The Tax Court in Brief October 10 – October 16, 2020
Freeman Law’s “The Tax Court in Brief” covers every substantive Tax Court opinion, providing a weekly brief of its decisions in clear, concise prose.
The Week of October 10 – October 16, 2020
- Jesus R. Oropeza v. Comm’r, 155 T.C. No. 9
- Watts v. Comm’r, T.C. Memo. 2020-143
- The Morning Star Packing Company, L.P., et al. v. Comm’r, T.C. Memo. 2020-142
- Watts v. Comm’r, T.C. Memo. 2020-143
Jesus R. Oropeza v. Comm’r, 155 T.C. No. 9
Short Summary: The case involved the issuance of a notice of deficiency without the proper written supervisory approval provided by I.R.C. sec 6751(b)(1).
The IRS opened an examination to review Mr. Oropeza’s (the “taxpayer”) tax return for the 2011 tax year. The period of limitations for 2011 was set to expired on April 15, 2015.
On January 14, 2015, the revenue agent assigned to the case sent Letter 5153 and Form 4549-A to the taxpayer, proposing adjustments to his reported capital gains. The revenue agent report asserted a 20% penalty under section 66662(a) attributable to negligence, substantial understatement of income tax, substantial valuation misstatement or transaction lacking economic substance, without stating whether the IRS was asserting the penalty for one or more of these bases or for all four as alternative bases. Letter 5153 also gave the taxpayer three options: (i) agree to the proposed adjustments, (ii) extend the statute of limitations in case he wanted Appeals to consider the case or (iii) decline and wait for the issuance of the notice of deficiency. On the same date, the revenue agent completed the Civil Penalty Approval Form.
The taxpayer did not agree to the adjustments nor extended the period of limitations. The revenue agent closed the case on January 28, 2015 and the following day, his supervisor authorized the assertion of a 20% penalty for a substantial understatement of income tax. On May 2015, the revenue agent prepared and signed a memorandum addressed to the IRS Chief Counsel, where it recommended the increase of the 20% penalty to 40% because the underpayment was attributable to a nondisclosed transaction. His manager signed this memo on the same date.
The IRS issued the notice of deficiency on May 6, 2015 where it determined a 40% section 6662(b)(6) penalty or in the alternative a 20% penalty based on negligence. Taxpayer filed a petition against such determination and claimed that the IRS did not obtain a timely supervisory approval for the 40% penalty and the alternative 20% penalty for a substantial understatement. The Tax Court agreed with the taxpayer and ruled that the IRS did not met the timely supervisory approval requirement as provided by I.R.C. section 6751(b)(1).
Key Issues: (i) Whether the IRS complied with section 6751(b)(1) before the issuance of the revenue agent report; (ii) Whether the revenue agent report should be read as asserting a penalty under section 6662(a) and (b)(6); (iii) Can the IRS satisfy section 6751(b)(1) by a later determination that section 6662(i) applied because the transaction was not disclosed on the return.
Primary Holdings: (i) The IRS did not satisfy the requirements of section 6751(b)(1) when it issues a Letter 5153 and a revenue agent report communicating the taxpayer its definite determination to assert a 20% penalty, and obtains supervisory approval after such communication. (ii) Section 6662(i) does not impose a different penalty that those provided in sections 6662(a) and (b)(6), and if the IRS fails to satisfy section 6751(b)(1), no penalty exists to which section 6662(i) could be applied.
Key Points of Law:
Section 6751(b) establishes that no penalty can be assessed by the IRS, unless the initial determination of such assessment is personally approved by the immediate supervisor of the individual making the determination. An initial determination is embodied in a letter “by which the IRS formally notified the taxpayer that the Examination Division has completed its work and had make a definite decision to assert penalties”. See Belair Woods, LLC v. Commissioner, 154 T.C. 1, 14-15 (2020).
In this case, Letter 5153 constitutes an initial determination considering the options that it offered to the taxpayer: to accept the adjustments, to extend the period of limitations and go to Appeals or receive the notice of deficiency. Whatever the election made by the taxpayer, the Court argued that it was clear that the Examination Division had completed its work, and its remaining responsibilities were only “ministerial” in nature. Based on this premise, supervisory approval must be obtained for the penalty assessed by Letter 5153, which did not occur in the instant case.
As for the second and third questions concerning whether the revenue agent report should be read as asserting a penalty under section 6662(a) and (b)(6) and whether the IRS satisfies section 6751(b)(1) by a later determination that section 6662(i) applied because the transaction was not disclosed on the return, the Court reasoned as follows:
Section 6662(a) provides a penalty of 20% of the portion of the underpayment attributable to one or more of eight specified grounds, which includes the “disallowance of claimed tax benefits by reason of a transaction lacking economic substance” provided by 6662(b)(6).
Section 6662(i) provides that in the case of any portion of an underpayment which is attributable to one or more undisclosed noneconomic substance transactions, subsection (a), meaning section 6662(a), shall be applied with respect to such portion by substituting 40% for 20%. In the Court’s eyes, Section 6662(i) does not constitute or imposes a different penalty but rather, it simply provides an increase of the rate of the penalty imposed by Section 6662(a) and (b)(6).
Under this approach, a revenue agent report that uses language that asserts a 20% penalty attributable to multiple grounds, or in other words, that uses a “boilerplate determination of an accuracy-related penalty”, will be seen by the Court as an assessment of the penalty for each of such grounds, unless other portion of the communication explicitly limits the penalty determination to a subset of the grounds. Consequently, the IRS must secure timely supervisory approval for all these grounds, which did not occur in this case.
Secondly, section 6662(i) does not impose a different penalty than section 6662(a) and (b)(6) but rather it is similar to an “aggravating factor” in criminal law that justifies a harsher penalty for the basic offense. Moreover, legislative history supports the view that the 20% and the 40% enhancement penalty constitute a single penalty. Statutory interpretation also favors this view, in section 6664(c)(2) which provides the reasonable cause defense, applicable to penalties, does not mention section 6662(i)but only mentions 6662(b)(6), making it clear that Congress intended the reasonable cause to be not available for the for the 40% and the 20% version of the penalty.
Considering these arguments, the Court concludes that section 6662(a) and (b)(6) and 6662(i) constitute a single penalty, for which timely supervisory approval is required. If such approval was not obtained for the 20% version of the penalty, there is no penalty, consequently, there can be no increase of the rate of an inexistent penalty. The Court argued that the policy underlying section 6751(b)(1) supports this conclusion and prevents situations where the IRS fails to obtain approval for the basic version and later assess an increased penalty, creating a dilemma to the taxpayer who will have to decide between making concessions to the first penalty or risk to a higher penalty.
Insight: This case presents a new argument to taxpayers in cases where the IRS uses boilerplate language to assess penalties under multiple grounds of section 6662(b). First, the IRS must comply with section 6751(b)(1) for all of the grounds mentioned in any assessment of penalties, and secondly, in cases where the IRS assesses a higher penalty under 6662(i), the taxpayer must verify if the IRS complied with section 6751(b)(1) for the penalties initially assessed under 6662(b).
Wienke v. Comm’r, T.C. Memo. 2020-143
Short Summary: Mr. and Mrs. Wienke were married and residents of California, jointly owned multiple rental properties, and each owned a 50% interest in Evergrow Investments, Inc. (“Evergrow”), a California corporation that operated a grocery market and pizza store in San Francisco. For the tax years 2012 and 2013, Ms. Wienke untimely filed tax returns separately from her husband, electing the “married filing separately” option. For tax years 2012 through 2015, Ms. Wienke untimely filed Forms 1120 for Evergrow.
The Internal Revenue Service (“IRS”) audited the Wienkes’ 2012 and 2013 tax returns. The IRS determined that the income and expenses from the rental properties were reported incorrectly, reallocating half of the income and expenses to Ms. Wienke. Also, the IRS redetermined the depreciation deductions for the rental properties and made a Section 481(a) adjustment to the Wienkes’ 2012 income. Additionally, the IRS determined that Ms. Wienke failed to report income from several sources.
The IRS also audited Evergrow for the years in issue. Evergrow was unable to provide support for its income, so the examining agent recomputed the corporation’s income. Moreover, the examining agent redetermined Evergrow’s deductions, particularly cost of goods sold (“COGS”), due to discrepancies between the company’s tax returns and books and records. Finally, the IRS assessed Ms. Wienke and Evergrow with additions to tax under Section 6651(a)(1) for failure to file timely returns.
Key Issues: Whether the taxpayers properly allocated/included income for the tax years at issue; whether the taxpayers were entitled to the deductions claimed for the tax years at issue; and whether the taxpayers were liable for additions to tax under Section 6651(a)(1) for failure to file timely returns.
- The taxpayers failed to properly allocate and/or include income on their income tax returns for the tax years at issue.
- The taxpayers were not entitled to the deductions claimed for the tax years at issue because either (1) the taxpayer improperly calculated the deductions under an impermissible method, or (2) the taxpayer failed to substantiate the deductions claimed.
- and Mrs. Wienke were liable for additions to tax under Section 6651(a)(1) for failure to file timely returns.
Key Points of Law:
- The burden of proof is ordinarily on the taxpayer in cases before the Tax Court. Welch v. Helvering, 290 U.S. 111, 115 (1933).
- Under Section 7491(a)(1), if, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed by subtitle A or B, the Secretary shall have the burden of proof with respect to such issue. See Higbee v. Comm’r, 116 T.C. 438, 442 (2001).
- The Ninth Circuit has held that the Commissioner must introduce some evidence linking the taxpayer with an alleged income-producing activity or demonstrate that the taxpayer actually received unreported income before the presumption of correctness attaches to the deficiency determination. Rapp v. Comm’r, 774 F.2d 932, 935 (9th Cir. 1985); Edwards v. Comm’r, 680 F.2d 1268, 1270-71 (9th Cir. 1982). Such requisite evidentiary foundation is minimal.
- Once the Commissioner has established this evidentiary foundation, the burden of proof shifts to the taxpayer to prove by a preponderance of the evidence that the Commissioner’s determinations were arbitrary or erroneous. See Hardy v. Comm’r, 181 F.3d 1002, 1004-05 (9th Cir. 1999), aff’gC. Memo 1997-97.
- Taxpayers are responsible for maintaining adequate books and records sufficient to establish their income. I.R.C. § 6001; DiLeo v. Comm’r, 96 T.C. 858, 867 (1991), aff’d 959 F.2d 16 (2d Cir. 1992).
- Taxpayers bear the burden of substantiating their claimed deductions by keeping and producing records sufficient to enable the Commissioner to determine the correct tax liability. I.R.C. § 6001; INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84 (1992); Treas. Reg. § 1.6001-1(a), (e).
- COGS is not a deduction and is not subject to the limits on deductions in Section 162, Metra Chem. Corp. v. Comm’r, 88 T.C. 654, 661, but any amount reported as COGS still must be substantiated, King v. Comm’r, T.C. Memo. 1994-318, 1994 WL 330613, at *2, aff’d without published opinion, 69 F.3d 544 (9th Cir. 1995).
- Section 6651(a)(1) authorizes the imposition of an addition to tax for failure to file a return timely unless a taxpayer shows that such failure was due to reasonable cause and not willful neglect. See United States v. Boyle, 469 U.S. 241, 245 (1985).
Insight: Wienke reinforces the general rule that the taxpayer bears the burden of proof in Tax Court cases. Maintaining adequate records is crucial. If a taxpayer intends to argue that his or her tax return positions were correct and accurate when reported, then he or she needs to be able to offer detailed supporting books and records. Making statements of tax claims are not considered evidence of the claims themselves.
The Morning Star Packing Company, L.P., et al. v. Comm’r, T.C. Memo. 2020-142
Short Summary: Petitioners sought review of the IRS’ determination that they were not entitled to increase their cost of goods sold (“COGS”) for the costs to restore, rebuild, recondition, and retest their manufacturing facilities for years of 2008 – 2011. The Tax Court found in favor of the IRS.
Key Issue: Two key issues: (1) were certain accrued production costs fixed and binding where economic performance did not occur until the year following the tax year claimed for those costs; and (2) did Petitioners’ inclusion of such production costs in COGS for the years in issue result in a more proper match against income than inclusion in the taxable year.
- A taxpayer reporting on the overall accrual method of accounting must generally demonstrate two items in order to be able to claim a deduction on the current year’s return: (1) economic performance with regard to the item in question; and (2) all events have occurred that determine the fact of a liability and the amount of that liability can be determined with reasonable accuracy.
Key Points of Law:
- IRC § 461(a) provides that a deduction must be taken for the proper taxable year under the taxpayer’s method of accounting. Generally, an accrual method taxpayer may deduct expenses for the years in which the taxpayer incurred the expenses, regardless of the actual payment dates. See IRC § 461(h)(4); Caltex Oil Venture v. Commissioner, 138 T.C. 18, 23 (2012); 26 CFR § 1.461-1(a)(2).
- The all events test governs whether a business expense has been incurred to permit its accrual for tax purposes. See Challenge Publ’ns, Inc. v. Commissioner, T.C. Memo. 1986-36, 1986 Tax Ct. Memo LEXIS 570, at*22, aff’d, 845 F.2d1541 (9th Cir. 1988).
- Liability is incurred under the all events test if three factors are met: (1) all of the events that establish the fact of the liability must have occurred, (2) the amount must be able to be determined with reasonable accuracy, and (3) economic performance must have occurred. See IRC § 461(h)(4); See also 26 CFR §§ 1.461-1(a)(2), 1.461-4.
- The term “liability” refers to “any item allowable as a deduction, cost, or expense for Federal income tax purposes.” See 26 CFR § 1.446-1(c)(1)(ii)(B).
- To be deductible, a liability must be fixed, absolute, see Brown v. Helvering, 291 U.S. 193, 201 (1934), and unconditional, see Lucas v. N. Tex. Lumber Co., 281 U.S. 11, 13(1930).
- A liability may not be deducted if it is contingent upon the occurrence of a future event. See Lucas v. Am. Code Co., 280 U.S. 445, 452 (1930).
- Generally, the fact of a liability is established on the earlier of: (1) the event fixing the liability, such as the required performance or (2) the date the payment is unconditionally due.” See VECO Corp. & Subs. v. Commissioner, 141 T.C. 440, 461 (2013).
- Obligations created by separate contracts, statutes, or regulations may qualify as deductible liabilities for Federal income tax purposes. See Exxon Mobil Corp. v. Commissioner, 114T.C. 293, 318-319 (2000); Ohio River Collieries Co. v. Commissioner, 77T.C. 1369, 1370-1371(1981). In such cases the contracts and statutes must clearly set forth the taxpayer’s obligations to “provide a sufficiently fixed and definite basis on which to base the tax accruals sought.” See Exxon Mobil Corp. v. Commissioner, 114 T.C. at 317-318.
Insight: This case highlights the need for an accrual taxpayer to give extra scrutiny to the liabilities that it intends to deduct to ensure that all conditions have been met to claim the deduction. It further illustrates the need for taxpayers to engage and consult with tax professionals in the preparation of their tax returns.
Watts v. Comm’r, T.C. Memo. 2020-143
Short Summary: On remand from the 11th Circuit, the Court re-examined whether the loss on petitioners’ interests in a partnership were capital losses. Specifically, the Tax Court analyzed whether the Danielson rule should be applied. The Court determined that it did.
Key Issues: Whether the Danielson rule applies in a scenario where parties to a transaction expressly agree to a characterization of a transaction in a particular form or intentionally structure a transaction in a particular form for tax purposes, and it is intended to prevent any party from unduly enriching itself by claiming a unilateral alteration of the agreed-upon consequences after the consummation of the transaction?
- The Danielson rule applied so as to prevent the petitioners’ from reaping improper tax benefits on the transaction.
Key Points of Law:
- In Danielson, the Court held that the invocation of the substance-over-form doctrine by taxpayers is restricted in certain circumstances. I.R. v. Danielson, 378 F.2d 771, 775 (3d Cir. 1967). Specifically, the Court held in Danielsonthat where an agreement regarding a transaction is unambiguous, the party cannot seek an argument for substance over form of a transaction.
- If the contract is ambiguous, the Danielson rule does not apply.
- The Danielson rule is applicable in situations where parties to a transaction expressly agree to a characterization of a transaction in a particular form or intentionally structure a transaction in a particular form for tax purposes, and it is intended to prevent any party from unduly enriching itself by claiming a unilateral alteration of the agreed-upon consequences after the consummation of the transaction.
- Clauses in an agreement, such as clause that states the agreement constitutes the entire agreement between the parties, is taken into account in determining ambiguity, along with preambles and other descriptive agreement sections.
- Generally, if an agreement is unambiguous, the party seeking a different treatment will need to prove that the agreement would be unenforceable because of mistake, undue influence, fraud, duress, or the like.
Insight: Watts reinforces the application of the Danielson rule, which states that a taxpayer cannot argue substance over form for a transaction where the agreement for a transaction unambiguously indicates how the transaction should be treated for tax purposes.. If a taxpayer intends to argue that the Danielson does not apply (and where the agreement is unambiguous), the taxpayer will need to provide evidence demonstrating that the agreement is unenforceable due to mistake, undue influence, fraud, or duress.
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