1defense
Ruth Bader Ginsburg 360x1000
Edmund Burke 360x1000
Margaret Fuller1 360x1000
Anthony McCann1 360x1000
2paradise
1gucci
5confidencegames
George M Cohan and Lerarned Hand 360x1000
Brendan Beehan 360x1000
3confidencegames
2defense
2theleastofus
1falsewitness
Margaret Fuller 360x1000
3theleastofus
Gilgamesh 360x1000
1lookingforthegoodwar
9albion
AlexRosenberg
10abion
Margaret Fuller2 360x1000
2lookingforthegoodwar
James Gould Cozzens 360x1000
4albion
Storyparadox1
Stormy Daniels 360x1000
lifeinmiddlemarch1
2jesusandjohnwayne
1empireofpain
1madoff
Office of Chief Counsel 360x1000
Richard Posner 360x1000
Margaret Fuller4 360x1000
3albion
Mark V Holmes 360x1000
Adam Gopnik 360x1000
2trap
8albion'
11632
1jesusandjohnwayne
12albion
7confidencegames
Spottswood William Robinson 360x1000
lifeinmiddlemarch2
storyparadox2
2gucci
3defense
Margaret Fuller3 360x1000
11albion
Thomas Piketty1 360x1000
1lafayette
Margaret Fuller 2 360x1000
2falsewitness
1lauber
6confidencegames
1transcendentalist
Betty Friedan 360x1000
George F Wil...360x1000
Maria Popova 360x1000
3paradise
13albion
399
Anthony McCann2 360x1000
6albion
7albion
Samuel Johnson 360x1000
199
Susie King Taylor2 360x1000
Thomas Piketty2 360x1000
299
Margaret Fuller5 360x1000
1paradide
storyparadox3
Tad Friend 360x1000
1albion
Thomas Piketty3 360x1000
2confidencegames
1trap
Mary Ann Evans 360x1000
Maurice B Foley 360x1000
499
1confidencegames
Learned Hand 360x1000
2transadentilist
LillianFaderman
2albion
2lafayette
14albion
5albion
Susie King Taylor 360x1000
1theleasofus
Lafayette and Jefferson 360x1000
4confidencegames

Jack and Joan Trugman owned several pieces of rental real estate in Texas, Missouri and California in their S corporation (Santsu Corporation).  S corporations are generally not a really good vehicle for real estate.  An S corporation shareholder does not have basis in his share of the corporation’s liabilities.  So an S corporation that borrows to make distributions may create taxable gain for its shareholders.  That may have been what got the Trugmans into the pickle they found themselves in, but you cannot tell from just the case.  What their corporation did was acquire another piece of real estate that they used as their principal residence.  They then claimed the $8,000 homebuyer’s credit.

The IRS disallowed the credit and the Tax Court agreed:

Petitioners are individuals, they are the shareholders of Sanstu, and they reside in the property. They are the only persons who may claim the tax credit. They are not entitled to the tax credit, however, because they did not purchase the property. Sanstu purchased the property. Sanstu is not entitled to the tax credit because it is not an individual under section 36.

The Trugmans argued that someone at the IRS advised them that, they would be able to take the credit under these circumstances.  That did not do them any good:

Petitioners seek leniency by arguing that IRS representatives indicated that they could claim the tax credit if the property was purchased through the S corporation. It is unfortunate when a taxpayer receives inaccurate information. We have recognized, however, that incorrect legal advice from an IRS employee does not have the force of law and cannot bind the Commissioner or this Court.

Mr. Tugman is a “certified business consultant” and registered professional engineer.  He and his wife were pro se, which is understandable given the low stakes.  It might have been worth a few bucks for him to run his idea about having an S corporation buy the residence by a tax professional before he did it.  It is not just a matter of missing the credit.  If the residence appreciates, I don’t see them getting the gain exclusion either, although I have not looked deeply into that aspect of it.  You can’t tell from the case what they were gaining by using the corporation.  Hopefully, it was worth it.

This decision illustrates one of Reilly’s laws of tax planning. “It is what it is. Deal with it.” The principle is that if you are making a tax planning decision because you think it “makes sense” or “seems fair”, you are not leaning on strong supports. Whenever I explain something to a staff member and they respond with “Oh. That makes sense.” My reply is always “That is not a requirement.”   S corporations, partnerships, trusts and limited liability companies will often flow tax results to owners.  The entities can also, however, exist as “taxpayers” separate from the owners to a greater or lesser extent.  Frankly, it often does not seem to make much sense, but that is not a requirement.

You can follow me on twitter @peterreillycpa.

Originally published on Forbes.com on May 31st, 2012