UNITED STATES TAX COURT

T.C. Memo. 1998-427

UNITED STATES TAX COURT

RONALD P. BARRANTI AND STEPHANYA M. BARRANTI, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 789-97.

Filed December 3, 1998.

Woodford G. Rowland, for petitioners.

Daniel J. Parent, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

PARR, Judge: Respondent determined a deficiency in, and an

accuracy-related penalty on, petitioners' Federal income tax as

follows:

Year

1993

Deficiency

$66,493

Accuracy-Related Penalty

Sec. 6662(a)

$13,299

- 2 All section references are to the Internal Revenue Code in

effect for the taxable year in issue, and all Rule references are

to the Tax Court Rules of Practice and Procedure, unless

otherwise indicated.

All dollar amounts are rounded to the

nearest dollar, unless otherwise indicated.

References to

petitioner are to Stephanya M. Barranti.

After concessions,1 the issues for decision are:

(1)

Whether petitioners are entitled to deduct the $5,852 loss

sustained in renting the property to petitioner's brother and the

loss realized on the sale of petitioner's residential property.

We hold they are not. (2) Whether petitioners are liable for an

accuracy-related penalty pursuant to section 6662(a).

We hold

they are.

Some of the facts have been stipulated and are so found.

The stipulated facts and the accompanying exhibits are

incorporated herein by this reference.

At the time the petition

in this case was filed, petitioners resided in Alamo, California.

FINDINGS OF FACT

On February 21, 1991, petitioner acquired by gift a joint

tenancy in her grandmother's house located in San Mateo,

1

Before trial, respondent conceded that petitioners are

entitled to deduct depreciation expense of $19,936, and $44,369

of the $65,187 expenses reported on Schedule C that were

disallowed in the notice of deficiency.

Petitioners conceded that they are not entitled to deduct

$20,818 of the expenses they claimed on Schedule C and that they

understated dividend income by $1,724 on their return for 1993.

- 3 California.

Less than 3 weeks later, the grandmother died, and

petitioner became the sole owner of the property.

At the time of the grandmother's death, the property was in

a state of disrepair.

For instance, mildew had grown on the

interior walls around the windows; the awning over the patio had

fallen down; the garage door did not open; the yard required

landscaping; and the fence surrounding the property required

mending.

Furthermore, the house was located in a neighborhood

that was not safe at night.

After several months spent considering whether to sell or to

rent the property, petitioner decided that she would repair the

house and offer it for rent.

However, petitioner did not know

the amount of the rent to charge for the property.

As a starting point in determining how much rent to charge,

petitioner sought to determine the fair market value of her

property.

To determine the property's value, petitioner had

several real estate agents come to the property and provide her

with estimates.

A Century 21 real estate agent performed a

thorough market analysis of the property on June 6, 1991.

The

agent estimated the fair market value of the property was between

$219,500 and $275,000, and that it would sell quickly at

$229,000.

To determine how much to charge for rent, petitioner

researched a trade magazine and several newspapers which listed

- 4 comparable properties for rent, and determined that the fair

market rental amount was between $700 and $750 per month.

To prepare the property for habitation, petitioner first

cleared the house of the decedent's personal property and then

began making repairs.

Although petitioner was not an experienced

home repair person, she wanted to do as much of the repair work

herself as possible to minimize its expense.

Accordingly,

petitioner called various contractors to come to the property to

explain what needed to be done and to submit a bid for the work.

After receiving the advice, petitioner thanked the contractors

for their time, purchased the required materials, and did the

work herself.

For instance, petitioner scraped the mildew from

the interior walls, recaulked the windows and sealed the ground

under the house to prevent moisture from entering and reviving

the fungus, and sanded and refinished the hardwood floors.

Because petitioner worked on the property only during

weekends, the repairs took several months.

During this time,

petitioner's awareness of the character of the neighborhood and

the risks of renting to someone who might prove to be an

irresponsible tenant increased.

In December 1991, petitioner

began negotiating with her brother, Ronny Murray (Murray), to

rent the house to him in exchange for $500 per month plus

utilities, and his agreement to help petitioner finish the repair

work and maintain the property.

- 5 Murray helped petitioner repaint the interior of the house

and agreed to repair the bathroom plumbing, repair the patio

awning to the extent possible and remove the irreparable part,

repaint an outside storage shed, replant a flower border, restore

a rock garden, and mend the fence.

Murray performed the repair

work; in May 1992, he moved into the house with his girlfriend

and their child.

In December 1992, Murray's girlfriend and child decided to

move to Stockton, California, and Murray informed petitioner that

he intended to follow them.

At that time, petitioner decided to

sell her property, rather than offer it for rent to some unknown

persons.

In January 1993, petitioner agreed with a real estate sales

agent to list the property for sale at approximately $230,000;

however, the house did not sell at that price and the

relationship between petitioner and the agent deteriorated.

On

March 9, 1993, petitioner relisted the property with Cornish &

Carey, a real estate broker, at a sales price of $219,000.

In

listing the property with Cornish & Carey, petitioner signed a

contract authorizing it to be the exclusive broker for her

property.

The property was sold in July 1993 for $180,000.

On their 1992 Federal income tax return, petitioners

reported total income of $219,388 without reporting any income or

expenses from the rental activity.

On their 1993 return,

- 6 petitioners reported total income of $284,470, before deducting a

loss of $5,852 from the rental of petitioner's property and an

ordinary loss of $73,501 on its sale.

OPINION

Respondent disallowed the rental loss, because petitioners

did not provide any evidence that the property actually was

rented during the year at issue or substantiate the expenses.

Respondent determined that petitioners are not entitled to claim

a loss on the sale of petitioner's property, because they have

not proved that it was used in a trade or business or held for

the production of income.

Petitioners assert that petitioner's

property was used as rental property, that petitioner was

actively engaged from May 1992 through June 1993 in the trade or

business of renting the property, and that they suffered a loss

on its rental during 1993.

Respondent's determinations are

presumed correct, and petitioners bear the burden of proving that

respondent's determinations are erroneous.

Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).

Issue 1.

Whether Petitioners May Deduct the Losses

Rental Loss

Whether petitioners are entitled to deduct the $5,280 rental

loss turns on whether petitioner's property was used by

petitioner as a residence.

- 7 Congress enacted section 280A as part of the Tax Reform Act

of 1976, Pub. L. 94-455, sec. 601, 90 Stat. 1520, 1569, as its

response to the concern that rental of property used as a

residence by the taxpayer's family "afforded the taxpayer

unwarranted opportunities to obtain deductions for expenses of a

personal nature."

Bolton v. Commissioner, 77 T.C. 104, 108

(1981), affd. 694 F.2d 556 (9th Cir. 1982).

Under section 280A

no deduction can be taken by a taxpayer with respect to a

dwelling unit used as a residence by a taxpayer during the

taxable year except for deductions, such as interest and taxes,

which are allowable without regard to their connection to an

income producing activity or a trade or business.

and (b).

Sec. 280A(a)

A taxpayer is considered to have used a dwelling unit

as a residence during the taxable year if the unit is used for

personal purposes for the greater of 14 days or 10 percent of the

number of days for which the unit is rented at a fair rental.

Sec. 280A(d)(1).

If a dwelling unit is rented to a member of the

taxpayer's family, as defined in section 267(c)(4), for any part

of a day, the unit is deemed to have been used on that day by the

taxpayer for personal purposes unless the unit is used as the

principal residence of the family member and the rent charged to

the family member reflects a fair rental for the unit.

Sec.

280A(d)(2)(A), (3)(A); Kotowicz v. Commissioner, T.C. Memo. 1991563; Gilchrist v. Commissioner, T.C. Memo. 1983-288.

- 8 Murray used petitioner's property as his principal

residence.

Accordingly, in deciding this issue we first consider

whether the rent charged Murray reflects a fair rental for the

property.

1992 Activity

Petitioner testified that she had a written agreement

defining the rental terms with Murray, and that his girlfriend

and child lived in the house until January 1993.

Petitioners did

not, however, produce the rental agreement at trial.

Furthermore, petitioners did not report any income or expenses

with respect to this activity on their 1992 return, or provide

any business records or other evidence to substantiate receipt of

the rental amounts.

Finally, petitioners did not call Murray or

his girlfriend to verify that they rented the house according to

the terms petitioner alleges.

Petitioner husband testified that petitioner spent

considerable time preparing the house for her brother to rent,

that he overheard the amount of rent that petitioner and Murray

agreed upon, and that it was his understanding that petitioner

did receive the rent on a regular basis.

Conversely, petitioner

husband testified that he was not involved in anything to do with

the property, that he was uncertain of when Murray moved in or

out, and that he visited the house once while Murray was there

but he was uncertain when that was.

- 9 On the evidence presented, we cannot find that petitioner

received $500 in cash, plus the cost of utilities, for rent

during the relevant months of 1992.

Petitioner has failed to

prove that Murray paid her any rent in the form of cash.

However, petitioner testified that she and Murray agreed that in

addition to paying cash rent, Murray would pay rent by making

certain repairs and by maintaining the property during his

occupancy.

It is well settled rent paid in the form of services

rather than cash does not prevent the arrangement from

constituting a rental of the property.

McBride v. Commissioner,

50 T.C. 1, 8 (1968); see also sec. 1.61-2(d)(1), Income Tax Regs.

Thus, we consider whether the value of Murray's services was

equal to a fair rental for the property.

The exclusive broker agreement that petitioner signed with

Cornish & Carey describes the property as "well maintained" with

a yard that is "manicured".

Furthermore, Charlene Chanteloup,

the listing sales agent for Cornish & Carey, testified that "the

garden was lovely", "well maintained", and in "very, very nice

condition", and that the property, including the interior of the

house, was in very good condition.

On the evidence presented, we

are satisfied that the repair and maintenance work was actually

performed.

At trial, petitioners presented expert witness testimony as

to the fair market rental value of the property.

Expert witness

- 10 testimony is appropriate to help the Court understand an area

requiring specialized training, knowledge, or judgment.

Fed. R.

Evid. 702; Snyder v. Commissioner, 93 T.C. 529, 534 (1989).

Court, however, is not bound by an expert's opinion.

The

We weigh an

expert's testimony in light of his or her qualifications and with

respect to all credible evidence in the record.

Depending on

what we believe is appropriate under the facts and circumstances

of the case, we may either reject an expert's opinion in its

entirety, accept it in its entirety, or accept selective portions

of it.

Helvering v. National Grocery Co., 304 U.S. 282, 294-295

(1938); Seagate Tech., Inc. & Consol. Subs. v. Commissioner, 102

T.C. 149, 186 (1994).

Petitioners' expert, Lori L. Horn (Horn), is a certified

residential real estate appraiser in the State of California, and

has been an appraiser for 15 years.

Horn testified at trial and

submitted a written report in which she concluded that the fair

market rental value of petitioner's property during the year at

issue was $850 per month.

In concluding that $500 per month was

the appropriate cash rent amount, Horn took the sum of the values

of Murray's repairs and maintenance work divided by 14 months

(May 1992 through June 1993), and subtracted that amount from

$850.

We do not find Horn's opinion persuasive.

For the evidence

of comparable rents to be accorded any weight, it must be shown

- 11 that the properties are actually comparable.

In her report,

dated January 1998, Horn states that she could find no comparable

properties listed for rent at the time she did her analysis.

Furthermore, her search of newspaper archives produced only one

comparable property located in the same neighborhood as

petitioner's property; this property was offered for rent in

December 1991 at $925 per month.

Finally, Horn's appraisal of the work performed by Murray

was a recitation of representations made to her by petitioner.

Thus, Horn made no independent appraisal of the value of Murray's

work.

Expert testimony is not useful when the expert is merely

an advocate for the position argued by one of the parties.

Laureys v. Commissioner, 92 T.C. 101, 129 (1989).

Where necessary, we may reach a determination of value based

upon our own examination of the evidence in the record.

Lukens

v. Commissioner, 945 F.2d 92, 96 (5th Cir. 1991) (citing

Silverman v. Commissioner, 538 F.2d 927, 933 (2d Cir. 1976),

affg. T.C. Memo. 1974-285), affg. Ames v. Commissioner, T.C.

Memo. 1990-87.

Moreover, because valuation is necessarily an

approximation, it is not required that the value we determine be

one as to which there is specific testimony, provided it is

within the range of figures that properly may be deduced from the

evidence.

Silverman v. Commissioner, supra; Anderson v.

Commissioner, 250 F.2d 242, 249 (5th Cir. 1957), affg. in part

- 12 and remanding in part T.C. Memo. 1956-178.

With these principles

in mind, we find that petitioner's estimates of the value of the

work performed by Murray are reasonable, except for two amounts.

Petitioner estimated that the cost of repairing and painting

the fence was $1,000.

We find this amount excessive.

Petitioners submitted a written market analysis (the report) of

the fair market value of her property which was prepared by a

Century 21 real estate agent (the agent).

Petitioner testified

that the agent who performed this analysis came to the property

and inspected both the exterior and the interior of the house.

Furthermore, petitioner testified that she agreed with the

evaluation of her property as presented in the report.

The

report has a section titled "Condition Report" which provides a

check list of exterior items that have been inspected, and a

space for the agent to comment on any repairs that may be needed.

The agent indicated that he had inspected the fence (among other

items), and in the comment space he wrote, "TWO BROKEN BOARDS IN

REAR YARD".

We find that this evidence does not support

petitioner's estimation of the value of repairing and repainting

the fence.

Accordingly, we allow $300 for this repair.

Petitioner estimated that the cost to paint the interior of

the house was $1,000.

We accept this estimate; however,

petitioner testified that Murray helped her do the painting.

Therefore, we accept only $500 as the value of Murray's services.

- 13 We find the total value of Murray's repair and maintenance

work performed from May to December 1992 to be $2,540,2 or $318

per month.

This amount is substantially less than the $700 to

$750 that petitioner determined as the fair market rental value

of her property.

1993 Activity

Petitioners reported $3,000 on Schedule E as the amount of

cash rent they received during 1993.

Petitioner testified that

Murray lived in the house from January through June 1993.3

Thus,

petitioners received at most $555 of rent in cash and services

($500 cash plus $55 in value for Murray's gardening service) each

month, which is substantially less than the fair market rent

determined by petitioner.

2

This amount is the sum of the estimated values of the

following repairs:

Repair fence

$300

Repair storage shed

300

Repair plumbing

300

Repair awning

500

Paint interior

500

Gardening service

($55/month for 8 months)

440

Replace plants

200

Total

$2,540

3

At trial, respondent introduced evidence that cast doubt on

whether Murray occupied petitioner's property during 1993. This

evidence is a page of the contract with Cornish & Carey, signed

and dated by petitioner, which describes the property as vacant

with access by keybox. We are satisfied, however, that Murray

did occupy the property during the relevant time period, and that

his agreement with petitioner was that he would move out as soon

as the property was sold.

- 14 Petitioners deducted $5,852 on Schedule E as a loss

sustained in renting petitioner's property during 1993.4

In

addition to a depreciation expense of $2,895, petitioners

deducted $415 for repairs, $80 for cleaning and maintenance,

$2,900 for the cost of recovering the floors in carpet and vinyl,

$415 for the replacement of the garage door, and $521 for

insurance expense.5

Respondent disallowed these expenses because

petitioners did not provide any evidence that the property

actually was rented, or substantiate the expenses.

We have found that petitioner rented the property to Murray

for a below-market rental amount.

brother.

Murray is petitioner's

267(c)(4).

A brother is a family member as defined in section

Accordingly, the property constitutes a dwelling unit

used as a residence by petitioner under section 280A, and

petitioner is not entitled to deduct the rental expenses other

4

Petitioners stipulated that they actually paid $300 in

property taxes, rather than the $1,639 they claimed on their

return. At trial petitioner conceded that a reported utilities

expense of $402 was claimed in error.

5

Petitioners submitted copies of some documents to verify

these expenses. The carpet and vinyl vendor's invoice is dated

Apr. 27, 1992, and shows the cost was actually $2,850. The copy

of the insurance company's statement shows that the coverage was

from Nov. 28, 1992 to Nov. 28, 1993, and that $176.84 was paid on

Nov. 9, 1992. Thus, these expenses were incurred and paid in a

year other than the one at issue.

The invoice for the garage door is dated after petitioner

quit her rental activity. This expense was incurred to fix up

the property for sale and is an adjustment to the amount

realized.

- 15 than those specified in section 280A(b).

No other rental

expenses are allowable under section 280A, because during 1993

the property was never rented at a fair rental.

See sec.

280A(e); McDonald v. Commissioner, T.C. Memo. 1991-242; Bindseil

v. Commissioner, T.C. Memo. 1983-411; Gilchrist v. Commissioner,

T.C. Memo. 1983-288; Saunders v. Commissioner, T.C. Memo. 1982322.

Loss on Sale

Section 165 allows individual taxpayers to take a

deduction for losses incurred in a "trade or business" and "any

transaction entered into for profit".

Sec. 165(c)(1) and (2).

Accordingly, once it has been established that a taxpayer held

property in a trade or business or for the production of income

and that his or her motives were profit driven, that individual

may, subject to certain limitations,6 deduct any subsequent loss

incurred on the disposition of the property.

Trade or Business

Petitioners assert that petitioner was engaged in the trade

or business of renting her property.

The Supreme Court has

stated that to be engaged in a trade or business, the taxpayer

must be involved in the activity with continuity and regularity,

6

For example, if an individual taxpayer sustains a loss on

the sale of a capital asset, the taxpayer's deduction for that

loss would ordinarily be subject to the limitations applicable to

capital losses, notwithstanding that the property was held for

the production of income. See sec. 1211.

- 16 and that the taxpayer's primary purpose for engaging in the

activity must be for income or profit.

Commissioner v.

Groetzinger, 480 U.S. 23, 35 (1987).

We have found that petitioner charged Murray less than the

fair market value to rent her property.

Benefiting a related

party with a below-market rental agreement is evidence of the

absence of a profit objective.

LaMusga v. Commissioner, T.C.

Memo. 1982-742; Sheridan v. Commissioner, T.C. Memo. 1958-215;

see also Jasionowski v. Commissioner, 66 T.C. 312 (1976) (lease

agreement with friend that provided for rent in the amount of the

total cost of the property's insurance and taxes held to lack

profit motive).

Accordingly, we find that petitioner was not

engaged in the trade or business of renting her property during

the year at issue.

Consequently, the loss incurred from the sale

of the property is not deductible under section 165(c)(1).

Held for the Production of Income

We now consider whether petitioner held the property for the

production of income so as to permit the loss from its sale to be

deducted under section 165(c)(2).

Petitioner testified that when she acquired the property she

did not intend to hold it for sale, but for rent.

Petitioner

husband testified that petitioner spent considerable time

preparing the house for her brother to rent, to whom,

predominately for personal reasons, petitioner let the property

- 17 for a below-market rental amount.

This fact is an indication

that petitioner held the property for personal use, not for the

production of income.

Bolaris v. Commissioner, 776 F.2d 1428

(9th Cir. 1985) (a rental for less than fair market value will

most likely not qualify as property being held for the production

of income), affg. in part and revg. in part 81 T.C. 840 (1983);

Walet v. Commissioner, 31 T.C. 461 (1958) (property held for

personal use of taxpayer's former wife and child not held for

production of income), affd. per curiam 272 F.2d 694 (5th Cir.

1959); Hirschel v. Commissioner, T.C. Memo. 1981-189, affd.

without published opinion 685 F.2d 424 (2d Cir. 1982).

Furthermore, immediately after her brother informed her of his

intention to move, petitioner listed the property for sale,

rather than offering it for rent at its fair market value.

Placing the property on the market for immediate sale, at or

immediately after its abandonment for personal use, is ordinarily

strong evidence that a taxpayer is not holding the property for

postconversion appreciation in value.

Newcombe v. Commissioner,

54 T.C. 1298, 1302 (1970).

Petitioner, who has the burden of proof, has not

established that she held the property for profit or the

production of income.

It clearly appears on this record that

petitioner held the property primarily for personal use, not for

profit from rentals nor for appreciation in value.

Considering

- 18 all the facts and circumstances of this case, we hold

petitioner's loss from the sale of her property is a

nondeductible personal expense.

Issue 2.

Accuracy-Related Penalty

Respondent determined that petitioners are liable for an

accuracy-related penalty pursuant to section 6662(a) for

negligence or disregard of rules or regulations.

Petitioners

assert that they are not liable for any section 6662(a) penalty,

because they relied upon the advice of their certified public

accountant in reporting their income.

The burden is on the

taxpayer to prove the Commissioner's imposition of the penalty is

in error.

Luman v. Commissioner, 79 T.C. 846, 860-861 (1982);

Bixby v. Commissioner, 58 T.C. 757 (1972).

Petitioners claimed deductions to which they were not

entitled, underreported dividend income, overstated their

Schedule C expenses, and claimed an ordinary loss on the sale of

personal use property.

Section 6662 provides for the imposition of a penalty equal

to 20 percent of the portion of an underpayment which is

attributable to negligence or disregard of the rules or

regulations.

Sec. 6662(a) and (b)(1).

For purposes of this

section, the term "negligence" includes any failure to make a

reasonable attempt to comply with the Internal Revenue laws, a

failure to exercise ordinary and reasonable care in the

- 19 preparation of a tax return, and a failure to keep adequate books

and records or to substantiate items properly.

3(b)(1), Income Tax Regs.

Sec. 1.6662-

The term "disregard" includes any

careless, reckless, or intentional disregard of the rules or

regulations.

Sec. 6662(c).

Section 6664(c)(1) provides that the penalty under section

6662(a) shall not apply to any portion of an underpayment if it

is shown that there was reasonable cause for the taxpayer's

position with respect to that portion and that the taxpayer acted

in good faith with respect to that portion.

Sec. 6664(c)(1).

The determination of whether a taxpayer acted with

reasonable cause and good faith within the meaning of section

6664(c)(1) is made on a case-by-case basis, taking into account

all the pertinent facts and circumstances.

Income Tax Regs.

Sec. 1.6664-4(b)(1),

The most important factor is the extent of the

taxpayer's efforts to assess the taxpayer's proper tax liability.

Id.

Reliance on the advice of a professional (such as an

attorney or an accountant) does not necessarily demonstrate

reasonable cause and good faith.

Reliance on professional

advice, however, constitutes reasonable cause and good faith if,

under all the circumstances, such reliance was reasonable and the

taxpayer acted in good faith.

Id.

Petitioners did not call their accountant as a witness to

testify about the information petitioners provided him for

- 20 calculating their Federal income tax liability.

We cannot assume

the testimony of absent witnesses would have been favorable to

petitioners.

Rather, the normal inference is that it would have

been unfavorable.

Pollack v. Commissioner, 47 T.C. 92, 108

(1966), affd. 392 F.2d 409 (5th Cir. 1968); Wichita Terminal

Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162

F.2d 513 (10th Cir. 1947).

Petitioner husband testified that he had a recordkeeping

system for his business expenses.

Petitioner husband's system

was to pay a bill, assign it to a category, and log it into a

spreadsheet.

At the end of the year, petitioner husband would

summarize the items by category, and then give the summary to his

accountant, who would calculate the tax due.

Petitioner

husband's system duplicated expenses which resulted in double

deductions.

Thus, petitioner husband, not the accountant, was

responsible for determining the amounts of the schedule C

expenses and whether an expenditure was deductible.

Petitioners have not met their burden of proving that they

provided the accountant the full details of petitioner's use of

her property.

Thus, petitioners may not claim that they

reasonably and in good faith relied upon his advice in

determining their tax liability with respect to petitioner's

property.

See sec. 1.6664-4(b)(2), Example (1), Income Tax Regs.

- 21 Furthermore, in this case, each petitioner has placed the

responsibility for the omissions from income and the claimed

excess deductions on the shoulders of the other.

Petitioner

husband testified that petitioner, not he, was responsible for

reporting the income and expenses with regard to her property.

For her part, petitioner did not examine the returns for

accuracy.

She testified that petitioner husband was responsible

for the returns, and "he would bring them home and say 'sign on

the X' and I'd sign on the X and that would be the end of that."

Therefore, neither petitioner made much effort to assess the

proper tax liability.

Accordingly, on the basis of all the facts and circumstances

of this case, we find that petitioners are liable for the section

6662(a) penalty for negligence or disregard of rules or

regulations.

To reflect the concessions of the parties and the foregoing,

Decision will be entered

under Rule 155.