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