Milton v. Comm'r

2009 T.C. Memo. 246, 98 T.C.M. 386, 2009 Tax Ct. Memo LEXIS 247
United States Tax Court·Decided October 28, 2009·No. No. 15875-08·Unpublished·Cited by 1 cases

Opinion

JEFFREY C. AND RENEE M. MILTON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Milton v. Comm'r
No. 15875-08
United States Tax Court
T.C. Memo 2009-246; 2009 Tax Ct. Memo LEXIS 247; 98 T.C.M. (CCH) 386;
October 28, 2009, Filed
*247
Robert J. Gumser, for petitioners.
Heather K. McCluskey, for respondent.
Kroupa, Diane L.

DIANE L. KROUPA

MEMORANDUM FINDINGS OF FACT AND OPINION

KROUPA, Judge: Respondent determined an $ 86,767 deficiency in petitioners' Federal income tax for 2005 and a $ 17,353 accuracy-related penalty under section 6662(a). 1 After concessions, 2 we are asked to decide whether petitioners underreported their distributive share from Renee Milton, Inc. (RMI), an S corporation, for 2005. Respondent disallowed RMI's claimed deduction for an abandoned partnership interest. We hold that RMI was not entitled to a deduction and therefore petitioners underreported their income. We further find that the accuracy-related penalty applies.

FINDINGS OF FACT

Some of the facts have *248been stipulated and are so found. The stipulation of facts and the accompanying exhibits are incorporated by this reference. Petitioners resided in San Diego, California, at the time they filed the petition.

RMI

Renee M. Milton (petitioner) was the president and sole shareholder of RMI, a real estate business, during 2005. Petitioner, a real estate professional, entered into real estate purchasing and selling agreements for RMI's clients.

KM Welding Transaction

Petitioner's handyman approached her in 2004 about a business opportunity involving his son, Donald Purscelley (Mr. Purscelley), who worked as a welder for Kearney Mesa Welding (KM Welding). Salvatore Peluso, the owner of KM Welding, was considering retirement, and Mr. Purscelley expressed an interest in purchasing the business. Mr. Purscelley lacked any funds to purchase KM Welding on his own, so his father asked petitioner if she would be interested in participating in Mr. Purscelley's purchase of the business. Petitioner was interested but only to obtain the right of first refusal to purchase the leased property on which KM Welding operated its business.

Mr. Purscelley and his father negotiated the price for KM Welding with Mr. *249Peluso, and the deal was consummated with a handshake. Petitioner was aware that neither Mr. Purscelley nor his father would be able to contribute money towards the purchase price. Petitioner gave Mr. Purscelley's father a check payable to Mr. Peluso for $ 90,000 and instructed the father to purchase KM Welding. She used money she had earned from RMI that she had in her savings account.

Petitioner's purchase check, dated February 17, 2004, is the only document memorializing the transaction. The only documentation of the transaction petitioner received was a KM Welding sticker for her car. Petitioner "knew that * * * [the Purscelleys] would let * * * [her] have * * * [the] first right to buy [the] land" so she did not need any documentation. Petitioner's name, however, was not on the lease for the property, nor was petitioner's "right" ever put in writing.

Operation of KM Welding

Petitioner discussed forming a business entity with Mr. Purscelley and his father to purchase KM Welding. Ownership of the business was to be divided into thirds among petitioner, Mr. Purscelley, and his father. Mr. Purscelley initially created an LLC, but he dissolved it in 2005 because of administrative difficulties. *250Mr. Purscelley operated KM Welding as a sole proprietorship during 2005.

Mr. Purscelley made no distributions in 2004 or 2005, nor did he believe he was obligated to share the profits with petitioner or his father. Furthermore, petitioner expected to receive only the lease and, potentially, some of the profits once the business was sold.

RMI's Purported Abandonment of its Partnership Interest

Petitioner became concerned in 2005 that KM Welding was not completing projects or paying its bills. She was worried that her involvement with KM Welding would ruin her reputation and potentially affect the financial health of RMI. Neither petitioner nor RMI was obligated to pay anything additional to KM Welding or its creditors. In fact, KM Welding is still operating at the same location today as in 2005.

Mr. Purscelley was unresponsive when petitioner questioned him about her ownership interest in KM Welding and requested Schedules K-1. Petitioner's CPA advised her at that time that it would be better to abandon the KM Welding partnership interest rather than to continue risking her reputation and her business, RMI. Petitioner did not inform her purported partners, however, that she was abandoning *251her interest in KM Welding. Petitioner also did not give public notice that she was no longer associated with KM Welding.

RMI claimed a $ 100,000 abandonment loss on its Form 1120S, U.S. Income Tax Return for an S Corporation, that passed through to petitioner as the sole shareholder in 2005. 3 The loss was identified as an abandonment of a partnership interest. RMI's balance sheet for 2005, however, does not list a partnership interest as of the beginning of the year for RMI.

Respondent issued a deficiency notice to petitioners disallowing the abandonment loss and adjusting petitioner's distributive share from RMI according

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Milton v. Comm'r, 2009 T.C. Memo. 246, 98 T.C.M. 386, 2009 Tax Ct. Memo LEXIS 247 (tax 2009).

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