# United States Tax Court

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URL: https://www.frixlaw.com/law-library/documents/agency%3Atax-court%3A316c92ea936582c0

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

United States Tax Court
T.C. Memo. 2023-89
RICHARD JOHN CARDULLA,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent
—————
Docket No. 17579-18.

Filed July 19, 2023.
—————

P engaged in numerous real estate-related activities
with respect to which R disallowed his claimed losses and
increased his gross income. Among P’s activities was the
use of a single-member LLC, a disregarded entity, to
purchase real estate. In exchange for the real estate, the
sellers received from the LLC its secured Note for
$1,200,000 with 10% simple interest accruing yearly; with
payments of neither principal nor interest due until
expiration of the 12-year term of the note. Using the
accrual method of accounting, the LLC accrued and
deducted interest of $120,000 on account of the Note (no
payment of principal had been made).
Held: Disallowance of numerous real estate-related
deductions sustained for lack of substantiation.
Held, further, Note was bona fide indebtedness.
Held, further, Note was a debt instrument having
original issue discount.
Held, further, without a change in method of
accounting, LLC could not for examination years accrue
interest payments under OID rules.

Served 07/19/23

2
[*2]

Held, further, LLC’s property was held for long-term
appreciation and not in trade or business; interest on Note
was investment interest subject to I.R.C. § 163(d)
limitation on investment interest.
Held, further, increases in capital gain income
sustained.
Held, further, adjustment to Social Security benefit
sustained.
Held, further, accuracy-related penalty sustained.
—————

Richard John Cardulla, pro se.
Jeffrey L. Heinkel, Heather K. McCluskey, and Julia Kapchinskiy, for
respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION
HALPERN, Judge: By Notice of Deficiency dated July 26, 2018
(Deficiency Notice), respondent determined deficiencies in, and
accuracy-related penalties with respect to, petitioner’s 2014 and 2015
income tax liabilities as follows: 1
Year

Deficiency

Accuracy-Related Penalty
§ 6662(a)

2014

$23,653

$4,731

2015

44,041

8,808

Petitioner made federal income tax returns for his taxable
(calendar) years 2014 and 2015 on Forms 1040, U.S. Individual Income
Tax Return. He included with each return two Schedules C, Profit or
Loss From Business, and one Schedule E, Supplemental Income and
1 Unless otherwise indicated, statutory references are to the Internal Revenue
Code, Title 26 U.S.C. (Code), in effect at all relevant times, regulation references are
to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times,
and Rule references are to the Tax Court Rules of Practice and Procedure. All dollar
amounts have been rounded to the nearest dollar.

3
[*3] Loss. The first Schedule C included with each return (Schedule
C–1) is with respect to a real estate business named “X-Way Delta, LLC”
(X-Way Delta). The second Schedule C included with each return
(Schedule C–2) is with respect to an unnamed real estate business.
The questions for decision are as follows.
1. Whether petitioner’s Schedules E income from partnerships
and S corporations should be increased by $4,241 and $109,755 for 2014
and 2015, respectively?
2. Whether he is entitled to deduct additional Schedule E rental
real estate expenses of $5,369 and $8,801 for those years, respectively?
3. Whether he is entitled to deduct Schedule C–2 total expenses
of $29,258 and $51,000 for those years, respectively?
4. Whether he is entitled to deduct Schedule C–1 total expenses
of $130,869 and $131,593 for those years, respectively?
5. Whether he has unreported capital gain income from Island
Mountain, LP (Island Mountain), of $23,655 and $19,170 for those years,
respectively?
6. Whether, for 2014, he must include in gross income Social
Security benefits of $8,451?
7. Whether, for 2015, he is liable for a section 6662(a) accuracyrelated penalty of $8,808? 2
All other adjustments made by respondent in determining the
deficiencies in tax for the years at issue are computational, resulting
from the above referenced adjustments. Those computations and
adjustments will not be discussed further.

2 Respondent has conceded the accuracy-related penalty that he determined

for 2014.

4
[*4] Petitioner bears the burden of proof. See Rule 142(a)(1). 3 With
respect to the accuracy-related penalty, respondent bears a burden of
production. See § 7491(c).
FINDINGS OF FACT
Preliminary Statement
Before making our findings of fact, we pause to address
petitioner’s failure to comply with Rule 151, which addresses briefs. At
the conclusion of the trial in this case, we ordered the parties to file
briefs, setting a schedule for seriatim briefs, petitioner to open,
respondent to answer, and petitioner to reply. We directed petitioner’s
attention to Rule 151. Rule 151(e)(3) requires that an opening brief
contain proposed findings of fact in the form of numbered concise
statements of essential fact and not a discussion or argument relating
to the evidence or the law. Petitioner’s Opening Brief violates the Rule
in that petitioner makes 12 proposed findings, virtually none of which
are concise statements of essential fact and most of which respondent
correctly identifies as comprising legal argument and not statements of
fact.
For example, petitioner proposes that we find:
3. The facts support X-Way Delta’s property was not a
capital asset under IRC section 1221(a)(1) in that a capital
asset does not include “property held by the taxpayer
primarily for sale to customers in the ordinary course of his
trade or business.” . . .
....

3 Section 7491(a)(1) provides that, if a taxpayer offers credible evidence with
respect to any issue relevant to determining his tax liability, the burden of proof with
respect to the issue is on the Commissioner. See also Rule 142(a)(2). Section 7491(a)(1)
applies only if the taxpayer complies with the relevant substantiation requirements in
the Code, maintains all required records, and cooperates with the Commissioner with
respect to witnesses, information, documents, meetings, and interviews.
See
§ 7491(a)(2)(A) and (B). The taxpayer bears the burden of proving compliance with the
conditions of section 7491(a)(2)(A) and (B). See, e.g., Mileham v. Commissioner, T.C.
Memo. 2017-168, at *30. Petitioner neither proposes facts to support his compliance
with the conditions of section 7491(a)(2)(A) and (B) nor persuasively argues that
respondent bears the burden of proof on any issues because of section 7491(a)(1). We
therefore conclude that section 7491(a)(1) does not apply in this case.

5
[*5]

6. The facts support that the deductions taken by
Petitioner were necessary expenses in carrying on his
business and were actually paid or accrued in the years in
question. . . .

Petitioner’s Reply Brief also violates Rule 151(e)(3), which
requires that, in a reply brief, a party “set forth any objections, together
with the reasons therefor, to any proposed findings of any other party.”
Respondent in his Answering Brief proposed 222 findings of fact.
In reply, petitioner makes no systematic response. His Reply Brief is a
37-page narrative, initially attacking respondent’s attorneys and then
comprising what amounts to additional testimony without significant
citation of the record interspersed with apparent objections to eight or
so of respondent’s proposed findings.
Petitioner has not provided us with usable proposed findings of
fact. Moreover, because he failed to object to substantially all of
respondent’s proposed findings, we must conclude that he accepts
respondent’s unobjected-to proposed findings of fact as correct. See, e.g.,
Jonson v. Commissioner, 118 T.C. 106, 108 n.4 (2002), aff’d, 353 F.3d
1181 (10th Cir. 2003).
Stipulation
The parties have stipulated certain facts and the authenticity of
certain documents. The facts stipulated are so found, and the
documents stipulated are accepted as authentic.
Petitioner
Petitioner is an attorney. His mailing address was in California
when he filed the Petition. He has been involved in real estate activities
for many years.
Real Properties
The following real properties figure in petitioner’s tax returns for
2014 and 2015.
L Street—L Street is real property in southeast Washington, D.C.
During the years at issue, the property was a vacant lot. Up until
sometime before 2014, petitioner was sole owner of the property. During
his sole ownership, he installed a fence around the property. The record

6
[*6] contains two invoices from Long Fence, both dated in February
2006, both for delivery to L Street, both billed to Cardulla Properties,
one for the short-term lease of “panels” and the second, for $9,566, for
delivery and installation of a chain link fence.
Plaza Boulevard—Plaza Boulevard is a real property in National
City, California. During the years at issue, it was a vacant lot.
Petitioner plans to build a “speculation house” on the lot. The property
was not rented during 2014 or 2015.
Turner Road—This property is in Bombay, California, next to
property owned by X-Way Delta. On the Turner Road property is a
house badly damaged by an earthquake. Petitioner has restored the
house and uses it as an office and a place to stay when he is visiting the
X-Way Delta property. Otherwise, the property is vacant.
L Street No. 2—A second property on L Street in southeast
Washington, D.C.
Commercial Street—A property in San Diego, California.
Salton Sea Property—The Salton Sea is a shallow, landlocked,
highly saline body of water in southern California. In 1985, petitioner
and three others—Scott Hettelsater, Tom Wagner, and Equitable
Finance (Equitable)—bought numerous parcels of real estate in
proximity thereto (Salton Sea property). Messrs. Hettelsater and
Wagner were longtime acquaintances of petitioner. Mr. Wagner was
president of Equitable. Initially, each person owned his (its) parcels
separately. Petitioner’s idea was to develop the Salton Sea property as
a mobile home park or hot water spa. He viewed development of the
property as his project, in which Messrs. Hettelsater and Wagner and
Equitable (Investors) invested.
After 20 years of unsuccessful
development efforts, the Investors lost heart and wanted to sell their
parcels. Petitioner thought he could save the project, and he offered to
buy out the Investors, although he told them that he could not then
afford to pay cash. Petitioner formed X-Way Delta to purchase parcels
from the Investors. Petitioner receives $5,000 a year from a fish farm
with an easement that allows the farm’s wastewater to pass through an
unidentified portion of the Salton Sea property on its way to the sea.

7
[*7] Entities
The following entities figure in petitioner’s tax returns for 2014
and 2015.
Island Mountain—Island Mountain is a limited partnership of
which petitioner was a member.
X-Way Delta—X-Way Delta, a single-member limited liability
company (LLC) of which petitioner is the member. Petitioner formed XWay Delta in 2005 as a vehicle by which to make good on his offer to buy
out the Investors. X-Way Delta acquired the Investors’ interests in 11
of the parcels constituting the Salton Sea property. It acquired those
interests (X-Way Delta property) by way of seven individual quitclaim
deeds and one grant deed (collectively, Deeds). For an unstated
“valuable consideration,” each Investor released his (its) interests in
certain of the 11 parcels in favor of X-Way Delta. All of the Deeds are
dated either December 28 or 29, 2005. None was recorded. Absent from
the record is any deed evidencing petitioner’s transfer of property to
X-Way Delta.
In consideration of the X-Way Delta property, X-Way Delta
executed a document styled “Note Secured By Deed of Trust” (Note and
Deed of Trust, respectively). The Note is dated December 29, 2005, and
states that, for value received, X-Way Delta promises to pay to Equitable
and Mr. Hettelsater $1,200,000 “with interest from January 1, 2006,
until paid at the rate of 10% per annum.” It further states that “the
whole sum of principal plus accrued interest” is due and payable on or
before January 1, 2018. It states that it is a purchase money mortgage.
It concludes that it is secured by a Deed of Trust, “affecting the following
parcel numbers [viz, five of the six parcels listed in the Deed of Trust].”
The Deed of Trust is dated January 4, 2006. The parties to it are
X-Way Delta, “Trustor”; Chicago Title Co., a California corporation,
“Trustee”; and Equitable and Mr. Hettelsater, “Beneficiaries.” The Deed
of Trust recites that X-Way Delta grants to Chicago Title Co. “in Trust
with Power of Sale that property . . . described as,” and here are listed 6
of the 11 parcels constituting the X-Way Delta property. The Deed of
Trust is recorded.
The record contains no contracts of sale for any parcels
constituting the X-Way Delta property. Nor were the parcels appraised
before the Deeds were executed or the Note executed. Petitioner

8
[*8] testified that he and the Investors were “thinking about 1,000 or
1,200 an acre, around that.”
X-Way Delta paid no interest during the 12-year term of the Note,
nor, when the Note matured in 2018, did it pay the accrued interest or
principal. Petitioner claims that, when the Note matured, the creditors
extended its term to 2024.
In 2007, petitioner thought he had a buyer for the X-Way Delta
property, but the potential sale fell through because of a downturn in
the economy.
Petitioner believes that, since 2007, environmental problems in
the Salton Sea area have increased. He analogizes the area to the Love
Canal. Because of environmental problems, he feels that the doors have
shut to development of the X-Way Delta property. He believes that,
without a $20,000 tax saving from the deduction of interest accruing on
the Note, maintaining the property would be “nonsurvivable.” He thinks
that the value of the property lies in holding onto it long enough, and
then someone will be able to make use of minerals under it and develop
it for hydrothermal energy.
X-Way Delta does not maintain books and records.
Petitioner’s Returns and Respondent’s Adjustments
Petitioner’s 2014 and 2015 returns are mostly handwritten, and
neither return reports any taxable income or tax due. In processing
those returns, respondent made numerous mathematical and
computational corrections. One notable feature of both returns is that,
on both, petitioner claims the same deduction for an X-Way Delta loss
twice, on separate schedules. For 2014, petitioner claimed an X-Way
Delta loss of $125,869 on both Schedule C–1 and on Schedule E, Part II.
For 2015, he did likewise with respect to an X-Way Delta loss of
$126,593. He testified that he did so because he did not know the
difference between an S corporation and a single-member LLC.
Schedule E—Island Mountain and X-Way Delta
Petitioner’s returns for 2014 and 2015 both include a Schedule E.
Part I of Schedule E is for reporting income or loss from rental real
estate and royalties, and Part II is for reporting income or loss from
partnerships and S corporations. Petitioner listed two pass-through
entities in Part II of each Schedule E, Island Mountain and X-Way

9
[*9] Delta, which petitioner mistakenly identified as an S corporation
but which, as found, is a single-member LLC. 4
Island Mountain issued petitioner for 2014 a corrected Schedule
K–1 (Form 1065), Partner’s Share of Income, Deductions, Credits, etc.,
reporting $4,241 of ordinary income and $23,655 of long-term capital
gain. It issued him for 2015 a Schedule K–1 reporting $2,332 of ordinary
income and $19,170 of long-term capital gain. Respondent determined
that petitioner had not reported the ordinary income amounts from
those schedules and increased his Schedule E, Part II income for each
year accordingly.
As stated, petitioner reported a loss from X-Way Delta of $126,593
on his 2015 Schedule E, Part II. He also reported there his Island
Mountain long-term capital gain of $19,170. Netting the two amounts
($19,170 − 126,593 = $−107,423), he reported a Part II loss of $107,423
(Part II loss). On Part I of his 2015 Schedule E, he reported a net gain
of $63,226. Subtracting his Part I gain of $63,226 from his Part II loss
of $107,423 results in a difference of $44,197 or, in other words, a 2015
Schedule E loss of $44,197. Petitioner should have carried that loss to
the front page of his 2015 Form 1040 and entered it on line 17 (where
Schedule E gain or loss is included in the computation of total income).
But he did not, leaving line 17 blank. In processing petitioner’s 2015
return, respondent corrected for petitioner’s omission of a line 17
amount. He entered into his computers −$44,197 as the amount that
should have been reported as a 2015 Schedule E loss on line 17.
Subsequently, in determining a deficiency in petitioner’s tax for
2015, respondent adjusted petitioner’s income by disallowing the 2015
Schedule E, Part II loss of $107,423, presumably on the grounds that,
X-Way Delta being a disregarded entity, Schedule E, Part II, reporting
was inappropriate for any X-Way Delta loss and Island Mountain’s
capital gain should have been reported on Schedule D, Capital Gains
and Losses. 5 Respondent’s disallowance of the Part II loss exactly offset
Thus, we assume that, pursuant to Treasury Regulation § 301.7701-3(b),
X-Way Delta is disregarded as an entity separate from its owner. For tax purposes,
X-Way Delta’s business is treated as a proprietorship of which petitioner is considered
the proprietor. E.g., Brown v. Commissioner, T.C. Memo. 2014-167, at *3.
4

5 That explanation would appear to justify only reclassifying the $107,423 loss
as a 2015 Schedule C loss of $126,593 and a 2015 Schedule D gain of $19,170, rather
than disallowing the loss altogether. Such reclassification was unnecessary for the
$126,593 loss from X-Way Delta because petitioner had already reported that loss for

10
[*10] the inclusion of that loss in the Schedule E amount that
respondent treated petitioner as erroneously having omitted from
line 17. Accompanying the Deficiency Notice is Form 5278, Statement–
Income Tax Changes. The amount of the 2015 Schedule E adjustment
for partnership and S corporation gains and losses is positive $109,755,
which is the sum of the disallowed Part II loss of $107,423 and the
omitted $2,332 of Island Mountain ordinary income from the corrected
Schedule K–1. 6
Schedule E—Rental Real Estate
On his 2014 and 2015 Schedules E, Part I, petitioner listed five
rental properties: L Street, Plaza Boulevard, Turner Road, L Street
No. 2, and Commercial Street.
For neither year did he report any rents (or other income) from
the first three properties. He reported total expenses for the five
properties of $84,865 and $77,113 for those years, respectively. Of those
sums, $20,405 and $15,290 were the expenses allocable to the first three
properties. The following Tables 1 and 2 detail what petitioner reported
for 2014 and 2015 for those three properties.

second time on his 2015 Schedule C–1. As to the misreported $19,170 Island Mountain
long-term capital gain, respondent removed it from Schedule E and made a positive
adjustment to petitioner’s 2015 Schedule D income in a like amount.
6 For 2014, petitioner also reported on Schedule E, Part II, an Island Mountain
long-term capital gain ($23,655) and an X-Way Delta loss ($125,869) for the net Part
II loss of $102,214. Petitioner had a Part I gain of $36,468, which, when added to the
Part II loss of $102,214, produced a Schedule E loss of $65,746, which petitioner did
enter on line 17 of his 2014 Form 1040. In processing petitioner’s 2014 return,
respondent disregarded the Part II loss as a component of petitioner’s line 17
Schedule E amount, entering into his computer only the Part I gain of $36,468. He
then had no need to disallow the Part II loss because he had disregarded it, and his
Schedule E adjustment for 2014 includes only the unreported Island Mountain
ordinary income amount of $4,241. As with 2015, petitioner had reported the $125,869
X-Way Delta loss for a second time on his 2014 Schedule C–1. Respondent increased
petitioner’s Schedule D income by $23,655 on account of the Island Mountain longterm capital gain.

11
[*11]

Table 1
2014
L Street

Plaza Boulevard

Turner Road

—

—

—

Income:
Rents
received
Expenses:
Legal and
professional
fees

$350

Repairs

$500

6,000

Taxes

222

859

Utilities

224

Depreciation

$2,443

1,014

8,793

Total
expenses

$2,443

$1,736

$16,226

Loss:

($2,443)

($1,736)

($16,226)

Table 2
2015
L Street

Plaza Boulevard

Turner Road

—

—

—

Income:
Rents
received
Expenses:
Repairs

$1,000

$600

Taxes

231

861

Utilities

348

Depreciation

$2,443

1,014

8,793

Total
expenses

$2,443

$2,245

$10,602

Loss:

($2,443)

($2,245)

($10,602)

Respondent disallowed any deduction for those expenses for lack
of substantiation and on the grounds that the properties were not rental
properties.

12
[*12] As explained below, respondent also disallowed a deduction for
the expenses petitioner reported on the Schedules C–2 but allowed some
of those expenses as additional expenses on the Schedules E, Part I. The
following Table 3 shows the resulting allowance of Schedule E, Part I,
expenses.
Table 3
Year

2014

2015

Rental expenses
claimed on Schedule
E, Part I

$84,865

$77,113

2.

Disallowed Schedule
E, Part I, expenses

(20,405)

(15,290)

3.

Additional Schedule
E, Part I, expenses
from Schedule C–2

25,774

24,091

4.

Schedule E, Part I,
expenses allowed

$90,234

$85,914

5.

Schedule E, Part I
adjustment to
taxable income
(line1–line 4)

($5,369)

($8,801)

1.

Schedule C–2: Real Estate Business
Petitioner’s Schedules C–2 state that they relate to a real estate
business of his. On the 2014 Schedule C–2, petitioner did not specify an
accounting method. On the 2015 Schedule C–2, he checked the box
“Accrual.” The following Table 4 shows petitioner’s Schedules C–2
reporting of income, expenses, and net profits.

13
[*13]

Table 4
2014

2015

Income

$36,000

$51,000

Tentative
expenses

(29,258)

(25,285)

Tentative
profit

6,742

25,715

-0-

(25,715)

$6,742

$0

Home
office
expense
Net
profit

For 2015, petitioner intended to claim no home office expense
deduction. In error, however, he entered, $25,715, his 2015 tentative
profit, on the line for reporting a home office expense and left blank the
line to report his 2015 net profit. In processing his 2015 return
respondent netted his reported home office expense against his tentative
profit and treated the difference—zero—as his 2015 Schedule C–2
income.
Respondent disallowed all of petitioner’s Schedule C–2 expenses
for both 2014 and 2015 on the grounds that petitioner had not shown
that he had incurred the expenses or, if he had, that they were paid
during the taxable year for ordinary and necessary business purposes.
To effect that disallowance, respondent increased petitioner’s reported
Schedule C–2 income by $29,258 and $51,000 for 2014 and 2015,
respectively. 7
Additionally, believing that, for each year, petitioner had
misreported the expenses from rental real estate on Schedule C–2,
respondent, for each year, moved a portion of those expenditures to the
year’s Schedule E, Part I. Respondent began with the total expenses
petitioner had reported on each Schedule C–2, $29,258 and $51,000, for
2014 and 2015, respectively. He reduced each total by the amount of
depreciation claimed—$3,484 and $1,194, respectively—and, for 2015,
the home office expense of $25,715. The resulting differences are the

7 Petitioner conceded at trial that he had no home office expense for 2015.

14
[*14] amounts shown on the following Table 5, which he allowed as
Schedule E, Part I, expenses. See supra Table 3.
Table 5
2014

2015

Total
expenses

$29,258

$51,000

Depreciation

(3,484)

(1,194)

Home office
expense

-0-

(25,715)

Difference

$25,774

$24,091

The depreciation expenses reported on the 2014 and 2015
Schedules C–2 relate to a computer, a small trailer, a backhoe, and a
scooter, as evidenced by depreciation schedules petitioner provided.
Respondent made no adjustments to the Schedule C–2 income
amounts petitioner reported, which, at trial and on brief, petitioner
admits were gross income from Island Mountain and from his other real
estate activities.
Schedules C–1: X-Ray Delta
For each of 2014 and 2015, petitioner’s Schedule C–1 identifies
X-Way Delta as the relevant business and reports that X-Way Delta uses
the accrual method of accounting. The schedules report income,
expenses and profit or loss as follows.

15
[*15]

Table 6
2014

2015

$5,000

$5,000

120,000

120,000

5,000

5,000

120

100

Taxes and licenses

3,422

3,997

Travel

1,326

1,440

Utilities

496

501

Other

505

535

Total expenses

$130,869

$131,593 8

Income (loss):

($125,869)

($126,593)

Income:
Gross receipts
Expenses:
Mortgage interest
Legal and professional
services
Office expense

Petitioner identified the $5,000 of gross receipts for each year as
payment from the fish farm for its easement.
Claiming that petitioner had not shown that either year’s
Schedule C–1 expenses were incurred or, if incurred, were paid during
the taxable year for ordinary and necessary business purposes,
respondent disallowed deductions for all the reported expenses,
increasing petitioner’s taxable income by $130,869 and $131,593 for
2014 and 2015, respectively.
Capital Gains
Respondent made positive adjustments of $23,655 and $19,170 to
petitioner’s gross income for 2014 and 2015, respectively, to account for
the long-term capital gains reported to petitioner on the Island
Mountain Schedules K–1.

8 The sum of total expense is $131,573, and income should be $126,573. The
parties can correct for those errors during the Rule 155 computations.

16
[*16] 2014 Social Security Benefit
Petitioner reported on his 2014 return a taxable Social Security
benefit of $9,942.
In processing petitioner’s return, respondent
disregarded that entry because he believed that petitioner had
computed his taxable Social Security benefit erroneously. Respondent
treated petitioner as having reported zero benefit. In his adjustments
to petitioner’s 2014 income, respondent made a positive adjustment of
$8,451 for Social Security benefits received.
Penalty Approval
Revenue Agent (RA) Keith Kawamoto conducted respondent’s
examination of petitioner’s 2014 and 2015 returns. He prepared a
penalty approval form that included a section 6662 accuracy-related
penalty for 2014 attributable to both petitioner’s negligence and his
substantial understatement of income tax. RA Kawamoto’s acting direct
supervisor, Ella Chernyak, signed the penalty approval form on
June 26, 2017, which was before respondent issued the Deficiency
Notice.
OPINION
I.

Schedule E—Island Mountain and X-Way Delta
A.

Island Mountain

Respondent would increase petitioner’s gross income by $4,241
and $2,332 for 2014 and 2015, respectively, on account of those amounts’
being reported to petitioner as his distributive shares of Island
Mountain’s ordinary income for those years.
At trial, in response to the Court’s question whether petitioner
saw any error in the positive adjustment of $4,241 for 2014, he answered
“no.” Nevertheless, petitioner argues on brief that the adjustment is
improper because he did report that income on his 2014 return.
Petitioner reported a profit of $6,742 on his 2014 Schedule C–2. He
claims that the $10,983 that he entered on the first page of his 2014
Form 1040, line 12, “Business income or (loss),” was the sum of his
distributive share from Island Mountain, $4,241, and his Schedule C–2
profit, $6,742.
Petitioner did not net his 2014 Schedule C–1 and C–2 profits and
losses before entering an amount on Form 1040, line 12. When $6,742

17
[*17] is subtracted from the amount he did enter on line 12, $10,983, the
difference is $4,241. The coincidence between that difference and
respondent’s same adjustment for unreported income from Island
Mountain leads us to accept petitioner’s explanation that he reported
that income along with his Schedule C–2 profit on line 12, and we so
find. We do not sustain respondent’s adjustment in that amount.
For 2015, petitioner claims that the $51,000 of gross income that
he reported on the 2015 Schedule C–2 included not only his $35,000
annual fee as general partner of Island Mountain but also his $2,332
distributive share of its ordinary income. For 2015, it would be quite
the coincidence if the $35,000 annual fee, the $2,332 Island Mountain
ordinary income, and whatever other amounts are included in the gross
income reported on the Schedule C–2 end up being a round $51,000.
Petitioner has not convinced us, and we will not disturb respondent’s
positive adjustment of $2,332.
B.

X-Way Delta

Because X-Way Delta is not an S corporation (or a partnership),
we see no error in respondent’s 2015 Schedule E adjustment disallowing
the Part II loss of $107,423.
C.

Total Schedule E Adjustments

Respondent erred in increasing petitioner’s Schedule E, Part II
income by $4,241 for 2014, but he did not err in increasing his
Schedule E, Part II income by $109,755 ($2,332 + 107,423 = $109,755)
for 2015.
II.

Schedule E—Rental Real Estate: L Street, Plaza Boulevard,
Turner Road
A.

Introduction

Respondent disallowed any deduction for Table 1 and 2 expenses
for lack of substantiation and because the properties were not rental
properties.
Section 162(a) “allow[s] as a deduction all the ordinary and
necessary expenses paid or incurred during the taxable year in carrying
on any trade or business.” Section 212(1) and (2) similarly allows an
individual a deduction for all the ordinary and necessary expenses paid
or incurred during the taxable year for the production or collection of

18
[*18] income or the management, conservation, and maintenance of
property held for the production of income. Section 167(a) “allow[s] as a
depreciation deduction a reasonable allowance for the exhaustion, wear
and tear . . . (1) of property used in the trade or business, or (2) of
property held for the production of income.”
A taxpayer must keep books or records that substantiate the
expenses underlying each deduction claimed on his or her return.
§ 6001; Roberts v. Commissioner, 62 T.C. 834, 836 (1974). Claiming a
deduction on an income tax return is not sufficient to substantiate the
underlying expense. Wilkinson v. Commissioner, 71 T.C. 633, 639
(1979). Rather, an income tax return “is merely a statement of the
[taxpayer’s] claim . . . ; it is not presumed to be correct.” Roberts, 62 T.C.
at 837. With respect to a deduction for depreciation, “the taxpayer must
show that the property was used in a trade or business (or other profitoriented activity). In addition, the taxpayer must establish the
property’s depreciable basis, by showing the cost of the property, its
useful life, and the previously allowable depreciation.” Cluck v.
Commissioner, 105 T.C. 324, 337 (1995). A depreciation schedule alone
is insufficient to substantiate the deduction.
See Holden v.
Commissioner, T.C. Memo. 2015-131, at *65–66.
Under Cohan v. Commissioner, 39 F.2d 540, 543–44 (2d Cir.
1930), if a taxpayer claims a deduction but cannot fully substantiate the
underlying expense, the Court in certain circumstances may
approximate the allowable amount, “bearing heavily if it [so] chooses
upon the taxpayer whose inexactitude is of his own making.” The Court
must have some factual basis for its estimate, however, else the
allowance would amount to “unguided largesse.” Williams v. United
States, 245 F.2d 559, 560 (5th Cir. 1957); accord Eze v. Commissioner,
T.C. Memo. 2022-83, at *5–6.
B.

Discussion

We start and end with the question of whether petitioner has
substantiated the Table 1 and 2 expenditures for which he has claimed
deductions. He has not. Putting aside depreciation for the moment, the
remaining expenditures in the table are legal and professional fees,
repairs, taxes, and utilities. Petitioner has failed to direct us to material
in the record substantiating those expenditures—i.e., to whom paid, for
what purpose, when paid, what evidence of payment, and the like. Nor
has petitioner provided a factual basis from which, pursuant to Cohan,
we could approximate the amount of any of those expenditures.

19
[*19] Petitioner has failed to carry his burden of proof. For failure of
substantiation, we sustain respondent’s disallowance of any deduction
for the four described Table 1 and 2 expenditures.
For similar reasons, we disallow any deduction for the
depreciation deductions on Tables 1 and 2. For each of 2014 and 2015,
petitioner claimed for L Street a depreciation deduction of $2,443. We
are satisfied that in 2006, petitioner paid $9,566 to install a fence around
the property. Petitioner has pointed us to no evidence of any other
expenditure for a depreciable improvement to the property. And with
respect to the 2006 expenditure, petitioner has failed to show that any
depreciable basis remained to be claimed for either 2014 or 2015.
With respect to Plaza Boulevard and Turner Road, petitioner
attached to his 2014 and 2015 returns schedules that purport to show
the computation of the depreciation claimed for each of those properties.
And while the computations for Plaza Boulevard match the amounts on
Tables 1 and 2, petitioner has failed to explain what property was
depreciable with respect to Plaza Boulevard, which we have found to
have been a vacant lot during the years at issue. With respect to Turner
Road, the schedules show for each year total depreciation of $2,038, yet,
on his returns, as shown on Tables 1 and 2, petitioner reported $8,793
of depreciation. And while there may be property subject to depreciation
on the Turner Road property, petitioner has failed to propose facts from
which we could find its cost, useful life, and the remaining recoverable
basis during the years at issue. He has failed to prove his entitlement
to any depreciation deduction for either Plaza Boulevard or Turner Road
for either of the years at issue, and we sustain respondent’s disallowance
of any deduction.
III.

Schedule C–2 Expenses

As shown on Table 4, petitioner reported tentative Schedule C–2
expenses of $29,258 and $25,285 for 2014 and 2015, respectively.
Respondent disallowed any Schedule C–2 deduction for those expenses
but allowed portions, $25,774 and $24,091, for those years, respectively,
as Schedule E, Part I expenses. See supra Tables 3 and 5. Respondent
disallowed the differences, $3,484 and $1,194, as unsubstantiated
depreciation expenses. Petitioner has no objection to respondent’s first
action but contests respondent’s disallowance of the depreciation
deductions. Petitioner has presented depreciation schedules for each
year that list a computer, a small trailer, a backhoe, and a scooter, and,
for each item, purport to show the date purchased, the cost, prior

20
[*20] depreciation, method of depreciation, useful life, and the year’s
claimed depreciation. He has not, however, pointed us to evidence in
the record corroborating the unsubstantiated figures asserted on those
schedules. We will not disturb respondent’s disallowance of the
Schedule C–2 depreciation deductions.
See, e.g., Anyanwu v.
Commissioner, T.C. Memo. 2014-123, at *28–29 (sustaining the
Commissioner’s disallowance of a taxpayer’s depreciation deduction
where the taxpayer did not provide any testimony or other evidence at
trial to explain the numbers appearing on the depreciation schedule
filed with her return).
Respondent did not err in increasing petitioner’s reported 2014
Schedule C–2 income by $29,258 and, considering petitioner’s error in
claiming a $25,715 deduction for the business use of his home,
respondent did not err in increasing his 2015 reported Schedule C–2
income by $51,000.
IV.

Schedule C–1 Expenses
A.

Introduction

Respondent disallowed petitioner’s Schedule C–1 expense
deductions of $130,869 and $131,593 for 2014 and 2015, respectively, on
the grounds that petitioner had not shown that expenses were incurred
or, if incurred, were paid during the taxable year for ordinary and
necessary business purposes.
B.

Interest Expense
1.

Introduction

The largest of the disallowed expense deductions is an interest
expense of $120,000 for each year. The Note obligated X-Way Delta to
pay Equitable and Mr. Hettelsater principal of $1,200,000 plus accrued
interest (10% per annum) on or before January 1, 2018.
Section 163(a) “allow[s] as a deduction all interest paid or accrued
within the taxable year on indebtedness.” There is an exception to this
general rule. Section 163(h)(1) provides that in the case of a taxpayer
other than a corporation, no deduction shall be allowed for personal
interest which is paid or accrued during the tax year. Personal interest
does not include interest allocable to a trade or business, investment
interest, or interest taken into account in computing gain or loss from a
passive activity (passive activity interest). § 163(h)(2). The amount

21
[*21] allowed as a deduction for investment interest for any tax year
shall not exceed the net investment income of the taxpayer for the
taxable year. § 163(d)(1). Passive activity interest is taken into account
in determining passive activity losses, the deduction of which is limited
to passive activity income. See § 469(a)(1), (d)(1).
Section 163(e) addresses debt instruments issued with original
issue discount (OID) and provides that the issuer of a debt instrument
with OID is allowed a deduction for the taxable year equal to the
aggregate daily portions of the OID.
Respondent argues that petitioner may not deduct the interest
accrued on the Note because the interest did not accrue on a bona fide
loan and, if it did, the X-Way Delta property was held for investment
and, thus, petitioner’s deductions were limited. Petitioner answers in
rebuttal that the Note evidenced a bona fide loan, that the interest was
incurred in his trade or business, and that interest accrued on real
estate you own is deductible: “If you use the accrual method of
accounting, you can deduct interest over the period it accrues, regardless
of when you pay it.”
2.

Bona Fide Loan

“A bona fide debt is a debt which arises from a debtor-creditor
relationship based upon a valid and enforceable obligation to pay a fixed
or determinable sum of money.” Treas. Reg. § 1.166-1(c). “Whether an
advance gives rise to a bona fide debt for Federal tax purposes is
determined from all the facts and circumstances.” 2590 Assocs., LLC v.
Commissioner, T.C. Memo. 2019-3, at *21. Where the facts indicate that
no bona fide debt was created, an advance may indicate some other
relationship between the alleged debtor and creditor. For example, an
advance to a corporation may properly be classified as a contribution to
capital, see, e.g., Davis v. Commissioner, 69 T.C. 814, 835 (1978), or an
advance to a family member may actually be a gift, see, e.g., Bragg v.
Commissioner, T.C. Memo. 1993-479, 1993 WL 413014, at *14.
The objective factors here indicate that the Note constituted bona
fide debt. By its own terms, it is a promise to pay money. It provides
that, “for value received,” the maker, X-Way Delta promises to pay two
named persons a fixed sum, along with interest, on or before a date
certain. It is secured by the Deed of Trust. And although it was not paid
on the last date prescribed for payment, petitioner testified without
contradiction that the creditors had extended the due date. In any

22
[*22] event, validity of debt is determined upon issuance. If the Note
was valid debt when issued, the failure to pay principal upon maturity,
even without extension of the due date, would not have caused the debt
to be invalid.
We have said that the objective of the inquiry into the bona fides
of a debt is not to count factors but to evaluate them. 2590 Assocs., T.C.
Memo. 2019-3, at *23. “The factors,” we have said, “aid in our
determination of whether the parties intended to create indebtedness
with a reasonable expectation of repayment and whether that
expectation comported with economic reality.” Id. Equitable and
Mr. Hettelsater transferred interests in discernable parcels of real
estate to X-Way Delta in consideration of a promise to pay in the future
$1,200,000 (plus interest), the whole obligation secured by a deed of
trust. We have no idea whether this was a fair exchange or not.
Nevertheless, although petitioner and Messrs. Hettelsater and Wagner
(president of Equitable) were longtime acquaintances, there is no
indication of any family relationship, and respondent has constructed no
narrative of X-Way Delta and the Investors contributing the Note and
parcels of real estate, respectively, to a joint venture. We conclude, and
find, that the Note constituted bona fide debt.
3.

Accounting for Interest
a.

Introduction

Although X-Way Delta had no obligation to pay either interest or
principal on the Note before its maturity on January 1, 2018, petitioner
reported on the Schedules C–1 for each of 2014 and 2015 an interest
deduction of $120,000. Petitioner believed that he had elected an
accrual method of accounting for X-Way Delta and that the interest
expense for the Note accrued ratably. Apparently, petitioner was not
aware of the rules for deducting OID. Because of that failure, we must
also be concerned with the rules for changing a method of accounting.
b.

OID

A debt instrument has OID if the stated redemption price at
maturity exceeds the issue price. See § 1273(a)(1). In general, the term
“stated redemption price at maturity” means interest and other
amounts payable at maturity other than interest paid periodically at
least annually. See § 1273(a)(2). Unless there were a prepayment, the

23
[*23] stated redemption price at maturity of the Note would be
$2,640,000 ($1,200,000 + ((0.1 × $1,200,000) × 12) = $2,640,000). 9
Section 1274 addresses the issue price of certain debt instruments
issued for property. The section applies to debt instruments given in
consideration for the sale of property if (1) the stated redemption price
at maturity exceeds, where there is adequate stated interest, the stated
principal amount and (2) payments are due more than six months after
the sale or exchange of the property. See § 1274(c)(1). Section 1274
provides the issue price of the Note because it was given in consideration
for the sale of property and the two further conditions set forth in section
1274(c)(1) are met. To begin with, the Note has adequate stated
interest. This is so because the stated principal amount for it—
$1,200,000—is less than the imputed principal amount of it—
$1,574,700. 10 See § 1274(c)(2). Moreover, payments are due more than
six months after the sale or exchange of the property.
See
§ 1274(c)(1)(B). Because the Note has adequate stated interest, its issue
price is the stated principal amount, $1,200,000. See § 1274(a)(1).
Subtracting the issue price of the Note—$1,200,000—from the
stated redemption prices at maturity—$2,640,000—yields OID of
$1,440,000. See § 1273(a)(1).
Section 163(e)(1) allows as a deduction to the issuer for any
taxable year that portion of the OID with respect to a debt instrument
that is equal to the aggregate daily portions of the OID for days during
such year. 11 The daily portions of OID are determined under section
1272(a) (without regard to the rules for acquisition premium and de
minimis OID). See Treas. Reg. §§ 1.163-7, 1.1272-1. Applying a yield to
maturity of 6.79114% compounded annually, respondent has calculated
OID interest accruals for the Note of $137,850 and $147,211 for 2014

9 Petitioner claimed a deduction for X-Way Delta of $120,000 of accrued
interest for each year from 2006 through 2015. That fact supports a finding that the
Note called for simple interest at a rate of 10% a year.
10 The imputed principal amount of the Note is the sum of the present values

as of the issue date of all payments, including interest, due under it using a test rate
of interest as determined under Treasury Regulation § 1.1274-4. See Treas. Reg.
§ 1.1274-2(c)(2). Compounding annually and using a test rate of 4.40%, see Rev. Rul.
2005-66, Table 1 (Long Term), 2005-2 C.B. 686, 687, the imputed principal amount for
all payments due under the Note—$2,640,000—is $1,574,700.
11 There is no indication that the parties to the Note elected under section
1274A(c) to use the cash method.

24
[*24] and 2015, respectively. 12 Pursuant to section 163(e)(1), petitioner
would normally be able to deduct those amounts as interest accruals
unless limited by the rules addressing investment interest. However,
petitioner may not be entitled to deduct the OID accruals of $137,850
and $147,211 for 2014 and 2015 because they exceed the ratable
accruals of interest ($120,000 for each year) that X-Way Delta reported.
c.

Change in Method of Accounting

We begin by saying that petitioner has not convinced us that, the
OID rules aside, X-Way Delta could use an accrual method of
accounting. A taxpayer with two or more separate and distinct trades
or businesses may use a different method of accounting for each. See
§ 446(d); Treas. Reg. § 1.446-1(d)(1). Nevertheless, a trade or business
will not be considered separate and distinct unless the taxpayer
maintains a separable and complete set of books and records for such a
12 Yield to maturity is the discount rate that, when used in computing the
present value of the principal and interest payments, produces an amount equal to the
issue price of the debt instrument. Treas. Reg. § 1.1272-1(b)(1)(i). Applying that
discount rate (6.79114%) to the adjusted issue price (AIP) of the Note at the beginning
of each year, respondent determined OID interest accruals for each year as follows
(rounded):

Accrual year

AIP at beginning
of year

OID

2006

$1,200,000

$81,494

$1,281,494

2007

1,281,494

87,028

1,368,522

2008

1,368,522

92,938

1,461,460

2009

1,461,460

99,250

1,560,710

2010

1,560,710

105,990

1,666,700

2011

1,666,700

113,188

1,779,888

2012

1,779,888

120,875

1,900,762

2013

1,900,762

129,083

2,029,846

2014

2,029,846

137,850

2,167,695

2015

2,167,695

147,211

2,314,907

2016

2,314,907

157,209

2,472,115

2017

2,472,115

167,885

2,640,000

$1,440,001

AIP at end of year

25
[*25] trade or business. Treas. Reg. § 1.446-1(d)(2). X-Way Delta did
not maintain books and records, and petitioner uses the cash receipts
and disbursements method of accounting for his other business
activities. 13 It is, therefore, not clear that X-Way Delta is a business
separate and distinct from his other businesses, for which petitioner
uses the cash method of accounting. Nevertheless, it appears that
petitioner has used an accrual method with respect to X-Way Delta for
some time, and any change would require the consent of the
Commissioner. See § 446(e); Treas. Reg. § 1.446-1(e)(2)(i) (expressly
bringing a change from an improper or unpermitted method of
accounting within the ambit of section 446(e)). Thus, without the
Commissioner’s permission, petitioner would be precluded from
deducting interest accruals on the Note under the OID rules if those
deductions exceeded the ratable accruals petitioner had been deducting,
which they do. Larger accruals under the OID rules occur towards the
end of the term of the Note. Neither has petitioner asked respondent to
change X-Way Delta’s method of accounting nor has respondent made
any change. 14
4.

Character of the Interest

The interest accrued in 2014 and 2015 on the Note constitutes
either interest allocable to a trade or business, investment interest,
passive activity interest, or, if none of the former, personal interest.
A taxpayer may have separate and distinct activities within the
same broad category of business. Resser v. Commissioner, T.C. Memo.
1991-423. Generally, activities carried out by a taxpayer-owned entity,
even a single-member LLC that is a disregarded entity, are viewed as
activities separate from the taxpayer’s, and the entity is tested on a
stand-alone basis to see whether the activities rise to the level of a trade
or business. See, e.g., Conner v. Commissioner, T.C. Memo. 2018-6,
at *26–30 (considering the activities of each of taxpayer husband’s four
disregarded-entity LLCs on a stand-alone basis and finding that the
On the 2014 Schedule C–2, petitioner checked no box indicating any
accounting method; on the 2015 Schedule C–2 he checked the accrual box. Apparently,
the 2015 Schedule C–2 is in error because, at trial, petitioner testified that the accruals
from Schedules C–1, X-Way Delta, were the only accruals on his return.
13

14 Assuming that the Note is valid indebtedness, respondent computes a section
481(a)(2) adjustment for 2014 (the earliest open year) increasing X-Way Delta’s gross
income by $130,154, “representing the sum of the excess deductions claimed in prior
years under the simple interest method compared to the deductions that would have
been allowable under the OID rules for those years.”

26
[*26] activities of none rose to the level of carrying on a trade or
business), aff’d, 770 F. App’x 1016 (11th Cir. 2019).
Activities relating to undeveloped real property are subject to a
facts and circumstances test to determine whether the activities rise to
the level of a trade or business. See Polakis v. Commissioner, 91 T.C.
660, 669–70 (1988). It is not a trade or business where development
activities are in the exploratory or formative stages. Conner, T.C. Memo.
2018-6, at *25. Among the tests that the courts have come to rely on in
determining the nature of the taxpayer’s activities with respect to real
estate are the following:
the nature and purpose of the acquisition of the property
and the duration of the ownership; the continuity of sales
or sales-related activity over a period of time; the volume
and frequency of sales; the extent to which the taxpayer or
his agents have engaged in sales activities by developing or
improving the property, soliciting customers, and
advertising; and the substantiality of sales when compared
to other sources of taxpayer’s income.
Polakis, 91 T.C. at 670.
X-Way Delta acquired its property after 20 years of petitioner’s
failed attempts to develop it and after the Investors lost faith in its
potential. X-Way Delta has not sold or developed the property, and the
one potential sale of the property in 2007 fell through because of a
downturn in the economy. Petitioner believes that, since then,
environmental problems in the Salton Sea area have increased. He
analogizes the Salton Sea area to the Love Canal, and he believes that
the doors to development of the property have been shut. He thinks that
the value of the property is in holding onto it long enough, and then
someone will be able to make use of minerals under it or develop it for
hydrothermal energy. He has not shown that he advertised the property
or otherwise sought purchasers or development opportunities for it.
Petitioner has failed to convince us that, during 2014 and 2015,
X-Way Delta’s activities with respect to its property amounted to a trade
or business. X-Way Delta was holding its property for long-term
appreciation. And while petitioner reported $5,000 of receipts each year
on Schedule C–1 as payment for an easement granted to a fish farm, he
has not shown that the easement burdened property owned by X-Way
Delta (as opposed to petitioner’s portion of the Salton Sea property,

27
[*27] which he has not shown that he transferred to X-Way Delta). In
any event, $5,000 is less than one-half of one percent of the $1,200,000
that X-Way Delta claims to have paid the investors for what may have
been more than 1,000 acres. And, even if the easement did burden a
portion of X-Way Delta’s property (nothing in the record tells us how
much), petitioner has failed to convince us that the easement rental was
more than an incidental aspect of what was overwhelmingly an
investment purpose for holding the property. See, e.g., Anderson v.
Commissioner, T.C. Memo. 1982-576, 1982 Tax Ct. Memo LEXIS 169,
at *19; Treas. Reg. § 1.469-4(b)(1). Accordingly, petitioner cannot
deduct the interest X-Way Delta accrued on the Note for 2014 or 2015
as interest allocable to trade or business.
Perhaps because respondent sees the easement rental as
incidental to holding the property for investment (i.e., for appreciation),
he does not argue for application of the passive activity loss rules. See
Temp. Treas. Reg. 1.469-1T(e)(3)(vi)(B).
And perhaps because under that temporary regulation the
easement rental is incidental to holding the property for investment, he
is willing to concede that, if the property is not trade or business
property, it is property held for investment (and the interest is not
personal interest), despite the poor fit under sections 163(d)(5)(A)(i) and
469(e)(1). We accept that X-Way Delta’s 2014 and 2015 interest
payments were payments of investment interest. Petitioner’s deduction
of that interest for each year cannot exceed his net investment income.
See § 163(d)(1). We leave that computation to the parties under Rule
155.
C.

Other Disallowed Schedule C–1 Expenses

Petitioner claimed expense deductions (other than for the accrual
of interest) of $10,869 and $11,593 for 2014 and 2015, respectively, for
legal and professional services, office expense, taxes and licenses, travel,
utilities, and other expenses (together, noninterest expenses).
Petitioner argues that he substantiated the noninterest expenses
during respondent’s examination of his 2014 and 2015 returns.
Tax Court proceedings are de novo reviews of the taxpayer’s
liability. Greenberg’s Express, Inc. v. Commissioner, 62 T.C. 324, 328
(1974). The notice of deficiency is the starting point for our review, and
“our determination as to a [taxpayer’s] tax liability must be based on the
merits of the case and not any previous record developed at the

28
[*28] administrative level.” Id. Respondent disallowed the noninterest
expenses, and petitioner has failed to substantiate those expenses. We
will sustain respondent’s disallowance.
V.

Capital Gains

Island Mountain reported to petitioner capital gain income of
$23,655 and $19,170 for 2014 and 2015, respectively. Petitioner
misreported those amounts on his 2014 and 2015 Schedules E.
Respondent, in effect, disregarded those erroneous Schedule E
inclusions and increased petitioner’s 2014 and 2015 Schedule D income
by like amounts. Petitioner failed to address the issue on brief, and we
see no error. We sustain the adjustments.
VI.

Social Security Benefit

Petitioner reported a 2014 Social Security benefit of $9,942.
Respondent disregarded that reported amount because he believed that
petitioner had erroneously computed the taxable portion of the benefit.
Instead, he increased petitioner’s income for Social Security benefits by
$8,451, which he describes as a computation adjustment. Petitioner has
shown no error in respondent’s adjustments.
We sustain the
adjustments.
VII.

Accuracy-Related Penalty
A.

Introduction

Section 6662(a) and (b)(1) provides for an accuracy-related
penalty of 20% of the portion of an underpayment of tax required to be
shown on a return attributable to negligence or disregard of rules and
regulations (without distinction, negligence). Section 6662(a) and (b)(2)
provides for the same penalty amount on the portion of an
underpayment of tax attributable to any substantial understatement of
income tax. In the case of an individual, there is a substantial
understatement of income tax for a year if the amount of the
understatement exceeds the greater of (1) 10% of the tax required to be
shown on the return for the tax year or (2) $5,000. § 6662(d)(1)(A). The
amount of an understatement is reduced if there is substantial authority
for the taxpayer’s treatment of an item on his return.
See
§ 6662(d)(2)(B)(i). Also, the amount of the understatement is reduced
for any item that is adequately disclosed in the taxpayer’s return, or in
an attached statement, if there is reasonable basis for the taxpayer’s
treatment of the item. See § 6662(d)(2)(B)(ii). Finally, section 6664(c)(1)

29
[*29] provides a reasonable cause exception to imposition of the section
6662(a) accuracy-related penalty on that portion of an underpayment for
which it is shown that there was reasonable cause and the taxpayer
acted in good faith.
Only one accuracy-related penalty may be applied with respect to
any given portion of an underpayment even if that portion is subject to
the penalty on more than one of the grounds set out in section 6662(b).
Treas. Reg. § 1.6662-2(c).
B.

Burden of Production
1.

Introduction

The Commissioner bears a burden of production with respect to
the accuracy-related penalty including making a prima facie case that
the section 6751(b)(1) requirement for written supervisory approval has
been met. E.g., DeCrescenzo v. Commissioner, T.C. Memo. 2023-7,
at *18. Section 6751(b)(1) provides: “No penalty under this title shall be
assessed unless the initial determination of such assessment is
personally approved (in writing) by the immediate supervisor of the
individual making such determination or such higher level official as the
Secretary may designate.”
2.

Penalty Approval

We have found that Ms. Chernyak, RA Kawamoto’s acting direct
supervisor, signed the penalty approval form before respondent issued
the Deficiency Notice. Petitioner does not question that finding, nor
does he argue that approval should have come sooner (or does the record
provided any basis for an argument to that effect). The record is
sufficient for us to conclude that respondent has made a prima facie case
with respect to the penalty approval required by section 6751(b)(1).
3.

Grounds for the Penalty

Respondent has also made a prima facie case for the accuracyrelated penalty on the grounds that, for 2015, petitioner underpaid his
income tax because of his substantially understating the tax he was
required to show on his return. The amount of tax petitioner was
required to show was approximately the amount of the deficiency in tax
shown in the first paragraph of this report. Petitioner reported a zerotax liability on the 2015 return. Thus, for 2015, his understatement of
income tax was both equal to (100% of) the tax required to be shown on

30
[*30] the return and more than $5,000. In other words, it was a
substantial understatement of income tax. See § 6662(d)(1)(A).
Respondent claims as an alternative basis for the accuracyrelated penalty that petitioner’s 2015 underpayment of tax was due to
negligence. We need not reach that question.
C.

Burden of Proof

Respondent having met his burden of production with respect to
the penalty, the burden of proof (viz, the risk of nonpersuasion) is with
petitioner, which includes the burden to prove any affirmative defense.
See, e.g., Fabian v. Commissioner, T.C. Memo. 2022-94, at *38.
Petitioner makes no claim to any affirmative defense.
As we understand petitioner’s arguments they are as follows:
Respondent’s Attorney claims IRS Sec 6662(a) applies
because no adequate records were kept by Petitioner[,] . . .
[and] since her superiors approved the penalties, then that
constitutes proof of their validity. . . .
. . . It appears that Respondent’s Attorney’s position . . . is
that if income is reported on the wrong schedule, it is in
fact classified as unreported and the penalty should apply.
. . . Respondent’s Attorney maintains that the mere fact of
using the wrong schedule is enough to trigger the
application of the penalty.
Petitioner’s first argument may misunderstand the section
6751(b)(1) approval process. Penalty approval here was obtained before
the Deficiency Notice was issued, not by respondent’s counsel but by RA
Kawamoto from her supervisor, Ms. Chernyak.
In any event,
supervisory approval is merely procedural and does not establish the
substantive validity of the penalty. As we have said: “We do not secondguess the extent of the RA’s or the supervisor’s deliberations about
whether penalties should be imposed. We confine our search to seeking
evidence of written supervisory approval.” Cattail Holdings, LLC v.
Commissioner, T.C. Memo. 2023-17, at *11. Petitioner may be
mischaracterizing respondent’s argument to be that we have to uphold
the penalty because supervisory approval is sufficient to establish a
penalty was warranted. That is not the case.

31
[*31] Petitioner’s remaining arguments misapprehend the accuracyrelated penalty, which, here, we impose on the portion of petitioner’s
2015 underpayment of tax attributable to his substantial
understatement of his income tax. Respondent did not penalize
petitioner for entering amounts on the wrong schedules; he penalized
him for substantially understating his income tax. See § 6662(d)(2).
We uphold the accuracy-related penalty for 2015.
VIII. Conclusion
To reflect the foregoing,
Decision will be entered under Rule 155.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Atax-court%3A316c92ea936582c0. Public record. Not legal advice.