                          T.C. Memo. 1999-42



                        UNITED STATES TAX COURT



            THOMAS A. AND MARIA M. HAGMAN, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



       Docket No. 2816-96.               Filed February 8, 1999.



       Thomas A. Hagman and Maria M. Hagman, pro sese.

       Mark A. Weiner, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION

       GERBER, Judge:   Respondent determined deficiencies in

petitioners’ Federal income tax and delinquency and negligence

additions and penalty as follows:

                                Additions to Tax             Penalty
Year     Deficiency     Sec. 6651(a)(1)   Sec. 6653(a)(1)   Sec. 6662
1988      $39,560           $9,518           $1,978            ---
1989          799             ---              ---            $160

       Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years under
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consideration, and all Rule references are to this Court’s Rules

of Practice and Procedure.

     Following concessions, the issues for our consideration are:

(1) Whether petitioners are entitled to claim a short-term

capital loss relating to a purported $65,000 loan to Grant

MacCoon for 1988; (2) whether petitioners are entitled to a

$76,087 long-term capital loss for purported investments in “Buck

Sales” for 1988; (3) whether petitioners are entitled to

$147,0001 in bad debt losses claimed for 1989; (4) whether

petitioners overstated their 1988 capital gains by $36,000; and

(5) whether petitioners are liable for the delinquency and

negligence additions for 1988 and an accuracy-related penalty for

1989.    Separate findings of fact and opinion are hereafter set

forth with respect to each of the first four issues.    Those

portions of the stipulation of facts that pertain to a particular

issue are incorporated by this reference in the findings of fact

for the issue to which they relate.




     1
       Petitioners claimed $156,879 in deductions on their 1989
Federal income tax return, the entire amount of which was
disallowed by respondent. Respondent has conceded that
petitioners are entitled to deduct $6,500 of expenses. Of the
$156,879 claimed, $147,000 was claimed as bad debt losses.
Petitioners presented no evidence with respect to the $3,379
difference (between $150,379 and $147,000), and thus we treat
this as a concession by petitioners. Theodore v. Commissioner,
38 T.C. 1011, 1041 (1962).
                                 - 3 -

I.   The MacCoon Note

                           FINDINGS OF FACT

      Petitioners Thomas A. and Maria M. Hagman, husband and wife,

resided in Thousand Oaks, California, at the time their petition

was filed.   Maria M. Hagman is a petitioner in this case because

she joined in filing Federal income tax returns with Thomas A.

Hagman (Mr. Hagman).     Subsequent references to “petitioner” refer

only to Mr. Hagman.     Petitioners’ 1988 and 1989 Federal income

tax returns were filed on February 3, 1993, and September 30,

1993, respectively.

      Mr. Hagman was employed as a bank manager for 13 years.      In

1974, he left banking to pursue a career investing in real

estate.   In 1978, petitioner became aware of an opportunity to

buy a 16-acre parcel of real estate within the city limits of

Thousand Oaks, California.     The parcel was available for sale

only if the seller could also sell the adjacent property.

Petitioner lent $65,000 to Grant MacCoon (Mr. MacCoon) for the

purpose of purchasing the adjacent parcel.     Petitioner and Mr.

MacCoon had an agreement that petitioner would receive 25 percent

of Mr. MacCoon’s profits on the sale of the adjacent land.     Mr.

MacCoon gave petitioner a 10-year unsecured note, bearing 7

percent interest.   The interest and principal were payable at

maturity.

      In 1979, Mr. MacCoon made a $5,000 principal payment on the

note, reducing the amount of the note to $60,000.     The following

year, Mr. MacCoon sold the property for a $400,000 profit but did
                                - 4 -

not pay 25 percent of the profit to petitioner in accord with the

agreement.    In 1984, petitioner sued Mr. MacCoon for the

outstanding balance of the note and petitioner’s 25-percent share

of the profits from the sale of the adjacent land ($100,000).

Petitioner and Mr. MacCoon reached a settlement in the lawsuit.

Mr. MacCoon was no longer obligated to pay the note following the

settlement.    Petitioner provided no other information regarding

the settlement.    Petitioners claimed a $65,000 short-term capital

loss attributable to the MacCoon note on their 1988 return.

Respondent disallowed the claimed capital loss.

                               OPINION

     We must decide whether petitioners are entitled to a non-

business bad debt deduction on their 1988 return.    Generally,

taxpayers may deduct the value of bona fide debts owed to them

that become worthless during the year.    Sec. 166(a); Millsap v.

Commissioner, 46 T.C. 751, 762 (1966), affd. 387 F.2d 420 (8th

Cir. 1968).    Bona fide debts generally arise from valid debtor-

creditor relationships reflecting enforceable and unconditional

obligations to repay fixed sums of money.    Sec. 1.166-1(c),

Income Tax Regs.    Section 166 prescribes three ways in which

deductions may be taken for worthless debts:    (1) As an ordinary

deduction during a taxable year in which a business bad debt

becomes completely worthless; (2) as an ordinary deduction when a

business bad debt becomes partially worthless during the taxable

year, but only to the extent worthless; and (3) as a short-term

capital loss when a nonbusiness bad debt held by a taxpayer other
                               - 5 -

than a corporation becomes completely worthless during the

taxable year.   Sec. 166(a)(1), (2), (d).

     Respondent does not dispute that the MacCoon note

represented a bona fide debt owed to petitioners.   Both parties

also agree that the obligation is a nonbusiness debt.    The

parties dispute whether the note became worthless in 1988.

Petitioners claim that, although Mr. MacCoon was no longer

obligated to pay petitioner on the note after the 1984

settlement, the loss could not have been claimed until 1988, the

maturity date of the note.   Respondent contends that the note

became worthless, if at all, in 1984, the year that Mr. MacCoon

was no longer obligated to pay petitioner.   We agree with

respondent.

     At trial and on brief, petitioners alleged that an Internal

Revenue Service Appeals officer had informed them that they were

unable to write off the bad debt until the maturity of the note,

regardless of the disposition of the lawsuits.   Even if such a

statement had been made, respondent would not be estopped from

asserting that the debt became worthless in 1984.   Such a

statement would constitute a statement of law, and therefore one

of the necessary elements for estoppel would not be present.

Estate of   Emerson v. Commissioner, 67 T.C. 612, 617-618 (1977).

     The fact that an obligation is not mature at the time a bad

debt deduction is claimed does not automatically prevent

allowance of a bad debt deduction under section 166.    Sec. 1.166-

1(c), Income Tax Regs.   Petitioners have failed to establish that
                               - 6 -

the MacCoon note became worthless in 1988.     Accordingly,

petitioners are not entitled to a section 166(a) loss for 1988.

II.   Buck Sales

                          FINDINGS OF FACT

      In 1986 and early 1987, petitioner spent approximately

$76,000 as a result of his involvement with an entity known as

Buck Sales.   Petitioner spent approximately $20,000 on travel,

lodging, and food expenses for himself and six other individuals.

In addition, petitioner spent $18,700 on consulting fees and

approximately $38,000 on legal fees.    Petitioners claimed these

amounts on their 1987 return as a long-term capital loss.

Respondent disallowed the $76,087 long-term capital loss

carryover on petitioners’ 1988 return.

                              OPINION

      The next issue for our consideration is whether petitioners

are entitled to a $76,087 long-term capital loss relating to

purported investments in Buck Sales.    Petitioner argues that he

spent approximately $76,000 in 1986 and early 1987 investigating

an investment opportunity in Hong Kong.      Petitioner contends that

such amounts are deductible as a long-term capital loss.

Respondent contends that petitioners have failed to establish

that any of the payments are associated with any particular

investment or business.   We agree with respondent.

      Petitioner’s testimony concerning his involvement with Buck

Sales was vague and unconvincing.   At the conclusion of his

testimony, it was not possible to understand the nature of
                              - 7 -

petitioner’s relationship with Buck Sales or how the amounts

spent by petitioner, such as the legal or consulting fees,

related to a business or investment activity.    Petitioner claims

that these amounts are deductible because they involved the

investigation of a possible investment opportunity.    Section

212(1) or (2) permits a deduction for all ordinary and necessary

expenses paid for the production or collection of income or

maintenance of property held for the production of income.

However, expenses deductible under section 212(1) or (2) must

relate to income-producing property or property rights in which

the taxpayer has an existing interest.    Frank v. Commissioner, 20

T.C. 511, 514 (1953); Beck v. Commissioner, 15 T.C. 642, 670

(1950), affd. per curiam 194 F.2d 537 (2d Cir. 1952).

Petitioners have not shown that the expenditures petitioner made

relate to income-producing property or property rights in which

petitioner had an existing interest; therefore these expenses are

not deductible under section 212(1) or (2).

     Section 165(c)(2) authorizes a deduction for losses incurred

by individuals and not compensated for by insurance or otherwise

which are “incurred in any transaction entered into for profit”.

Petitioner has not shown that the expenditures qualify for a

deduction under section 165(c)(2).    Petitioner did not show

whether he had a profit motive with respect to the expenditures.

He also failed to show that he was involved in a “transaction” as

that term is used in the statute.    In Seed v. Commissioner, 52

T.C. 880, 885 (1969), it was explained that “the phrase ‘a
                                  - 8 -

transaction entered into for profit’ surely means something more

than the mere casual preliminary investigation of a prospective

business or investment.”      Although petitioner expended capital,

he has failed to demonstrate what steps, if any, were taken

beyond a preliminary investigation.       Petitioner’s testimony on

this subject was vague and, to some extent, incomprehensible.

Accordingly, petitioners are not entitled to a deduction under

section 165(c)(2).    See Brown v. Commissioner, 40 T.C. 861, 869-

870 (1963); see also Frank v. Commissioner, supra.

III.    Bad Debt Losses

                            FINDINGS OF FACT

       In the early 1980’s, petitioner formed a partnership with

Albert J. Schara (Mr. Schara) for the purpose of buying and

selling real estate.      Over the course of their partnership,

petitioner made several loans to Mr. Schara or to partnerships

controlled by him.    When the partnership dissolved in 1988, Mr.

Schara had loans outstanding to petitioner totaling $147,000.

These loans were represented by three separate notes.       One note

was given in exchange for two checks (a $50,000 check dated March

23, 1984, and a $5,000 check dated November 2, 1984) made payable

to Schara Development Co., although Mr. Schara was personally

liable for the entire debt.      Another note was in the principal

amount of $136,024 and dated February 4, 1983.       This note

represented several separate payments from petitioner to T. A.

Investments, a partnership that was controlled by Mr. Schara.

Two payments totaling $56,000 were made on this note, reducing
                                 - 9 -

the outstanding balance to $80,024.       A third note was in the

principal amount of $12,000 and dated April 4, 1983.       This note

represented several separate payments from petitioner to Nova

Image, Inc.    Al Schara was the president of Nova Image, Inc.

     The partnership between petitioner and Mr. Schara did not

end amicably.    In December 1988, Mr. Schara filed a complaint

against petitioners in the Superior Court of California for

dissolution, partnership accounting, damages for repudiation of

partnership, conversion of partnership assets, and breach of

fiduciary duty.    In March 1989, petitioners filed a complaint

against Mr. Schara in the Superior Court of California for breach

of fiduciary duty and breach of contract.       The two lawsuits

lasted for several years and were ultimately abandoned by both

parties.    Petitioners claimed a $147,000 business bad debt loss

on their 1989 return.    The loss was disallowed by respondent.

                                OPINION

     Next we consider whether petitioners are entitled to

$147,000 in business bad debts that were claimed on their 1989

return.    Respondent contends that petitioners have failed to

prove (1) that these debts became worthless in 1989, and (2) that

the items in question are business bad debts.       Petitioners failed

to show worthlessness, and accordingly we need not address

whether the items in question were business bad debts.

     Section 166(a) allows taxpayers to deduct the value of bona

fide debts that become worthless during the year.       Millsap v.

Commissioner, 46 T.C. at 762.    Petitioners and Mr. Schara, the
                                - 10 -

debtor, were involved in litigation over the dissolution of their

partnership and the allocation of partnership debts and assets.

The litigation commenced in the year that petitioners claimed the

debts became worthless (1989) and continued for several years

thereafter.   The debts at issue in the litigation arose out of

and were related to the partnership between petitioner and Mr.

Schara.   The amount of the unpaid notes was claimed by

petitioners to be business bad debts.     The uncertainty as to the

outcome of that litigation is fatal to petitioners’ claim that

the debts became worthless in 1989.2     See Barbour v.

Commissioner, 29 T.C. 1039 (1958); see also Birnbaum & Manaker,

P.C. v. Commissioner, T.C. Memo. 1993-485.       Accordingly,

petitioners are not entitled to the $147,000 bad debt deduction

for 1989.

IV.   1988 Capital Gains

                           FINDINGS OF FACT

      Petitioners’ 1988 Federal income tax return reflected a

$36,000 profit from the sale of one of the buildings that was

owned by the Schara-Hagman partnership.       At trial, petitioners

argued that they did not make a profit from the sale of the

building.




      2
       In addition, petitioners have not indicated whether the
litigation between themselves and Mr. Schara had ceased by Sept.
30, 1993, when petitioners filed their 1989 return.
                              - 11 -

                              OPINION

     Petitioners’ 1988 return reflected a $36,000 profit from the

sale of one of the buildings owned by the Schara-Hagman

partnership.   At trial, petitioners argued that they had

estimated the amount of profit from the sale when they filed

their 1988 return and that ultimately no profit was ever realized

from the sale of the building.   In addition, petitioners claim

that they made approximately $25,000 in capital improvements to

the building at issue, which were never taken into account in

calculating the amount of gain on their 1988 return.   Petitioners

claim that they made the capital improvements by paying workers

in cash.   Respondent contends that petitioners have failed to

demonstrate how their 1988 return overstated their capital gain.

We agree with respondent.

     Petitioners have not provided sufficient information to

support a change to the $36,000 capital gain reported for 1988.

Petitioners have not provided calculations showing that these

alleged capital improvements were not already taken into account.

In fact, there was no showing as to how petitioners computed

their 1988 capital gains.   Petitioners have not shown the

adjusted basis of the building or the proceeds received from the

sale.   We also question why petitioners found it necessary to

estimate the amount of profit from the sale of the building when

they did not file their 1988 return until February 3, 1993.

Petitioners have failed to establish that their 1988 return was

inaccurate with respect to their capital gains.   See Rule 142(a).
                               - 12 -

V.   Penalties and Additions to Tax

      Section 6651(a)(1) imposes an addition to tax for the

failure to file timely a required return unless the failure is

due to reasonable cause and not due to willful neglect.

Petitioners bear the burden of proving that their failure to file

timely was due to reasonable cause and not to willful neglect.

Rule 142(a).

      Petitioners filed their 1988 Federal income tax return on

February 3, 1993.    The return was required to be filed on or

before April 15, 1989.    Petitioners have not shown that their

delinquent filing was due to reasonable cause.    Therefore, they

are liable for the section 6651(a)(1) addition to tax for 1988 as

determined by respondent.

      For the 1988 taxable year, section 6653(a)(1) and (2)

provides for an addition to tax equal to 5 percent of the

underpayment if any part of an underpayment is due to negligence.

For 1989, section 6662(a) and (b)(1) provides for an accuracy-

related penalty equal to 20 percent of the portion of the

underpayment that is attributable to negligence or disregard of

rules or regulations.    Negligence is the lack of due care or

failure to do what a reasonable and ordinarily prudent person

would do under the circumstances.     Neely v. Commissioner, 85 T.C.

934, 947 (1985).    Respondent’s determination of negligence is

presumed to be correct, and the taxpayer has the burden of

proving that the determination is erroneous.    Rule 142(a).

Therefore, petitioners must show that they were not negligent;
                               - 13 -

i.e, that they made a reasonable attempt to comply with the

provisions of the Internal Revenue Code and that they were not

careless, reckless, or in intentional disregard of the rules or

regulations.

     We sustain respondent’s determination.   In determining

whether petitioners were negligent in the preparation of their

return, we take into account Mr. Hagman’s years of business

experience.    Glenn v. Commissioner, T.C. Memo. 1995-399, affd.

without published opinion 103 F.3d 129 (6th Cir. 1996).

Petitioners’ explanation of the Buck Sales issue was vague and

confusing, and they have failed to show that they were not

negligent with respect to their $76,000 deduction for purported

investments in Buck Sales.   Because we have found that part of

petitioners’ underpayment for 1988 was due to negligence, the 5-

percent addition to tax provided in section 6653(a)(1) applies to

the entire underpayment regardless of whether the balance of the

underpayment was due to negligence.

     Petitioners conceded part of the underpayment for 1989 and

also failed to address the question of negligence on those

concessions.   With respect to the disputed issue for 1989 (the

bad debt deduction), petitioners claimed that the notes were

worthless at a time when they were actively trying to collect on

the notes in State court.    Petitioners do not provide us with a

satisfactory explanation of this inconsistency and are therefore

liable for the section 6662(a) accuracy-related penalty with

respect to this issue.   Due to petitioners’ failure to present
                             - 14 -

evidence or argument with respect to the conceded issues, the

entire underpayment is subject to the section 6662(a) penalty.

     To reflect the foregoing,

                                        Decision will be entered

                                   under Rule 155.
