Novick v. Commissioner

HENRY PETER NOVICK AND CAROLYN S. NOVICK, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Novick v. Commissioner

Docket No. 3478-94

United States Tax Court

T.C. Memo 1996-564; 1996 Tax Ct. Memo LEXIS 577; 72 T.C.M. 1615;

December 30, 1996, Filed

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">*577

Decision will be entered under Rule 155.

Gino P. Cecchi, for petitioners.

Scott Johnson and Lori M. Mersereau, for respondent.

JACOBS

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JACOBS

MEMORANDUM FINDINGS OF FACT AND OPINION

JACOBS, Judge: Respondent determined the following deficiencies and accuracy-related penalties with respect to petitioners' Federal income taxes:

		Accuracy-Related Penalty
Year	Deficiency	Sec. 6662(a)
1989	$ 18,167	$ 2,933
1990	24,146	4,829
1991	39,162	7,832

The deficiencies result from respondent's determination that petitioners are not entitled to deductions to the extent claimed for Schedule E rental losses, miscellaneous employee business expenses, charitable contributions, and investment interest. The accuracy-related penalty is based on respondent's determination that petitioners were negligent with respect to the preparation of their tax returns. For the reasons that follow, we sustain respondent's determinations in all respects.

All section references are to the Internal Revenue Code in effect for the years under consideration. All Rule references are to the Tax Court Rules of Practice and Procedure.

FINDINGS OF FACT ^{1996 Tax Ct. Memo LEXIS 577">*578 husband and wife, resided in Sacramento, California, at all relevant times, including the time they filed their petition. They filed joint Federal income tax returns for each of the 3 years under consideration.}

Petitioner Henry Novick is a physician, specializing in urology. Dr. Novick conducted his medical practice in corporate form until 1986, at which time the corporation was dissolved. During the years under consideration (1989-91), he was an employee of Sacramento Sierra Medical Group; petitioner Carolyn Novick was a housewife.

Schedule E Rental Losses

During each of the years under consideration, petitioners reported income and expenses attributable to three rental activities on Schedule E of their tax returns: The Texas rental, the Tahoe rental, and the F Street (Sacramento) Duplex rental. Respondent disallowed numerous expenses claimed by petitioners with respect to each of these rental properties and recalculated petitioners' net Schedule E gain/loss after applying the passive activity loss rules. 1996 Tax Ct. Memo LEXIS 577">*581 Petitioners do not dispute the application of the passive activity loss rules to the rental expenses claimed on Schedule E of their tax returns. The following tables show the income/loss ">*579 reported by petitioners and the amounts allowed by respondent with respect to each of the three rental properties, before application of the passive activity loss rules (hereafter referred to as Pre-Pals):

TEXAS RENTAL
	1989		1990		1991
	Reported	Allowed	Reported	Allowed	Reported	Allowed
Income	$ 2,268	$ 2,268	$ 3,767	$ 3,767	$ 2,344	$ 2,344
(Rent & royalty)
Advertising	220	0	405	0	0	0
Auto/travel	2,654	0	0	1,211	2,832	0
Cleaning/	210	0	920	0	345	0
maintenance
Repairs	244	322	284	0	428	1,170
Supplies	141	0	792	0	695	0
Taxes	145	145	310	140	164	78
Utilities	0	0	156	0	0	0
Association fee	0	0	2,889	0	0	0
Paint	0	0	255	0	112	0
Gardening &	360	360	674	0	420	0
landscaping
Licenses	108	0	111	0	25	0
Management fees	220	0	235	0	320	0
Pest Control	82	0	100	0	622	0
Security & safety	42	0	223	0	0	0
Telephone	190	0	217	0	318	0
Oil prod exp	48	0	108	0	1,700	0
Depletion	0	0	0	0	269	269
Fence	0	0	0	0	478	0
Net Profit	(2,396)	1,441	(3,912)	(6,384)	827
Pre-Pals

TAHOE RENTAL
	1989		1990		1991
	Reported	Allowed	Reported	Allowed	Reported	Allowed
Income	$  1,140	$  1,140	$    980	$    980	$    220	$   220
(Rent & royalty)
Advertising	480	0	695	0	113	0
Auto/travel	681	357	1,520	1,372	0	0
Cleaning/	204	230	511	130	490	0
maintenance
Insurance	484	484	502	493	505	84
Legal and other	100	0	2,157	0	859	0
professional
fees
Repairs	1,548	1,287	2,168	573	984	298
Supplies	1,236	104	1,173	0	1,082	0
Taxes	2,123	212	2,344	2,286	855	312
Utilities	1,228	741	1,330	1,120	746	636
Security	0	312	0	0	0	0
Telephone	632	172	541	0	681	67
Gardening &	541	0	890	653	2,280	480
landscaping
Licenses	644	0	610	0	0	0
Management fees	0	0	519	0	425	0
Paint	2,434	0	841	0	390	0
Pest control	255	0	983	0	239	0
Plumbing	223	0	409	0	289	0
Security	647	0	0	0	513	0
Move	0	0	0	0	0	969
Snow removal	0	0	0	0	0	25
Depreciation	13,354	13,354	13,354	13,354	0	0
Net Profit	(25,674)	(18,025)	(30,049)	(19,001)	(10,231)	(1,548)
Pre-Pals		1	1			1

">*580

F STREET (SACRAMENTO) DUPLEX RENTAL
	1989		1990		1991
	Reported	Allowed	Reported	Allowed	Reported	Allowed
Income	$ 12,614	$ 12,614	$ 14,604	$ 14,604	$ 15,000	$ 15,000
(Rent & royalty)
Advertising	124	0	418	0	214	0
Auto/travel	780	51	820	0	0	0
Cleaning/	896	270	672	150	620	0
maintenance
Insurance	351	352	356	356	375	363
Mortgage interest	3,448	0	3,553	0	0	0
paid to bks.
Legal & other	0	0	690	0	582	0
professional
fees
Repairs	5,068	1,308	4,127	0	1,844	338
Supplies	635	241	1,029	0	2,342	123
Taxes	2,390	1,255	2,592	0	2,690	2,660
Utilities	1,711	839	1,520	1,106	1,619	1,374
Gardening/	658	0	743	536	781	480
landscaping
License/tax	630	541	521	0	280	0
Management fees	1,241	360	1,091	40	820	0
Paint	2,146	318	1,682	0	417	0
Pest control	209	120	1,120	0	212	0
Plumbing/repair	756	0	296	0	180	0
Security	510	39	723	0	611	0
Telephone	0	0	210	0	298
Maintenance	0	0	0	150	0	0
Glass	0	0	0	56	0	0
Other	0	0	0	264	0	0
Garage	0	0	0	1,035	0	0
Fence	0	0	0	0	192	0
Accounting	0	0	1,035	0	1,100	0
Depreciation	4,429	4,622	4,429	4,760	4,430	4,667
Net Profit	(13,368)	2,298	(13,023)	6,150	(4,607)	4,995
Pre-Pals				1

Respondent's auditor reduced/disallowed the amounts claimed by petitioners primarily on the basis of failure to substantiate. In some instances, the amount was reduced/disallowed on the basis that either the expenditures involved were personal in nature or petitioners failed to indicate the reason the expenditures were claimed.

Miscellaneous Employee Business Expenses

For each of the years under consideration, petitioners claimed a deduction for miscellaneous employee business expenses on Schedule A of their tax returns. The following table shows the items of expenses claimed by petitioners, and the amounts allowed by respondent, for each of the years under consideration:

	1989		1990		1991
	Reported	Allowed	Reported	Allowed	Reported	Allowed
Auto	$  7,020	0	$  7,020	0	$  7,020	0
Other asset--	119	$  775	6,015	$  1,632	43	$  1,459
depreciation
Office expenses	8,252	0	18,922	0	0	0
Promotion	1,962	0	0	0	0	0
Storage and rent	18,400	0	18,340	0	18,340	0
Equipment	8,000	0	0	0	0	0
Conferences	13,764	0	10,349	0	0	0
Legal &	16,610	19,916	2,665	4,080	39,281	27,980
accounting
Advertising	6,750	6,750	0	0	0	0
pamphlet
Tax return prep.	689	639	0	0	0	685
Dues & pubs.	0	0	2,567	0	840	0
Maintenance	0	0	3,668	0	4,026	1,461
Education	0	0	0	0	6,257	0
Leasehold impr.	0	0	12,500	19,616	12,500	19,287
Moving	0	0	0	0	2,212	0
Total	81,566	28,080	82,046	25,328	90,519	50,872

The ">*582 office and storage expenses relate to Dr. Novick's use of petitioners' residence to store medical records and equipment from Dr. Novick's previously dissolved professional corporation. (During the years under consideration, Dr. Novick did not conduct his medical practice, nor did he see patients, in his home.) The stored medical records were those of so-called inactive patients -- patients that Dr. Novick had not seen within 3 years. The medical equipment stored in petitioners' residence was equipment that Dr. Novick had used in his prior medical practice and was not needed by Sacramento Sierra Medical Group, Dr. Novick's employer during all years under consideration. Petitioners determined that 30 percent of their home was used for storage of Dr. Novick's medical records and equipment. They calculated the office/storage expenses by taking 30 percent of their home mortgage payments, interest, taxes, insurance, maintenance, and utilities. Petitioners also claimed a deduction for home mortgage interest and real estate taxes on Schedule A of their tax returns, thereby double counting these items. The parties stipulated that petitioners' home office/storage was not for the convenience ">*583 of Sacramento Sierra Medical Group.

The automobile expenses relate to an automobile that Mrs. Novick purportedly used to transport medical files, charts, and x rays from petitioners' home to Dr. Novick's medical office. Petitioners allocated 90 percent of the automobile for business use and 10 percent for personal use.

Dr. Novick received reimbursement from his employer for claimed employee business expenses. Petitioners presented no documentation at trial to substantiate any of the disallowed miscellaneous employee business expenses.

Charitable Contributions

For each of the years under consideration, petitioners claimed a deduction for charitable contributions. The following table shows the amounts of charitable contributions claimed by petitioners, and the amounts allowed and disallowed by respondent, for each of the years under consideration:

	1989	1990	1991
Claimed	$ 15,145	$ 21,111	$ 25,443
Allowed	13,421	15,450	18,931
Disallowed (at issue)	1,724	5,661	6,502

Petitioners presented no documentation at trial to substantiate their claims for charitable contributions in excess of those allowed by respondent.

Investment Interest

Petitioners claimed a $ 15,000 investment interest deduction on their ">*584 1990 tax return which was disallowed by respondent. As best we can glean from the record (which with respect to this item is inadequate), the deduction relates to interest on a $ 50,000 loan secured by a life insurance policy with General Services Life Insurance Co. Respondent allowed petitioners a deduction for $ 7,500 (as a personal interest expense) of the $ 15,000 claimed. Petitioners presented no documentation at trial to substantiate their claim for the investment interest expense deduction.

Preparation of Tax Returns

Petitioners' tax returns for each of the years under consideration were prepared by their accountant, Donald Fenton. Mr. Fenton prepared the returns by entering the information provided to him by petitioners. Mr. Fenton did not receive documentation to verify or substantiate the deductions claimed by petitioners; he took the list of expenses they provided to him at face value. Mr. Fenton was not aware that some of the employee business expenses claimed by petitioners were, in actuality, reimbursed by Dr. Novick's employer.

OPINION

Deductions are a matter of legislative grace. New Colonial Ice Co. v. Helvering, 292 U.S. 435">292 U.S. 435, 292 U.S. 435">440 (1934). Taxpayers bear the burden ">*585 of establishing that they are entitled to the claimed deductions. Rule 142(a); Welch v. Helvering, 290 U.S. 111">290 U.S. 111, 290 U.S. 111">114 (1933). This includes the burden of substantiating the amount and purpose of the item claimed. Sec. 6001; Hradesky v. Commissioner, 65 T.C. 87">65 T.C. 87, 65 T.C. 87">90 (1979), affd. per curiam 540 F.2d 821">540 F.2d 821 (5th Cir. 1976); sec. 1.6001-1(a), Income Tax Regs.

Petitioners claim that respondent's notice of deficiency is "uninformative", and "therefore respondent has the burden of producing evidence from which the petitioners' tax liability can be determined". Petitioners' claim is without merit. While respondent's notice of deficiency to petitioners is not a model of clarity, nonetheless, it is not uninformative. Moreover, Rule 142 places the burden of proof on petitioners, except in situations not relevant herein. "This burden is a burden of persuasion; it requires * * *[petitioners] to show the merits of [their] claim by at least a preponderance of the evidence." Rockwell v. Commissioner, 512 F.2d 882">512 F.2d 882, 512 F.2d 882">885 (9th Cir. 1975), affg. T.C. Memo. 1972-133. Where the Commissioner has made a deficiency determination denying the taxpayer's entitlement to a claimed deduction (such as here), "the taxpayer ">*586 has 'the burden of producing enough evidence to rebut the deficiency determination and the burden of persuasion in substantiating a claimed deduction'." Goldberg v. United States, 789 F.2d 1341">789 F.2d 1341, 789 F.2d 1341">1343 (9th Cir. 1986) (quoting Valley Title Co. v. Commissioner, 559 F.2d 1139">559 F.2d 1139, 559 F.2d 1139">1141 (9th Cir. 1977), revg. and remanding T.C. Memo. 1975-48).

Schedule E Rental Losses

Section 212 provides a deduction for all ordinary and necessary expenses paid or incurred during the taxable year with respect to the management, conservation, or maintenance of property held for the production of income. However, the taxpayer must be able to provide verification or substantiation for any deduction claimed with respect to such expenses. In the case before us, no documentation was introduced to substantiate any of the disallowed rental expenses. Indeed, Dr. Novick and Mr. Fenton admitted that they did not have any documents to substantiate the disallowed rental deductions.

The only evidence in the record offered to support the disallowed rental expenses relating to the Texas rental was Dr. Novick's testimony with regard to the automobile and travel expenses. Dr. Novick testified that in 1989, petitioners and their ">*587 three children (ages 1, 7, and 14) took a trip to inspect the Texas property and to show petitioners' children the property lines of the property they would one day inherit.

The only evidence in the record to support the disallowed rental expenses relating to the Tahoe property was Dr. Novick's testimony that because the Tahoe property was a cedar house, it had to be pressure-sealed with sealant oil each year. No testimony or documentation was offered as to the cost for this treatment.

The evidence offered by petitioners with respect to establishing their entitlement to the deduction for rental activity losses was woefully short of that required. Petitioners neither produced enough evidence to rebut respondent's deficiency determination nor produced enough evidence to satisfy their burden of persuasion. Consequently, petitioners are not entitled to any Schedule E rental expenses in excess of those allowed by respondent.

Miscellaneous Employee Business Expenses

Petitioners introduced no documentation to substantiate any of the disallowed miscellaneous employee business expenses for any of the years under consideration. Nor was there any meaningful testimony to support petitioners' ">*588 entitlement to the claimed employee business expenses.

With respect to the claimed office and storage expenses (which relate to Dr. Novick's use of petitioners' residence to store medical records of inactive patients and certain medical equipment), petitioners failed to come within any of the exceptions provided by section 280A(c) to the general rule denying a deduction for home office expenses. ^{1996 Tax Ct. Memo LEXIS 577">*589} We specifically note that (1) petitioners stipulated that the use of their home as an office/storage was not for the convenience of Dr. Novick's employer (thus, petitioners do not come within the exception under section 280A(c)(1)), and (2) the only items stored at petitioners' home were medical equipment and files (thus, petitioners do not come within the exception under section 280A(c)(2)).

With respect to the claimed depreciation on the automobile that Mrs. Novick purportedly used to transport medical files, charts, and x rays from petitioners' home to Dr. Novick's medical office, we note that Mrs. Novick ">*590 was not an employee of either Dr. Novick or Sacramento Sierra Medical Group, nor was the use of the car for that purpose required as a condition of her husband's employment. Thus, even assuming arguendo the automobile was used 90 percent for such purposes, the depreciation would not be deductible. See sec. 280F(d)(3). Moreover, even if Dr. Novick used the automobile for such purposes, that use still would not be deductible, as there was no evidence introduced to show that Sacramento Sierra Medical Group (Dr. Novick's employer) required as a condition of Dr. Novick's employment that Dr. Novick transport the medical files to and from his home. Further, petitioners stipulated that the storage of the medical records at their home was not for the convenience of Dr. Novick's employer.

Petitioners claimed employee business expenses other than the home/office and automobile expenses which were disallowed by respondent. Dr. Novick received reimbursement from his employer for some of these expenses. Mr. Fenton was not aware of the reimbursement when he prepared petitioners' tax returns.

Respondent's determination with respect to the disallowed miscellaneous employee business expenses for each ">*591 of the years under consideration is sustained.

Charitable Contributions

Section 170 allows a deduction for charitable contributions, but only if verified pursuant to regulations. In the case at bar, petitioners had no documentation to verify (substantiate) their claims for charitable contributions in excess of those allowed by respondent. Because the disallowed deductions have not been verified, petitioners are not entitled to them.

Investment Interest

Petitioners claimed a $ 15,000 deduction for investment interest on their 1990 tax return. Petitioners presented no evidence to substantiate this deduction. Nonetheless, respondent allowed petitioners $ 7,500 of the $ 15,000 claimed. Because petitioners failed to satisfy their burden of proof with respect to the remaining $ 7,500, we sustain respondent's determination in this regard.

Accuracy-Related Penalty

Respondent determined that petitioners were negligent with respect to the preparation of their 1989-91 returns and accordingly determined that they are liable for the accuracy-related penalty under section 6662(a) for each of the years under consideration.

The accuracy-related penalty is equal to 20 percent of any portion of an underpayment ">*592 attributable to the taxpayer's negligence or disregard of rules or regulations. Sec. 6662(a) and (b)(1). Negligence is defined as the failure to exercise the due care that a reasonable, prudent person would exercise under similar circumstances. Zmuda v. Commissioner, 731 F.2d 1417">731 F.2d 1417, 731 F.2d 1417">1422 (9th Cir. 1984), affg. 79 T.C. 714">79 T.C. 714 (1982); Neely v. Commissioner, 85 T.C. 934">85 T.C. 934, 85 T.C. 934">947 (1985). A taxpayer has the burden of proving that the Commissioner's determination is in error. Rule 142(a); Luman v. Commissioner, 79 T.C. 846">79 T.C. 846, 79 T.C. 846">860-861 (1982).

Petitioners claim they were not negligent because the returns for the years under consideration were prepared by an accountant. However, reliance on professional advice, by itself, is not an absolute defense to negligence. A taxpayer must first demonstrate that his reliance was reasonable. Freytag v. Commissioner, 89 T.C. 849">89 T.C. 849, 89 T.C. 849">888 (1987), affd. 904 F.2d 1011">904 F.2d 1011 (5th Cir. 1990), affd. 501 U.S. 868">501 U.S. 868 (1991).

In the case at bar, Mr. Fenton, petitioners' accountant, acted merely as a scrivener; he did not audit or verify the information given him by petitioners. Hence, we do not accept petitioners' reliance on a professional advice defense.

Giving consideration to all ">*593 the facts before us, we conclude that petitioners were negligent and that they disregarded rules and regulations with respect to the preparation of their 1989-91 tax returns: They double deducted home mortgage interest and real estate taxes; they claimed a $ 15,000 investment interest expense when they had documentation indicating that, at best, they were entitled to a $ 7,500 interest deduction; they claimed miscellaneous employee business expenses for which Dr. Novick had been reimbursed by his employer; they overstated expenses related to their rental activities; and they failed to maintain adequate records. Consequently, we sustain respondent's determination that petitioners are liable for the accuracy-related penalty on the amount of the underpayment for 1989, 1990, and 1991.

To reflect concessions by respondent,

Decision will be entered under Rule 155.

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Footnotes

• 1. The stipulation of facts and the accompanying exhibits are incorporated by this reference.↩

• 2. Pursuant to sec. 469(a), a passive activity loss is generally not allowed as a deduction for the year sustained. Sec. 469(d)(1) defines a passive activity loss as the amount by which (A) the aggregate losses from all passive activities for the taxable year exceed (B) the aggregate income from all passive activities for that year. Passive activities are those activities that involve the conduct of a trade or business in which the taxpayer does not materially participate. Sec. 469(c)(1). Rental activity ordinarily is treated as a passive activity irrespective of whether there is material participation. Sec. 469(c)(2), (4).

• 1. No explanation was given for the mathematical discrepancy.↩

• 3. Sec. 280A provides generally that no deduction is allowable with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year as a residence. Sec. 280A(c) provides exceptions to this general rule.

  Pursuant to sec. 280A(c)(1), a taxpayer may deduct an otherwise allowable item of expense allocable to the portion of a taxpayer's personal residence which is used exclusively on a regular basis:

  (A) [as] the principal place of business for any trade or business of the taxpayer,

  (B) as a place of business which is used by patients, clients, or customers in meeting with the taxpayer in the normal course of * * * [the taxpayer's] trade or business, or

  (C) in the case of a separate structure which is not attached to the dwelling unit, in connection with the taxpayer's trade or business.

  However, where the taxpayer is an employee, the exclusive use requirement set forth above must be for the convenience of the taxpayer's employer.

  Sec. 280A(c)(2) permits a taxpayer to deduct an otherwise allowable item of expense with respect to the use of a taxpayer's personal residence "which is used on a regular basis as a storage unit for the inventory of the taxpayer held for use in the taxpayer's trade or business of selling products at retail or wholesale, but only if * * * [the personal residence] is the sole fixed location of such trade or business."↩