                        T.C. Summary Opinion 2016-80



                        UNITED STATES TAX COURT



                    JOHN J. EKEH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 21806-12S.                       Filed December 12, 2016.



      Howard N. Kaplan, for petitioner.

      Douglas S. Polsky and Dennis Richard Onnen, for respondent.



                             SUMMARY OPINION


      PARIS, Judge: This case was heard pursuant to the provisions of section

7463 of the Internal Revenue Code in effect when the petition was filed. Pursuant
                                         -2-

to section 7463(b),1 the decision to be entered is not reviewable by any other court,

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

      In a notice of deficiency dated June 12, 2012, respondent determined

deficiencies in petitioner’s Federal income tax of $32,700 and $37,559 for 2008

and 2009, respectively. Respondent also determined section 6662(a) penalties of

$6,540 and $7,511.80 for 2008 and 2009, respectively.

      After concessions,2 the issues for decision are whether petitioner is: (1)

limited under the passive loss rules in section 469 as to whether he may deduct on

his 2009 tax return certain expenses with respect to commercial real estate he

owned and (2) liable for accuracy-related penalties under section 6662(a) for 2008

and 2009.3


      1
       All section references are to the Internal Revenue Code in effect for the
years at issue, and all Rule references are to the Tax Court Rules of Practice and
Procedure, unless otherwise indicated.
      2
        Petitioner conceded in full the $32,700 deficiency for 2008. For 2008
respondent determined that petitioner was not a real estate professional and was
subject to the passive activity loss rules. However, the parties agreed that the
adjusted gross income limitation under sec. 469(i) applied to 2008. As a result
respondent determined petitioner had established that he sustained a deductible
loss after the passive activity limitation of $7,325, which reduced petitioner’s
income for 2008. Petitioner also conceded certain adjustments to the Schedule C,
Profit or Loss From Business, for his legal practice for 2009. See infra note 5.
      3
          Adjustments for 2009 for self-employment tax, the self-employment tax
                                                                      (continued...)
                                        -3-

                                    Background

      Some of the facts are stipulated and are so found. The stipulation of facts,

the first supplemental stipulation of facts, the second supplemental stipulation of

facts, and the attached exhibits are incorporated herein by this reference.

Petitioner resided in Nebraska when he timely filed his petition.

      Petitioner attended high school and some college courses in Nigeria.

Petitioner and his brother immigrated to the United States after their parents died,

and they remain a close-knit family. Petitioner completed a college degree from

Creighton University in Nebraska and in 1992 graduated from Texas Southern

University School of Law. Petitioner is a member of the Nebraska bar and

practiced law in Nebraska for the years at issue.

I.    Petitioner’s 2008 and 2009 Tax Returns

      Petitioner prepared and timely filed his 2008 and 2009 Forms 1040, U.S.

Individual Income Tax Return. For 2008 petitioner filed a Schedule C with

respect to his legal practice and reported gross receipts of $332,073, expenses




      3
       (...continued)
deduction, and the making work pay credit are computational. They depend on the
resolution of the two issues for 2009 and will not be discussed further.
                                        -4-

totaling $224,429, and a net profit of $107,644.4 For 2008 petitioner also filed a

Schedule C reflecting a commercial real estate business operating as Margek Real

Estate, LLC (Margek). Margek is a single-member LLC of which petitioner is the

only member. On that Schedule C petitioner did not report any gross receipts but

reported expenses totaling $59,872.

      For 2009 petitioner filed a Schedule C with respect to his legal practice and

reported gross receipts of $331,634, total expenses of $228,156, and a net profit of

$103,478.5 For 2009 petitioner also filed a Schedule C for Margek. On that

Schedule C petitioner did not report any gross receipts but reported expenses

totaling $55,582.




      4
        For 2008 respondent disallowed the following expense deductions
petitioner claimed with respect to his legal practice: other expenses ($35,506),
meals and entertainment ($1,861), and travel ($430). Petitioner conceded these
adjustments for his legal practice.
      5
        For 2009 respondent determined the following expense deductions
petitioner claimed with respect to his legal practice were disallowed: other
expenses for a loan ($38,000), telephone ($1,136), meals and entertainment
($2,175), travel ($3,239), and office expenses ($7,439). Respondent also
determined that petitioner did not include in the income of the legal practice
taxable interest of $1,518. Petitioner conceded these adjustments for his legal
practice.
                                         -5-

II.    Notice of Deficiency

       Respondent issued a notice of deficiency to petitioner for 2008 and 2009.

For 2009, after concessions by the parties, see supra notes 2, 4, and 5, the

following disallowed expense deductions with respect to petitioner’s commercial

rental real estate activity are at issue: (1) $10,000 paid to a company for framing

and drywall installation done on the commercial rental real estate, (2) mortgage

interest of $27,209, (3) a brokerage fee of $13,000 paid with respect to finding a

tenant for the commercial rental real estate, and (4) real estate taxes of $5,373.

The parties stipulated that petitioner has substantiated the payment of the

mortgage interest, brokerage fee, and real estate taxes. Respondent conceded that

petitioner has substantiated the payment of the $10,000 expense for the framing

and drywall installation but disputes its deductibility.

III.   Petitioner’s Legal Practice

       During 2008 and 2009 petitioner operated a legal practice. He has operated

that business since passing the bar. Petitioner practiced in the area of personal

injury law. Petitioner’s legal practice was contingent-fee based, and he did not

record his time for billing purposes. Petitioner was typically paid when a case

settled. The amount of time required until a case would settle varied. Sometimes

the case could take three months to settle and sometimes it could take four years.
                                         -6-

      When a new client came into the office, petitioner would meet with the

client and after that his assistant did most of the “footwork”. Petitioner would

negotiate with insurance companies in most of his cases. These negotiations

might not be done in his office, with some of the negotiations being done over the

phone or while he was in his car.

      During 2009 petitioner deposited $59,000 into the operating account for his

legal practice. That amount represented attorney’s fees from a contingent-fee

arrangement in a case he had handled over several previous years.

IV.   Petitioner’s Commercial Rental Real Estate

      In 2006 petitioner, through Margek, purchased one unit on the second floor

of a three-story office building in Omaha, Nebraska (unit). The unit was a

condominium, and petitioner was required to pay condominium fees. Before

petitioner purchased the unit, he shared his intention to purchase it with his

brother, and they toured the unit together. The unit was unfinished open space,

and at the time petitioner purchased the unit it did not have any walls or ceilings.

      On May 30, 2007, petitioner entered into a Uniform Commercial Listing

Contract for Lease (listing contract) with respect to the unit with a real estate

broker. By the terms of the listing contract, petitioner contracted with the real

estate broker to list the unit and offer it for sale or lease through November 30,
                                         -7-

2007. The listing contract terminated without the unit’s being sold or rented.

Although petitioner subsequently tried to market the unit on his own, he was not

able to rent or sell the unit.

       By the end of 2008 petitioner had not yet rented or sold the unit, but

continued to make loan payments and pay condominium fees.6 Because of his

cashflow concerns, in 2008 petitioner decided to hire a friend’s company, Carovic

Logistics (Logistics), to finish the interior of the unit by doing framing and

installing drywall. Logistics used a crew of three to four people to perform the

work. The work did not start until January 2009. Petitioner paid Logistics

$10,000 for this work in February 2009. The framing and drywall installation

(buildout) took from January through sometime in March 2009 to complete.

       Sometime in 2009 a potential tenant, John Hancock Insurance Co. (John

Hancock), was introduced to petitioner by the real estate broker who had had the

previous listing contract. John Hancock submitted a request for proposal to the

real estate broker on July 7, 2009.7 On November 16, 2009, petitioner entered into


       6
       Petitioner conceded that during 2008 he was not a real estate professional
as defined under sec. 469(c)(7).
       7
       The term of the listing contract with the real estate broker was from May 25
through November 30, 2007. The record does not indicate whether the listing
contract was renewed, but the record does indicate that a brokerage fee was paid to
                                                                        (continued...)
                                        -8-

an office lease with John Hancock as tenant of the unit. The term of the John

Hancock lease was from February 1, 2010, through March 31, 2015. The John

Hancock lease required petitioner to make certain improvements to the unit.

      To comply with the terms of the John Hancock lease, petitioner entered into

a Construction Management Agreement dated October 16, 2009, with a

construction company for improvements to the unit. Under this agreement the

construction company was hired to construct certain improvements to the unit.

Under the agreement the construction company was to do the following.

      1. Estimate the cost of the construction, including costs of labor, materials,

equipment, furnishings, fees, permits, surveys, and other costs.

      2. Obtain and review bids and negotiate proposals with respect to the

construction. (Petitioner was to approve all bids and make the final determination

as to awards of any contracts.)

      3. Review any construction contracts and make recommendations to

petitioner.




      7
        (...continued)
the same real estate broker when John Hancock was secured as a tenant. Petitioner
testified that the term of the contract was orally extended.
                                          -9-

      4. Coordinate, sequence, and schedule all work required to be performed

under the contracts for any construction work and the delivery of equipment and

materials.

      5. Obtain necessary building and other permits for the project.

      6. Consult with petitioner with respect to the resolution of any design or

other issues that adversely affect the constructibility of the unit.

      7. Develop and implement procedures for petitioner to review and process

contractor’s applications for progress and final payments.

      8. Review and consult with petitioner with respect to any change orders.

      9. Keep petitioner advised of the progress of the construction of the project.

Essentially, the construction company acted as a general contractor.

      A Certificate of Occupancy was issued with respect to the unit effective

January 20, 2010.

      Petitioner and Margek borrowed $143,047 from Mutual of Omaha Bank on

November 4, 2009. From the loan proceeds a broker’s fee of $13,0908 was paid to

the real estate broker on November 4, 2009. Petitioner and/or Margek paid $5,373




      8
       Petitioner claimed a deduction of $13,000, not $13,090, with respect to this
broker’s fee.
                                        - 10 -

in real estate taxes for the unit in 2009. Petitioner reported that expense on the

Schedule C relating to Margek filed with petitioner’s 2009 tax return.9

                                     Discussion

I.    Burden of Proof

      Generally, the Commissioner’s determination of a deficiency is presumed

correct, and the taxpayer bears the burden of proving it incorrect. See Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). Morever, deductions are a

matter of legislative grace, and the taxpayer bears the burden of proving

entitlement to any deduction claimed. See INDOPCO, Inc. v. Commissioner, 503

U.S. 79, 84 (1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).

Under section 7491(a), the burden of proof may shift to the Commissioner if the

taxpayer produces credible evidence with respect to any relevant factual issue and

meets other requirements. Petitioner has not argued that section 7491(a) applies,

and therefore the burden of proof remains with him.




      9
        Respondent conceded that if the Court determined that the Schedule C
deduction for the real estate taxes of $5,373 was not allowed under the passive
loss rules, it would be allowable as a deduction on Schedule A, Itemized
Deductions, for 2009.
                                        - 11 -

II.   Whether Petitioner Must Capitalize Certain Expenses With Respect to the
      Unit

      Sections 162 and 212 generally permit a taxpayer to deduct ordinary and

necessary expenses paid or incurred in carrying on a trade or business or for the

production of income. However, a current deduction may not be claimed if the

expense is for a capital expenditure. See sec. 263(a). Capital expenditures include

amounts paid for new buildings or for permanent improvements or betterments

made to increase the value of any property or estate. INDOPCO, Inc. v.

Commissioner, 503 U.S. at 83.

      The capitalization rules of section 263(a) and the regulations thereunder do

not treat an expense to repair property as a capital expenditure. See Gibson &

Assocs., Inc. v. Commissioner, 136 T.C. 195, 232 (2011). A repair to property is

not a capital expenditure because it does not increase the value or prolong the

useful life of the property (or adapt the property for a different or new use.) Id. at

232-233. Whether an expense is for a permanent improvement or betterment or a

repair is a factual determination that turns on a finding that the work did or did not

prolong the life of the property, increase its value, or make it adaptable to a

different use. Id. at 233.
                                         - 12 -

      A.     The Buildout

      The buildout created walls and ceilings. The buildout was a permanent

improvement or betterment to the unit and prolonged the life of the unit. The

buildout was a major change to the space, not a repair of the space. The Court

finds that petitioner paid $10,000 to his friend’s company and that the expense

was a capital expenditure. Thus it is not deductible for the year it was paid and

must be capitalized under section 263(a).

      B.     The Broker’s Fee

      The costs of acquiring a lease, including a broker’s fee, are capital

expenditures. Munger v. Commissioner, 14 T.C. 1236, 1238 (1950); sec.

1.263(a)-2(a), (f)(2)(ii)(I), (4), Example (1), Income Tax Regs. Such costs are

capitalized and amortized over the term of the lease. Munger v. Commissioner, 14

T.C. at 1238; sec. 1.263(a)-2(a), (f)(2)(ii)(I), (4), Example (1), Income Tax Regs.;

sec. 1.461-1(a)(1), Income Tax Regs. The Court concludes that the broker’s fee is

not deductible for the year it was paid. Rather it must be capitalized and

amortized over the life of the John Hancock lease. As discussed below the Court

concludes that petitioner’s rental real estate activity is subject to the passive

activity loss rules. Accordingly, the amortization of the broker’s fee is subject to
                                         - 13 -

the passive activity loss rules. The Court leaves the calculation of the application

of these rules to the Rule 155 computations.

III.   Whether Petitioner’s Commercial Rental Real Estate Business Is a Passive
       Activity

       Sections 162 and 212 generally permit a taxpayer to deduct ordinary and

necessary expenses paid or incurred in carrying on a trade or business or for the

production of income. In the case of an individual section 469 generally disallows

any current deduction for a passive activity loss. Sec. 469(a)(1), (b). A passive

activity loss is equal to the aggregate losses from all passive activities for a taxable

year over the aggregate income from all passive activities for that year. Sec.

469(d)(1).10 Generally, a passive activity is any trade or business in which the

taxpayer does not materially participate. See sec. 469(a)(1), (c)(1).

       A.    Whether Petitioner Meets the Definition of a Real Estate Professional

       Whether the remaining deductions petitioner claimed for 2009 (mortgage

interest expense of $27,209 and real estate taxes of $5,373) are deductible without

limitation under the passive activity loss rules depends on whether petitioner

       10
         The effect of the passive activity loss disallowance rule is that deductions
related to passive activities are allowed against income from passive activities and
the excess (i.e., the amount by which the deductions related to the passive
activities exceed the income from passive activities) cannot be deducted from
income from activities other than passive activities. See Krukowski v.
Commissioner, 279 F.3d 547, 549 (7th Cir. 2002), aff’g 114 T.C. 366 (2000).
                                         - 14 -

meets the definition of a real estate professional. The Court concludes that

petitioner did not meet the definition of a real estate professional.11 Rental activity

(including commercial rental real estate activity) is passive unless the taxpayer

qualifies as a real estate professional as defined in section 469(c)(7)(B). Sec.

469(c)(2). If a taxpayer meets that definition (sometimes that taxpayer is referred

to as a real estate professional), then section 469(c)(2) does not apply and the

taxpayer’s rental real estate activity, if conducted as a trade or business or for the

production of income, is not treated as a passive activity if the taxpayer materially

participates in the activity. Sec. 469(c)(1); Fowler v. Commissioner, T.C. Memo.

2002-223, 2002 Tax Ct. Memo LEXIS 230, at *10-*11; sec. 1.469-9(e), Income

Tax Regs.

      The Court concludes that petitioner has not met the time requirements of

section 469(c)(7)(B) and does not meet the threshold requirements of a real estate

professional. Therefore the Court does not need to address the definition of

“material participation” set forth in section 469(h).

      Section 469(c)(7)(B) provides two tests that a taxpayer must satisfy to be

described as a real estate professional. One requires that the taxpayer perform

      11
        Respondent conceded that if the Court determined that petitioner did not
meet the definition of a real estate professional, petitioner would be allowed to
deduct the real estate taxes as a Schedule A deduction. See supra note 9.
                                        - 15 -

more than 750 hours of services during the taxable year in real property trades or

businesses in which the taxpayer materially participates. Sec. 469(c)(7)(B)(ii).

The other requires that “more than one-half of the personal services performed in

trades or businesses by the taxpayer during such taxable year are performed in real

property trades or businesses in which the taxpayer materially participates”. Sec.

469(c)(7)(B)(i). On the basis of the record the Court concludes that petitioner’s

commercial rental real estate activity constituted a real property trade or business

during 2009. See sec. 469(c)(7)(C). The Court also concludes that petitioner’s

legal practice was a trade or business for purposes of section 469(c)(7)(B)(ii).

However, petitioner has failed to prove how much time he spent on either the

commercial rental real estate activity or his legal practice. Consequently,

petitioner has failed to sustain his burden to prove he meets the description of a

real estate professional under section 469(c)(7)(B).

      Petitioner testified that he did not keep track of the time he spent in his legal

practice. Petitioner’s legal practice generated $331,634 in gross receipts, so there

is a presumption that petitioner performed some type of personal service in his

legal practice. However, petitioner did not quantify how much time he spent in his

legal practice. Consequently, without quantification of the hours he spent

providing personal services in his legal practice, he cannot prove that one-half of
                                          - 16 -

his personal services in his trades and businesses were performed in his

commercial rental real estate activity.

      Further, petitioner has not met his burden of proving that in 2009 he spent

more than 750 hours performing services connected with his commercial rental

real estate activity. A taxpayer may use any reasonable means to establish his

hours of participation. Sec. 1.469-5T(f)(4), Temporary Income Tax Regs., 53 Fed.

Reg. 5727 (Feb. 25, 1988). “Contemporaneous daily time reports, logs, or similar

documents are not required if the extent of such participation may be established

by other reasonable means.” Id. Reasonable means “may include but are not

limited to the identification of services performed over a period of time and the

approximate number of hours spent performing such services during such period,

based on appointment books, calendars, or narrative summaries.” Id. The Court

has held that the regulations “concerning the records to be maintained by

taxpayers * * * by no means allow a postevent ‘ballpark guesstimate’”. Carlstedt

v. Commissioner, T.C. Memo. 1997-331, 1997 WL 407788, at *8 (citing Speer v.

Commissioner, T.C. Memo. 1996-323). A taxpayer’s uncorroborated testimony

need not be relied upon. Bailey v. Commissioner, T.C. Memo. 2001-296, 2001

Tax Ct. Memo LEXIS 332, at *16. The Court is not required to accept unverified

testimony of taxpayers in the absence of adequate documentation. See, e.g., Lum
                                        - 17 -

v. Commissioner, T.C. Memo. 2012-103; Estate of Stangeland v. Commissioner,

T.C. Memo. 2010-185.

       Petitioner has conceded that he did not meet the definition of a real estate

professional for 2008. He asserts that in 2009, however, things changed and he

did meet the definition of a real estate professional for that year. Petitioner did not

maintain any appointment books, calendars, or narrative summaries of the hours

he spent in his commercial rental real estate activity. Petitioner’s only proof of

how much time he devoted to his commercial rental real estate business in 2009

was the vague and uncorroborated testimony of him and his brother. The Court

concludes that petitioner’s testimony is not credible.

       At trial in 2015 petitioner testified that he estimated he spent 40 hours a

week on the commercial rental real estate activity during the buildout of the unit

from sometime in January to sometime in March 2009. With respect to

petitioner’s testimony, the Court finds it difficult to believe he accurately

remembered the number of hours he spent on his commercial rental real estate

activity.

       Petitioner agreed that because of the passage of time, it was hard for him to

remember details. When asked whether he was on the boards of two entities in

2009, he said he was. When asked whether the board meetings were every three
                                        - 18 -

months or six months, he could not remember. He stated: “You’re asking me

things that are many years ago that I do not remember.” There is nothing in

petitioner’s testimony to indicate that he had a better memory with respect to his

commercial rental real estate activity than with respect to the board meetings he

attended.

      Petitioner also testified that he hired Logistics to do the buildout. Those

services were performed by an independent contractor, not petitioner. Petitioner’s

brother testified that his friend’s company, Logistics, used a crew of three to four

people to perform the buildout. Petitioner testified that he paid Logistics $10,000

for that work and provided a bank statement and a copy of the front of a check as

proof of such payment. With a crew of three to four other people working on the

buildout, the Court finds it unlikely that petitioner would have spent 40 hours a

week on the buildout.

      Petitioner also testified that once John Hancock committed to being a

tenant, he spent 30 hours a week on the unit. However, petitioner did not provide

any time period for such services. Petitioner’s brother did not testify as to how

much time petitioner spent on the commercial rental real estate activity after John

Hancock committed to being a tenant.
                                         - 19 -

       Petitioner testified that his work during this period involved reviewing the

lease and learning about triple net leases. It is not clear whether such activity was

connected to petitioner’s practice as a lawyer or his work as the owner of the unit.

The Court concludes that petitioner has not proven he did any work on the John

Hancock request or lease in connection with his commercial rental real estate

activity.

       With respect to showing the property, petitioner testified that he hired a real

estate broker to show the property. The record shows that petitioner paid this real

estate broker a broker’s fee of $13,090 when it found a tenant for the property.

Again, that service was performed by an independent contractor, not petitioner.

Petitioner testified that “I was showing it to friends, talking to people, telling

people about the situation that I’m involved in. Some people came and looked at

the property that personally that [sic] I brought in there.” He also testified that he

had flyers prepared and advertised the property on the Internet. However,

petitioner did not testify or provide corroboration as to how many hours he spent

showing the property or advertising it. He did not provide any receipt for the

number of flyers he had made or records of where he distributed the flyers. He did

not provide any calendar or listing of the times he showed the unit to potential

tenants.
                                        - 20 -

      Petitioner also hired a construction company to construct the space once

John Hancock determined it was interested in renting the unit. The construction

company’s role was that of a general contractor. Under the construction contract

the construction company was responsible for construction or overseeing

construction. Petitioner reserved the right to approve subcontractors and payments

but did not reserve any specific participation in the construction.

      Petitioner’s brother testified that he estimated petitioner spent 20 to 22

hours a week during the buildout, one-half of the time petitioner testified he spent.

The Court is not persuaded that petitioner’s brother’s testimony furnishes anything

better than a postevent “ballpark guesstimate”. Bailey v. Commissioner, T.C.

Memo. 2001-296; Carlstedt v. Commissioner, T.C. Memo. 1997-331; Speer v.

Commissioner, T.C. Memo. 1996-323; Goshorn v. Commissioner, T.C. Memo.

1993-578.

      Even if the Court were to accept petitioner’s and his brother’s testimony as

proof of the time spent on petitioner’s commercial rental real estate activity for

2009, the amount of time is less than the required 750 hours. Using his brother’s

higher estimate (22 hours a week) and taking judicial notice of the number of full

weeks in the period January 1 through March 31, 2009 (12 full weeks), the total

time spent would be 264 hours. Petitioner puts weight on his brother’s testimony
                                         - 21 -

as a third party; but even if his brother’s estimate of 22 hours per week was used

for both construction periods, including November and December, the time would

still be only 440 hours without any legal holiday adjustments. Petitioner has not

met his burden of proving he spent more than 750 hours on his commercial rental

real estate activity.

       Therefore petitioner was not a real estate professional under section 469(c)

for 2009; and unless relief provided under section 469(i) applies, the losses

sustained for 2009 are passive activity losses, deductions for which are disallowed

by section 469(a).

       B.     Whether Petitioner’s Rental Real Estate Business Qualifies for the
              Relief Provided by Section 469(i)

       The second exception to the general rule that rental real estate activities are

per se passive is found in section 469(i). Section 469(i) provides that a taxpayer

who actively participates in rental real estate activities may deduct up to $25,000

per year for related passive activity losses. Sec. 469(i)(1) and (2). A taxpayer may

satisfy the active participation requirement by participating in management

decisions, such as approving new tenants, deciding rental terms, and arranging for

services and repairs. Madler v. Commissioner, T.C. Memo. 1998-112.
                                       - 22 -

        The $25,000 amount begins to phase out when the taxpayer’s adjusted gross

income (AGI), determined without regard to any passive activity loss, exceeds

$100,000 and is phased out entirely when the taxpayer’s AGI reaches $150,000.

Sec. 469(i)(3).

        For 2008 respondent determined that petitioner met the requirements of

section 469(i) and allowed a deduction for a portion of the loss petitioner reported

on his 2008 tax return. However, with respect to 2009, after taking petitioner’s

concessions into account, respondent determined that petitioner’s AGI was above

$150,000. Accordingly, even if petitioner were to prove that he actively

participated with respect to the unit, any exception under section 469(i) is phased

out. Therefore petitioner does not qualify for any relief under section 469(i) for

2009.

IV.     Accuracy-Related Penalties

        After concessions, see supra note 2, respondent determined accuracy-related

penalties for 2008 and 2009. Section 6662(a) and (b)(1) and (2) provides an

accuracy-related penalty equal to 20% of the portion of an underpayment

attributable to any substantial understatement of income tax or to negligence or

disregard of rules or regulations.
                                       - 23 -

      Under section 7491(c), the Commissioner bears the burden of production

with regard to penalties. Higbee v. Commissioner, 116 T.C. 438, 446 (2001). To

meet that burden the Commissioner must come forward with evidence

indicating that it is appropriate to impose the penalty. Id. To meet that burden

respondent must come forward with sufficient evidence showing that it is

appropriate to impose the accuracy-related penalty. See id. As explained below

the Court concludes that respondent has met his burden of production, with

respect to negligence or disregard of rules or regulations under section 6662(a)

and (b)(1), and with respect to a substantial understatement of income tax under

section 6662(b)(2) if the Rule 155 computations so establish.

      Although respondent bears the burden of production with respect to the

accuracy-related penalty determined for each of petitioner’s taxable years,

respondent “need not introduce evidence regarding reasonable cause, substantial

authority, or similar provisions * * * [because petitioner] bears the burden of proof

with regard to those issues.” Higbee v. Commissioner, 116 T.C. at 446.
                                        - 24 -

      A.     Substantial Understatement

      Each party made concessions before trial, and the Court has sustained items

in the notice of deficiency that were not conceded.12 The Court finds that in the

event the computations under Rule 155 establish that there is a substantial

understatement of income tax for either year, as a result of the Court’s holding and

the parties’ concessions, that is greater than the greater of 10% of the tax required

to be shown in petitioner’s return or $5,000, see sec. 6662(d)(1)(A), then

petitioner has substantially understated his income tax and is liable for a penalty

under section 6662(a).

      B.     Negligence or Disregard of Rules or Regulations

      The accuracy-related penalty may also be imposed under section 6662(a)

because of negligence or disregard of rules or regulations. Sec. 6662(b)(1).

If the computations under Rule 155 do not establish a substantial understatement

of income tax for either year, petitioner is liable for the accuracy-related penalty

because he was negligent and acted in careless disregard of rules or regulations.




      12
        For both 2008 and 2009 the instructions for Schedule C specifically
reference the number of hours required to be considered materially participating in
an activity and special rules applicable to rental real estate activity. The
instructions also indicate that a taxpayer can deduct only 50% of meals and
entertainment expenses.
                                        - 25 -

      “Negligence” includes any failure to make a reasonable attempt to comply

with the provisions of the Internal Revenue Code or to exercise ordinary and

reasonable care in the preparation of a tax return. Sec. 6662(c); Higbee v.

Commissioner, 116 T.C. at 448; sec. 1.6662-3(b)(1), Income Tax Regs.

Negligence is strongly indicated where a taxpayer fails to make a reasonable

attempt to ascertain the correctness of a deduction, credit, or exclusion on a return

that would seem to a reasonable person to be exceptionally beneficial under the

circumstances. See sec. 1.6662-3(b)(1), Income Tax Regs. Petitioner has not

provided any evidence, including credible testimony, that he made a reasonable

attempt to ascertain the correctness of the expenses he reported with respect to his

legal business or the expenses he reported with respect to his real estate activity.

A reasonable person would have expected that not reporting any gross receipts but

claiming deductions with respect to the real estate activity, thereby generating a

large loss, was exceptionally beneficial.

      For purposes of section 6662(a), disregard includes any careless, reckless,

or intentional disregard of rules or regulations. Sec. 6662(c); Higbee v.

Commissioner, 116 T.C. at 448. A disregard of rules or regulations is careless if

the taxpayer does not “exercise reasonable diligence to determine the correctness

of a return position”. Sec. 1.6662-3(b)(2), Income Tax Regs. A disregard of rules
                                        - 26 -

or regulations is reckless if the taxpayer “makes little or no effort to determine

whether a rule or regulation exists, under circumstances which demonstrate a

substantial deviation from the standard of conduct that a reasonable person would

observe.” Id.

      Petitioner’s disregard of rules or regulations was at least careless with

respect to his tax returns for both 2008 and 2009. With respect to the deduction

petitioner claimed for meals and entertainment for his legal practice, he testified

that he claimed 100% of meals and entertainment expenses. For both 2008 and

2009 the Schedule C included a line item direction to “See Instructions”. While

petitioner could not remember whether he read the instructions to Schedule C, a

reasonable person who prepares his own tax return would have seen that reference

to the instructions on the form. The instructions for Schedule C for both years

clearly state that “you can deduct only 50% of your business meal and

entertainment expenses”. Disregarding these instructions was careless.

      Further, the instructions for Schedule C specify when certain costs

connected to real property must be capitalized. As the Court concluded, two

expenses connected with the unit (the buildout costs and the broker’s fee) were

subject to the capitalization rules. Petitioner’s disregard of rules and regulations
                                        - 27 -

was careless when he did not make any attempt to capitalize these costs but rather

claimed current year deductions for both.

      Further, petitioner’s disregard of rules and regulations was careless when he

failed to make any attempt to keep track of the time he spent on his commercial

rental real estate activity, despite clear statements in the Schedule C instructions

that taxpayers must meet certain hours requirements in order for activities not to

be considered passive activities. Regardless of whether the section 469

requirements are complex, as petitioner asserts they are, a reasonable person

would have realized that the statute requires proof of time spent and would have

kept some type of record and made an effort to keep track of time spent.

      C.     Reasonable Cause and Good Faith

      A penalty will not be imposed under section 6662(a), however, if the

taxpayer establishes that he acted with reasonable cause and in good faith. Sec.

6664(c)(1). Circumstances that indicate reasonable cause and good faith include

reliance on the advice of a tax professional or an honest misunderstanding of the

law that is reasonable in the light of all the facts and circumstances. Sec. 1.6664-

4(b), Income Tax Regs.; see Higbee v. Commissioner, 116 T.C. at 449. Relevant

factors for the Court to consider include the knowledge and experience of the

taxpayer. Sec. 1.6664-4(b)(1), Income Tax Regs.
                                         - 28 -

      Petitioner did not hire a tax professional to advise him with respect to his

2008 and 2009 tax returns but prepared the returns himself. However, petitioner is

a lawyer with advanced education. Petitioner has the skills to read a statute and

regulations and understand whether they require recordkeeping. The instructions

to Schedule C clearly state that only 50% of a business’ meals and entertainment

expenses are allowable as a deduction. Yet petitioner claimed deductions for

100% of the meals and entertainment expenses for his legal practice. Those

instructions also indicate that a taxpayer must prove he spent a certain number of

hours in a trade or business to avoid its being classified as a passive activity.

Petitioner has failed to prove that he acted with reasonable cause and in good faith

and is liable for an accuracy-related penalty for each year.

      To reflect the foregoing,


                                                  Decision will be entered

                                        under Rule 155.
