Originally published on Forbes.com.
Nothing like a heart warming Tax Court decision for Christmas. Judge Kathleen Kerrigan was a toddler, when United States Marine Bill Lewis went off to Vietnam. Apparently her probably dim memories of that long ago time did not prevent her from following one of the principles that I think the Tax Court should be guided by. That would be to always give disabled veterans an extra break if at all possible.
Petitioner husband is a retired Vietnam veteran. During his service in the Marine Corps he sustained injuries that left his right arm 50% disabled and his feet 30% disabled, requiring him to wear orthopedic shoes. The Department of Veterans Affairs determined that petitioner husband is 60% disabled, and he receives monthly veterans disability assistance. He also needs knee replacement surgery and has difficulty seeing. During 2010 he was 63 years old. Petitioner wife was employed at Provident Credit Union during the years in issue.
Mr. Lewis and his wife were, without an attorney, litigating deficiencies totaling just over $10,000 for 2010 and 2011. The issue was real estate professional, which crops up in a lot of Tax Court decisions, most of which the taxpayers lose.
The Rules
The rules go back to the Tax Reform Act of 1986, which gave us, in Code Section 469, the oxymoronic concept of “passive activities” . The passive activity rules more of less killed traditional tax shelters. Losses from trades or businesses, in which one does not materially participate, are suspended and can only be used to the extent that there is income from passive activities or when the activity is entirely disposed of. Rental activity is considered “per se” passive regardless of material participation. A few years later that rule was modified so that people in real property trades of businesses were exempted from the “per se” rule. Requirement for that exception was 750 hours in real estate trades and more time in real estate trades than in anything else.
For some reason or other, the IRS has been zealous in challenging real estate professional status claims. Generally the Tax Court backs them up. The Court tends to scorn “ballpark guestimates” of time spent and often finds detailed logs to lack credibility. Essentially anyone who has a full time day job outside of real estate who claims to spend more time on their real estate than their day job will end up hearing “Liar, liar. Pants on fire.” from the IRS with the Tax Court backing the IRS.
A Hard Working Landlord
In the case of Mr. Lewis, the day job was not an issue. He is retired and his landlord activities are his sole trade or business activities. He has a triplex, which he and his wife lives next door to. He handles all the routine maintenance and tenant relations. So if I was the agent, I would look at that situation, combined with the unwritten disabled veteran gets a break rule and move on to fight tax crime elsewhere. Instead, apparently the lack of detailed logs was held against him. Although the IRS conceded material participation, there was doubt that it was reasonable that Mr. Lewis spent 750 hours taking care of the property, perhaps forgetting that he has a bad arm, bad feet, a bad knee and has a hard time seeing. On top of that, the property has some challenges.
Petitioners own a triplex apartment that is next door to their residence. The property has a washhouse. In the back there are six 64-gallon recycling bins and also several large walnut trees. The fact that the property is on a route to a nearby recycling center results in greater frequency of the homeless population passing by, going through the garbage, and sleeping on the property.
Petitioner husband performed the same weekly routine during each of the years in issue without ever taking a vacation. Each morning he would walk around and inspect the grounds for trash left behind by the homeless population. On Mondays he would clean the washhouse. On Tuesdays and Fridays he would landscape and clean the outside of the buildings, the garbage cans, and the front yard. Depending on the season, this chore would also require him to rake fallen leaves from the several walnut trees and sweep the fallen walnuts and shells left behind by squirrels. On Wednesdays he would take all of the recycling bins one by one to the curb. On Thursdays he would retrieve the recycling bins, one by one, that he placed at the curb the night before.
Then there was the evicted tenant who had smoked heavily leaving badly stained walls that needed cleaning. Being a landlord is one GD thing after another.
Judge Kerrigan Comes Through
While noting the absence of logs, Judge Kerrigan indicated that the testimony of the couple was quite credible and allowed for the fact that Mr. Lewis’s disabilities would cause him to take more time with many of the tasks. Judge Kerrigan did her own “ballpark guestimate” of the weekly routine activities and arrived at 650 hours. She of course did not call it a “ballpark guestimate”, which is the kiss of death in a 469 case. The one GD thing after another of non-routine repairs and trouble with tenants easily adds another two hours a week.
We find that petitioner husband spent 650 hours per year on routine maintenance alone. Adding in 36 hours each year for the 3 hours each month that petitioner husband spent depositing the rent checks (3 hours x 12 months § 36 hours per year) and the additional hours spent on repair facilitation, tenant correspondence, and the other tasks reflected in the record, it is clear that petitioner husband easily spent more than the required 750 hours performing services each year. Therefore, petitioner husband materially participated and petitioners’ rental activity for the years in issue was not passive for the purpose of section 469(c)(1)(B).
And a Merry Christmas to all and to all a good night.
Note
I’ve fallen behind on my review of cases, but can thank Lew Taishoff for kindly stuffing this in my e-mail stocking. Merry Christmas or whatever seasonal holiday you prefer to all my readers, followers, commenters and those I have written about. I would like to express a sincere wish that Kent Hovind is spending his last Christmas separated from his family.
Joyful as the holiday season can be, it can also be quite stressful. If you are feeling some stress, you might want to think about the Christmas celebration seventy years ago that is portrayed in this clip and that whatever your issues they likely do not include being surrounded by German tanks.