                   T.C. Summary Opinion 2008-159



                      UNITED STATES TAX COURT



         RANDOLPH BRUCE AND RITA C. BEASLEY, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1023-07S.                Filed December 23, 2008.



     Randolph Bruce and Rita C. Beasley, pro sese.

     Spencer T. Stowe, for respondent.



     GERBER, Judge:   This case was heard pursuant to the

provisions of section 74631 of the Internal Revenue Code in

effect when the petition was filed.   Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,



     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 2002, the taxable year at
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                                   - 2 -

and this opinion shall not be treated as precedent for any other

case.       Respondent determined a $2,226 deficiency in petitioners’

Federal income tax for 2002.       The issues for our consideration

are:       (1) Whether petitioners are entitled to claim a loss in

connection with their activity involving the rental of a

powerboat; and (2) whether petitioners are entitled to certain

business deductions in amounts greater than those respondent

allowed.

                                Background2

        At the time their petition was filed, petitioners resided in

California.       Petitioners were married during 2002.   During 2002

Mr. Beasley was a crime scene investigator with the San

Bernardino County Sheriff’s Department.       Petitioners owned two

single-family homes that they rented during 2002.

        Mr. Beasley enjoyed fishing.    Because he was approaching

retirement, he planned to start a sport fishing charter business.

It was his goal to take out fishing charters and/or to sublease a

boat to others.       He purchased a boat that was located in Alabama

during June 2001.       The boat was 32 feet long and had two

staterooms so that six people could sleep on the boat.       The boat

was delivered to Mr. Beasley during July 2001.       When the boat

arrived, he discovered that there was a problem with odors



       2
       The stipulated facts and the accompanying exhibits are
incorporated herein by this reference.
                                - 3 -

emanating from the sanitation system.    The odor problem limited

the amount for which the boat could be rented.    Ultimately, the

entire sanitation system had to be replaced and the boat had to

be thoroughly cleaned.

     Blisters discovered in the fiberglass hull early in 2002

caused the boat to be out of the water one-third of that year.

At this point, Mr. Beasley discovered that he would have to be

specially licensed to take out charters consisting of six

persons.    Instead of taking out charters, he attempted to place

the boat in a harbor where it could be rented as sleeping

quarters, like a hotel, where the boat remains in the harbor

slip.   That effort was also unsuccessful while the odor problem

continued.

     For 2002 petitioners reported $2,800 in income from boat

rental on a Schedule C, Profit or Loss From Business.

Petitioners also reported $22,275 in deductions for a claimed

loss of $19,475 from the boat rental activity for 2002.    Most of

the $22,275 comprised depreciation, mortgage interest,

maintenance, and slip fees.    The rental income did not increase

for 2003.    The “rentals” consisted of payments by petitioner’s

brother and friends in exchange for sharing his boat for a

fishing trip.

     During 2002 Mrs. Beasley operated a daycare business out of

petitioners’ home.    Petitioners claimed $7,118 for food expenses
                                - 4 -

in connection with the operation of the daycare business.

Respondent, after audit, allowed one-half or $3,559.      The

remaining food expenses were disallowed on the basis that

petitioners had not shown the amounts were paid or incurred and

were ordinary and necessary business expenses.      Petitioners

computed the $7,118 as a percentage of their total food

expenditures.    They had receipts for food totaling $11,434, which

represented food for the daycare children as well as for

petitioners.    They determined that approximately 70 percent or

about $8,118 was for business and the remainder was for personal

use.    To be on the safe side, they decreased that amount by

$1,000 and claimed only $7,118.

       During 2002 petitioners had a daughter, age 18, and a son,

age 19, who lived at home and assisted Mrs. Beasley in the

operation of the daycare business.      Normally, there were 13

children being cared for in the daycare business, and Mrs.

Beasley’s son and daughter assisted with the children.      As an

example, the daughter changed diapers and the son supervised the

children in the yard.    The amount of time that was spent

assisting was loosely kept track of, and petitioners would pay

their children in cash and by purchasing items for them.        During

2002 both children were claimed as dependents of petitioners.

       At the end of the year petitioners would go through check

and credit card records and isolate payments made to and
                               - 5 -

purchases made for their children.     Using this method,

petitioners determined that their son received payments and

benefits of $2,898, which petitioners reduced by approximately

$1,000 to account for items that petitioners would have purchased

for him as part of his support.   Likewise, petitioners determined

that their daughter received payments and benefits of $4,097,

which petitioners reduced by approximately $3,000 to account for

items that petitioners would have purchased for her as part of

her support.

     Many of the items petitioners purchased for their children

included medicine, car insurance, automobile-related items,

healthcare, and payments to a college.     Petitioners deducted

$3,145 as the cost of labor for their children’s assistance in

the daycare business, and respondent disallowed the entire

amount.

     Petitioners deducted $4,502 as a business expense for use of

their motor vehicles, and respondent allowed one-half or $2,251.

During 2002 petitioners owned two automobiles and one truck.

The $4,502 deduction was based on an estimate of the percentage

of business mileage times the total annual mileage for each of

the two vehicles.   Using that method, petitioners claimed 70

percent of the total mileage of their truck and 15 percent of the

total mileage of one of their automobiles.     Petitioners did not

keep specific records as to whether the business mileage was for
                                 - 6 -

the boat rental, daycare, or Mr. Beasley’s noncommuting

transportation in connection with his job.

                              Discussion

I.   Boat Rental Adjustment

      The issues involving the $19,475 loss claimed with respect

the boat are somewhat involved.    Because the income from the boat

was shown as being derived from rentals, respondent determined

that the resulting loss was from a passive activity within the

meaning of section 469.    With certain exceptions, losses from

passive activities cannot be deducted from nonpassive income

(such as wages) but may be carried forward and deducted against

future years’ passive income.    An exception involves a rental

real estate activity as defined in section 469(i).    Rental real

estate losses are deductible from nonpassive income in amounts

that do not exceed $25,000.    Sec. 469(i).   Respondent determined

that Mr. Beasley’s boat was not “real estate” within the meaning

of section 469(i) and, therefore, the provisions of that section

did not apply.   Petitioners had already claimed losses with

respect to the two real estate rental properties, so that the

claimed boat loss could not be absorbed or used to reduce that

passive-activity income.

      In the event that the claimed losses from his boat do not

come within the section 469(i) provisions, Mr. Beasley argues, in

the alternative, that his boat activity was a nonpassive
                               - 7 -

business.   In that event, respondent contends that petitioners

have not shown that their boat activity was a nonpassive activity

and, if they do, respondent alternatively argues that petitioners

failed to substantiate the amounts claimed.

     Section 469(i), in pertinent part, provides:

          SEC. 469(i). $25,000 Offset for Rental Real Estate
     Activities.--

         (1) In general.–-In the case of any natural person,
     subsection (a) shall not apply to that portion of the
     passive activity loss or the deduction equivalent * * *
     of the passive activity credit for any taxable year
     which is attributable to all rental real estate
     activities with respect to which such individual
     actively participated in such taxable year * * * .

     Petitioners contend that there are examples in the law where

a boat is treated in the same manner as “real estate” and that

approach should carryover into section 469(i).    We cannot accept

petitioners’ contention because the above-quoted language is

without ambiguity and applies to “real estate”.   Although a boat

may in some instances be treated the same as real estate for tax

purposes, that is not the case in section 469(i).    Accordingly,

we sustain respondent’s determination that petitioners are not

entitled to apply boat rental income against nonpassive income.

     Alternatively, petitioners contend that they were involved

in a nonpassive activity with respect to the boat.   The facts in

this case belie any such contention.   Mr. Beasley was not

licensed to take people out and engage in charter activity.    In

effect, he engaged in fishing trips with friends and family and
                                - 8 -

they paid him in order to defer the cost of the operation of his

boat.   Although it was his intent and hope to engage in a charter

business after he retired from his full-time job sometime after

2002, his activity in 2002 was preliminary to any such business;

and a good portion of his expenditures would have been considered

startup expenses that he would be required to capitalize.

     Respondent determined in the notice of deficiency that Mr.

Beasley’s loss from rental of the boat was not deductible in 2002

because of section 469 limitations.     Respondent also determined

that Mr. Beasley could apply the loss against passive income in

the years after 2002.    Respondent did not determine that the

deductions that generated the loss were unsubstantiated.

Respondent questioned the underlying substantiation only in the

setting of petitioners’ alternative argument that the income, and

therefore the loss, was nonpassive or a Schedule C business item.

Because we have decided that Mr. Beasley’s boat-rental activity

resulted in a passive loss, respondent’s original determination

is sustained.

     Petitioners raise one additional argument in connection with

the boat.   They contend that if they are not entitled to a

passive or nonpassive loss, the boat should be treated as a

“qualified home” for purposes of deducting the mortgage interest

paid on the boat loan.    Petitioners deducted $3,032 in mortgage

interest with respect to the boat for 2002.    Section 163(h)
                                - 9 -

generally provides that no deduction is allowed for personal

interest paid during a taxable year.    An exception to that

general rule is any qualified residence interest.    Sec.

163(h)(2)(D).   Interest paid on a main home or a second home is

deductible as an itemized deduction, subject to certain

limitations.    For this purpose, the term “residence” can include

a boat.   Secs. 163(h)(4)(A)(i)(II), 280A(d)(1), (f)(1)(A).

      Petitioners claim the boat as a second home for the   second

home mortgage interest deduction.   If a second home is rented or

held out to rent to others, a taxpayer must meet special

requirements before interest is deductible.    Those special

requirements are set forth in section 280A(d).    Where the home

(boat) is rented, as petitioners claimed in this case, a taxpayer

must use that home for more than 14 days or more than

10 percent of the number of days during the year that the home is

rented at a fair rent, whichever is longer.    Sec. 280A(d)(1).

Because petitioners reported $2,800 of rental income, they must

show that they meet the section 280A(d) requirements.

Petitioners have not shown that they meet these requirements, and

therefore their argument that the mortgage interest is deductible

must fail.

II.   Daycare Food Deduction

      Petitioners claimed $7,118 as an expense for food that was

provided to the children in Mrs. Beasley’s daycare business.
                               - 10 -

They arrived at the amount by estimating the food expenses that

were personal and business, because daycare food purchases were

not segregated from other food purchases.      Petitioners have been

able to show receipts for food greater than the $7,118 claimed

and the $3,559 respondent allowed.      Respondent’s allowance is

based on a 50-percent personal--50-percent business allocation.

Because petitioners claimed about 70 percent of their actual food

purchases, respondent’s 50-percent allowance equals approximately

35 percent of total food purchases.

       Under section 162(a) petitioners are entitled to deduct

ordinary and necessary business expenses.      Providing meals to

children in the setting of a daycare business can be an ordinary

and necessary business expense.    The question is whether

petitioners have shown that the amount claimed was expended for

food for the children.

       Petitioners attempted to estimate the amount of food used

for the daycare business by using a percentage of total food

purchases.    It is not clear, however, that the percentage

petitioners used reasonably reflects the cost of the food used to

feed the children in the daycare business.      Petitioners caused

this dilemma because they did not take care to purchase food

separately or to segregate purchases for daycare and personal

use.    On the record in this case, petitioners have not
                               - 11 -

shown that they are entitled to any amount greater than the

$3,559 respondent allowed.

III.   Payments to and Purchases Made for Petitioners’ Children

       Petitioners’ children assisted Mrs. Beasley in the operation

of the daycare center, and petitioners deducted $3,145 as payment

for their labor.    Under section 162(a) petitioners are entitled

to deduct ordinary and necessary business expenses.    The cost of

labor to assist in the operation of the business would certainly

be an ordinary and necessary business expense.   The problem we

confront is that petitioners did not pay their children in the

same way they would have paid third parties.

       Instead of making a cash or check payment based on an hourly

rate times the hours worked, petitioners provided some cash and

mostly purchased items for their children.    Further complicating

their approach, petitioners did not keep records or provide

reliable estimates of the hours worked and failed to segregate

those items that were payments for work performed and items that

petitioners would have purchased to support their children

whether they worked in the daycare or not.

       At the end of the year petitioners went through their check

book and/or credit card receipts and picked out all purchases for

their children.    The amounts that were clearly for their

children’s support (as opposed to payment in exchange for their
                              - 12 -

labor) were not carefully extracted.     Instead, petitioners

reduced the total by approximated rough amounts such as $3,000 or

$1,000.

      We are convinced that petitioners’ children did assist in

the operation of the daycare business, but we are unable to

accept or adopt petitioners’ approach to arriving at the

deductible amount of their compensation.     It is noted that

petitioners’ dilemma is of their own making because they failed

to keep specific or accurate records of the hours worked by their

children and the amounts paid for their children’s services.

With that in mind, we find that petitioners are entitled to

$2,000 of the $3,145 claimed as a deduction for their children’s

labor in the daycare business.

IV.   Use of Motor Vehicles

      Petitioners deducted $4,502 as a business expense for the

use of a truck and an automobile in the operation of their boat

rental and daycare business and for Mr. Beasley’s job.     With

respect to the use of listed property such as a truck or an

automobile, in addition to the section 162 requirement that the

expense be ordinary and necessary, section 274(d) requires more

stringent recordkeeping to show entitlement to a deduction.

Secs. 274(d)(4), 280F(d)(4)(A)(i).     In particular, a taxpayer

must show with specificity the business use of the listed

property by means of logs and other detailed records.
                                - 13 -

Petitioners failed to keep such records of their claimed truck

and automobile expenses.

     In spite of the fact that petitioners did not have the

records required by section 274(d), respondent allowed

petitioners a $2,251 deduction, one-half of the claimed truck and

automobile expense deduction.    Under the circumstances, the Court

is not in a position to improve on respondent’s largess.

Accordingly, we hold that petitioners are entitled to the $2,251

respondent allowed.

     To reflect the foregoing,

                                          Decision will be entered

                                     under Rule 155.
