                  T.C. Summary Opinion 2002-147



                     UNITED STATES TAX COURT



        LARRY MINNICK AND CHARLA MINNICK, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8427-00S.              Filed November 18, 2002.



     Marshall H. Barkin, for petitioners.

     Brandi B. Darwin, for respondent.



     DINAN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.   The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the years in issue.
                               - 2 -

     Respondent determined deficiencies in petitioners’ Federal

income taxes of $5,387 and $3,774 for the taxable years 1996 and

1997.

     The issue for decision is whether petitioners’ Amway

activity in 1996 and 1997 was operated for profit such that

petitioners may deduct expenses related to that activity in

amounts greater than those allowed in the notice of deficiency.1

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

The stipulations of fact and the attached exhibits are

incorporated herein by this reference.   Petitioners resided in

Palatka, Florida, on the date the petition was filed in this

case.

     From 1992 through 1998, petitioner husband worked 45 hours

per week as a maintenance supervisor for Georgia Pacific

Corporation, while petitioner wife worked as a teaching

assistant.   Petitioners both have been involved with an Amway

distributorship since 1989, operating it under the name Minnick

Enterprises.2   Amway, a supplier of various products for personal


     1
      The adjustment in the notice of deficiency to the 1996
medical expense deduction is computational and will be resolved
by the Court’s holding on the issue in this case.
     2
      Petitioner husband stated at trial that petitioners are now
“Quixtar distributors” rather than Amway distributors. Although
the exact nature of the relationship between Amway and Quixtar
remains unclear, Quixtar apparently is a new computerized sales
system which is related to Amway but which is used for both Amway
and nonAmway products. Because petitioners appear to have been
                                                   (continued...)
                               - 3 -

use, uses a direct marketing approach to promote sales of its

products.   It is based on an incentive system whereby a

distributor’s sales are rewarded by bonus checks.    In addition to

earning commissions on their retail sales to consumers,

distributors can increase their proceeds through the sale of

products by individuals whom the distributor recruits.     The

former are known as “upliners” or “sponsors”, while the latter

are known as “downliners”.   Upliners sell Amway products to

downliners at the same prices at which the upliners purchased

them, and then earn bonuses based on the volume of the sales.

Thus, the wider the network of downliners a distributor creates,

the greater is the distributor’s profit potential.

     Petitioners did not have written contracts with their

sponsors or any of their downliners.   Prior to becoming

distributors for Amway, petitioners did not review the financial

records of any other Amway distributor regarding that

distributor’s success with Amway, nor did they have a written

business plan detailing how they intended to profit from their

distributorship.   Petitioners, however, did speak with existing

Amway distributors concerning the nature of Amway operations.

     Petitioners received reports from their upliner and from



     2
      (...continued)
primarily involved in the purchase and promotion of Amway
products, we will continue to refer to their activity as an Amway
distributorship.
                                                 - 4 -

Amway regarding their downliners.                             These reports summarized order

activity and bonus information.                         Petitioners maintained a

contemporaneous diary of meeting activities, but they did not

maintain periodic financial statements for the distributorship.

During 1996, petitioners constructed a building on their

residential property, a “pole barn”, which for a short period of

time was used in part for storage of Amway products.                                              However, at

some point during the years in issue, petitioners no longer

needed to store products, and the building subsequently was used

for entirely unrelated purposes.                         On average, petitioners devoted

approximately 2 nights per week, and approximately 2 weekends per

month, to the Amway activity.                        Petitioners’ taxable wage and

salary income was as follows for each respective year:
        1992          1993            1994             1995             1996             1997

      $61,137    $65,980            $64,018          $65,500          $67,000          $72,403

      Petitioners reported the following Amway-related gross

income and net losses on their joint Federal income tax returns

for taxable years 1992 through 1997:
                             1992             1993             1994             1995             1996     1997

       Gross income      $18,768         $11,968           $2,972           $2,888           $3,500     $10,431
       Net loss           (9,559)        (25,724)         (18,056)         (18,392)         (19,395)
(12,349)

In the notice of deficiency, which relates only to taxable years

1996 and 1997, respondent determined that the income petitioners

received from their Amway activity was not earned in connection

with an activity conducted for profit.                                 Thus, respondent

determined that petitioners were required to report the Amway-
                               - 5 -

related income as “other income” on the front of petitioners’

Forms 1040, U.S. Individual Income Tax Return, rather than as

business income on the Schedules C, Profit or Loss From Business.

Respondent accordingly disallowed the related Schedule C expenses

which were in excess of the Amway income, and recharacterized the

remaining related expenses as miscellaneous itemized deductions

subject to the 2-percent floor under section 67(a).3    Petitioners

argue that the Amway activity was engaged in for profit and that

the related expenses should therefore be allowed in full as

deductions.

     In order for expenses incurred in connection with an

activity to be deductible, the expenses generally must have been

ordinary and necessary either in carrying on a trade or business

or in an activity engaged in to produce income.   Secs. 162(a),

212; Elliott v. Commissioner, 90 T.C. 960, 969 (1988), affd. 899

F.2d 18 (9th Cir. 1990).   In order for the expenses to be

deductible in either situation, taxpayers must have conducted the

activity with the intent to make a profit.   Elliott v.

Commissioner, supra at 970.   Alternatively, taxpayers may claim a

deduction under section 183(b)(2) to the extent of the income

derived from the activity, if they otherwise meet the



     3
      Respondent also determined that, if petitioners were found
to have had a profit objective, a portion of the claimed Amway-
related expenses was nevertheless not deductible under sec. 162.
Based on our holding, we need not address this alternative
position.
                                - 6 -

requirements of that section.

     The test to determine whether a taxpayer conducted an

activity for profit is whether he or she engaged in the activity

with an actual and honest objective of earning a profit.     Keanini

v. Commissioner, 94 T.C. 41, 46 (1990); Dreicer v. Commissioner,

78 T.C. 642, 644-645 (1982), affd. without published opinion 702

F.2d 1205 (D.C. Cir. 1983); sec. 1.183-2(a), Income Tax Regs.

Although a reasonable expectation of profit is not required, the

taxpayer’s profit objective must be bona fide, as determined from

a consideration of all the facts and circumstances.    Keanini v.

Commissioner, supra; Dreicer v. Commissioner, supra at 645;

Golanty v. Commissioner, 72 T.C. 411, 425-426 (1979), affd.

without published opinion 647 F.2d 170 (9th Cir. 1981); Bessenyey

v. Commissioner, 45 T.C. 261, 274 (1965), affd. 379 F.2d 252 (2d

Cir. 1967).   More weight is given to objective facts than to the

taxpayer’s statement of his or her intent.    Engdahl v.

Commissioner, 72 T.C. 659, 666 (1979); sec. 1.183-2(a), Income

Tax Regs.

     The regulations under section 183 provide nine nonexclusive

factors to be used in determining whether a taxpayer is

conducting an activity with the intent to make a profit.   Sec.

1.183-2(b), Income Tax Regs.    The factors are: (1) The manner in

which the taxpayer carried on the activity; (2) the expertise of

the taxpayer or his or her advisers; (3) the time and effort
                                 - 7 -

expended by the taxpayer in carrying on the activity; (4) the

expectation that the assets used in the activity may appreciate

in value; (5) the success of the taxpayer in carrying on other

similar or dissimilar activities; (6) the taxpayer’s history of

income or loss with respect to the activity; (7) the amount of

occasional profits, if any, which are earned; (8) the financial

status of the taxpayer; and (9) elements of personal pleasure or

recreation.   Id.    No single factor controls, other factors may be

considered, and the mere fact that the number of factors

indicating the lack of a profit objective exceeds the number

indicating the presence of a profit objective (or vice versa) is

not conclusive.     Id.

Application of the Factors

     1. Manner in Which the Taxpayer Carries On the Activity

     A profit objective may be indicated where the taxpayer

operates the activity in a businesslike manner and keeps complete

and accurate books and records.     Sec. 1.183-2(b)(1), Income Tax

Regs.   Petitioners’ Amway activities were not conducted in a

sufficiently businesslike manner.    Petitioners did not maintain

their own business records other than notes of meetings in a

daily planner.    Petitioners did not present evidence of any

formal budgets, profit projections, or break-even analyses which

had been prepared in connection with their distributorship.

Although certain reports were provided to petitioners by Amway
                                 - 8 -

and by their upliners, these were merely summary reports and show

no independent effort by petitioners to track and/or improve upon

the financial progress of the distributorship.   Furthermore,

petitioners did not make any substantial alterations in an

attempt to improve the manner in which they conducted their

operations, even after six or more years of losses.   We find that

this factor favors respondent.

     2. The Expertise of the Taxpayer or his Advisers

     A profit objective may be indicated where the taxpayer

carries on an activity in accordance with practices learned from

extensive study of accepted business and economic practices, or

consultation with experts involved therein.   Sec. 1.183-2(b)(2),

Income Tax Regs.   Petitioners sought the advice of persons who

might be considered experts in Amway-related activities.

Petitioners attended various events conducted regularly which

they believed would provide the expertise necessary to make their

distributorship profitable.   Although no evidence shows that

petitioners sought the advice of experts outside the Amway

organization, who might have had a more objective viewpoint

regarding business plans and strategies, we find that this factor

favors petitioners.

     3. Time and Effort Expended by the Taxpayer

     A profit objective may be indicated where the taxpayer uses

much of his personal time and effort to carry on the activity.
                                - 9 -

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

approximately two nights per week, and approximately two weekends

per month, to the Amway activity.    This time was spent in

delivering products and in traveling to other individuals’ homes

for evening meetings as well as to monthly meetings and quarterly

“major functions”.    In addition, petitioners concentrated on

recruiting downliners, from whom income could be derived

independently from the direct efforts of petitioners, rather than

making direct sales.    We find that this factor favors

petitioners.

     4. Expectation That Assets Used in the Activity Would
Appreciate in Value

     Despite a lack of profit from current operations, a profit

objective may be indicated where a taxpayer intends to earn an

overall profit with income earned from operations together with

the appreciation in the value of assets used in the activity.

Sec. 1.183-2(b)(4), Income Tax Regs.    The pole barn constructed

on petitioners’ property was used temporarily in part for Amway-

related purposes.    However, this structure was used for Amway

activities only temporarily, and there is no indication that

petitioners intended to realize significant appreciation from it.

We find that this factor remains neutral.

     5. Taxpayer’s Success in Other Activities

     A profit objective may be indicated where the taxpayer has

in the past taken similar activities and made them profitable
                               - 10 -

despite initial unprofitability.    Sec. 1.183-2(b)(5), Income Tax

Regs.    No evidence was produced showing that either of

petitioners had ever engaged in activities similar to Amway, or

that either had ever been involved with making other activities

profitable.    We find that this factor favors respondent.

     6. & 7. Taxpayer’s History of Income or Losses and the
Amount of Occasional Profit, If Any

     A profit objective is strongly indicated where the taxpayer

has experienced a series of profitable years.    Sec. 1.183-

2(b)(6), Income Tax Regs.    A series of losses incurred during the

startup stage of an activity does not necessarily indicate the

lack of a profit objective, but it may so indicate if the losses

continue beyond the customary startup period and are not

otherwise explainable as due to customary business risks.      Id.

Petitioners sustained substantial losses in their distributorship

activities for at least six consecutive years,4 no profits were

ever earned from the activity, and there is no indication that

Amway distributorships which may eventually become profitable

sustain such substantial and prolonged losses.    Furthermore,

petitioner husband’s testimony indicates that the income earned

from the distributorship was directly related to certain major

expenses, implying a correlation between income levels and

expense levels which would in effect always preclude the


     4
      The profits and/or losses from the activity in the years
1989 through 1991 and after 1997 are not in the record.
                                - 11 -

realization of a profit.     We find that these factors favor

respondent.

     8. Financial Status of the Taxpayer

     A profit objective may be indicated where the taxpayer does

not have substantial income from sources other than the activity.

Sec. 1.183-2(b)(8), Income Tax Regs.     Petitioners’ separate wage

and salary income provided a substantial source of income apart

from the distributorship:     Petitioners’ taxable income from their

employment for 1996 and 1997 was in the amount of $67,000 and

$72,403, respectively.     We find that this factor favors

respondent.

     9. Elements of Personal Pleasure or Recreation

     A lack of profit objective may be indicated where there are

personal motives for carrying on the activity, especially where

the motive is personal pleasure or recreation.     Sec. 1.183-

2(b)(9), Income Tax Regs.     Profit need not be the only objective,

however, and personal motives may coexist with an actual and

honest intent to derive a profit.     Id.

     The significance of personal motives in this case is

difficult to gauge.   On the one hand, petitioners expended a

substantial amount of time in activities, such as driving long

distances, which would appear to lack elements of pleasure or

recreation.   On the other hand, much of petitioners’ activities

involved elements which were very personal in nature, such as
                               - 12 -

frequently visiting family members who were also involved in

Amway.   We find that this factor remains neutral.

     As previously stated, more weight must be given to objective

facts indicating a profit objective than to petitioners’

statement of intent.    Dreicer v. Commissioner, supra.   After

considering the objective factors detailed above, we find

especially relevant the manner in which petitioners carried on

the Amway activity and petitioners’ history of losses and lack of

profits.    We find from these and the other objective facts in the

record that petitioners did not have an actual and honest intent

to profit from the Amway activity in 1996 and 1997.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                      Decision will be entered

                                 for respondent.
