                               T.C. Memo. 2018-90



                         UNITED STATES TAX COURT



              EDGAR PERRY AND ISA PERRY, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 5932-17.                           Filed June 20, 2018.



      Edgar Perry and Isa Perry, pro sese.

      Kimberly A. Trujillo, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      CHIECHI, Judge: Respondent determined a deficiency in, and an accuracy-

related penalty under section 6662(a)1 on, petitioners’ Federal income tax (tax) for

their taxable year 2015 of $16,281 and $2,243.40, respectively.


      1
       All section references are to the Internal Revenue Code (Code) in effect for
2015, the year at issue. All Rule references are to the Tax Court Rules of Practice
and Procedure.
                                         -2-

[*2] The issues remaining for decision for the year at issue are:2

      (1) Are petitioners entitled to deduct certain claimed miscellaneous expens-

es incurred with respect to a house that they owned? We hold that they are not.

      (2) Are petitioners required to include in gross income the gross amount of

the distribution to which petitioner Isa Perry was entitled when she closed a cer-

tain retirement account? We hold that they are.

                               FINDINGS OF FACT3

      Petitioners resided in California at the time they filed the petition.

      In addition to the house in which they resided, petitioners owned another

house (petitioners’ second house) in which their daughter and her family (peti-

tioners’ relatives) resided purportedly under a rental agreement dated January 15,

2011 (purported rental agreement). The purported rental agreement showed that

the term of that purported rental agreement was not fixed and that the monthly rent

that petitioners’ relatives were to pay to petitioners was $600. Petitioners’ relatives

were not required to make a security deposit under the purported rental agreement.


      2
        At the beginning of the trial in this case, petitioners conceded that they are
liable for additional tax in an amount equal to the excess advance premium tax
credits received. See sec. 36B(f)(2). Shortly before trial, respondent conceded the
accuracy-related penalty under sec. 6662(a).
      3
       Unless otherwise indicated, our findings of fact pertain to the year 2015.
For clarity, we sometimes refer in our findings to the year 2015.
                                         -3-

[*3] During 2015, petitioners’ relatives paid petitioners at least $150 but no more

than $300 purportedly as rent for petitioners’ second house. During that year, pe-

titioners and, to a much lesser extent, petitioners’ relatives spent thousands of

dollars on certain home improvements and certain repairs of petitioners’ second

house (expenses relating to petitioners’ second house).4

      Petitioner Isa Perry (Ms. Perry) maintained certain retirement accounts with

Lincoln National Life Insurance Co. (Lincoln National). Before 2015, Ms. Perry

had borrowed money on at least two occasions (two outstanding loans) from at

least one of those retirement accounts (Ms. Perry’s retirement account in ques-

tion). Sometime before May 5, 2015, Ms. Perry notified Lincoln National that she

wanted to close Ms. Perry’s retirement account in question. On May 5, 2015, Lin-

coln National complied with Ms. Perry’s request and closed that account. Pursu-

ant to a so-called contract loan endorsement (contract loan endorsement in ques-

tion) that was in effect with respect to Ms. Perry’s retirement account in question,5



      4
        The record does not establish how much of the expenses relating to peti-
tioners’ second house petitioners paid and how much of those expenses petition-
ers’ relatives paid.
      5
        The contract loan endorsement in question provided in pertinent part: “If
* * * Contract [Ms Perry’s retirement account in question] is surrendered while
there is an outstanding Contract Loan, the surrender value will be reduced by the
amount of the loan plus loan interest due.”
                                       -4-

[*4] Lincoln National repaid the unpaid balances of Ms. Perry’s two outstanding

loans by using funds from Ms. Perry’s retirement account in question. Lincoln

National then made a direct deposit to petitioners’ bank account at Mechanics

Bank of $32,096.28, which was the balance in Ms. Perry’s retirement account in

question after Lincoln National (1) repaid the unpaid balances of Ms. Perry’s two

outstanding loans with funds from that retirement account, (2) withheld tax, and

(3) made a credit of $3.45 to Ms. Perry’s retirement account in question, which

was a refund of a nondeductible employee contribution that Ms. Perry had made to

that account (credit refund).

      Lincoln National issued to Ms. Perry Form 1099-R, Distributions From Pen-

sions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts,

etc. (Form 1099-R), with respect to Ms. Perry’s retirement account in question. In

that form, Lincoln National showed the gross amount of the distribution to which

Ms. Perry was entitled when she closed that account,6 not the net amount that she

received after the repayment of two outstanding loans that she had made from that

account.




      6
       In Form 1099-R, Lincoln National also showed tax withheld and reduced
the gross amount of the distribution to which Ms. Perry was entitled when she
closed that account by $3 in determining the taxable portion of that gross amount.
                                        -5-

[*5] Petitioners timely filed a tax return for their taxable year 2015 (2015 return).

In that return, petitioners reported total income of $134,6677 consisting of wage

income of $42,844, taxable interest income of $3, State and local tax refund in-

come of $1,353, taxable individual retirement account distribution income of

$899, pension and annuity income of $77,751,8 rental income from Schedule E,

Supplemental Income and Loss (Schedule E), of $150, unemployment compensa-

tion of $2,782, and total Social Security benefits of $10,451, $8,883 of which they

reported as taxable Social Security benefits. Petitioners did not report as income

any of the expenses relating to petitioners’ second house that petitioners’ relatives

had paid.

      Petitioners included Schedule A, Itemized Deductions (Schedule A), as part

of their 2015 return (2015 Schedule A). In that schedule, they claimed total item-


      7
        Although the parties stipulated that petitioners reported total income of
$134,667, the income items comprised in that total amount total $2 less than that
total amount. In addition, the total amount of Social Security benefits that the
parties stipulated (i.e., $10,541) is $90 more than the total amount of the Social
Security benefits shown in the Internal Revenue Service transcript that is part of
the record. These relatively small inexplicable inconsistencies in the record do not
affect our resolution of the issues presented.
      8
        The $77,751 of pension and annuity income that petitioners reported in
their 2015 return included the gross amount of the distribution to which Ms. Perry
was entitled when she closed Ms. Perry’s retirement account in question, not the
net amount that she received after the repayment of certain loans that she had
made from that account.
                                        -6-

[*6] ized deductions of $62,618, which included so-called miscellaneous expenses

claimed of $56,042 ($56,042 of claimed miscellaneous expenses). The $56,042 of

claimed miscellaneous expenses consisted of the expenses that petitioners and, to

a lesser extent, petitioners’ relatives had paid for certain home improvements and

certain repairs of petitioners’ second house.9

      On October 11, 2016, petitioners filed an amended tax return for their tax-

able year 2015 (2015 amended return). In that amended return, petitioners

claimed an increase of $9,229.08 in the itemized deductions that they had claimed

in their 2015.10

      Respondent issued a notice of deficiency (notice) to petitioners for their

taxable year 2015. In that notice, respondent determined, inter alia, to disallow the

$56,042 of claimed miscellaneous expenses.

                                     OPINION

      Petitioners bear the burden of establishing that the determination in the

notice that remains at issue (i.e., the disallowance of the $56,042 of claimed mis-


      9
        The record does not establish how much of the $56,042 of claimed miscel-
laneous expenses petitioners paid and how much of those expenses petitioners’
relatives paid.
      10
        In their 2015 amended return, petitioners also claimed an increase of
$7,000 in the tax withheld that they had claimed in their 2015 return, thereby
increasing the tax withheld that they were claiming to $19,532.16.
                                         -7-

[*7] cellaneous expenses) is erroneous. They also bear the burden of proof with

respect to the affirmative issue that they raised at trial involving Ms. Perry’s

retirement account in question; that is to say, petitioners have the burden of

establishing that they are required to include in gross income for their taxable year

2015 only the net amount that Ms. Perry received from Ms. Perry’s retirement

account in question after she closed that account and Lincoln National repaid two

outstanding loans that she had made from that account with funds from that

account (less tax withheld and plus the credit refund). See Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933). Moreover, deductions are a matter of

legislative grace, and petitioners bear the burden of proving entitlement to any

deduction claimed. See INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992).

The Code and the regulations thereunder required petitioners to maintain records

sufficient to establish the amount of any deduction claimed. See sec. 6001; sec.

1.6001-1(a), Income Tax Regs.

      We address first whether petitioners are entitled to deduct for their taxable

year 2015 the $56,042 of claimed miscellaneous expenses.11 It appears to be peti-


      11
         Although not clear, it appears that petitioners may be claiming that they
are entitled to deduct for the year at issue an amount of miscellaneous expenses
greater than the amount they claimed in their 2015 Schedule A and that respondent
disallowed in the notice.
                                          -8-

[*8] tioners’ position that petitioners’ second house to which those claimed

expense pertain was a rental property during 2015 and that consequently they are

entitled to deduct those expenses.12

      Section 280A(a) provides that generally no deduction is allowable with re-

spect to the use of a dwelling unit which is used by the taxpayer during the taxable

year as a residence. One of the exceptions in section 280A(b) to the general rule

in section 280A(a) is a deduction otherwise allowable to the taxpayer without

regard to its connection with the taxpayer’s trade or business or income-producing

activity. As pertinent here, a taxpayer is otherwise entitled under section 164(a)(1)

to deduct State and local real estate taxes.

      The record contains four real estate property tax bills from Contra Costa

County, California (property tax bills), on which petitioners’ names appear. Two

of the property tax bills are for a certain parcel of land identified therein as parcel

No. 5-8 00, and the remaining two property tax bills relate to another parcel of

land identified therein as parcel No. 4-2 00. Nothing in the record establishes the

addresses of the respective properties to which those bills pertain. Nor does any-


      12
        In the light of our understanding of petitioners’ position with respect to the
$56,042 of claimed miscellaneous expenses, we believe that petitioners should
have claimed those expenses in their 2015 return in Schedule E, not in their 2015
Schedule A.
                                         -9-

[*9] thing in the record establish that those four property tax bills were paid or if

paid, by whom.

      On the record before us, we find that petitioners have failed to carry their

burden of establishing that they are entitled for their taxable year 2015 to deduct

under section 164(a)(1) any real estate taxes with respect to petitioners’ second

house.

      Another exception in section 280A(c)(3) to the general rule in section

280A(a) is for “any item which is attributable to the rental of the dwelling unit or

portion thereof”. Petitioners apparently are relying on this exception to support

their position that they are entitled to deduct the $56,042 of claimed miscellaneous

expenses. In order to determine whether the exception in section 280A(c)(3)

applies here, we must first examine section 280A(d), titled “Use as Residence.”

      Section 280A(d)(1) provides that a taxpayer uses a dwelling unit during the

taxable year as a residence if the taxpayer uses the unit or a portion thereof for

personal purposes for the greater of (1) 14 days during the taxable year or (2) “10

percent of the number of days during such year for which such unit is rented at a

fair rental.” Pursuant to section 280A(d)(2)(A) and (C), a taxpayer is deemed to

have used a dwelling unit for personal purposes for any day or part of that day on

which the dwelling unit is used (1) for personal purposes by the taxpayer or by a
                                        - 10 -

[*10] member of the family, including a lineal descendant, or (2) by any individual

(except an employee with respect to whose use section 119 applies) unless for that

day the dwelling unit is rented for a rental which is a fair rental under the facts and

circumstances. However, section 280A(d)(3)(A) provides that a taxpayer will not

be treated as using a dwelling unit for personal purposes “by reason of a rental

arrangement for any period if for such period such dwelling unit is rented, at a fair

rental, to any person for use as such person’s principal residence.”

       In order for petitioners to be entitled to deduct the $56,042 of claimed mis-

cellaneous expenses, they must, inter alia, establish that petitioners’ second house

was rented to petitioners’ relatives at fair rental. On the record before us, we find

that petitioners have failed to carry their burden of establishing that during 2015

they in fact rented petitioners’ second house to petitioners’ relatives. Even if we

had found that petitioners had carried their burden of establishing that during

2015 they in fact rented petitioners’ second house to petitioners’ relatives, we

would find on the record before us that they have failed to carry their burden of

establishing that they rented petitioners’ second house to petitioners’ relatives at

fair rental.
                                         - 11 -

[*11] Based upon our examination of the entire record before us, we find that pe-

titioners have failed to carry their burden of establishing that they are entitled for

their taxable year 2015 to deduct the $56,042 (or any other amount) of claimed

miscellaneous expenses with respect to petitioners’ second house.

      We turn now to the affirmative issue that petitioners raised at trial. It is pe-

titioners’ position that they are not required for their taxable year 2015 to include

in gross income the gross amount of the distribution to which Ms. Perry was enti-

tled when she closed Ms. Perry’s retirement account in question. According to

petitioners, they are required to include in gross income for that year only the net

amount that Ms. Perry received after the repayment of two outstanding loans that

she had made from that account. On the record before us, we reject petitioners’

position.

      Petitioners apparently do not understand that what Lincoln National in ef-

fect did when it used certain funds in Ms. Perry’s retirement account in question to

pay two outstanding loans that she had made from that account was to distribute

those funds to Ms. Perry, which she then used to repay those outstanding loans.

Lincoln National took that shortcut pursuant to the contract loan endorsement in

question that was in effect with respect to Ms. Perry’s retirement account in ques-
                                        - 12 -

[*12] tion.13 That endorsement provided in pertinent part: “If * * * [Ms. Perry’s

retirement] Contract [in question] is surrendered while there is an outstanding

Contract Loan, the surrender value will be reduced by the amount of the loan plus

loan interest due.”

      Based upon our examination of the entire record before us, we find that pe-

titioners are required for their taxable year 2015 to include in gross income the

gross amount of the distribution to which Ms. Perry was entitled when she closed

Ms. Perry’s retirement account in question.14

      We have considered all of the contentions and arguments of the parties that

are not discussed herein, and we find them to be without merit, irrelevant, and/or

moot.15


      13
       See, e.g., Murtaugh v. Commissioner, T.C. Memo. 1997-319, 1997 WL
377191.
      14
        Pursuant to Form 1099-R that Lincoln National issued to Ms. Perry with
respect to Ms. Perry’s retirement account in question, petitioners are entitled to
reduce that gross amount by $3 in determining the taxable portion of that gross
amount. If respondent did not take account of that reduction in the notice, we
expect the parties to take account of that reduction in computations under Rule
155.
      15
        As noted above, petitioners conceded at the beginning of the trial in this
case that they are liable for additional tax in an amount equal to the excess ad-
vance premium tax credits received. Nonetheless, respondent advances arguments
on brief regarding the premium tax credit issue. In the light of petitioners’ con-
                                                                         (continued...)
                                       - 13 -

[*13] To reflect the foregoing and the parties’ respective concessions,


                                                An appropriate decision will

                                      be entered.




      15
        (...continued)
cession, we find those arguments to be moot.
