T .C . Memo . 2007-14 5

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T .C . Memo . 2007-14 5

UNITED STATES TAX COUR T

JAMES G . LEBLOCH AND CATHY MICHELSEN LEBLOCH, Petitioners v .

COMMISSIONER OF INTERNAL REVENUE, Responden t

Docket No . 2724-05 .

Filed

June

11,

2007 .

James G . LeBloch , for petitioners .

Michael W . Berwind , for respondent .

MEMORANDUM FINDINGS OF FACT AND OPINIO N

LARO,

Judge :

Petitioners petitioned the Court to

redetermine respondent's determinations with respect to their

1997, 1998, and 1999 Federal income taxes . Respondent determined

SER'' JUN 1+ ZOO1

-2the following deficiencies and sectionl6662(a) accuracy-related

penalties for those years :' Year

Deficiency Accuracy-Related Penalt y

1

1997 $36,478

1998 18,103

1999 29,666

$7,288 .00

3,620 .60

5,933 .2 0

The deficiencies and accuray-related penalties are primarily

attributable to respondent's determination of unreported income

(by way of bank deposits anlyses) and[to respondent's

disallowance of self-employment expenses (for lack o f

I

substanltiation) . Following concessions,' we decide the followin g

issues as to each subject year :

Unless otherwise indicated, section references are to the

applicable versions of the Internal Revenue Code . Rule

references are to the Tax Cburt Rulesjof Practice and Procedure .

z Petitioners' petition contains no allegation of error as

to the accuracy-related penalties included in the notices of

I

deficiency

. Nor does petitioners' posttrial opening brief set

forth any argument as to the accuracy related penalties (or list

that matter as an issue requiring decision) . We consider,

petitioners to have conceded their liability for the accuracyrelated penalties . See Rule 34(b)(4)j Funk v . Commissioner ,

123 T .C . 213, 215 (2004) ; se e also Palahnuk v . Comm issioner ,

127 T . C . 118 , 120 n . 2 (2006 ) ; Harbor Cove Marina Partners Pship .

v . Commissioner , 123 T . C . 64, 66 ( 2004 ) ; cf . Swain v .

Co mm issioner , 118 T .C . 358 ( 2002 ) ( the Co mm issioner ' s burden of

production under sec . 7491 c) does not apply where the taxpayer

concedes liability for an accuracy-related penalty by failing to

assignUerror to the Co mm issioner ' s determination of th e

accuta y-related penalty ) . We also consider petitioners to have

conceded all other determinations set forth in the notices of

deficiency that petitioners did not adequately pursue in their

posttrial opening brief .' See Palahnu !k v . Comm issioner , supra at

120 n . 2 ; Harbor Cove Marina .Partners •Pship . v . Comm issioner ,

- supra at 66 .

-31 . Whether petitioners underreported their income . We hol d

they did in the amounts set forth herein .

2 . Whether petitioners may deduct the disputed expenses .

We hold they may not .

FINDINGS OF FAC T

A.

Prefac e

Some facts were stipulated or contained in the exhibits

submitted therewith . We find the facts accordingly . Petitioners

were husband and wife from December 31, 1997, through the end of

the subject years, and they filed joint Federal income ta x

returns for those years . When their petition was filed, they

resided in a 3-bedroom house (residence) in Laguna Beach,

California . Petitioners purchased the residence for $563,000,

each of them paying half of the downpayment, and the interior of

the residence measured approximately 2,200 square feet . That

square footage does not include a 2-car-garage that measured

approximately 400 square feet .' At the time of trial,

petitioners were divorced, and petitioner Cathy Michelsen LeBloch

(Michelsen) lived in or around Brisbane, Australia .

With respect to their household bills and other finances,

petitioners had an arrangement that they pay equally all common

expenses (e .g ., mortgage, property taxes, utilities) and that th e

3 The record does not establish whether the

attached to the residence .

garage was

4spouse' benefiting from any oither expense pay that expense .

Petitioners maintained separate financial accounts and did not

own anyjfinancia1 account jointly . When one of them paid a

commo n

xpense in full, or paid an expense of the other, th e

other one typically wrote contemporaneously a check to the payee

for half of the expense (in the case of a common expense) or for

the full expense .

B.

LeBloc h

James G . LeBloch (LeBloch) received a law degree from th e

University of Illinois in 1972 and a graduate law degree i n

taxation from New York University in

Motor s

1978 .

He worked for Genera l

orp . from about 1972 through 1980, except fo r

approxilmately 9 months whe n he was earning his graduate la w

degree .

He worked as tax counsel for ; Monsanto Corp . from abou t

1980 through 1988 and as a hief financial officer for Seagate

Technology from 1988 through 1990 . He worked from 1990 through

1999 as a senior attorney in respondent's Office of Chief Counse l

in Los Angeles, California .

He has worked in private practice a s

a tax attorney since 2000 .'

C.

Nature's Touc h

Michelsen formed and operated three retail gift shops known

as Nature's Touch . From January 1 through November 23, 1997, she

operated two of the shops is a sole poprietor ; she operated the

third shop as a sole proprietor from its opening on November 1,

-51997, through November 23, 1997 . After November 23, 1997, she

operated the three shops as an officer and director of her wholly

owned corporation, NT, Inc . (NT) . Michelsen formed NT in

November 1997, and she has always been its sole officer, sole

director, and sole shareholder .

Michelsen opened one of the three Nature's Touch shops in

San Juan Capistrano, California, in June 1993 . Nineteen months

later, she opened the second shop in Palm Desert, California .

The Palm Desert shop did not do well financially, and Michelsen

moved the business of that shop to Palm Springs, California, in

May 1997 . Michelsen's lease of the vacated premises had not yet

expired at the time of the move, and she sublet those premises in

exchange for $3,000 . On November 1, 1997; Michelsen opened the

third Nature's Touch shop in Carlsbad, California . The

approximate sizes of the shops in San Juan Capistrano, Palm

Springs, and Carlsbad were 1,300, 1,700, and 1,500 square feet,

respectively .

The Nature's Touch shops sold mostly 300 to 500 different

gift items (e .g ., fountains, garden supplies, stationery, books) .

Michelsen purchased those items from approximately 130 different

vendors and displayed most of the items throughout the shops in

wooden display cubes built by her and LeBloch, or on wall and

ceiling hangers built by LeBloch . LeBloch helped Michelsen

prepare each shop for its, opening, and he helped her maintain the

6shops by performing a variety of handyman services . LeBloch also

advisedMichelsen (initially in her capacity as a sole proprietor

and later in her capacity as, an officer and director of NT) o n

financial and legal matter s related to ;the shops, as, well as o n

items to purchase as inventory for the shops . LeBloch routinely

paid e xpenses for the shop s out of his,personal finances, and h e

contemporaneously requested and obtained from the shops reimbursement,for those payments through his submission to

Michelson of written reports that listed the specific expense s

that he paid on behalf of the shops, accompanied by any related

receipt . During the subject years, LeBloch did not receive any

compensation for services that he performed for or on behalf of

the shops .

Each Nature's-Touch shop had a manager and three or four

other' fear round employees . .) The general duties of the managers,

with respect to the shops they managed,•was to monitor the shop's

invent liry and report to Michelsen theneed or desire for any

additional inventory ; to oversee and schedule employees ; to kee p

the shgp clean and orderly ;

and to prepare the shop's receipt s

for weekly deposit in the bank . Michelsen's main role in the

shops was to oversee the work of the managers by speaking to them

telephonically, usually once a day while they were at the shop s

The number of employees at each shop increased

approximately threefold during the seasonal 2-month period

beginning on November 1 .

i

-7and she was at the residence, about the status of the shops

including whether any manager needed or desired any specific

piece (or pieces) of inventory that Michelsen had at the

residence . Michelsen purchased inventory for all of the shops,

usually by calling the vendors and having most (if not all) of

the merchandise shipped directly to the shops .' She aimed to

coordinate a somewhat even distribution of inventory between the

shops, and, when she visited the shops (usually on a weekly

basis), she transported inventory (in her car) from the . residence

to the shops or from one shop to another . Michelsen also

prepared and monitored the budget for the shops, and she

generally deposited the shops' weekly receipts into the bank .

For the most part in 1997, Michelsen also toured a few locations

in Southern California in search of a place to move the second

Nature's Touch store and a place to open the third Nature's Touch

shops .

Inventory was displayed at the shops or, to a lesser extent,

stored at the residence in either the garage or in the guest

bedroom closet (approximately 56 square feet in size), or at th e

' Michelsen also once or twice a year purchased inventory at

retailer-only gift shows . There, petitioners (and sometimes one

or more employees of Nature's Touch) viewed various merchandise

displayed by manufacturers (usually on tables) and ordere d

products for sale at the Nature's Touch stores .

-8shops .'

(The record does not establish the specific pieces o r

amount of inventory that was stored at ; any of these places . .)

Petitioners did not park automobiles in the garage, but they used

the garage to store items of inventory and for personal purpose s

such as storing shovels, rakes, and tools unrelated to the shops .

Michelsen used another bedroom

size )

( approximately 225 square feet i n

in the residence as art office where she performed some o f

her work related to the shops .

This bedroom was set up by

petitioners as an office , and it was not used for any othe r

purpose

(e .g ., it did not have any bedroom furniture) . Th e

officeChad a computer which Michelsen used mainly for budgeting

and accounting purposes related to

the shops ;

Michelsen did no t

record the income and expenses of the Nature's Touch shops on

paper

' e .g ., in a ledger) bet recorded the information solely o n

a program on the computer .

The office also had a facsimil e

machine and a telephone wit h two lines, the second line generall y

.I

devoted to the facsimile machine .

During 1997, the Nature's Touch shops experienced dire

cashfYow problems that required an immediate borrowing of cash .

On four occasions during that year, Michelsen informed LeBloch

that she needed cash to alleviate a cashflow problem of th e

shops ,

6

and she asked LeBlo h to lend her the necessary cash .

Michelsen also kept in the guest bedroom closet "old

tapes" and "old credit card records" .j

On

-9May 29, 1997, as a .result of Michelsen's moving the shop to Palm

Springs, LeBloch lent Michelsen $5,000 to use in the business .

On each of the days October 6 and 17 and November 24, 1997, as a

result of Michelsen's opening of the shop in Carlsbad, LeBloch

lent Michelsen another $10,000 . Each loan in 1997 was informal ;

the parties thereto (at the time living together as significant

others) understood that Michelsen would repay the loans without

interest in the near future when the shops' cashflow allowed her

to do so . Michelsen used all $35,000 of the loan proceeds

($5,000 + $10,000 + $10,000 + $10,000) for the benefit of the

Nature's Touch shops . On December 30, 1997, Michelsen repaid the

entire $35,000 .

The Nature's Touch shops experienced additional cashflow

problems in 1998 that required the borrowing of money .' On five

occasions during that year, Michelsen informed LeBloch that NT

needed cash to alleviate a cashflow problem of the shops, and she

asked LeBloch to lend NT the necessary cash . In or around

December 1997, Michelsen (on .behalf of NT) had purchased a lot of

inventory for the holiday season, and Michelsen realized in

January 1998, when the bills were coming due on these purchases .,

that she would need additional money for the business . Michelsen

(on behalf of NT) was also entering into a permanent lease for

the shop in Carlsbad, and she needed money to pay the first and

last months' rent for those premises as well as an accompanying

-10security deposit .

She also

eeded money to buy inventory for th e

newly ;o'pened shop in Carlsbad, as well as to pay for display

units,ad•fixtures such as Counters, shelving, and specia l

lightin§ . On the respective days January .6 .and 9, 1998, LeBloch

lent Michelsen $20,000 and $10,000 for use in the business of NT . ..

On each of the days January 14 and February 2 and 6, 1998 ,

LeBloch lent $10,000 directly to NT . Each of these five loan s

was informal, the principals thereto (husband and wife)

understanding that Michelsel (with respect to the first two

loans] and NT (with respect to the last three loans) would repay

the loans without interest -n the near future when the shops'

cashflow allowed her or it to do so .

of the $60,000 in loans

made In 1998 ($20,000 + $10,000 + $10,000 + $10,000 + $10,000),

$15,000 was repaid to LeBloch in 1998 ;( .$10,000 on April 8, 1998, .

and $5,1000 on May 8, 1998) and $20,000 was repaid to LeBloch in

1999-($10,000 on January 19, 1999, and $10,000 on May 8, 1999) .

Mlche

ls

en (or NT) used all of the $ .60 ;000 in loan proceeds in the

business of the . Nature's Touch shops,jand as of the time of

trial,1'all of the $60,000 had been repaid :

During 1999, petitioners traveled to Australia and Tahiti .

Petitioners flew from Los Angeles, California, to Sydney,

Australia, on September 16 1999 . They stayed in Sydney for 3

nightsland then rented a car and drove to Brisbane . On October

1, 1999, they flew from Brisbane to Papeete, Tahiti . They stayed

-11in Papeete for 8 nights and returned to Los Angeles on October 8,

1999 . During those travels, Michelsen attended a gift trade fair

in Sydney .where she found a single product that she ended up

selling at the Nature's Touch shops . She also in or around

Brisbane purchased some other items which she displayed for sale

in the Nature's Touch shops . Petitioners incurred $12,847 .26 of

expenses for the trip to Australia and considered $4 ;129 of that

amount to be a business-related travel expense (as discussed

further below) . Petitioners did not consider or report any of

their expenses related to Tahiti as business related .

D.

1997, 1998, and 1999 Schedules C

1 . 199 7

For 1997 Federal income tax purposes, Michelsen reported the

income and expenses of the Nature's Touch shops on a 1997

Schedule C, Profit or Loss From Business, filed as part of their

return . The schedule reported on the basis of an accrual method

of accounting that the shops, for 1997, had gross receipts of

$501,574, costs of goods sold of $289,647, and total expenses of

$239,745, resulting in a net loss of $27,818 .' The schedule . was

accompanied by a 1997 Form 8829, Expenses For Business Use of

Your Home, reporting home operating expenses of $2,367 and hom e

' According to the 1997 Schedule C, the inventory of the

shops was $98 ;107 at the beginning of the year and $289,647 at

the end of the year .

-12 deprec i ation of $2,388 . Th e Form 88 2 9' .itemized the hom e

operati ng expenses as follow s :

Direct expenses :

Repairs and maintenance

Utilities

Indirect expenses :

Insurance

Repairs and maintenance

Utilities

Total

Business-use . percentage

Total

$1 1

98 9

.

:68 3

1,99 9

2',79 3

5 ;92 5

1 .252 1,36 7

2,36 7

Petitioners did not deduct for 1997 any of either the reported

home operating expenses or he reporte'd home depreciation bu t

deducted all of those amou n s for 1998 as a carryover to tha t

year . : Petitioners claimed on the 1997 Form 8829 that 25 . 2

percent of the residence was used exclusively for business

purposes ; they stated on the form that they ascertained that

percentage by dividing the "Area usedjregularly and exclusively,

for business * * * or for storage of inventory" (reported'as 63 0

squarelfeet) by the "Totallarea of home" (reported as 2,50 0

square feet) .' The 1997 Schedule C itemized the total expenses

{

r

of $239,745 as follows :

Advertising

$2,339

Car and truck- 4,161

Depreciation

1,675

Insurance (other than health)' 5,843

,Legal and profes ional services 475

Rent or lease : ,

Other business property 76,89 8

I

B The record does not reveal how petitioners ascertained

either square footage .

-13 Supplies

17,56 0

Travel

12,36 5

Meals and entertainmen t

(after 50-percent reduction)

Utilities

Wages

Other expenses'

Total

1,58 8

.10,92 1

87,20 1

18,71 9

239,74 5

' The 1997 Schedule C did not identify any of

these "other expenses" .

2 . 199 8

For 1998 Federal income tax purposes, petitioners did not

report the income and expenses of the Nature's Touch shops on

their personal income tax return . Their 1998 personal return

included a 1998 Schedule C that reported the income and expenses

of Michelsen as "Board Chairman of NT" . The schedule reported on .

the basis of .the cash receipts and disbursements method of

accounting that the reported business had a net profit of $23,193

for 1998, resulting from gross receipts of $36,808, total

expenses of $4,137, and home business expenses of $9,478 . The

schedule was accompanied by a 1998 .Form 8829 reporting that 25 .2

percent of the residence (630/2500) was used exclusively for

business purposes and that the $9,478 of home business expenses

consisted of operating expenses of $4,702 (inclusive of the

$2,367 carryover from 1997) and depreciation of $4,776 (inclusive

of the $2,388 carryover from 1997) . The Form 8829 itemized the

home business expenses as follows :

-14Operating expenses :

Direct expenses :!

Utilities

$95 1

Indirect expenses :

insurance .

844

Repairs and maintenance [1,802

Utilities

2, .84 6

Total

5,492

Business-use percentage

.252

1,382

Carryover from 1997

2,36 7

Total

1

14,70 2

Depreciation :

Current depreciation

2,38 8

Depreciation carryove r

from 1997

2,388

Total

4,77 6

Total

9,47 8

We note petitioners' $2 adding mistake .

The 19 9 8 Schedule C itemized the total ' expenses of $4,137 a s

I

follows :

Supplies

$83 5

Meals and entertainmen t

(after 50-percent reduction)

3,302

Total

4,13 7

3 . 199 9

'For 1999 Federal income tax purposes, petitioners did no t

report the income and expenses of the'Nature's Touch shops o n

their personal income tax return .

Their 1999 personal return

included a 1999 Schedule C that reported the income and expense s

t

of Michelsen as "Corporat e

he

reported on the basis of an accrual method of accounting that the

9~Although the 1999 Schedule C .lsts the " Name o f

proprietor " . as "James and Cathy LeBloch " ; the return clarifies on

Schedule SE, Self-Employment Tax, that the income reported on the

Schedule C is that of Michielsen only .

I

3

I

I

-15reported business had a net profit of $14,029 for 1999, resulting

from gross receipts of $37,677, total expenses of $18,206, and

home business expenses of $5,442 . The schedule was accompanied

by a 1999 Form 8829 reporting that 25 .2 percent of the residence

(630/2500) was used exclusively for business purposes and that

the $5,442 of home business expenses consisted of operating

expenses of $3,054 and depreciation of $2,388 . The Form 8829

itemized the home business expenses as follows :

Operating expenses :

Direct expenses :

Utilities

Other expenses

Indirect expenses :

Insurance

Repairs and maintenance

Utilities

Total

Business-use percentage

Total

Current depreciation

Total

$1,35 9

26 4

. 69 2

2,13 2

2,84 0

5, 66 4

.252

1,42 7

'3,05 4

2,38 8

5 ;44 2

'We note petitioners' $4 adding mistake .

The 1999 Schedule C itemized the total expenses of $18,206 as

follows :

Depreciation

Legal and professional services

Office expense

Rent or lease :

Vehicles, machinery, and equipment

Travel

Meals and entertainmen t

(after 50-percent reduction)

Other expenses'

Total

$1,17 5

55 6

24 6

7,47 6

4,12 9

1,37 4

3,25 0

18,206

-161 The 1999 Schedul'le C did not identify any of

these "other expenses" .

E .

Amen ded Return s

On their 1998 Federal income tax return, petitioner s

reported adjusted gross inc ome of $73,361 . The`$73,361 consiste d

of the following reported items and amounts :

LeBloch' s .wages from IR S

$71,091

Interest

1, 00 4

Schedule C net profi t

23,19 3

IRA deduction (2,000)

One-half of self-Imploymentltax (1,639 )

Alimony pai d

( 18, 288)

Adjusted gross income

73,36 1

On their 1999 Federal income tax retun, petitioners reporte d

adjusted gross income of $104,971 . The $104,971 consisted of th e

following reported items and amounts :

LeBloch's wages from IRS

Michelsen's wages from NT

Interest and ordinary dividends

Taxable refund s

Schedule C net profit

f

Capital gain

One-half of self- employment ;tax

{

Alimony pai d

Adjusted gros s income

,Oj or about April 14,

$72, 130

31,00 0

84

- 90

14,02 9

53 .

(991)

(11,424 )

104, 97 1

2002, after the Commissioner had begun

1, i

his audit of the subject years and had proposed his adjustment s

{

increasing petitioners' taxable income to reflect the unreporte d

.

income ascertained under the bank ac c ount analyses, petitioner s

J

filed Ian amended 1998 Federal income tax return claiming without

further explanation that $11,554 reported as compensatio n

1

received from NT during 1998 was really a loan repayment . At th e

-17same time, petitioners also filed an amended 1999 Federal income

tax return claiming without further explanation that

$ 13,038

reported as compensation received from NT during 1999 was really

a loan repayment .

Each . of these amended returns claimed a refund

resulting from the claimed recharacterization of the originall y

reported compensation as loan repayments . . Respondent did no t

grant either of those claims for refund .

F.

Petitioners' Financial Accounts .

1 .

Overvie w

Throughout the subject years, petitioners had 13 bank or

investment accounts (collectively, financial accounts) . Nine of

the financial accounts were in the name of LeBloch . The

remaining four financial accounts were in the name of Michelsen .

2 .

LeBloch's Account s

LeBloch had three financial accounts at the LAIRE Federal

Credit Union (LAIRE) . The first account, a primary savings .

account (LAIRE 00), was open from January 1, 1997, through

February 12, 1999 . The second account, a checking account (LAIRE

50), was open during all of 1997 and 1998 . The third account, a

secondary savings account (LAIRE 01), was open from June 19

through December 31, 1998 .

LeBloch had three financial accounts at the Postal & Federal

Employees Credit Union (PFE) . Each of these accounts was open

from September 24, 1998, through December 31, 1999 . These

{

accounts were a primary share account (PFE Si), a spbshare

accounct(PFE S2), and a reality checking account (PFE S18) .

L'eBloch's last three financial accounts were brokerag e

accounts . One brokerage account was aLMerrill Lynch investment

account (Merrill Lynch account), whichiwas open throughout the

subject years . Another brokerage account was a Paine Webber

investment account (Paine Webber account), which was open durin g

all of j1997 . The last brokerage account was a second account a t

Paine W ebber ; this account w as open during all of 1999 .

Mchelsen ' s four accoui is were all at Bank of America (BA) .

The

first account, a business checking account

( BA 1225), was

open from January 1 through April 18, 1997 .

The second account,

another business checking account

was open from April

18 through December 31, 1997 .

( BA}9606 ),

These two accounts were the

checking accounts for the Nature ' s Touch shops when operated

through Michelsen ' s sole ploprietorshp ;

afterwards ,

BA 9606 was

the corporate bank account for NT : Tlhe balance in BA 1225 was

transferred to BA 9606 on April 18 , 1`997 .

Michelsen's third accLnt ,

a checking account

open, from January 1 through April 22 ,

anoth e r checking account (BA 9605),

1997 .

( BA 7417), was

Her fourth account,

was open from April 22, 1997 ,

! !

through December 31, 1999 .

.The balance in BA 7417 was

transferred to .BA 9605 on April 22,,1997 .

-19G.

Notices of Deficiency

1.

Overvie w

On November 9, 2004, respondent issued to petitioners a

notice of deficiency for 1997 and a notice of deficiency for 1998

and 1999 . The notices of deficiency determined the following

adjustments to amounts reported on petitioners' Federal incom e

tax returns for 1997, 1998, and 1999 :

199 7

Unreported rental income

$3,00 0

Unreported interest income 2,331

Unreported capital gains income -0Unreported Schedule C income

63,85 2

Total unreported income

69, 183

Self-employment tax deduction

(4, 614)

Disallowed itemized deductions

1,795

Disallowed alimony expense

2,436

Disallowed Schedule C expense s

29,276

Total increases to income

98,076

1998

199 9

-0- -0-0- $115

$155 -036,368 49,368

36,523 49,483

(3,531) (4,676 )

-0- 1,424

1,488 624

13,615 23,648

48,095 70,50 3

The notices of deficiency itemized the disallowed Schedule

C

expenses as follows :

Insurance

Meals and entertainment

Supplie s

Travel

Business use of home

Rent or lease expense

Office expens e

Legal and professional

Depreciation

Other expense s

Total

2.

$1,392 -0- -0'1,588 $3,302 $1,374

1,508 835 -09,737 -0- 4,129

-0- 9,478 5,442

-0- -0- 7,476

-0- -0- 246

-0- -0- 556

-0- -0- 1,17 5

15,051 -0- 3,250

29,276 13,615 23,64 8

Respondent's Bank Deposits Analyse s

Respondent determined the amounts of unreported income

listed in the notices of deficiency by performing bank deposits

-20analyse § . The total deposit s

account )

into petitioners'

LAS RE 00

LAIRE 50

ZAIRE 01

PFE Si

PFE S2

PFE S18

Paine Webber account

Merrill Lynch account

Bk 9605

BA 7417

BA 1225

$A 9606

( Total

( including interest credited t o

financial acc ounts . were a s follows :

1997

1998

199 9

$130,2711

$ 15,906

134 , 724

5, 130 .

$25 4

-0 -0 -

15,038

12,08 6

5,150

34,738

-0-059 , 680

-0-

10,04 8

95,04 3

-0 10,00 0

64,14 5

163,0121

-0-

-00-0- G

.31,111

77,045'

65,970!

25,977,

226,146

367,522

1,087,054

- 0- .

270 , 366,

-0 -0-0 191,57 6

As to those deposits, respondent's bank deposits analyse s

4

characterized the following' amounts as nontaxable : .

1997

Interaccount transfers

Loan receipt s

:VISA advance s

Sales tax remittances

1(Jan . to Sept . 1997)

Returned deposits

:Wedding gift

I

1998'

199 9

$293,008 $129,112 $40,702

22,600 -0- -021,750 4,500 3,20 0

32,255

1,387

-0371,00 0

-0- -0-0- -0.5,000 .

-0138,612 43,90 2

Respondent's bank deposits analyses determined that the following

deposits were reported on

he subject Federal income tax returns :

1997

1998

199 9

wages (less withholdings) $56,6413 $54,305 $79,309

Interest

3,86;6 1,004 .

49 .

Dividends

-01

-0. 35

.Schedule C gross receipts 501,574 36,808 37,677

;Schedule D sales

86,487 -0- -0Total

648 ,570'' 92,117 117,070

-21Respondent's bank deposits analyses concluded that petitioners

had unexplained bank deposits as follows :

1997

Total deposits

$1,087,054

Nontaxable items

(371,000)

Reported amounts

(648,570 )

Unexplained deposits'

67,484

1998

$270,366

(138,612)

(92,117 )

39,637

199 9

$191,57 6

(43,902 )

(117,070 )

30,60 4

' The parties do not explain the difference

between the amounts of unexplained deposits and the

amounts of the total unreported income set forth in the

notices of deficiency . .

OPINIO N

A.

Burden of Proo f

Section 7491(a) was added to the Internal Revenue Code by

the Internal Revenue Service Restructuring and Reform Act of

1998, Pub . L . 105-206, sec . 3001(c), 112 Stat . 727, effective for

court proceedings arising from examinations commencing after

July 22, 1998 . While the burden of proof in this Court is

usually on a petitioning taxpayer, see Rule 142(a)(1), section

7491(a)(1) provides that the burden of proof on certain issues

affecting the liability of a taxpayer for tax shifts to the

Commissioner in specified circumstances . We hold that section

7491(a) does not apply to either issue before us because, we

find, petitioners have not proven that they complied with the

requirements of section 7491(a)(2)(B) to cooperate fully with

respondent's reasonable requests for witnesses, information,

documents, meetings, and interviews . See also Weaver v .

-22- {

Co mm issioner , 121 T .C . 273,

.

275 (2003) In fact, we find fro m

the record that petitioners did not cooperate with such

reasonable requests by respondent during the course of the audit .

We hold that petitioners bear the burden of proof .

B.

Uhreported .Income

Grioss income includes

derived ,

11 income from whatever sourc e

sec . 61 ( a), and taxpayers are ; required to keep books and

records sufficient to establish their iFederal income tax

liability,

Regs .

see sec .

6001 ;

see also sec .

1 .6001 - 1(b), Income Tax

Where taxpayers have not maintained adequate business .

records to establish such liability ,

the Commissioner may

reconstruct income by any method that the Comm issioner believes

reflects income clearly .

see sec .

94 T .IC1 654, 658

The Co mm issioner ' s method need not be

( 1990 ) .

445(b) ;

exact ; however, it must be reasonable )

States

348 U .S . 121

Parks v . Commissioner ,

See Holland v . United

( 1954) .

The bank deposits method for computing unreported income has

long been sanctioned by the judiciary. See Factor v .

Commissioner , 281 F .2d 100) 116 (9th Cir . 1960), affg . T .C . Memo .

1958-94 ;

DiLeo v . Commissioner , 96 T .I . 858, 867 (1991), affd .

959 P . 2d 16 (2d Cir . 1992)

Bank de posits are prima faci e

evidence of income . See T okarski v . Commissioner , 87 T .C . 74, 77

l

(1986) . Where an individual taxpayer, has .failed to maintain

adequate records as to the-amount and source of his or her income

.l

-23and the Commissioner has determined that the deposits are income,

the burden is on the taxpayer to show .that the Commissioner's

determination is incorrect .

Petitioners argue that respondent's use of the bank deposits

analyses was unjustified because, they state, they kept adequate

records establishing their income . We disagree . Whil e

petitioners may have used a computer program to memorialize their

income and expenses, we are unable to find from credible evidenc e

in the record that petitioners ever gave to respondent ; befor e

issuance of the notices of deficiency, adequate records to

support their reported income for any subject year . On the basis

of the record at hand, we hold that respondent's use of the bank

deposits analyses was proper .

Petitioners argue alternatively that respondent misapplied

the bank deposits analyses in that, .they argue, respondent failed

to recognize that most of the disputed deposits arose from

nontaxable sources . Petitioners argue that . respondent's bank

deposits analyses should be adjusted as follows :

1997

As

Determined

Total deposits (including interest)

$1,087,054

.

Petitioners '

Additiona l

Adjustments

-0-

As

Adjuste d

$1,087,054 .0 0

Less adjustments :

Interaccount transfers

Loan receipts

Loan repayments

VISA advances

Sales tax remittances

Returned deposits

Expense report reimbursement

Total

293,008

22,600

- 021,750

32,255

1,387

$15,599 .29

-035,000 .00

2,500 .00

, 3,800 . 00

-0-

308,607 .2 9

22,600 .0 0

35,000 .0 0

24,250 .0 0

36,055 .0 0

1,387 .0 0

:- 0-

6,414 .04

6 , 414 .0 4

371,000

63,313 .33

434,313 .33

-24Les's reported income :

Wage s

56, 643

3,86 6

501,574

86,487

1

648,570

67,48 4

Interest

Schedule C gross receipts

Schedule D sale s

Total

Unexplained deposits

(2,•927,53 )

{

5,290 .20

1,808 .0 0

-07,098 .20

(70,111 .53 )

61,933 .20

5,674 .0 0

501,574 .00

86,487 .00

655,668 .2 0

199 8

Petitioners'

Total deposits (including int e rest)

Less adjustments :

Interaccount transfers

Loan repayment s

VISA advances

Gift s

Total

Less reported income :

Wage s

'Interest

;Schedule C gross receipt s

Total

nexplained deposits

As

Determine d

Additional

Adjustment s

As

Adjuste d

$270,36 6

-0-

$270,366 .00-

129, 112

04,500

1 5,00 0

138,612

$7,578 .00

15,000 .0 0

136,690 .00

15,000 .00

4,500 .00

5,000 .0 0

161,190 .0 0

59,305

[1, 004

36, 808

8,424 .15

-0-

-0-

62,729 .15

1,004 .00

36, 008 .0 0

92,117

39,63 7

8,424 .15

(31,002 .15 )

100,541 .15

8,634 .8 5

• I Al

Determine d

Petitioners'

Additional

Adjustment s

As

Adjuste d

$191,576

-0-

$191,576 .00

190,70 2

03,200

193, 90 2

$4,002 .50

20 ,

.44, 704 .50

20,000 .00

3,200 .00

67,904 .50

79,309

49

35

8,576 .32

-0-

37, 67 7

-0-

117,070

30, 604

8, 576 .32

(32,578 .82)

-0

22, 5 88 .0 0

1999

.Total deposits (including interest)

'Less adjustments : JInteraccount transfers

Loan repayment s

VISA advances

{ Tota l

Less reported income :

Wage s

Interest

Dividend

Schedule C gross receipt s

k Tota l

nexplained deposits

I

24,002 .5 0

-0-

87,885 .3 2

49 .00

35 .00

37,677 .00

125,646 .3 2

(1,974 .82 )

We agree with petitioner s Ito a large extent . We discuss their

I

requested additional adjus tments seriatim .

1 .

Interaccount Tranlsfer s

Petitioners argue that respondent's bank deposits analyses

for the respective years must be adjusted to reflect $15,599 .29 ,

$7,578, and $4,002 .50 of nontaxable transfer s of funds between

-25their accounts . Following respondent's concession in brief that

the record at hand supports adjusting the amounts shown in the

bank deposits analyses to reflect additional nontaxable transfers

of funds between accounts, the disputed items in this category

are as follows :

199 7

December 18, 1997, deposit of

previously withdrawn fund s

May 23, 1997, check drawn on

LAIRE 50 and payable to

Michelse n

July 3, 1997, check drawn on

LAIRE 50 and payable to

Michelsen

September 17, 1997 , check drawn

on LAIRE 50 and payable to

Michelse n

November 20, 1997, check drawn

on Paine Webber account and

payable to Michelse n

Business deposit mistakenly

deposited into Michelsen's

personal account ;

contemporaneously transferre d

to business account

$1, 900 .0 0

400 .0 0

393 .0 0

240 .0 0

430 .0 0

$5,978 .83

9,341 .8 3

199 8

Check from LeBloch account

at LAIRE to Michelsen for

her payment of his personal

expense s

$745 .00

199 9

Check from NT to Michelsen in

reimbursement, of her payment

of an expense of NT

$660 .50

-26We agree with petitioner that all of these disputed item s

are nontaxable to them and should be reflected as such . The

largest amount , $ 5,978 . 83,

eflects a (business deposit that was

mistakenly deposited into M-chelsen ' s personal account and then

contemporaneously transferred to the business account when

Michelsen discovered the mistake . The next largest amount ,

$1,900, reflects funds that were withdrawn by LeBloch and the n

redeposited into his accoun t . The $660 .50 deposit reflects a

reimbursement that NT mad e to Michelsen . The remaining fiv e

amount are simply transfer s of cash from LeBloch to Michelsen .

,2&

Loan Repayments

. Petitioners argue tha

respondent's bank deposits analyses . .

t

for the respective years and st be adjusted further to reflec t

$35,000, $ 15,000 ,

and $20 , 000 of non taxable loan repayment s

deposited into one of LeBloch's financial accounts . We agree .

Case :]aw establishes a two-part test !fo r, determining whether a

transfer of money qualifies as debt . 'First, repayment of th e

transferred funds cannot be contingent upon a future event .

Secon d, the transfer must b e made with a reasonable expectation,

belief,

and intent that it be repaid . See Zimmerman v . Unite d

States ,

318 F . 2d 611

Commissioner ,

( 9th Cir .

1963 ) ; Estate of Trompeter v .

T .C . Memo . J998-35 .

WhI ether a transfer is mad e

l

with the requisite expectation, belief, and intent is factual

See' John Kelley Co . v . .Co issioner , 326 U .S : 521 (1946) .

-27Our agreement with petitioners that LeBloch's transfers o f

money to Michelsen and NT were loans flows from our findings of

fact that petitioners regularly advanced funds to each other

without formal documentation and without formal terms, that the

transfers in question were made with the expectation, belief, an d

intent that they be repaid, that the transfers in question were

made-incident to the transferee's need for operating funds, and

that the transfers in question were repaid by the transferee

shortly after receipt .10 LeBloch lent $95,000 for use (and that

was used) in the business of . the Nature's Touch shops, and, of

that amount, $35,000 was repaid in 1997, $15,000 was repaid in

1998, $20,000 was repaid in 1999, and $25,000 was repaid after

1999 . In addition, petitioners had an informal understanding

that either of them would advance funds to the other without

formal terms and that the one for whose benefit the funds were

advanced would repay them ., In fact, as to LeBloch, it was not

uncommon for him regularly to pay a common expense in full and

then contemporaneously receive reimbursement from Michelsen for

her share of that expense . Nor was it uncommon for LeBloch

regularly to pay out of his personal funds expenses of a Nature's

Touch shop and then seek and obtain reimbursement from the shop s

10 Because respondent makes no assertion that LeBloch's

transfers were contributions of equity rather than loans, we do

not consider that question . See Metrocorp, Inc . v . Commissioner ,

116 T .C . 211, 217 (2001) .

-28-

1

for that

I

payment . We also

ote that petitioners neve r

interrkii!ngled their funds in a joint account, but kept thei r

'financia l accounts separate

and that petitioners' relationshi p

throughout the subject years was one in which they each

understood that they were responsible ifor the payment of their

share of the expenses . We hold for petitioners on this item . "

VISA advances

F

Petitioners argue that they are entitled for 1997 to an

adjustment of $2,500 for VISA advance . Respondent concedes that

this $2,500 is not taxable income to petitioners, and we so hold .

41

Sales Tax Remittance s

:Petitioners argue that' they are ntitled for 1997 to an

adjustment of $3,800 for sales tax remittances for October an d

November 1997 . . We agree .

Michelsen operated the Nature's Touch

shops as a sole proprietorship from January 1 throug h

November 23, 1997, and she (as a conduit) collected sales tax on*

the ales made at the shops during that time . She deposited the

colle cted sales tax into tie shops' biusiness account and later

remitted that tax to the State of Callifornia . . Respondent's bank

deposits analysis for 1997 made an adjustment for sales ta x

Whereas we understand petitioners to request that we also

hold that other amounts reported as compensation from NT were

actually loan repayments, Iwe declinelto do so . Michelsen was the,

sole ''reported recipient of compensation from NT, and petitioners

make no assertion in this proceeding that Michelsen lent'money to

NT . I

.

-29remittances only through September 1997 ." On the basis of our

review of the record, we find that on November 24, 1997, $3,800

in sales tax was remitted to the State of California on behalf of

the Nature's Touch shops and conclude that petitioners are

entitled to their requested $3,800 adjustment .

5.

Expense Repor t

Petitioners argue that they are :entitled for 1997 to an

adjustment of $6,414 .04 for . expenses report reimbursement . In

support thereof, petitioners point the Court to a December 29,

1997, check drawn on the NT account payable to LeBloch in the

amount of $41,667 . The check states on its face that it is

"Payment for Loan", and LeBloch deposited the check into his

regular savings account at LAIRE . Petitioners point out that

$35,000 of the check was the loan repayment discussed herein and

argue that the balance ($252 .96), after taking into account the

$6,414 .04, was for reimbursement of LeBloch's payment of

Michelsen's share of a personal utility expense . We agree with

petitioners (in that we find) that the $6,414 .04 was paid to

LeBloch as reimbursement of expenses that he paid on behalf of NT

and allow the requested adjustment .

6.

Wage s

Petitioners argue that they are entitled for the respective

years to adjustments of $5,290 .20,$8,424 .15, and $8,576 .32 for

wages . As petitioners see it, their wages for each year should

-30have been calculated by using the amounts shown on

Wage an d'

Tax Statement ;

the Forms W-2,

in other words the amount for each year

that equals their reported cross wages less the sum of th e

reported amounts withheld for Federal income tax ,

Social Security

tax, and Medicare tax . We conclude differently .

The bank'

deposits analyses correctly reflect only the portion of his wages

that wars deposited into his account

( ie ., in addition to the

report ied amounts of tax withheld, LeBloch apparently had other

amounts taken out of his gross wages before those wages were

deposited into his account ) . .

Those amounts are different fro m

the amounts referenced by p etitioners .

C.

Home Office Deduction

for Each Subject Yea r

`Petitioners are generally precluded from deducting expenses

incurred in connection with) the business use of the residence .

See sec . 280A .

Pursuant td section 280A ( c)(1), however ,

petitioners may deduct expenses allocable to a portion of the

residence if that portion 4as exclusively used on a regular basi s

(1) as a principal place of business, (2j as the . .place for

meeting with customers, clients, or patients in the normal course

i

of business, or (3) in the case of aLnattached separate

structure, in connection with the business .12 See als o

12 Sec . 280A(a) also does not apply to items allocable to

space,withing a dwelling unit that is used on a regular basis for

the storage of inventory held for use i'n the taxpayer's trade or

business of selling products at retail provided the dwelling uni t

(continued . . . )

-31Commissioner v . Soliman , 506 U .S . 168 (1993) ;

Browning v .

Commissioner , 890 F .2d 1084, 1087-1088 (9th Cir . 1989), affg .

T .C . Memo . 1988-293 ;

Cao v . Commissioner , T .C . Memo . 1994-60,

affd . without published opinion 78 F .3d 594 (9th Cir . 1996). .

Petitioners argue that they are entitled to a deduction for

each'subject year attributable to their business use of a portion

of the residence . According to petitioners, the office ,

guest bedroom closet, and garage (collectively, premises) in or

at the residence were used exclusively for business, and the

premises are approximately 25 percent of the residence's square

footage . We understand petitioners to argue that, during each

subject year, Michelsen stored inventory on the premises and used

the premises to work on opening more Nature's Touch stores . We

also understand petitioners to argue that Michelsen also used the

premises after the formation of NT to conduct her business as an

officer of NT .

We do not believe that petitioners meet any of the three

prongs underlying the just-referenced exception of section

280A(c)(1) . As to 1997, when Michelsen operated the Nature's

Touch stores as a sole proprietor, the stores' principal place of

business was not in any part of the residence . Nor are w e

"( . . .continued)

is the sole fixed location of that business . See sec .

280A(c)(2) . That provision is inapplicable here, where the

residence was not the sole fixed location of the Nature's Touch

shops .

-32-

. I

persuaded that Michelsen met there with customers, clients, o r

patients in the normal cour s e of business . Nor does the record

establish that any part of the residence, including the garage,

was in an "unattached separate structure" .

-

i

Wei also are not persuaied that th'le exception was met for

either remaining year in issue . In orader for a taxpayer to

establish

I use on a "regulars' basis, the business use must be mor e

1

than occasional or incidental .

76 T .Cs 696, 700

( 1981 ) .

See Jackson v . Commissioner ,

In order forr a taxpayer to establish

that use of a portion of a dwelling isI "exclusive the portion

must be used only for business purposes .

Inc . v .. Commissioner ,

88 T .C .

See Sam Goldberger,

1532 ,. 1556-1557

( 1987 ) ;

Commissioner , T .C . Memo .

1993-128 ;

see also Irwin v .

Commissioner , T .C . Memo .

1996-490 .

See .generally sec .

Hefti v .

1 .280A12 ( g)(1), Proposed Income Tax Regs ., 45 Fed . Reg . 52404

(Aug . 7, 1980) . The failure of a taxpayer to establish that th e

i

use of a portion of a dwelling is both "regular " and "exclusive"

is fatal to the taxpayer ' s claim thatfsuch use falls within the

exception of section 280A ( i)(1) . Seel Sam Goldberger ,

Commissioner ,

supra at 1556 -1557 ;

Inc . v .

Although the record

establishes that Michelsen performed at the residence a lot of

work for the Nature ' s Touch stores , petitioners . have not offered

suffidient evidence regarding the amount of time and nature o f

i

If

the work conducted anywhere in the premises so as to establish

-33regular use, nor have they established that any portion of the

premises was used exclusively in a business .13 Accord Browning

v . Commissioner ,

supra . We reject petitioners' claim for home

office deductions related to the residence .

D.

Self-Employment Deductions Other Than Home Office Deduction

Section 162(a) lets taxpayers deduct "all the ordinary and

necessary expenses paid or incurred during the taxable year .in

carrying on any trade or business" . Under that section, a n

expenditure is deductible if it is : (1) An expense, (2) an

ordinary expense, (3) a necessary expense, (A) paid (in the cas e

of a cash method taxpayer) or incurred (in .the case of an accrual

method taxpayer) during the taxable year, and (5) made to carry

on a trade or business . See Commissioner'v . Lincoln Sav . & Loan

Association , 403 U .S . .345, 352-353 (1971) ;

Lychuk v .

Commissioner , 116 T .C . 374, 386 (2001) . In the case of personal

travel expenses, a taxpayer also must meet two additional rules .

First, the travel expenses must arise from travel that is relate d

primarily to the taxpayer's business . See sec . 1 .162-2(b)(1),

Income Tax Regs . ; see also Reed v . Commissioner , 35 T .C . 19 9

13 In fact, Michelsen by her own account acknowledged that

the garage was not used exclusively for business purposes and

contended that the only portion of the residence used exclusively

for business was the room with the office . While petitioners ask

the Court to find as to the office that Michelsen spent much time

there working on expanding the Nature's Touch shops through the

opening of additional shops, we decline to find such a fact on

the basis of the record at hand .

-34-

(1960), .

Second, the taxpayer must substantiate, by adequate

records or other sufficient evidence corroborating his or her own

statement, each of the following eleme n ts : (1) The amount of

each expenditure ; (2) the time and place the expenditure was

incurre (3) the business purpose of the expenditure ; and (4) in

the case of entertainment expenses, the business relationship to

the taxpayer of the person entertained(.. See sec . 274(d) ;

Meridian Wood Prods . Co . v . United Stales , 725 F .2d 1183,

188-1191 (9th Cir . 1984) ;

Johnston v . Commissioner , T .C . Memo .

1980-477, affd .•696 F .2d 1003 (9th Cir . 1982) . In the case of

meals incurred while not traveling, substantiation by sufficient

evidence requires that the taxpayer establish the cost, amount ,

time, place, and date of th

expenditure by "direct evidence"

(e .g ., detailed writing) ;

the taxpay e r may establish busines s

purpose or business relationship by "c rcumstantial evidence "

corroborating the taxpayer' own statement . Sec .

1 .274- T(c)(3)(i), Temporary Income Tax Regs ., 49 Fed . Reg . 42704

(Oct . 24, 1984) .

1 , 199 7

Of the Schedule C expenses disalllowed for 1997, petitioners

{

chall'erige only the expenses for travel to the extent of $5,978)

and other ($18,719) .,,

C

-35a.

Trave l

Petitioners argue that they have substantiated $5,978 o f

1"

expenses claimed as travel expenses for 1997 through th e

introduction of Exhibit 112-P . We disagree . Exhibit 112-P was

received into evidence through the parties' stipulation that the

exhibit reflects "documents which Petitioners contend pertain to

business meals, travel and lodging incurred in taxable year

1997" . Exhibit 112-P has approximately 75 pages, and petitioners

have not organized or presented the "documents" included therein

(mainly photocopies of receipts) in a manner that persuades us

that any of the expenses reflected in this exhibit are properly

deductible by petitioners . See Romer v . Commissioner , T .C . Memo .

2001-168 . Nor do petitioners in their posttrial opening brief

make any concerted attempt to persuade us that they have

satisfied the requirements for deductibility ; petitioners' entire

argument on this point is that "These travel expenses are

substantiated in Exhibit 112-P and should be allowed ." We

sustain respondent's determination that petitioners are not

entitled to deduct these claimed expenses . "

" We note that during respondent's audit of the subject

years Michelsen prepared a "travel expense record" for 1997 and

that this expense record was admitted into evidence as part of

Exhibit 135-P . The expense record is an 8-page document that

lists in single spaces each dayin 1997 (i .e ., . .01/01/97,

01/02/97, and so on) . To the right of some of the days is a

brief statement by Michelsen as to the business that she

performed for the Nature's Touch shops on the corresponding day ,

t

(continued . . .

-36b.

Other Expense d

Petitioners argue that they have substantiated the . $18,71 9

claimed as "other e x p enses" through the introduction of Exhibit s

119-P'a'n

''d 120-P . We disagree . Exhibit 119-P was received into

evidence through the partiel' stipulation that the exhibi t

reflects "documents which Petitioners c ontend pertain to othe r

expensefor taxable years 1997" . Exhibit 120- P was received into

evidence through the parties stipulation that . the exhibit .

f

(

Ilf

reflects "documents which Petitioners contend pertain to the ban k

deposit analysis" . Together, Exhibits

119-P and 120-P hav e

approximately 110 pages, and the "documents" included therein

(mainly canceled checks, bank statements, and receipts)•do not

i

persuade us that the expenses reflected therein are properly

deductible by petitioners . Nor do petitioners .in their po,sttrial

opening' brief persuade us that they have satisfied the

requirements for deductibility ; petitioners' entire argument in

brief as to this point is as follows :

Y The deduction taken of $18,719 has been adequately

substantiated (Exh 119-P . and 110iP) . Natures Touch as

a{sole proprietorship during the first 10 months of

1997 was an accrual taxpayer . Expenses budgeted to

begin the Carlsbad . store location were accrued by the

sole proprietorship` This is an issue that Respondent s

. 14

( . . .continued )

as well as her statement,of any purported business meal that she

purchased on that day alon6 with the identity of the person with

whom she dined . We give little weight to the "expense record" .

We note that the expenses deflected in many of the invoices in

Exhibit 112-P do not appear on Michelisen's expense record .

I

-37[sic] counsel may raise . Petitioners believe they

should prevail .

We sustain respondent's determination that petitioners are not

entitled to deduct these claimed expenses (except for $3,668 that

respondent concedes is deductible) .

2 . 199 8

Of the Schedule C expenses (other than home office

deduction) disallowed for 1998, petitioners do not challenge any

of those expenses .

3 . 199 9

Of the Schedule C expenses (other than home office

deduction) disallowed for 1999, petitioners challenge only the

expenses for lease ($7,476), travel ($4,129), and meals ($9,789) .

a.

Lease Expens e

Petitioners argue that the $7,476 claimed as a lease expense

was actually a legal expense that is deductible as such . We do

not find that any of that amount is deductible . Petitioners'

entire argument in brief as to this point is that "The amount

listed on Schedule C for lease expense was . .misclassified . The

$7,476 amount related to legal fees related to a tax litigation

matter and should be fully deductible (TR2-130 :1-12 ; TR 225 :17227 :14)" . The reference to "TR2-130 :1-12" is to the following

testimony by LeBloch on direct examination :

There is a mistake on the Schedule C attached to

the 1997 [sic] return, and the mistake is a

misclassification . There was listed an amount on th e

r

-38line that called for lease

$711476 .

expens e . Theamount was

In reviewing workpapers , that amount should have

been classified as legal expense . ) It related to the

legal cost that Cathy Michelsen had incurred related to

a (Tax Court proceeding dealing with taxable years 1993

through 1995 and paid to a law firm, the Joseph Mudd

La1W Firm .

Those proceedings related to . Tax Court

Docket 14780-97 .

The reference to "TR 225 :1 7 227 :14" is to Michelsen's direct

testimony that she had a c a e inthi s Court in the "1999 time

frame " and had received a b'ill from an attorney named Joseph Mudd

for $73 632 .75 of legal fees .

We are 4 npersuaded that petitioner s

are entitled to deduct for 1999 the $7,476 claimed for that yea r

as a lase (or, as they claim now, a legal) expense .

I

b . ,. Trave l

Petitioners argue that they have

substantiated the $4,129 of

expenses claimed as a business travel deduction through the

introduction of Exhibit 123-P and th e testimony of Michelsen .

That ;dvidence, petitioners conclude, jproves that they traveled t o

Austr a lia to attend the Sydney gift show, tosearch for a

locat on in Australia to open a foursh Nature ' s Touch store, an d

ii

to identify merchandise tol i mport in4o'the United States . W e

disagree that petitioners

travel expenses for 1999 .

Petitioners have simply not persuaded

1

us that their trip to Australia was 'related primarily to,

Michelsen's reported work for hersole proprietorship during 1999 as a j"Corporate Director/Consultant"J . Nor have petitioners

-39persuaded us as to the specifics .of their day-to-day activities

while in Australia or, more specifically, the amount of time that

they purportedly spent on business versus personal pursuits .

Exhibit 123-P was received into evidence through the parties'

stipulation that the exhibit reflects "documents which

Petitioners contend pertain to business related travel for

taxable year 1999" . Exhibit 123-P has approximately 70 pages,

and petitioners have not organized or presented the "documents"

included therein (mainly photocopies of .receipts) in any manner

that persuades us that any of the expenses reflected in this

exhibit are properly deductible by petitioners . Nor do

petitioners in their posttrial opening brief persuade us that

they have satisfied the requirements for deductibility ;

petitioners' entire argument on this point is :

The trip had a clear business purpose . Ms . Michelsen

was actively pursuing a business expansion . ,

(TR169 :16-171 :1) Substantiated costs total $12,847

(Exhibit 123-P) . Only one-third of this expense was

allocated to business . A deduction of $4,129, which

was taken on the return, should be allowed .

We sustain respondent's determination that petitioners are not

entitled to deduct these claimed expenses .

c .

Meals

.

Petitioners argue that they have substantiated the $9,789 of

expenses claimed as a meals deduction for 1999 through the

introduction of Exhibit 124-P . We disagree . Exhibit 124-P was

-40received into evidence through the parties' stipulation that th e

exhibit reflects "documents, which Petitioners contend . pertain t o

overnight business meal expelnse for taxable year .1999" . Exhibit

112-P has approximately 20 1ages, and petitioners have not

organized or presented the "documents" included therein (mainl y

photocopies of receipts) in any mannerLthat persuades us that an y

of the e xpenses

by petitioners

reflected in this exhibit are properly deductible

as "meals" .

See Romer I .Commissioner ,_ T .C . Memo .

2001-161{8 . Nor do petitioners in their posttrial opening brie f

make any concerted attempt to persuade us that they hav e

satisfied the requirements for such deductibility ; petitioners'

entire argument on this poiit is that "Expenses incurred are

substantiated in Exhibit 124-P . Total expenses are $9,789 ." W e

sustain respondent ' s determination that petitioners are not

entitled to deduct these claimed expenses .

E.

Epi~loau e

We have considered all of the pa r ties' arguments, and al l

arguments not discussed herein have be en rejected as moot ,

irrele1ant, or without merit .

Decision will be entered

under Rule 155 .

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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