T . C. Memo . 2011-118

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T . C. Memo . 2011-118

UNITED STATES TAX COURT

LIAOSHENG ZHANG, Petitioner v_.

COMMISSIONER OF INTEllNAL REVENUE, Respondent

Docket No. 6042-08.

Filed June 2, 2011.

Liaosheng Zhang, pro se.

Randall E. Heath and Kristin H. Joe, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

MORRISON, Judge:

The IRS détermined a $7,614 deficiency in

Ms. Liaosheng Zhang's 2003 incc-me tax, a $7,769 deficiency in her

2004 income tax, and a $1,127 deficiency in her 2005 income tax,

and added a 20-percent section 6662 accuracy-related penalty on

SERVED Jun 02 2011

- 2 the entirety of each of these deficiencies.

hang timely

petitioned for redetermination of the deficiencies.

She contests

the IRS's determinations that medical and living expenses she

paid for her mother in 2003 are not deductible and that losses

she claimed each year for a supposed website a tivity are not

deductible.

She further contends that she is entirely exempt

from federal income tax on her wages for each year under a treaty

provision for visiting researchers, that her son was her

dependent in 2003 and 2004, that the IRS audited her returns to

retaliate against her for reporting violations of immigration law

and allegedly unfair college-tuition rates, an

that it coerced

her to sign an extension of the time for assessment for 2003.

FINDINGS OF FACT

1.

Personal History

Zhang is a citizen of the People's Republic of China

(China).

About 1988, Zhang first came to the United States.

After going back to China for a time, she returned to the United

States in 1990.

Phoenix, Arizona.

For the next several years, she lived in

She studied intermittently 4t Arizona State

University in Phoenix.

While she was at the university, she

served as a teaching assistant.

11

In 1998, she graduated with a

I

lAll section references are to the Internal Revenue Code as

in effect for the years in issue, and all Rule I:references are to

the Tax Court Rules of Practice and Procedure, unless otherwise

indicated.

!!

- 3 -

master's degree in computer sci nce.

Shortly after graduation,

Zhang began working for Honeywell International, Inc., in

Phoenix.

Her duties included c e ting computer programs to

control industrial processes an

performing related research.

April 2005, Zhang stopped worki g for Honeywell.

In

About that

time, as the addresses listed for Zhang on several documents in

the record suggest, Zhang moved in with her son.

attending college in Seattle.

He was then

Because the temporary visa that

permitted Zhang to be in this country was conditioned on her

being employed- by Honeywell, Zhang believed that after her

employment with Honeywell terminated, her presence in the United

States was illegal.

She stayed in the United States anyway.

Zhang's reason for staying, as she explained, was to allow her

son an in-state tuition discount.i

In 2005 or 2006, she was

granted permanent-resident immilgration status.

2.

Living and Medical Expens s of Zhang's Mother

Zhang's mother is a resident of China.

a citizen of China.

We infer that she is

(Zhang did not assert otherwise.)

In 2003,

Zhang paid $12,208 for care and dedical treatment of her mother.

3.

Purported Website Business

For 2003, 2004, and 2005, Zhang claimed various business-

expense deductions for what was supposedly a website-based

business called "Hotweb Design Company".

(The supposed business

was a sole proprietorship with the trade name "Hotweb Design

- 4 -

Company".

We call it "Hotweb" for convenience.)

Zhang claimed

that she originally contemplated for Hotweb to gather U.S.

business news and translate it into Chinese a d that she later

contemplated for Hotweb to operate a used-car brokerage.

But we

do not believe that Zhang seriously pursued these or any other

bona-fide business objectives.

Instead, she tried to create the

appearance of working on a website in order to disguise improper

deductions for personal and family expenditures.

In 2000, Zhang registered the trade name "Hotweb Design

Company" with the State of Arizona.

her do this.

She paid a lawyer to help

She obtained an employer identification number from

the IRS under the trade name.

Under the trade name and employer

identification number, she filed Federal employment tax returns

(IRS Forms 941, Employer's Quarterly Federal Tax Return), federal

wage information returns (IRS Forms W-2, Wage ánd Tax Statement),

Washington State tax returns for workers' compènsation

insurance,

||

and Washington State tax returns for unemployment insurance.

Il

Zhang reported on the returns that she was empÍoying her son to

work on Hotweb and that she owed a few hundred dollars in federal

and state employment taxes per year.

The amou ts that she

reported on these returns to have paid her son|are consistent

wi.th the amounts she claimed on her federal indome tax returns to

have paid her son.

Zhang testified that she registered the

- 5 -

Internet domain name hotwebexpress.com and paid for websitehosting service.

Zhang made large payments to her son and for his benefit,

including payment of her son's college-tuition bills.

She

deducted them either as "wages" or, in the case of the payments

of college expenses, as "employee benefits".

In 2003, Zhang

claimed deductions for $5,200 in wages and $9,045 in "employee

benefits"; in 2004, $4,134 in pages and $22,000 in employee

benefits; and in 2005, $460 in wages and no employee benefits on

the tax-return Schedules C, Prcfit or Loss from Business (Sole

Proprietorship), that she completed for Hotweb.

Zhang's son filed federal income tax returns for 2003, 2004

and 2005.

He reported as incore the amounts that his mother had

reported that she paid him as tw ges".

He did not report, as

income or otherwise, the amounts that his mother had reported

that she paid him as "employee benefits".

He claimed a deduction

for a personal exemption for himself for each of 2003 and 2004,

but not for 2005.

On each yead'9 return, he reported very little

income tax liability.

return.

Zhang wts tthe preparer of her son's 2003

Her continued practice of segregating college expenses

as "employee benefits" and her son's continued practice of not

reporting them suggest that she had a hand in the preparation of

his 2004 return.

- 6 For 2003, though not 2004 or 2005, Zhang claimed a large

"office expense" deduction for Hotweb.

Most

f this $6,190

deduction was for the cost of renting an apartment in Seattle in

|

which her son lived.

Zhang's son began college, at the

University of Washington in Seattle, about September 29, 2003.

He continued to study full time until he gradu ted with a degree

in architecture.

She explained that her son's move to Seattle

would both help him and help her business because the city is a

technology-industry hub.

(We infer Zhang's son had lived with

her in Phoenix, whence she brought him to college.)

She also

claimed that part of the deduction was the renbal fee for a

parking space in Seattle.

She claimed that she rented the space

because her son was in Seattle and because the

car to buy things and for something".

needed a "travel

We infer that she deducted

the entire cost of the apartment and parking sgace even though it

is obvious that the apartment was used at least in part for

personal or family purposes.

Zhang claimed on her return deductions for thousands of

dollars in vehicle expenses for each of 2003, 2004, and 2005.

She explained that these vehicle expenses larg ly related to

traveling to Seattle, where her son was in col ege, but said

little about the purpose of these trips.

!

- 7 4.

Zhang's Returns

Zhang timely filed her 2003, 2004, and 2005 returns.

entries most relevant to this case follow.

Her

We present excerpts

first from the main parts of her Forms 1040, U.S. Individual

Income Tax Return, then from her Schedules A, Itemized

Deductions, and Schedules C, Profit or Loss from Business (Sole

Proprietorship).

Description

Dependents

2004

2005

-0-

-O-

Income from wages, etc.2

$57,1L8

$62,062

$22,083

Business (loss)

($30,9L8)

($32,501)

($7,045)

Moving expenses

-0-

-0-

($4,240)

Itemized deductions

($16,052)

($11,275)

N/A

Standard deduction

N/A

N/A

($7,300)

[herself]

($3,050)

[herself]

($3,100)

[herself and

her son]

Deduction for personal

exemptions3 *

11

($6, 400)

Taxable income

$5,4 3

$12,654

5-0-

Tax (before credits)

$548

$1,391

-0-

Education credits

(nonrefundable)'

$1,500

$2,000

-0-

-0-

0-

-0-

Total tax

IZhang claimed her son as her dependent for 2005.

2Zhang did not report substantial income other than wages for 2003,

2004, or 2005.

3Zhang did not have large addi:ional deductions beyond those listed

for 2003, 2004, and 2005.

She, reported large capital losses from short-term

stock trading but, in accordance with sec. 1211(b) (1), claimed only $3,000

per year as deductions against her crdinary income (mostly wages).

*Sec. 151(b) grants an individ2al taxpayer one deduction of the

exemption amount (roughly $3,000 for each of the years at issue) for himself

or herself, and sec. 151(c) grants cne deduction of the exemption amount for

each dependent .

|

l

II

- 8 -

sZhang's deductions for 2005 exceeded her reported gross income by

just $403.

'Zhang's education credits are not at issue. We list Zhang's

deductions and credits which are not .in dispute to shonr that the business

deductions purportedly eliminated what otherwise would) have been substantial

tax liabilities for 2003, 2004, and 2005.

The following items constituted Zhang's itemized deductions,

reported on Schedules A, for 2003 and 2004.

Zhang claimed the

standard deduction instead of itemizing deductions for 2005.

Il

Description

Medical and dental

2003

2004

($572)

1($11,040)

7.5% of adjusted gross

income (sec. 213(a)

threshold)

(1,845)

(2,02 )

Medical and dental

Expenses (over

threshold)

-0-

(9,013)

State, local and other

(3,754)

(1,702)

(90)

(560)

Expenses (total)

deductible taxes

Gifts to charity

Job expenses and most

other miscellaneous

deductions

(collectively subject

2-0-

-0-

3(12,208)

-0-

(16,052)

(11,275)

to 2%-of-AGI

threshold)

Other miscellaneous

deductions (list type

and amount)

Total

Zhang attached a statement to her return which d scribed these

claimed expenses as including $2, 000 for "Medicines and Drugs", $560 for

"Med Miles 4000 at .14/Mile", $7,910 for "Air ambulance', $170 for "road

ambulance", and $400 for "taxi to/back hospital".

Il

2Zhang stated on her 2003 Schedule A that she paid $300 in taxpreparation fees, but that 2 percent of her AGI was $492.

aZhang described the entry for "Other Miscellaneous Deductions" on her

2003 return as being for "Mother(Living cost, Medical bill, nanny)".

||

11

I

- 9 All of the business losses Zhang claimed were listed on

Schedules C for Hotweb, whose relevant parts follow:

Description

K0_3j

2004

2005

Gross receipts

-0-

-0-

-0-

Cost of goods sold

($400)

($200)

-0-

Advertising

(480)

(200)

($100)

Car expensesi

(2,5 0)

(2,500)

(4,860)

Employee benefits

(9, 0 5)

(22,000)

. -0-

(1 0)

(775)

(1,000)

Office expense

(6,130)

(200)

-0-

Repairs , etc .

(2 , O 1.4 )

Legal and professional

services

Taxes and licenses

Travel

- 0.-

(130)

(350)

(2,450)

Meals and entertainment

(after 50% reduction

under sec. 274(n))

-0 (550)

-0-

-0-

-O-

-0-

(550)

Utilities

(1,135)

(300)

Wages

(5,200)

(4,134)

(460)

Other

(259)

(1,220)

(75)

(32,501)

(7,045)

Total

(30,918)

'

-0-

IZhang indicated on her returns that the car-expense deductions

related to business driving of 5,00C miles for 2003, 10,000 miles for 2004,

and 6,000 miles for 2005. She checked boxes on the returns to indicate that

she had written evidence to support the deductions .

(The return forms do

not ask for the specific business purposes of car-expense deductions, only

whether one has evidence to corroborate them.) .But, at trial, Zhang

presented very little to show that the driving occurred or that it served a

business purpose.

5.

Alleged IRS Misconduct

a.

Retaliation

Early in 2004, 2005, and 2006, respectively, Zhang timely

filed 2003, 2004, and 2005 ret r s repeatedly showing substantial

wage income from her Honeywell job and a business with

- 10 -

comparatively large deductions and no gross receipts for any

year.

By the end of 2005, the IRS had begun

n audit of Zhang

which ultimately led to the adjustments at issue in this case.

Later, presumably, the audit was expanded to cover all three tax

years.

In 2005, apparently, Zhang wrote to officþs of the United

States Senate to ask for help with a dispute about her son's

college tuition rate.

alleged,

In 2006, Zhang sued Hon ywell for, as she

(1) firing her on the basis of gender

race, national

origin, disability, and age and (2) refusing to re-hire her on

this basis and "because of her opposition to [its] unlawful

employment practices."

In June 2007, Zhang su d Honeywell and

Internet technology company China Gate, Inc. for, as she alleged,

underpaying her.

As a part of the same proceeding, she sued

several major technology companies for, as she alleged, later

hiring H-1B visa holders instead of her when she was a permanent

resident.

Her lawsuit alleged that these comp nies were

II

|

wrongfully using the H-1B temporary visa program to avoid hiring

American workers, in part to discriminate on tŠe basis of age and

in part to undercut wage rates.

It also alleged that she had

sent a letter to the U.S. Senate about H-1B program abuse around

March 2007.

On December 28, 2007, the IRS issded the deficiency

notice setting forth its determinations for th

years at issue.

Zhang presented to the Court documents showing that the U.S.

- 11 -

Department of Labor took action in 2008 on immigrant-laborrelated complaints she had made to the Department of Labor at

times not known to us.

Zhang also showed that in 2008 she had

made a complaint to the Department of Labor other than those upon

which she showed it took action in 2008.

b.

Coercion

As previously noted, Zhang believed her continued presence

in the United States after she stopped working for Honeywell in

2005 was illegal.

Someone from the IRS, she says,

her "immigration status".

"asked for"

She said she understood this to be a

threat to have her deported if she did not comply with the IRS's

request to extend the statutory limitation on the period for tax

assessment.

On June 1, 2006, she signed an IRS Form 872, Consent

to Extend the Time to Assess Tax, to extend the time for the IRS

to assess her 2003 tax until June 30, 2008.

6.

Procedural History

On December 28, 2007, the IRS issued Zhang a deficiency

notice for her 2003, 2004, and 2005 tax years.

The IRS

determined deficiencies of $7,614, $7,769, and $1,127 for the

respective years.

It also determined that Zhang is liable for an

accuracy-related penalty equal to 20 percent of each deficiency,

on grounds including substantial understatement of income tax and

negligence or disregard of rules and regulations.

The penalties

- 12 -

amount to $1,522.80, $1,553.80, and $225.40 fo

the respective

years.

The bulk of the deficiencies results from the deductions

that Zhang had claimed for Hotweb.

The IRS di allowed all the

Hotweb deductions on the ground that the activity was not

||

conducted for profit.

Another significant portion of the 2003

deficiency stemmed from the deduction Zhang had claimed for her

mother's medical and living expenses.

The IRS disallowed that

deduction on the ground that such expenses are "personal" .

The

notice of deficiency did not disallow the 2004 deduction Zhang

claimed for her own medical expenses on Schedu e A.

Zhang filed a petition to contest the def ciency notice.

Zhang was a resident of Oregon when she filed

he petition.

Zhang contests the income-tax deficiency determinations for her

2003, 2004, and 2005 taxable years and the accuracy-related

penalty for each year.

She further contends tl at the wages she

received from Honeywell during 2003, 2004, and 2005 are exempt

from tax under a treaty rule for visiting teachers and

I

researchers, that the IRS audited her returns do retaliate

against her for reporting violations of immigration law and

allegedly unfair college-tuition rates, and that the IRS coerced

her to sign the period-of-limitations consent form, which is

necessary to the timeliness of notice of the 2003 deficiency, by

I

hinting at having her deported.

- 13 -

7.

Attempt To Deceive Court

At trial, Zhang altered a receipt in an attempt to deceive

us.

We infer from the facts in the.record, which we describe

next, that she bought a laptop computer, received a cash-register

receipt for it, and photocopied the receipt.

Later the same day,

we conclude, she returned the computer to the store for a refund,

whereupon a store clerk circled the price of the computer and

wrote a note on the receipt to indicate that the computer had

-

been returned.

Zhang introduced the photccopy of the receipt into evidence.

The Court commented that the pl otocopy was hard to read.

Zhang

offered to provide the original, and the Court asked for it.

Before handing the original to the clerk, Zhang obscured part of

it with a black marker.

We conclude from a credit-card statement

showing a purchase and refund dorresponding to the receipt, and

from the store clerk's note that' Zhang had obscured but failed to

obliterate entirely, that what Zhang obscured was the writing

added after the photocopy was made which showed that the laptop

computer had been returned the same day.

Zhang claimed that what she obscured was a mark made by the

store for security purposes as she left the store.

We disagree.

We believe that the faint x-mark that appears on the orig-inal and

the copy was such a mark.

I

- 14 OPINION

1.

Treaty Exemption

Zhang argues that her Honeywell wages wer

exempted from

income tax by the income-tax treaty between the United States and

China, the formal title of which is the Agreem nt Between the

Government of the United States of America and the Government of

the People's Republic of China for the Avoidance of Double

Taxation and the Prevention of Tax Evasion wit

Respect to Taxes

on Income, Apr. 30,

Article 19 of the

1984, T.I.A.S. No. 12,065.

treaty, entitled "Teachers, Professors, and Researchers",

provides:

||

An individual who is, or immediately befoYe visiting a

Contracting State was, a resident of the other

Contracting State and is temporarily presënt in the

first-mentioned Contracting State for the (primary

purpose of teaching, giving lectures, or ðonducting

research at a university, college, school:|or other

accredited educational institution or scientific

research institution in the first mentioned Contracting

State shall be exempt from tax in the first mentioned

Contracting State for a period not exceeddng three

years in the aggregate in respect of remuderation for

such teaching, lectures or research.

By its terms, the exemption in article 19 is available only

for persons who are "temporarily present" in the United States.

After visiting around 1988, Zhang moved to the United States in

1990 and has resided here ever since.

She completed her studies

in 1998, worked for Honeywell from 1998 to 2005, and moved from

Phoenix to Seattle in 2005.

Nothing before us suggests she or

the company intended her employment to last only a short time,

1

- 15 and Zhang did not claim to have had any plans to move out of the

United States.

By 2003, 2004, and 2005, Zhang's presence in the

United States could no longer b) considered temporary.

We

therefore conclude that Zhang is hot-entitled to an exemption

from tax on her Honeywell wages under article 19 of the treaty.

Consequently, we need not address¡the IRS's additional argument

that Zhang's Honeywell wages were not remuneration for teaching,

lecture, or research activities within the meaning of that

article.

2.

Living and Medical Expenses of Zhang's Mother

Section 262 generally denies a deduction for "personal,

living, or family expenses".

Section 213(a) provides for a

deduction for

expenses * * * for medical care of the taxpayer, his

spouse, or a dependent (a I defined in section 152,

determined without regard to subsections (b) (1),

(b) (2) , and (d) (1) (B)

the eof)..

Section 152(b) (3) (A) provides

h t

The term "dependent" does not include an individual who

is not a citizen or natioral of the United States

unless such individual is a iresident of the United

States or a country conticuous to the United States.

Zhang's mother can be a dependent of Zhang only if Zhang's mother

is either (1) a citizen of the Udited States,

the United States,

(2) a national of

(3) a reside:nt of the United States, or (4) a

resident of a country contiguo s to the United States.

The

Internal Revenue Code does not define the term "national of the

- 16 United States".

To define it, we turn to title 8 of the United

States Code, which defines a national of the United States as

either a citizen of the United States or a person who owes

permanent allegiance to the United States.

sec. 1101(a) (22)

Memo. 1984-288

8

.S.C.

(2006); see Pike-Biequnski v. Commissioner, T.C.

(relying on this definition).

Zhang's mother is not a U.S. citizen, a U.S. national, a

U.S. resident, or a resident of a country bord ring the United

States.

We conclude, therefore, that Zhang is not entitled to a

deduction for the $12,208 of expenses she paid for care and

medical treatment of her mother.

3.

Purported Website Business

We conclude that the items Zhang claimed as business

expenses of Hotweb are not deductible even if

he did pay them

because she has not shown that they relate to a business or other

activity conducted for profit.2

2For 2004, Zhang deducted on her Schedule C $22,000 in

"employee benefit programs". At trial Zhang claimed that a

portion of this $22,000 consisted of a benefit program for

herself in the form of payment of her own medi al expenses. The

portion of the $22,000 that consisted of Zhang's own medical

expenses is not deductible.

In addition to the lack of a profit

motive for the activity to which this and the óther Schedule C

expenses allegedly relate, Zhang cannot deduct temployee benefits

provided to herself. A sole proprietorship and its proprietor

are the same entity. See Osborne v. Commissioder, T.C. Memo.

2002-11. Moreover, although medical expenses åre deductible

under sec. 213 even if they are expenses not rülated to a

business, Zhang has not demonstrated that the portion of the

$22,000 consisting of her own medical expenses, if any, was not

(continued...)

!i

- 17 -

a.

Zhang's Credibility

Zhang did not testify credibly about work supposedly

performed for Hotweb.

Her testimyny was terse and vague.

It

lacked corroboration, aside from records Zhang herself had

created and the receipt she misrepresented.3

Zhang failed to

call her son, a central figure in| the supposed activity, to

testify.

Zhang claims that the substantial payments she made to or

for the benefit of her son were compensation for services he

provided.

She presented documents that stated he worked for her

30-40 hours per week during the second half of 2003, 20 hours per

week for the second and third cuarters of 2004, and 5-6 hours per

week for the fourth quarter of 2004.

was "laid off" December 6, 2004.

They also stated that he

But what, if anything, Zhang's

son was actually doing is not apparent.

Zhang testified that he

assembled computers, but it is not apparent that a small website

business would have a use for more than a few computers.

And

there is no evidence that Zhanc bought parts for more than a few

computers.

She also testified that her son reviewed her emails

2(...continued)

already deducted on Schedule A

instead to have reflected Zhan '

(The entire $22,000 entry seems

son's college expenses.)

3The fact that the supposed activity centered on creating

documents, some to be displayed on a website and others to

instruct a computer, makes the absence of evidence especially

striking.

- 18 -

and other documents for grammar.

But Zhang di

not corroborate

that her son reviewed any substantial quantity of documents or

||

that the documents related to Hotweb.

One of her

unemployment-insurance-tax returns describes hŠr son's work as

"programming", but the record does not show th t Zhang's son

actually worked on any programs.

Zhang presented no explanation for these striking omissions.

Her copious testimony and documentation on oth r matters suggest

that her memory had not simply faded.

We infe

evidence would not have been favorable.

that fuller

The absence of a

legitimate explanation for Zhang's striking failure to

corroborate an activity that supposedly took a great deal of time

and money indicates to us that she is not credible generally.

See Igberaese v. Commissioner, T.C. Memo. 2010 284..

b.

Profit Motive

Section 183 provides that a deduction forsexpenses of an

activity not conducted for profit cannot, gene(ally, exceed gross

income from the activity.4

Zhang did not repor

any gross income

*Sec. 183(c) defines "activity not engaged in for profit" as

"any activity other than one with respect to which deductions are

allowable for the taxable year under section 1$2 [trade-orbusiness expenses] or under paragraph (1) or (2) of section 212

[expenses for production of income or manageme t, etc., of

property held for production of income]." A "trade or business"

(which we refer to simply as a "business"), like an activity "for

production of income", requires a profit motive. See

Commissioner v. Groetzinger, 480 U.S. 23, 35 (1987); Gaiewski v.

Commissioner,

723 F.2d 1062

(2d Cir.

1983), re g. T.C. Memo.

(continued...)

11

il

i

- 19 -

for Hotweb for any of the years at issue.

The IRS determined

that Hotweb was not operated for profit and that therefore Zhang

was not entitled to deduct any of the expenses of the activity.

Whether an activity is conducted for profit depends on the

taxpayer's state of mind.

Because we cannot observe this

directly, we look to all the facts and circumstances of the

activity.

See Dreicer v. Commissioner,

affd. without opinion 702 F.2d 1205

78 T.C. 642,

(D.C. Cir.

1983).

645

(1982),

As we will

explain, we find that there was a lack of profit motive for the

Hotweb activity (to the extent it was an activity at all).

Section 1.183-2(b), Income Tax Regs., provides that "all

facts and circumstances with respect to the activity are to be

taken into account" in determiring the existence of a profit

motive and provides a nonexclusi e list of factors to consider in

determining whether a profit mctive exists.

Analysis of these

factors satisfies us that Zhanc lacked a profit motive for

Hotweb.

The first factor is described by the regulations as follows:

Manner in which the taxpayer carries on the activity.-The fact that the taxpayer carries on the activity in a

businesslike manner and maintains complete and accurate

books and records may ind cate that the activity is

engaged in for profit. S'milarly, where an activity is

carried on in a manner substantially similar to other

activities of the same na ure which are profitable, a

profit motive may be indi ated. A change of operating

4(...continued)

1983-133.

- 20 -

methods, adoption of new techniques, or abandonment of

unprofitable methods in a manner consiste t with an

intent to improve profitability may also ndicate a

profit motive.

Sec. 1.183-2 (b) (1), Income Tax Regs.

We have

ound an activity

to be conducted in a "businesslike" manner if it involves

I

purposeful attention to making a profit.

Businesslike conduct is

characterized by careful and thorough investigation of the

profitability of a proposed venture, monitoring of a venture in

progress, and attention to problems that arise over time.

Ronnen v. Commissioner,

Commissioner,

90 T.C.

74,

88 T.C. 464, 481-482

Commissioner, T.C. Memo. 1990-376.

93

See

(1988); Taube v.

(1987); Stephens v.

It is not dufficient merely

to record an activity's finances in a manner typical of

sophisticated businesspeople--one must use one's knowledge of the

activity's progress to, where appropriate, attempt to improve

that progress.

See Lowe v. Commissioner, T.C. Memo. 2010-129.

|

Zhang did not establish that she (or anyode) conducted the

purported website activity very much at all.

money from a website, it is generally necessar

In order to make

to actually

create a website, and Zhang has not shown that she tried very

hard to do that.

Mainly she attributed to the activity expenses

that she would have incurred anyway.

a profit motive.

This factor weighs against

- 21 -

The second factor is desc ibed by the regulation as follows:

The expertise of the taxpayer or his advisors.-Preparation for the activilty by extensive study of its

accepted business, econom c |and scientific practices,

or consultation with thos

ho are expert therein, may

indicate that the taxpaye has a profit motive where

the taxpayer carries on t e activity in accordance with

such practices. Where a axpayer has such preparation

or procures such expert a vice, but does not carry on

the activity in accordanc with such practices, a lack

of intent to derive profit may be indicated unless it

appears that the taxpayer is attempting to develop new

or superior techniques which may result in profits from

the activity.

Sec. 1.183-2 (b) (2), Income Tax Regs.

Zhang had significant

expertise in computer programming generally.

But nothing in the

record indicates that she had specific expertise in developing

programs related to news storids, translations, or brokerage or

that she had expertise in admiristering a complex website or a

business.

This factor is neutral.

The third factor is described by the regulation as follows:

The time and effort expended by the taxpayer in

carrying on the activity.3-The fact that the taxpayer

devotes much of his perso all time and effort to

carrying on an activity, -articularly if the activity

does not have substantial personal or recreational

aspects, may indicate an intention to derive a profit.

A taxpayer's withdrawal from another occupation to

devote most of his energie s to the activity may also be

evidence that the activity is engaged in for profit.

The fact that the taxpayer devotes a limited amount of

time to an activity does rot necessarily indicate a

lack of profit motive where the taxpayer employs

competent and qualified persons to carry on such

activity.

Sec. 1.183-2 (b) (3), Income Tax Regs.

We infer from Zhang'-s

striking failure to show anything she or her son accomplished for

- 22 -

Hotweb that little meaningful effort was put i to the activity.

This factor weighs against a profit motive.

The fourth factor is the "expectation that assets used in

[the] activity may appreciate in value."

Income Tax Regs .

Sec. 1.183-2(b) (4) ,

There is no indication that

hang expected any

assets to appreciate, but there is also no indication that

appreciation of assets would be important to the success of the

news service or car brokerage she supposedly e pected to operate.

This factor is neutral.

The fifth factor is the success of the ta payer in carrying

on other activities, whether similar or dissimilar to the one for

which a business deduction is sought.

Sec. 1. 83-2(b) (5), Income

Tax Regs.

Zhang had worked as a computer programmer for a large

company.

She would be better situated than most people to make

il

Hotweb succeed.

We conclude, therefore, that this factor weighs

modestly in favor of the existence of a profit motive.

The sixth factor is "The taxpayer's history of income or

losses with respect to the activity."

Tax Regs.

Sec. 1. 83-2(b) (6), Income

This factor weighs against a profit motive.

Zhang

consistently reported losses, without any gros

income or even

gross receipts, for Hotweb.

factor, the

regulation says:

In describing thi

"A series of losses during the initial or

start-up stage of an- activity may not necessarily be an

indication that the activity is not engaged in for profit."

Id.

- 23 -

But Hotweb' s supposed activities pere not so, much starting up as

never begun.

The seventh factor, "The amount of occasional profits, if

any, which are earned", is likewise negative.

2 (b) (7) , Income Tax Regs..

Sec. 1.183-

The regulation continues:

[A]n opportunity to earn a substantial ultimate profit

in a highly speculative venture is ordinarily

sufficient to indicate that the activity is engaged in

for profit even though losses or only occasional small

profits are actually gene ated.

Id.

But even if Zhang's business concepts had the potential to

produce large profits, she failed to make an effort to turn them

into real opportunities.

The eighth factor is described by the regulation as follows:

The financial status of tNe taxpayer.--The fact that

the taxpayer does not have substantial income or

capital from sources othe than the activity may

indicate that an activity is engaged in for profit.

Substantial income from s urces other than the activity

(particularly if the losses from the activity generate

substantial tax benefits) may indicate that the

activity is not engaged ir for profit especially if

there are personal or recreational elements involved.

Sec. 1.183-2(b) (8), Income Tax Regs.

Zhang had a substantial

amount of wage income during tl e years at issue .

She claimed

that Hotweb's losses resulted in a significant tax savings for

her.5

The "losses" consist-ed of expenses she and her son would

sZhang's own tax savings didi not come at the cost of a

significant increase in the re orted taxes of her son. His

reported tax liabilities were Undffected by Hotweb's small

purported "wages" because they were offset by the standard

(continued. . . )

||

- 24 likely have incurred anyway.

Therefore, this factor suggests

that she did not have a profit motive for the activity.

Engdahl v. Commissioner,

72 T.C. 659,

670

See

(197 ); Harrison v.

Commissioner, T.C. Memo. 1996-509.

The ninth factor is described by the reguiation as follows:

|

Elements of personal pleasure or recreatiön.--The

presence of personal motives in carrying on of an

activity may indicate that the activity iš not engaged

in for profit, especially where there arearecreational

or personal elements involved. On the ot er hand, a

profit motivation may be indicated where an activity

lacks any appeal other than profit. It iŠ not,

however, necessary that an activity be enýaged in with

the exclusive intention of deriving a proÿit or with

the intention of maximizing profits. * * *

||

Sec. 1.183-2(b) (9), Income Tax Regs.

a profit motive.

This facdor weighs against

The primary real activities Šor which Zhang .

Il

claimed business-expense deductions were simply her son's

activities of living in an apartment and going to college--her

expenditures for which would normally just be nondeductible

family expenses.

See sec. 262(a)

("Except as

therwise expressly

provided * * *, no deduction shall be allowablå for personal,

living, or family expenses.").

il

We conclude from the factors in section 1.183-2(b), Income

Tax Regs., that Zhang did not conduct Hotweb, the purported

business to which she claimed her business-expense deductions

s(...continued)

deductions and personal exemptions he claimed. His reported tax

liabilities were unaffected by Hotweb's larger "employee

benefits" because he did not report them as income.

Il

- 26 related, for profit during any of the years at issue.

The most

important reason for this conclusion is that she failed to

conduct much website activity at all.

-c.

Connection of Expenses With Activity

Sections 162 and 212 gene ally allow deductions for expenses

that are "ordinary and necessary" to a business or other profitmotivated activity.

(Expenses of an activity that is not profit

motivated generally are not decuctible.

See sec. 183.) ¡ In order

for Zhang to establish that she is entitled to a deduction she

claimed for an expense of Hotweb (her supposed website-based

business), she must therefore establish (1) that website-related

activity existed,

(2) that the activity was profit motivated, and

(3) that the expense ris necessary to the activity.

As discussed, Zhang failed, to establish that her purported

activity even existed to any significant extent and, relatedly,

failed to establish that she had a profit motive for it.

Additionally, she has failed to show that most of her claimed

expenses have any connection with a website (including, for

instance, by financing or advertising a website).

This last

failure is an independent ground requiring disallowance of her

claimed deductions for "office e pense"

(i.e., rent for"her son's

apartment),

(i.e., -tuition for her

"employee benefit programs"

son's college education), and 'wages"

(i.e., money paid to him).

Zhang has not shown that the apartment was not used entirely as

- 26 -

living space, her explanations of the work her son supposedly

performed in exchange for the employee benefits and wages are

scanty and implausible, and her relationship to him suggests that

the rent, tuition, and money were simply gifts from her to him.

We decline, however, to consider whether every one of the

expenses Zhang claimed for Hotweb lacked a connection with a

website.

4.

Status of Zhang's Son as Dependent

Zhang' s son claimed a personal exemption

or himself for

each of the years 2003 and 2004, but not 2005.

On her 2005

return, but not her 2003 or 2004 return, Zhang claimed that her

son was her dependent and accordingly claimed a personal

exemption for him.

The IRS did not challenge Zhang's entitlement

to claim a personal exemption for her son for 2005.

She now

li

claims that she is also entitled to claim persönal exemptions for

her son for 2003 and for 2004, which the IRS d sputes.

The IRS contends that because Zhang's son claimed exemptions

for himself on his returns, Zhang cannot claim personal

exemptions for him.

But the fact that Zhang' s son claimed

personal exemptions on his own returns is irre evant in

ascertaining Zhang's entitlement to personal e emptions for him.

Section 151(a) provides a personal exemption for the taxpayer,

and section 151(c) provides the taxpayer additional personal

exemptions if he or she has dependents.

The tdrm "dependent"

- 27 -

includes, but is not limited to, a child of the taxpayer over

one-half of whose support the taxpayer provided for the year in

question.

Sec. 152(a).

The taxpayer's additional personal

exemption is not contingent on the dependent's not claiming a

personal-exemption deduction on his or her own return.

In support of its contention, the IRS points us to section

151(d) (2).

Section 151(d) (2) prohibits a taxpayer who is a

dependent of another from claiming a personal-exemption deduction

on his or her own return.

dependent.

But this provision affects only the

Thus, the mere fact that Zhang's son claimed

exemptions for himself for 2003 and 2004 does not mean that Zhang

is not entitled to claim him as a dependent for those two years.

The IRS raises no other challerges- to the personal-exemption

deduction.

On the basis of the record before us, we find that

Zhang is entitled to claim her sdn as her dependent' for 2003 and

2004.'

Consequently, she is entitled to an additional personal-

exemption deduction for each of those years.

'If true, Zhang's allegation that she provided her son money

and covered his college expenses as compensation for working on

Hotweb could weigh against her claim that he is her dependent.

See sec. 152 (a) (taxpayer must have provided more than one-half

of dependent's support); Limpe t v. Commissioner, 37 T.C. 447,

450 (1961) (amounts received at compensation considered support

provided by oneself, rather then support provided by payor). But

the IRS has not questioned whet her Zhang satisfied the support

test.

- 28 -

5.

Alleged IRS Misconduct

Zhang failed to establish a factual basis for her

allegations of misconduct.

a.

Retaliation

Zhang contends that the IRS audited her returns to retaliate

against her because she "reported H1B fraud and abuse, and also

reported unfair tuition for US citizens to thellUS Senate".

We do not find Zhang to have substantiateE her inference

that the audit was retaliatory.

No evidence before us indicates

that Zhang's immigration-law or college-tuitio -related issues

had any bearing on IRS decisions about auditinè her returns.

We also note that Zhang claimed deductions that were

facially dubious, such as thousands of dollars of vehicle

expenses for a small website business.

This s ggests that the

IRS simply audited her returns in order to determine whether they

were correct.

b.

Il

Coercion

As previously noted, Zhang signed a conse t form that

extended the time for the IRS to issue notice of the 2003

deficiency.

Zhang did not testify that the IR

specifically

threatened her with deportation or any other adverse immigration-

law consequence to induce her to sign the consdnt form.

She

testified only that an unnamed person at the I S asked about her

li

- 29 -

immigration status, and she presdnted no evidence to corroborate

that the conversation took pla e.

She also testified that ar unknown person called her at home

and told her that he or she knew iZhang was in the country

illegally and asked her for morey.

She said -that not many people

knew her presence in the Unitec States was unlawful and that the

caller therefore must have beer from the IRS.

She said there was

a police record of these incidents but did not introduce the

police record as evidence.

She did not corroborate these alleged

calls or testify about them in de'tail.

Zhang tried to deceive us by altering a receipt in court.

She also tried to deceive us, as she-had for years tried to

deceive the IRSI, by disguising family expenses as expenses of an

essentially fictitious busineSE.

TherefOre, we give her vague,

uncorroborated testimony littlé weight and do not conclude that

the alleged incidents occurred.

Even if the alleged harassing

telephone call did occur, Zhanc's contention that the IRS was

involved is nothing more than speculation.

6.

Penalty

As mentioned earlier, the IRS imposed 20-percent section

6662 accuracy-related penalties upon Zhang for her underpayments

for all three years (which, it determined, were equal to the

deficiencies).

See sec. 6664.

one of the grounds the IRS

-

asserted for the penalty is "stbstantial understatement of income

- 30 -

tax".

Another is "negligence or disregard of rules and

regulations".

It is undisputed that Zhang had underpayments

equal to the correct amounts of her deficiencies (which she has

petitioned the Court to redetermine).

Zhang argued that her tax returns were co¼rect.

explained, they were not.

As we have

The additional personal-exemption

deductions to which Zhang's son's status as het dependent

entitles her for 2003 and 2004 do, however, reduce her

deficiencies, underpayments, and penalties for those years.

11

Under section 7491(c), the IRS must come forward with

sufficient evidence that it is appropriate to impose

penalties.

See Higbee v. Commissioner,

116 T.G. 438, 446

(2001).

However, once the IRS has met this burden of production, the

burden of proof remains with the taxpayer., inciuding the burden

of proving that the penalties are inappropriat

because of

reasonable cause or substantial authority.

Rule 142(a);

Se

Higbee v. Commissioner, supra at 446-447.

Even with the additional personal-exemption deductions,

Zhang's "understatements" of income tax for 2003 and 2004 are

"substantial" because they exceed both (1) 10 percent of the tax

required to be shown on the returns and (2) $5,¡000 for each

year.?

The IRS has met its burden of producing evidence of the

li

||=

?Sec. 6662(d) (2) (B) excludes from the definition of

"understatement" for this purpose a deduction supported by

(continued...)

- 31 deficiency, and the substantia

understatement undisputedly

follows as a computational matter.

Zhang does not have a "substantial understatement" of income

tax for 2005.

But Zhang's contrivance of the supposed Hotweb

activity to claim business-expense deductions for numerous

personal and family expenses not only meets the IRS's burden of

production but persuades us that as to its deductions, the source

of her deficiency for that year, she neglected or disregarded her

tax obligations.

Section 6664(c) provides that no penalty shall be imposed

under section 6662 with respect to any portion of an underpayment

if it is shown that there was a reasonable cause for, and the

taxpayer acted in good faith with respect to, such portion.

Zhang did not specifically argue that we should apply the

reasonable-cause-and-good-faitt exception to any part of any of

her underpayments, and the facts in the record do not establish

that the exception applies.

ZYang used a return-preparation

computer program each year.

She claims that she took a tax

course from a return-preparaticn firm in 2003.

But nothing

7(...continued)

"substantial authority" or a "reasonable basis" and disclosure.

Zhang has not explained what substantial authority or reasonable

bases may have existed for her edroneous deductions. Nor do we

find on our own that her positions had substantial authority or

reasonable bases.

See sec. 1.6662-3(b) (3),

(d) (2),

Income Tax

Regs. (describing the "reasonable basis" and."substantial

authority" standards for support of a tax position which

ultimately proves to be erronedus).

||

i

- 32 before us indicates that any error in Zhang's ½eturn resulted

from an erroneous explanation of tax law provided by a tax

instructor, IRS employee, or computer program, or from an

erroneous computation performed by a program.

She claims that in

the course of preparing one of her returns, shè asked an IRS

employee what address to use for Hotweb (SchedÖle C asks for the

||

"business address") , and the employee suggested she use her son's

apartment address.

'But Zhang did not explain

hy it would be

reasonable for her to think, on the basis of tl is suggestion,

that the apartment was, deductible.

We observe that Zhang's Il

erroneous deduction for her mother's living andt medical expenses

could have followed from" a misunderstanding of .a complex issue:

section 213 does allow a deduction for medical and long-term-care

expenses of a taxpayer and certain dependents.

But Zhang failed

to indïcate specifically what led her to claim this deduction.

To reflect the foregoing,

Decisidn will be entered

under Rule ]55.

.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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