Jude O. Ugwuala and Esther N. Ugwuala v. Commissioner

2013 T.C. Memo. 105

• Court: United States Tax Court
• Decided: April 15, 2013
• Docket: 5405-11
• Status: Unpublished

Opinion

T.C. Memo. 2013-105

UNITED STATES TAX COURT

JUDE O. UGWUALA AND ESTHER N. UGWUALA, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 5405-11. Filed April 15, 2013.

Wilfred I. Aka, for petitioners.

Blake W. Ferguson and Heather K. McCluskey, for respondent.

MEMORANDUM FINDINGS OF FACTS AND OPINION

KROUPA, Judge: Respondent determined deficiencies in petitioners’

Federal income tax of $24,568 and $17,531 for 2008 and 2009, respectively (years

at issue). After concessions,1 we are asked to decide two issues. The first issue is

1 Respondent concedes that petitioners substantiated $19,064 and $5,519 of (continued...) -2-

[*2] whether petitioners are entitled to deduct certain medical and dental,

unreimbursed employee and rental real estate expenses. We hold that they are not.

We must also decide whether petitioners are liable for an accuracy-related penalty

under section 6662(a) for the years at issue.2 We hold that they are.

FINDINGS OF FACT

The parties have stipulated some facts. We incorporate the stipulation of

facts and the accompanying exhibits by this reference. Petitioners resided in

California when they filed the petition.

Petitioners are a married couple with four children. Petitioner wife has been a

registered nurse since 2000 and was licensed by the State of Georgia. Petitioner

husband holds a master of business administration degree. He operated a towing

service as a sole proprietor in Georgia before the years at issue.

Petitioner wife held a series of nursing jobs in the Los Angeles, California,

metropolitan area (Los Angeles) beginning in 2006 and during the years at issue.

She obtained a nursing license from the State of California in 2006. She did not

1 (...continued) rental real estate expenses for the years at issue. Respondent concedes petitioners substantiated $5,151 of medical and dental expenses for 2009. 2 All section references are to the Internal Revenue Code (Code) for the years at issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated. -3-

[*3] work as a nurse outside Los Angeles during the years at issue. And she

allowed her Georgia license to expire in 2009.

Petitioner husband attended American Career College in Los Angeles during

the years at issue.

Petitioners owned three real properties in Georgia: 1370 Crestridge Lane

(Crestridge), 1557 Pintail Court (Pintail) and 1502 Rock Cut Road (Rock Cut)

(collectively, Georgia properties). Petitioners listed Crestridge as their home

address on their 2006 joint Federal income tax return. Petitioners listed on their

2007 joint Federal income tax return a Los Angeles address as their home.

Petitioners resided at two addresses in Los Angeles during the years at issue.

A return preparer completed, and petitioners timely filed, Forms 1040, U.S.

Individual Income Tax Return, for the years at issue. Petitioners listed a

Hawthorne, California, address as their home and the Georgia properties as rental

properties on the 2008 return. Petitioners listed a Culver City, California, address

as their home and claimed Crestridge and Rock Cut as rental properties on the 2009

return.

Petitioners claimed medical and dental expenses of $14,370 and $7,153,

unreimbursed employee expenses of $17,238 and $15,852 and rental real estate

expenses of $50,004 and $39,829 for the years at issue, respectively. Petitioners -4-

[*4] reported rental real estate income of $24,250 and $16,400 for the years at

issue, respectively. Respondent issued petitioners the deficiency notice disallowing

the claimed deductions and determining accuracy-related penalties. Petitioners

timely filed a petition.

Wilfred I. Aka represented petitioners in this matter. Mr. Aka ignored

respondent’s request to conduct a Branerton conference. See Branerton Corp. v.

Commissioner, 61 T.C. 691 (1974). Respondent filed motions to compel production

of documents and responses to interrogatories. Again Mr. Aka failed to respond on

petitioners’ behalf. We then granted respondent’s motion to impose sanctions under

Rule 104(c). Petitioners moved for us to reconsider the sanctions. Mr. Aka

indicated he was abroad and had not taken appropriate steps to act on behalf of his

clients. We granted the motion. We then held a trial in Los Angeles.

OPINION

This is primarily a substantiation case in which we must decide whether

petitioners are entitled to the claimed deductions. We also need to decide whether

petitioners are liable for the accuracy-related penalty.

We note that petitioners’ counsel has delayed and impeded this matter by

being generally unresponsive and unprofessional. Petitioners’ counsel has

consistently ignored our Rules. This caused respondent to file, and the Court to -5-

[*5] decide, motions that should have been unnecessary. We determined that

petitioners’ counsel had failed to respond on their behalf and vacated sanctions

imposed against them.3

Petitioners’ counsel, nonetheless, continued his pattern of behavior by failing

to provide a post-trial brief. This inaction is independent grounds to hold petitioners

in default or decide against them where they have the burden of proof. See Rule

123; Stringer v. Commissioner, 84 T.C. 693, 704-708 (1985), aff’d without

published opinion, 789 F.2d 917 (4th Cir. 1986). We will not impose either

sanction against petitioners for Mr. Aka’s inaction. Rather, we will decide this case

based on the record before us. We now turn to the issues in this case.

I. Allocation of the Burden of Proof

We begin with the burden of proof. The Commissioner’s determinations in a

deficiency notice are presumed correct, and the taxpayer bears the burden of

proving otherwise. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).

Deductions are generally a matter of legislative grace, and the taxpayer bears the

burden of proving he or she is entitled to claimed deductions. INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice Co. v. Helvering, 292

3 This is not the first time that Mr. Aka has violated our Rules. See Akanno v. Commissioner, T.C. Summary Opinion 2009-168. -6-

[*6] U.S. 435, 440 (1934). This includes the burden of substantiation. Hradesky v.

Commissioner, 65 T.C. 87, 90 (1975), aff’d per curiam, 540 F.2d 821 (5th Cir.

1976). A taxpayer must substantiate amounts claimed as deductions by maintaining

the records necessary to establish that he or she is entitled to the deductions. Sec.

6001; Hradesky v. Commissioner, 65 T.C. at 90. The Court need not accept a

taxpayer’s self-serving testimony when the taxpayer fails to present corroborative

evidence. Beam v. Commissioner, T.C. Memo. 1990-304 (citing Tokarski v.

Commissioner, 87 T.C. 74, 77 (1986)), aff’d without published opinion, 956 F.2d

1166 (9th Cir. 1992).

The burden may shift to the Commissioner if the taxpayer proves that he or

she has satisfied certain conditions. Sec. 7491(a); Snyder v. Commissioner, T.C.

Memo. 2001-255. Petitioners have not complied with the substantiation

requirements of section 7491(a). See Higbee v. Commissioner, 116 T.C. 438

(2001). Nor have petitioners cooperated with respondent’s reasonable requests for

documents and information. See sec. 7491(a)(2)(B). The burden of proof therefore

remains with petitioners. See Rule 142(a).

II. Claimed Deductions for Expenses

Respondent disallowed petitioners’ deductions for medical and dental,

unreimbursed employee and rental real estate expenses. We address each in turn. -7-

[*7] A. Medical and Dental Expenses

We now consider the medical and dental expense deductions petitioners

claimed. An individual taxpayer may deduct expenses paid during the tax year for

medical care of the taxpayer, the taxpayer’s spouse or the taxpayer’s dependent to

the extent the expenses exceed 7.5% of adjusted gross income. Sec. 213(a). A

taxpayer must provide the name and address of each person to whom payment for

medical expenses was made and the amount and date of the payment. Sec. 1.213-

1(h), Income Tax Regs.

Petitioners claimed a $14,370 medical and dental expense deduction for

2008. Respondent emphasizes that petitioners provided documentation purportedly

substantiating only $4,897 of medical expenses for 2008.4 Respondent contends

that this amount does not exceed 7.5% of adjusted gross income on petitioners’

2008 return or the deficiency notice. We agree. Petitioners are not entitled to a

deduction for medical and dental expenses for 2008.

Petitioners claimed a deduction for medical and dental expenses of $7,153

for 2009. Respondent concedes that petitioners are entitled to deduct $5,151 of

those medical and dental expenses. Respondent also acknowledges that amount

4 Respondent does not concede, nor do we find, that petitioners have substantiated that amount. That issue is moot because the adjusted gross income threshold is not met. -8-

[*8] satisfies the minimum adjusted gross income requirement. Respondent

disputes, however, that petitioners substantiated the remainder. We agree.

Petitioners’ documents do not establish that they incurred and paid medical

expenses. Petitioners failed to provide corroborative information regarding the

purported expenses. We hold that petitioners have not met their burden. They

therefore are not entitled to a deduction for medical and dental expenses exceeding

respondent’s concession.

B. Unreimbursed Employee Expenses

We now address petitioners’ unreimbursed employee expense deductions,

including travel, uniforms and employment search expenses.

First, petitioners contend that petitioner wife’s employment in Los Angeles

was temporary and their tax home remained in Georgia during the years at issue.5

Respondent argues that petitioners failed to establish that their tax home was not in

Los Angeles during the years at issue. We agree.

A taxpayer may deduct reasonable and necessary travel expenses such as

vehicle expenses, meals, and lodging incurred while away from home in the

5 We note again that petitioners did not file a post-trial brief. We understand from their pretrial memorandum that petitioners argue that their tax home was in Georgia during the years at issue. Petitioners contend that they could deduct any expenses incurred traveling between Los Angeles and Georgia and any expenses incurred while in Los Angeles. -9-

[*9] pursuit of a trade or business. Secs. 162(a), 262(a); Wilbert v. Commissioner,

T.C. Memo. 2007-152, aff’d, 553 F.3d 544 (7th Cir. 2009). A taxpayer must show

that he or she was away from home when he or she incurred the expense, that the

expense is reasonable and necessary, and that the expense was incurred in pursuit of

a trade or business. Commissioner v. Flowers, 326 U.S. 465, 470 (1946). The

determination of whether the taxpayer has satisfied these requirements is a question

of fact. Id.

The purpose of the deduction for expenses incurred away from home is to

alleviate the burden on the taxpayer whose business needs require him or her to

maintain two homes and therefore incur duplicate living expenses. Kroll v.

Commissioner, 49 T.C. 557, 562 (1968). The duplicate costs are not deductible

where the taxpayer maintains two homes for personal reasons. Sec. 262; Farran v.

Commissioner, T.C. Memo. 2007-151.

A taxpayer may deduct the expenses he or she incurred while away from

home. Sec. 162(a)(2). The word “home” for purposes of section 162(a)(2) refers to

the area of a taxpayer’s principal place of employment, not the taxpayer’s personal

residence. Daly v. Commissioner, 72 T.C. 190, 195 (1979), aff’d, 662 F.2d 253

(4th Cir. 1981). The taxpayer’s tax home may be the taxpayer’s personal residence

if the taxpayer’s employment away from home is temporary. Peurifoy v. -10-

[*10] Commissioner, 358 U.S. 59, 60 (1958). On the other hand, the exception

does not apply and the taxpayer’s tax home remains the principal place of

employment if the employment away from home is indefinite. Kroll v.

Commissioner, 49 T.C. at 562; Wilbert v. Commissioner, T.C. Memo. 2007-152.

Petitioners’ tax home was in Los Angeles for the years at issue. The record

does not support petitioners’ contention that their tax home was in Georgia for the

years at issue. Petitioners provided Los Angeles addresses as their home addresses

on their joint returns for 2007 and for the years at issue. The record also reflects

that petitioner wife’s principal place of employment was in Los Angeles during the

years at issue. She became licensed in California in 2006 and allowed her Georgia

license to lapse in 2009. Petitioner wife did not substantiate the assertions that she

was employed in Los Angeles temporarily. Rather, we find that she was indefinitely

employed in Los Angeles beginning in 2006 and continuing through the years at

issue. Petitioner husband attended college in Los Angeles during the years at issue.

Petitioners failed to demonstrate that respondent incorrectly determined petitioners’

tax home was in Los Angeles for the years at issue. Thus, they are not entitled to

deduct any unreimbursed employee expenses associated with working in, or travel

to and from, Los Angeles. -11-

[*11] Petitioners also claimed deductions of $1,700 and $1,370 for uniforms for

the years at issue. A taxpayer may deduct expenses for nurse uniforms. See, e.g.,

Murphy v. Commissioner, T.C. Memo. 1986-491. A taxpayer must demonstrate

that the uniforms were specifically required as a condition of employment and could

not be worn as regular clothing. Pace v. Commissioner, T.C. Memo. 2010-272; Hill

v. Commissioner, T.C. Memo. 1982-143; Rev. Rul. 70-474, 1970-2 C.B. 34.

Petitioners did not substantiate these expenses. They provided documents

that purportedly substantiated only fractions of those amounts. Further, those

consumer receipts did not demonstrate that the expenses were in fact for nursing

uniforms. Nor has petitioner wife demonstrated that the terms of her employment

required the uniforms or that they could not be worn as regular clothing. Simply

put, petitioners have not met their burden.

Petitioners also claimed a deduction of $3,950 for “job search expenses” for

each year at issue. Petitioner wife testified that those costs were for training

courses in her field. A taxpayer may deduct expenses associated with seeking a

new position within the same trade or business. See, e.g., Allemeier v.

Commissioner, T.C. Memo. 2005-207. Education costs are deductible business

expenses if the education (1) maintains or improves required skills in that trade or -12-

[*12] business; (2) is expressly required by the individual’s employer; or (3) is

required under applicable law or regulations and a condition for the individual to

retain an established employment relationship, status, or rate of compensation. Id.;

sec. 1.162-5(a)(1) and (2), Income Tax Regs.

Petitioners have not met their burden. Petitioner wife’s testimony did not

demonstrate that these requirements were met. This Court is not required to accept

a taxpayer’s self-serving, unverified and undocumented testimony. See Shea v.

Commissioner, 112 T.C. 183, 189 (1999); Tokarski v. Commissioner, 87 T.C. at 77.

Their testimony notwithstanding, petitioners also did not substantiate the expenses.

Petitioners are not entitled to any deductions for unreimbursed employee expenses.

C. Rental Real Estate Expenses

We now consider whether petitioners were entitled to deduct certain rental

real estate expenses. A taxpayer may deduct all ordinary and necessary expenses

paid or incurred with respect to management, conservation and maintenance of

property held for production of income, including real property. Sec. 212(2); sec.

1.212-1(h), Income Tax Regs. Generally, a taxpayer must establish that the

expenses are ordinary and necessary and must maintain records sufficient to

substantiate the amounts of the deductions claimed. Sec. 6001; Meneguzzo v. -13-

[*13] Commissioner, 43 T.C. 824, 831-832 (1965); sec. 1.6001-1(a), (e), Income

Tax Regs.

Petitioners have not carried their burden. Petitioners’ documentation failed to

demonstrate a nexus to the Georgia properties’ management, conservation or

maintenance. Petitioners again did not corroborate these expenses. The Court

sustains respondent’s determination that petitioners are not entitled to rental expense

deductions greater than those respondent conceded.

III. Accuracy-Related Penalty

Finally, we address respondent’s determination that petitioners are liable for

an accuracy-related penalty under section 6662(a) for the years at issue. A taxpayer

is liable for an accuracy-related penalty on any part of an underpayment attributable

to, among other things, a substantial understatement of income tax. See sec.

6662(a) and (b)(1) and (2); sec. 1.6662-2(a)(1) and (2), Income Tax Regs. There is

a substantial understatement of income tax if the amount of the understatement

exceeds the greater of either 10% of the tax required to be shown on the return or

$5,000. Sec. 6662(a), (b)(2), (d)(1)(A); sec. 1.6662-4(a) and (b), Income Tax

Regs.; see Jarman v. Commissioner, T.C. Memo. 2010-285.

The Commissioner has the burden of production with respect to the

accuracy-related penalty. Sec. 7491(c); Rule 142(a); see Higbee v. Commissioner, -14-

[*14] 116 T.C. at 446-447. We find that respondent has met his burden of

production if Rule 155 computations show petitioners have a substantial

understatement of income tax for each year at issue.6 See Higbee v. Commissioner,

116 T.C. at 446; Jarman v. Commissioner, T.C. Memo. 2010-285.

A taxpayer is not liable for an accuracy-related penalty, however, if the

taxpayer acted with reasonable cause and in good faith with respect to any portion

of the underpayment. Sec. 6664(c)(1); sec. 1.6664-4(a), Income Tax Regs. The

determination of whether a taxpayer acted with reasonable cause and in good faith

depends on the pertinent facts and circumstances, including the taxpayer’s efforts to

assess his or her proper tax liability; the knowledge, experience and education of the

taxpayer, and the reliance on the advice of a professional. Sec. 1.6664-4(b)(1),

Income Tax Regs. Generally, the most important factor is the extent of the

taxpayer’s effort to assess the proper tax liability. Id. The taxpayer has the

6 Respondent determined in the alternative that petitioners are liable for the accuracy-related penalty on the portion of the underpayment attributable to negligence or disregard of rules or regulations. “Negligence” includes the failure to make a reasonable attempt to comply with provisions of the Code as well as any failure by the taxpayer to keep adequate books and records or to substantiate deductions and credits claimed on the return. See sec. 6662(c); sec. 1.6662-3(b)(1), Income Tax Regs. The term “disregard” includes any careless, reckless or intentional disregard. See sec. 6662(c). Petitioners failed to keep adequate records or substantiate their claimed expenses. We find therefore that respondent has satisfied his burden of production for imposing the accuracy-related penalty for negligence or disregard of rules or regulations. -15-

[*15] burden of proving the reasonable cause and good-faith exception applies.

Sec. 7491(c); Rule 142(a); see Higbee v. Commissioner, 116 T.C. at 446-447.

A return preparer completed petitioners’ joint individual income tax returns

for the years at issue. We have found that reliance on a tax professional

demonstrates reasonable cause when a taxpayer selects a competent tax adviser,

supplies the adviser with all relevant information, and, consistent with ordinary

business care and prudence, relies on the adviser’s professional judgment as to the

taxpayer’s tax obligations. Sec. 6664(c)(1); Neonatology Assocs., P.A. v.

Commissioner, 115 T.C. 43, 98-99 (2000), aff’d, 299 F.3d 221 (3d Cir. 2002). All

facts and circumstances are considered in determining whether a taxpayer

reasonably relied in good faith on professional advice, including the taxpayer’s

education, sophistication and business experience. Sec. 1.6664-4(a) and (b),

Income Tax Regs.

Petitioners did not establish that the return preparer was a competent

professional with significant expertise to justify reliance or that petitioners

provided the return preparer all necessary and accurate information. We therefore

do not find that petitioners have shown that it was reasonable to rely on the return

preparer. Further, we find that petitioners are well educated with business

experience. Petitioner husband has a master of business administration degree and -16-

[*16] experience operating a business. Petitioner wife is a medical professional.

Thus, petitioners failed to otherwise show that their underpayment was due to

reasonable cause and was in good faith.

Based on the entire record, we find that petitioners failed to establish that

they acted with reasonable cause and in good faith with respect to the years at issue.

Accordingly, petitioners are liable for the accuracy-related penalty on the

underpayments for the years at issue.

We have considered all arguments the parties made in reaching our holding,

and, to the extent not mentioned, we find them irrelevant or without merit.

To reflect the foregoing and respondent’s concessions,

Decision will be entered under

Rule 155.