Dobbe v. Commissioner

61 F. App'x 348

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2003
• Docket: Nos. 01-70631, 01-70653; Tax Ct. Nos. 17625-97, 17626-97
• Status: Published

Opinion

MEMORANDUM

*

Bemardus A.P. Dobbe, Klazina W. Dobbe, and Holland America Bulb Farms, Inc., appeal the tax court’s judgment, which disallowed certain Holland America deductions and determined that the amounts involved were, in fact, dividends paid to the Dobbes. We affirm.

(1) Our review of the record satisfies us that, although there was some conflicting evidence, the tax court did not clearly err when it determined that landscaping done around the Dobbes’ house was, in fact, a personal expense rather than an ordinary and necessary business expense of Holland America. See 26 U.S.C. § 162(a); Norgaard v. Commissioner, 939 F.2d 874, 877 (9th Cir.1991); Inland Asphalt Co. v. Commissioner, 756 F.2d 1425, 1428 (9th Cir.1985). Of course, in some circumstances, landscaping can be a business expense. See Hefti v. Commissioner, 54 T.C.M. (CCH) 1555, 1565, 1988 WL 2444 (1988), aff'd, 894 F.2d 1340 (8th Cir.1989). However, in this case the tax court could properly determine that the landscaping was not on land leased to Holland America, and that its benefit to Holland America was insubstantial, while the primary benefit was to the Dobbes themselves. See P.R. Farms, Inc. v. Commissioner, 820 F.2d 1084, 1087 (9th Cir.1987); Betson v. Commissioner, 802 F.2d 365, 368-69 (9th Cir.1986). In short, Holland America and the Dobbes failed to meet their burden of showing that the Commissioner’s denial of the deductions was incorrect.¹ See Meridian Wood Prods., Inc. v. United States, 725 F.2d 1183, 1189 (9th Cir.1984).

(2) We also reject the assertions of the Dobbes and Holland America that the so-called expenses were not dividends. Whatever the intent was (and we know that it was to take all of the amounts as corporate expenses), the payment of the expenses conferred economic benefits upon the Dobbes and, thus, amounted to the payment of constructive dividends. See Meridian Wood Prods., 725 F.2d at 1191; Noble v. Commissioner, 368 F.2d 439, 443 (9th Cir.1966); Creske v. Commissioner, 56 T.C.M (CCH) 878, 882, 1988 WL 134298 (1988). Nor is this a situation where the corporation itself had no income,² or where the amount was unintentionally taken as an expense rather than as a payment of a debt of Holland America to the Dobbes.³ Both the Dobbes and Holland America intended that it deduct the amounts as expenses; they cannot now return to the past or transform the amounts into something else. Both Clio and the law ⁴ dictate otherwise.⁵

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . The suggestion that the tax court should have apportioned some part of the landscaping to Holland America is otiose. The whole-hog approach of Holland America and the Dobbes left no room for evidence about how much could be allocated to Holland America, and the tax court did not have to make up a number for them. See Milenbach v. Commissioner, 318 F.3d 924, 934 (9th Cir.2003).

2 . See United States v. D’Agostino, 145 F.3d 69, 72 (2d Cir.1998).

3 . See Creske, 56 T.C.M. (CCH) at 882-83.

4 . See Noble, 368 F.2d at 443-44.

5 . Incidentally, the monody about the double taxation that results when a corporation issues a dividend should be addressed to Congress, not us.