Thomas Piketty2 360x1000
Margaret Fuller2 360x1000
Thomas Piketty1 360x1000
1lookingforthegoodwar
Mark V Holmes 360x1000
2trap
1jesusandjohnwayne
AlexRosenberg
2gucci
storyparadox3
Brendan Beehan 360x1000
4confidencegames
2defense
Margaret Fuller5 360x1000
1falsewitness
LillianFaderman
Edmund Burke 360x1000
George F Wil...360x1000
2lookingforthegoodwar
Thomas Piketty3 360x1000
1defense
Ruth Bader Ginsburg 360x1000
Storyparadox1
2falsewitness
299
2albion
2jesusandjohnwayne
Lafayette and Jefferson 360x1000
1confidencegames
Tad Friend 360x1000
1empireofpain
3paradise
10abion
1paradide
Mary Ann Evans 360x1000
Learned Hand 360x1000
Margaret Fuller 360x1000
4albion
Anthony McCann2 360x1000
12albion
399
3defense
8albion'
1madoff
Susie King Taylor 360x1000
5albion
13albion
Susie King Taylor2 360x1000
1gucci
lifeinmiddlemarch1
1trap
6albion
Richard Posner 360x1000
Spottswood William Robinson 360x1000
Margaret Fuller1 360x1000
Anthony McCann1 360x1000
Gilgamesh 360x1000
Adam Gopnik 360x1000
1albion
2paradise
Samuel Johnson 360x1000
1theleasofus
2transadentilist
14albion
9albion
2confidencegames
Stormy Daniels 360x1000
1lafayette
storyparadox2
3albion
2theleastofus
lifeinmiddlemarch2
Margaret Fuller 2 360x1000
2lafayette
Maria Popova 360x1000
6confidencegames
11632
1transcendentalist
Margaret Fuller3 360x1000
7confidencegames
5confidencegames
499
Maurice B Foley 360x1000
George M Cohan and Lerarned Hand 360x1000
7albion
11albion
199
3theleastofus
Betty Friedan 360x1000
Margaret Fuller4 360x1000
3confidencegames
1lauber
Office of Chief Counsel 360x1000
James Gould Cozzens 360x1000
Originally published on Forbes.com on June 23rd, 2012

If you have a money-losing side activity, you might consider the tax savings as easing the pain a little bit.  According to some of the Amway critics, like Anna Banana, Amway IBO’s are encouraged to view income tax refunds as income from their activity.  You should also be aware that if you have persistent losses, there is a decent chance that the IRS will challenge your losses.  There are a number of avenues where you will be attacked including substantiation, Section 183 (hobby loss rules), and the passive activity loss rules.  Taxpayers and the IRS have mixed results in these cases.  Horse breeders frequently win.  Amway people almost always lose.  Win or lose, though, it is just about the taxes and interest and penalties.  Until you get to a case like that of Benjamin O. Agbaniyaka, whose loss in Tax Court in 2007 concerned, inter alia, his African arts and crafts sideline.  Mr. Agbaniyaka’s loss in Tax Court prompted his employer to fire him.  The Appeals Court for the Federal Circuit upheld the decision.

How do you lose your day job over an audit of your tax reporting of a side job? Mr. Agbainyaka worked for the IRS as a Revenue Agent. The IRS Restructuring and Reform Act of 1998 mandates termination of any IRS employee found to have willfully understated his federal tax liability, unless such understatement is due to reasonable cause and not willful neglect. The agency determined that Mr. Agbaniyaka had willfully understated his tax obligation for the four-year period and, in the alternative, found that he had violated the agency’s code of ethics.  He sought arbitration under the collective bargaining agreement with the National Treasury Employees Union.  The arbitrator ruled:

Given the Grievant’s experience and expertise, he was undoubtedly aware that he had to substantiate his efforts to conduct a business in 2001 and beyond. Being an experienced and knowledgeable Agency employee, he had to have been aware that he could not substantiate his alleged business activities. By claiming deductions on Schedule C, he knowingly and willfully submitted tax filing to which he was not entitled.

He appealed to the Merit Systems Protection Board, which agreed with the arbitrator.  The Circuit Court decision pretty much focuses on what I call “lawyerly” stuff about procedures and burden of proof and the like.  Ultimately they upheld the MSPB decision.  I am of two minds about this decision overall.  On the one hand, I think it is reasonable to hold IRS employees, particularly revenue agents, to a high standard with respect to their own tax compliance.  On the other hand, I think the result is on the harsh side.  The total deficiency for four years was only around $10,000.  It was conceivable that the Tax Court could have believed Mr. Agbaniyaka’s sincerity, in which case some of the deductions might have been allowed under the Cohan rule.  Under the statute, the alternative to having him fired, was for the IRS Commissioner to craft some other sanction.  Maybe they could have just made him work Amway cases for a couple of years.  That would have been punishment enough.

You can follow me on twitter @peterreillycpa.