner stated at trial that he entered the charter fishing business because he thought it would be enjoyable and fairly easy. He admitted he used the boat for personal reasons. While deriving enjoyment from the particular activity at issue is not conclusive as to whether the activity is engaged in for profit, it is a factor to be considered. See
Upon consideration of all the facts and circumstances we find petitioner did not engage in his fishing activities with an actual and honest objective of making a profit. Accordingly, respondent properly disallowed the losses attributable to the activity for the year at issue. Our conclusion that the charter fishing activity was not engaged in for profit is dispositive of this issue, and consequently we need not address the section 274(d) substantiation arguments made by respondent.
The final issue for resolution is whether respondent is liable for the addition to tax based on negligence. Under section 6653(a)(1), if any part of an underpayment is due to negligence or disregard of rules or regulations, an addition to tax is added to the tax due. Negligence as used in section 6653(a)(1) has been defined as a lack of due care or the failure to do what a reasonable and ordinarily prudent person would do in the same circumstances.