DocketNumber: No. 14722-02
Judges: "Wherry, Robert A."
Filed Date: 12/16/2003
Status: Non-Precedential
Modified Date: 4/17/2021
2003 Tax Ct. Memo LEXIS 342">*342 Payments received by petitioner under its preneed funeral contracts were includable in gross income only upon provision of subject goods and services. Petitioner was liable for accuracy-related penalty with respect to items conceded by petitioner, apart from preneed accounting issue.
P is a funeral home organized and operating in
Massachusetts. During the years in issue, P entered into preneed
funeral contracts and received payments in advance of death for
goods and services to be provided later at the contract
beneficiary's death. These payments were refundable at the
contract purchaser's request, pursuant to State law, at any time
until the goods and services were furnished. P, an accrual basis
taxpayer, included these payments in income not in the year of
receipt but in the year in which the goods and services were
provided.
Held: Payments received by P under its preneed
funeral contracts are includable in gross income only upon the
provision of the subject goods and services.
Held, further, P is liable for the
I.R.C., accuracy-related penalty with respect to items
conceded by P, apart from the preneed accounting issue.
MEMORANDUM FINDINGS OF FACT AND OPINION
WHERRY, Judge: Respondent determined the following deficiencies and penalty with respect to petitioner's Federal income taxes for the calendar years 1996 and 1997:
Penalty
Year Deficiency
1997 1,817 --
After concessions by the parties, the principal issues for decision are:
(1) Whether payments received by petitioner under preneed funeral contracts are includable in gross income during the year of receipt or during the year in which the goods and services are provided by petitioner; and
(2) whether petitioner is liable for the
Some of the facts have been stipulated and are so found. The stipulations of the parties, with accompanying exhibits, are incorporated herein by this reference.
Petitioner is a funeral home located at all relevant times in New Bedford, Massachusetts. Petitioner began operations in 1963 as a partnership and was incorporated under the laws of the Commonwealth of Massachusetts on September 19, 1967. Brothers Thomas Perry and William Perry each own a 50-percent interest in petitioner and are funeral directors licensed by the Commonwealth of Massachusetts.
Petitioner's Operations
Prior to and during the years in issue, petitioner entered into preneed funeral contracts. Under these arrangements, the contract purchaser selected, on a prospective basis, the goods and services to be provided by petitioner at the contract beneficiary's death. Petitioner would designate the selected items and applicable charges on a written form.
If the resultant balance was then paid in advance of death, either in a lump sum or in installments, petitioner agreed to honor the contract at death as written, without additional cost to the purchaser2003 Tax Ct. Memo LEXIS 342">*345 or family. If the resultant balance was to be paid through the proceeds of an insurance policy or was left unfunded, the amount due would be recalculated in accordance with the prices in effect at the time of death.
The written form used by petitioner for these purposes was not specific to prearranged funerals and contained no express provisions regarding the use or refundability of amounts received thereunder. A handwritten notation that the contract was irrevocable was added to certain of the forms, allegedly for reasons related to Medicaid eligibility. Regardless of such language, however, it was petitioner's practice to indicate to purchasers that they had the right to cancel at any time and would receive their money back. 2003 Tax Ct. Memo LEXIS 342">*346 The experience of petitioner has been that only a very small percentage of preneed contracts are in fact canceled. The record indicates that during the period from approximately 1997 through the time of trial in 2003, six contracts were canceled. During the years in issue, petitioner maintained a business checking account and the following investments: A Putnam Investments mutual fund account, a Merrill Lynch ready asset account, Fleet Financial shares, 2003 Tax Ct. Memo LEXIS 342">*347 Massachusetts Savings Investments certificates of deposit, a BayBank money market account, a BayBrokerage account (for 1996 only), and a BayBank escrow account. Moneys received pursuant to preneed contracts were placed by petitioner in one of the investment vehicles. Upon petitioner's provision of goods and services at the death of a preneed contract beneficiary, an amount equal to the purchase price of the contract was transferred from the investment accounts to petitioner's checking account. The BayBank escrow account is a compilation of accounts, opened before 1996, each in the name of an individual contract beneficiary. Petitioner's accountant advised establishment of the escrow account in the early 1990s. This account was used for the deposit of preneed receipts for a period prior to the years in issue, until the resultant administrative burden caused petitioner to discontinue the practice. The balance of the BayBank escrow account as of January 1, 1996, was $ 106,579.16, and those funds are not at issue in this proceeding. The investments other than the Baybank escrow account are held solely in petitioner's name and list petitioner's tax identification number. Petitioner's2003 Tax Ct. Memo LEXIS 342">*348 Accounting and Tax Reporting Petitioner is an accrual basis taxpayer. For accounting purposes, petitioner records payments received pursuant to preneed contracts as liabilities under the designation prearranged funerals. Petitioner does not recognize as income payments recorded on its books and records as prearranged funerals until the tax year in which the goods and services are provided. Petitioner does recognize interest and dividend income earned on the investments, exclusive of the BayBank escrow account, into which the preneed funds are deposited. Petitioner filed Forms 1120, U.S. Corporation Income Tax Return, for 1996, 1997, and 1998 consistent with the foregoing approach. Attached to each return is a Schedule L, Balance Sheets per Books. These Schedules L reflect as "Other investments" the following balances in petitioner's investment vehicles, including the BayBank escrow account: Year As of Jan. 1 As of Dec. 31 1996 $ 2,270,655 $ 2,431,946 1997 2,431,946 2,515,217 1998 2,515,217 2,503,934 Also on the Schedules2003 Tax Ct. Memo LEXIS 342">*349 L, petitioner included in "Other current liabilities" the following amounts for prearranged funerals: Year As of Jan. 1 As of Dec. 31 1996 $ 1,587,416 $ 1,612,272 1997 1,612,272 1,614,929 1998 1,614,929 1,543,284 Respondent on June 26, 2002, issued to petitioner the statutory notice of deficiency underlying the present litigation. Therein, respondent determined, inter alia, that moneys received under preneed contracts are to be characterized as income to petitioner in the year of receipt. OPINION In general, the Commissioner's determinations are presumed correct, and the taxpayer bears the burden of proving otherwise. The record in this case is not explicit as to when the underlying examination began. After the trial in this case, petitioner filed a motion for the Court to take judicial notice of the consent judgment rendered in one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. This Court has previously noted that "under In the judgment that is the subject of petitioner's motion, the defendant funeral home operator, when confronted by the Commonwealth of Massachusetts, consented to a permanent injunction and to payment of restitution for misuse of funeral trust funds. The Internal Revenue Code imposes a Federal tax on the taxable income of every corporation. The amount of any item of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under the method of accounting used in computing taxable income, such amount is to be properly accounted for as of a different period. Consistent with the principle of Under the accrual method, income is to be included for the taxable year when all events have occurred that fix the right to receive the income and the amount of the income can be determined with reasonable accuracy. As caselaw applying the above standards has evolved, it has become well established that amounts constituting advance payments for goods or services are includable in gross income in the year received. In contrast, amounts properly characterized as loans, deposits, or trust funds are not includable upon receipt. Preneed contracts and arrangements in the Commonwealth of Massachusetts are governed by the regulations of the Board of Registration in Embalming and Funeral Directing. Mass. Regs. Code tit. 239, any written agreement whereby a licensed funeral establishment agrees, prior to the death of a named person, to provide specifically-identified funeral goods and/or services to that named person upon his/her death, and which is signed by both the buyer and a duly authorized representative of the licensed funeral establishment. [Id.] Similarly, "pre-need funeral arrangements contract" 2003 Tax Ct. Memo LEXIS 342">*357 means: any written arrangement between a licensed funeral establishment and another person which establishes a source of funds to be used solely for the purpose of paying for funeral goods and/or services for a named person, but which does not identify the specific funeral goods and/or services to be furnished to that person. [Id.] The regulations set forth the required contents of "pre-need funeral contracts". Mass. Regs. Code tit. 239, and services specified in the contract and has received satisfactory written evidence2003 Tax Ct. Memo LEXIS 342">*358 that those goods or services will be furnished at time of death; or 4. The buyer has declined to select a funding method and has paid no money to the funeral establishment; [Mass. Regs. Code tit. 239, A "funeral trust" within the meaning of the foregoing provision is "a written agreement of trust whereby funds are transferred to a named trustee with the intention that the trustee will manage and administer those funds for the benefit of a named beneficiary and use those funds to pay for funeral goods and/or services to be furnished to that named beneficiary." Mass. Regs. Code tit. 239, Cancellation rights likewise are specified in the regulations, as follows: The referenced Mass. Regs. Code tit. 239, The buyer who signed a pre-need funeral contract, or his/her legal representative, may cancel a pre-need funeral contract with a licensed funeral establishment at any time by sending written notice of such cancellation, via certified mail, return receipt requested, to said funeral establishment. If a funeral trust has been established to fund said pre-need funeral contract, and the licensed funeral establishment is not the trustee, the buyer shall forward a copy of said notice of cancellation to the named trustee of said funeral trust. We turn now to the parties' contentions regarding application of the foregoing rules to petitioner's situation. Petitioner contends that the payments received pursuant to preneed contracts are not includable in gross income until the underlying funeral goods and services are provided. In support of this assertion, petitioner references three alternative theories for exclusion. Petitioner's primary argument is that the payments constitute nontaxable2003 Tax Ct. Memo LEXIS 342">*360 deposits under the reasoning of With respect to the In contrast, respondent contends that petitioner obtained dominion and control over the preneed funds at the time of receipt such that the amounts are properly included in income as advance payments under the all events2003 Tax Ct. Memo LEXIS 342">*361 test. Respondent further argues that each of the exceptions relied upon by petitioner is inapplicable on these facts. Specifically, it is respondent's position that advance payments for services to be rendered by the taxpayer are not the equivalent of a refundable security deposit or loan and, hence, are not controlled by the standards set forth in 2003 Tax Ct. Memo LEXIS 342">*362 In connection with the We first consider whether the preneed payments at issue should be treated as deposits governed by Further, the answer to this inquiry "depends upon the parties' rights and obligations at the time the payments are made." With respect to distinguishing between taxable advance payments and nontaxable deposits, the Supreme Court further explained: An advance payment, like the deposits at issue here, concededly protects the seller against the risk that it would be unable to collect money owed it after it has furnished goods or services. But an advance payment does much more: it protects against the risk that the purchaser will back out of the deal before the seller performs. From the moment an advance payment is made, the This Court, in applying the reasoning of Thus, while refundability per se is insufficient for identifying nontaxable deposits, As to other potential indicia, both the Supreme Court in With respect to the facts before us, here petitioner's customers, and not petitioner, controlled whether and when any refund of the2003 Tax Ct. Memo LEXIS 342">*367 preneed funds would be made. The regulatory scheme governing preneed funeral contracts expressly affords buyers the right to cancel such contracts at any time. Mass. Regs. Code tit. 239, In addition, in view of respondent's comments on brief suggesting that petitioner's historical percentage of cancellations was so low that the right should be disregarded, we emphasize that it is the bona fide existence of such a right, not the exercise or frequency of exercise, which controls. Because the cancellation right is State granted, 2003 Tax Ct. Memo LEXIS 342">*368 be hard pressed to say that the right here was illusory when cancellations did occur, and corresponding refunds were given, in the course of petitioner's business. 2003 Tax Ct. Memo LEXIS 342">*369 The consequence of this fixed right is that, to the extent The mere execution of a preneed contract did not place petitioner in a position to fulfill the terms of the bargain. As a practical matter, because the ultimate decision2003 Tax Ct. Memo LEXIS 342">*370 to purchase frequently rested in the hands of third parties, there existed in these situations what more closely resembles a condition precedent to petitioner's right to perform than a condition subsequent that would eliminate a current right to so act. See The Court is satisfied that the totality of the unique circumstances of petitioner's business brings it within the rationale of V. "Negligence" is defined in A "substantial understatement" is declared by An exception to the Regulations interpreting The determination of whether a taxpayer acted with reasonable cause and in good faith is made on a case-by-case 2003 Tax Ct. Memo LEXIS 342">*373 basis, taking into account all pertinent facts and circumstances. * * * Generally, the most important factor is the extent of the taxpayer's effort to assess the taxpayer's proper tax liability. * * * [ Reliance upon the advice of an expert tax preparer may, but does not necessarily, demonstrate reasonable cause and good faith in the context of the In order for this factor to be given dispositive weight, the taxpayer claiming reliance on a professional must show, at minimum, that (1) the preparer was supplied with correct information and (2) the incorrect return was a result of the preparer's error. See, e.g., As previously indicated, The notice of deficiency issued to petitioner determined applicability of the 2003 Tax Ct. Memo LEXIS 342">*376 Accordingly, the burden rests on petitioner to show mitigating circumstances such as substantial authority, a reasonable basis, or reasonable cause. Petitioner on brief claims to have had substantial authority, a reasonable basis, reasonable cause, and good faith with respect to its reporting of the preneed contract payments. In contrast, petitioner directs no comments to the various conceded adjustments, nor did petitioner introduce any evidence pertaining to these items. Furthermore, although petitioner generally points out that its returns were prepared by a professional tax adviser, again there has been no showing whatsoever regarding what information petitioner supplied on the conceded items. We therefore lack grounds on which to conclude that the incorrect return resulted from the preparer's errors. Respondent's determination of the To reflect the foregoing, An appropriate order will be issued, and decision will be entered under
(a) Scope of rule. -- This rule governs only judicial
notice of adjudicative facts.
(b) Kinds of facts. -- A judicially noticed fact must be
A written acknowledgement, signed by the buyer, which
indicates that:
1. The buyer has established a funeral trust fund pursuant to
2. The buyer has elected to purchase a pre-need insurance policy
or annuity and has received all disclosures required by 239 CMR
4.
3. The buyer has tendered payment in full for all funeral goods
Any buyer of a pre-need funeral contract may cancel that
contract and receive a full refund of all monies paid, without
penalty, at any time within ten days after signing said
contract. After the expiration of this ten-day "cooling off
period" a pre-need funeral contract may be canceled in
accordance with
In determining whether a taxpayer enjoys "complete
dominion" over a given sum, the crucial point is not whether
his use of the funds is unconstrained during some interim
period. The key is whether the taxpayer has some guarantee that
he will be allowed to keep the money. 2003 Tax Ct. Memo LEXIS 342">*363 * * *
seller is assured that, so long as it fulfills its contractual
obligation, the money is its to keep. Here, in contrast, a
customer submitting a deposit made no commitment to purchase a
specified quantity of electricity, or indeed to purchase any
electricity at all. IPL's right to keep the money depends upon
the customer's purchase of electricity, and upon his later
decision to have the deposit applied to future bills, not merely
2003 Tax Ct. Memo LEXIS 342">*364 upon the utility's adherence to its contractual duties. * * *
* * * * * * *
It is this element of choice that distinguishes an advance
payment * * * The individual who makes an advance payment
retains no right to insist upon the return of the funds; so long
as the recipient fulfills the terms of the bargain, the money is
its to keep. The customer who submits a deposit to the utility *
* * retains the right to insist upon repayment in cash; he may
choose to apply the money to the purchase of electricity,
but he assumes no obligation to do so, and the utility therefore
acquires no unfettered "dominion" over the money at the
time of receipt. [
1. Unless otherwise indicated, section references are to the Internal Revenue Code in effect for the years in issue, and Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. The contractual notations were ineffective given their sham nature and the explicit directives of Massachusetts law discussed below. See
3. The parties stipulated: "Of the pre-need funeral arrangements in existence on January 1, 1996, six have been cancelled. Attached hereto and marked as Exhibits 19-J through 24-J are copies of petitioner's business records related to these pre-need arrangements." However, the referenced exhibits bear contract dates spanning the years 1991 to 1999 and cancellation dates spanning years 1997 to 2003.↩
4. Presumably, because the Form 4549-A, Income Tax Examination Changes, contained in the record covers the 1996, 1997, and 1998 years, the audit would have begun after the September 15, 1999, date on which petitioner's 1998 Federal income tax return appears to have been signed by the return preparer. The possibility exists, however, that the 1998 or even the 1997 audit may have been added to an audit for 1996 already in progress. Nonetheless, as explained in the text, we need not resolve or rely on such speculation here.↩
5. Accordingly, respondent considers
6. Although the early case of
7. The notice also referenced substantial valuation misstatement as an additional alternative ground, see
8. We note that the phrasing of and figures recited in the parties' stipulations concerning settled issues raise some ambiguity regarding the precise nature of the settlement reached. However, it is clear that petitioner made multiple concessions and that the parties do not intend for the Court to address the substantive matters covered by these stipulations.↩
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