Tax Return Preparer Penalties

A recent District Court decision was reported dealing with Tax Return Preparer Penalties.  J. Frank Best, Tax Controversy CPA/U. S. Tax Court Litigator with locations in North Myrtle Beach and Myrtle Beach, SC & Raleigh and Wilmington, NC works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for clients. J. Frank Best is rated in the Top 5 Tax Controversy CPA Profiles/Linkedin.

Tax Return Preparer Penalties

In Taylor v. Comm’r, 2018 PTC 236 (9th Cir. 2018), the Ninth Circuit affirmed a district court’s dismissal for lack of jurisdiction of an action by a tax return preparer seeking an abatement of Tax Return Preparer Penalties after rejecting the taxpayer’s argument that an exception in Code Sec. 6694(c) relieved him of his obligation to pay the penalties in full before bringing a refund suit in the district court. The court noted that, while Code Sec. 6694(c) confers district court jurisdiction when a tax return preparer has paid at least 15 percent of a penalty if the refund action is begun within 30 days after the earlier of the IRS’s denial of the refund claim or the expiration of six months after the day on which the refund claim is filed, the taxpayer did not file within those time limits and thus was not eligible to bring suit in the district court for Tax Return Preparer Penalties.


Entertainment Company Was a Trade or Business, but Failed to Substantiate Expenses

The Tax Court held that an entertainment company that signed artists and produced, promoted and distributed their work was engaged in a trade or business for profit because, although the company never earned a profit during the years at issue, the owner had prior business successes in the music industry, ran the company in a businesslike manner, and devoted significant capital to make it a profitable business. However, the owner’s losses from the business were denied because the court found that the company’s bank statements, which were the only evidence of the expenses produced by the owner, were insufficient to establish the amounts and business purpose of the expenses. Barker v. Comm’r, T.C. Memo 2018-67.

Cecile Barker is an experienced aerospace engineer with a background in music. In the mid-1960s he formed the group Peaches & Herb, which achieved considerable commercial success, and in 1973 he co-produced a song by Gladys Knight & the Pips. Barker left the music business and formed an aerospace engineering company in the 1970s. In 2001, he sold that company and decided to reenter the music business.

Barker formed SoBe Entertainment International LLC in 2002. He contributed all of SoBe’s capital and owned 95 percent of its profits and losses. His son, Yannique, and daughter, Angelique, split the other five percent. SoBe is an independent entertainment company that signs artists and celebrities, produces music and videos, and promotes its artists and distributes their work. As SoBe’s chief executive officer (CEO) and managing member, Barker devoted 40 to 60 hours per week to the business. He consulted music industry professionals before forming SoBe, and hired several high profile producers to bolster SoBe’s chances of success. SoBe employed a marketing professional and, at one time, chief financial officer (CFO). In total, SoBe had eight employees and regularly hired independent contractors.

Yannique Barker was one of SoBe’s signed artists. SoBe had several artist contracts and renewed at least one. SoBe also contracted with producers and writers to work with its artists. SoBe also entered into a distribution agreement with Universal Music to distribute music digitally. SoBe advertised online and through its websites in addition to placing ads in print magazines. SoBe was also a member of the trade organization Record Industry Association of America.

Barker saw stars like Adele and Taylor Swift as examples of how one artist could make his company profitable. Although none of his artists had achieved such a level of success, they had each contributed to the catalog of songs that SoBe owned. SoBe’s catalog had value in March 2016 and it placed a song in a TV show on ABC.

SoBe was founded at a time of major change to the music industry, as online platforms made it possible to buy or sell music at low cost or share it for free. SoBe cut costs as a result of the effects of these platforms, reducing its employees from 17 to 8, and moving its recording studio to a less expensive location. SoBe had never earned a profit and its cumulative losses increased from year to year.

SoBe employed John McQuagge as its CFO and controller from 2006 through 2010. McQuagge used Quickbooks software to produce SoBe’s general ledger and journals. SoBe had two separate bank accounts, one used as a primary operating account and the other used for payroll. McQuagge balanced the accounts against monthly bank statements. While SoBe kept records of the checks it used to pay its expenses from 2006-2010, other expenses recorded in SoBe’s general ledger were paid by credit card or cash, for which no documentation existed other than bank statements.

SoBe had two outside accounting firms prepare its tax returns for 2003-2011. SoBe provided its accountants with all of its Quickbooks records. Accountant Stanley Foodman prepared SoBe’s returns for 2006-2009. Foodman also prepared Barker’s personal income tax returns for 2005-2011. Foodman calculated Barker’s net operating losses (NOLs) and total capital contributions to SoBe for 2002-2011 and listed each of his individual capital contributions to SoBe in 2006-2009. Foodman determined that Barker made over $45 million in capital contributions to SoBe from 2002-2011. This calculation was based on the Schedules K-1, Partner’s Share of Income, Deductions, Credits, etc. from SoBe, supplemented by SoBe’s general ledger and bank statements.

Barker reported income from sources other than SoBe, mostly capital gains, interest and dividends. His 2011 income came mostly from Mistral, a defense contractor Barker helped found. Foodman calculated Barker’s income or loss after taking into account Barker’s interest and dividend income, net capital gains and losses, and share of gain or loss reported on the Schedules K-1 from SoBe and other businesses in which he held an interest.

Barker was the victim of identity theft when someone filed a tax return for 2011 using his social security number. Barker eventually filed his 2011 Form 1040 in August 2016. His return showed a loss from SoBe of over $800,000 and an NOL carryover of $19.6 million for 2011. The IRS issued a notice of deficiency in June 2014, determining various adjustments to Barker’s income and deductions. The notice showed that Barker owed approximately $1.2 million in tax for 2011 and that a 25 percent addition to tax applied for Barker’s failure to file his return on time. Barker challenged the notice in the Tax Court.

The IRS asserted that SoBe did not incur any operating losses (and thus, no losses flowed through to Barker) because SoBe was a hobby rather than a trade or business. In the IRS’s view, Barker lacked the actual and honest objective of making a profit. The IRS also argued that Barker could not substantiate the expenses giving rise to SoBe’s operating losses. Barkley contended that SoBe was run as a business from its formation and that making a profit was always its primary objective. He also challenged the addition to tax by arguing that his late filing was due to the identity theft.

The Tax Court held that, under the facts and circumstances, Barker operated SoBe as a trade or business with the actual and honest objective of making a profit. The Tax Court found that Barker had prior business successes in the music industry and had run successful defense contracting businesses, having helped to turn one of them around after several years without a profit. In the court’s view, Barker leveraged his experience and contacts in the music industry as he prepared for SoBe’s formation. He also ran SoBe in a businesslike manner, working there full time and devoting significant capital to it.

Although SoBe had never been profitable, the court found that it had positioned itself to make a profit by amassing a catalog of songs that it had been able to monetize. The court also took into account the turmoil in the music industry and the difficulties faced by artists and producers during the years at issue. The fact that Barker’s son, Yannique, was a SoBe artist did not mean that SoBe was merely a vehicle to fund Yannique’s musical aspirations, according to the Tax Court, because SoBe had other artists and did not devote most of its resources to Yannique. Nor did the fact that Barker enjoyed the creative aspects of the music industry, and had income from other sources. prevent SoBe from being engaged in a trade or business, given the other factors indicating a profit motive.

Although SoBe was engaged in a trade or business for profit, the Tax Court found that Barker failed to provide evidence on which the Tax Court could determine or even estimate the amount of SoBe’s business expenses for all prior years of its operation. The court found that the only documentation to support SoBe’s business expense deductions for previous years were SoBe’s bank statements. Those statements, in the court’s view, did not document the amounts of SoBe’s expenses paid by cash or credit card, nor did they describe the business purpose of the expenditures. The court found that Barker had produced SoBe’s general ledger only for 2005-2009 and that his testimony was insufficient to fill in the gaps. The Tax Court reasoned that Barker had access to additional documentation, including SoBe’s general ledger for all years of its existence, but failed to produce it; therefore the court presumed that such documentation would be unfavorable to Barker.

The Tax Court also held that Barker failed to provide enough evidence for it to determine his NOL deduction for 2011. Barker failed to substantiate SoBe’s income and business expenses for all prior years and, in turn, the amount of losses for which he claimed a deduction for 2011. If the court could not estimate the amount of SoBe’s operating losses, it could not know how much flowed through to Barker. Moreover, even if Barker had substantiated SoBe’s expenses, the court could not determine how much of those losses were absorbed by Barker’s other income in the years before 2011, because Barker did not produce his returns for 2002-2004 and those that he produced for later years were missing crucial information.

The Tax Court also upheld the penalty assessment after rejecting Barker’s argument that his identity theft issue excused his failure to file his 2011 return on time. The court reasoned that Barker was a sophisticated businessman who should have known that he was required to file his return, and that his accountants and return preparers could have made inquiries.

United States Tax Court Decision for the Week-Trust Fund Recovery Penalty & IRS Abuse of Discretion

A recent Tax Court decision was reported dealing with Trust Fund Recovery Penalty and IRS Abuse of Discretion.  J.  Frank Best, Certified Public Accountant and United States Tax Court Litigator in Raleigh, Wilmington, NC & North Myrtle Beach and Myrtle Beach, SC works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.  

Hearing Officer Not Required to Substantively Analyze Supervisor’s Approval of Trust Fund Recovery Penalty. No IRS Abuse of Discretion.

The Tax Court held that there was no abuse of discretion by a settlement officer (SO) in a collections due process hearing where the SO determined that a computer-generated IRS record showing a supervisor’s printed name but not the supervisor’s signature was sufficient evidence of IRS supervisory approval. The Tax Court found that the SO was not required to analyze the thought process of the approving supervisor but only to verify that the supervisor approved in writing the initial determination of the penalty. Blackburn v. Comm’r, 150 T.C. No. 9 (2018).

Beginning in 2000, Emergency Response Training, Inc. (ERT) fell behind on its employment tax liabilities. Specifically, ERT failed to file a number of Forms 941, Employer’s Quarterly Federal Tax Return, or satisfy numerous self-reported employment tax liabilities during 2000 through 2011.

In 2012, Scott Blackburn and another individual were determined by the IRS to be responsible persons and an IRS revenue officer asserted trust fund recovery penalties (TFRPs) against them. At the time, Senior Revenue Officer Janet Reed was the manager of the officer who made the initial TFRP determination. Later in 2012, the revenue officer changed her determination regarding the second individual’s TFRP liability and submitted a request for supervisory approval to assert TFRP liabilities against Blackburn. A Form 4183, Recommendation re: Trust Fund Recovery Penalty Assessment, was generated showing Reed’s approval of the TFRP determination against Blackburn. The computer-generated Form 4183 did not contain Reed’s signature but showed her name in the supervisor signature block. In November 2012, the IRS assessed TFRP liabilities against Blackburn for the fourth quarter of 2003 and the fourth quarter of 2004. After a collections due process hearing, a settlement officer (SO) upheld the TFRP assessment.

Blackburn appealed the SO’s decision in the Tax Court. He did not contest his liability for the TFRP, but argued that the SO had failed to fulfill the requirement under Code Sec. 6330(c)(1) to verify that the IRS had fulfilled all of its legal and procedural requirements. Blackburn reasoned that under Code Sec. 6751(b)(1), the IRS may not assess a penalty unless an IRS supervisor has personally approved the determination in writing; supervisory approval is part of the IRS’s burden of production under Graev v. Comm’r, 149 T.C. No. 23 (2017). According to Blackburn, the SO’s verification responsibility required a meaningful review, including a factual analysis of the supervisor’s thought process, and he argued that by relying solely on the Form 4183 to verify that a supervisor approved the TFRP determination, the SO did not fulfill the Code Sec. 6330(c)(1) verification requirement. The IRS filed for summary judgment, arguing that Code Sec. 6751(b)(1) does not apply to a TFRP assessment and that even if it did, the Form 4183 fulfilled that requirement.

The Tax Court ruled in favor of the IRS, finding that the SO properly verified the assessment of the TFRP. The Tax Court held that Code Sec. 6330(c)(1) does not require an analysis of the thought process of the approving supervisor under Code Sec. 6751(b), but rather verification that the supervisor approved in writing the initial determination of the penalty. The Tax Court explained that, because it found no abuse of discretion regarding verification of compliance with Code Sec. 6751(b), it did not need to address the legal question of whether Code Sec. 6751(b) applies to the TFRP.

In the Tax Court’s view, Blackburn was arguing that the SO’s verification responsibility under Code Sec. 6330(c)(1) included making a determination of a meaningful approval of the merits of the liability. The Tax Court found no case law support for requiring a substantive review of the SO’s thought process. Rather, the court found that the SO’s review of the administrative steps taken before assessment is accepted as adequate under Code Sec. 6330 as long as there is supporting documentation in the administrative record. Imposing the requirement of a substantive review on the SO would, in the view of the Tax Court, allow the taxpayer to avoid the limitations of pursuing the underlying liability in a CDP hearing and apply a level of detail in the verification process that had never previously been required.

The Tax Court found that the treatment of Form 4340, Certificate of Assessment and Payments, as presumptive evidence that a tax was validly assessed was an apt parallel to the issue regarding Form 4183. Form 4340 is used to prove that an assessment has been made and is considered presumptive proof of a valid assessment. The Tax Court explained that the IRS may rely on Form 4340 where the taxpayer has not shown any irregularity in the assessment procedure that would raise a question about the validity of an assessment. An assessment requires a signature and is made by an IRS officer’s signing the summary record of assessments; the officer’s signature is not required on the Form 4340. In the court’s view, even though Form 4183 does not have an actual signature, in the context of a review for abuse of discretion, its mere existence in the administrative record supports the SO’s verification.

The Tax Court found that it had consistently held in prior decisions that reliance on standard administrative records was acceptable to verify assessments. The court reasoned that Form 4183 was similar to Form 4340, which had previously been found to be an IRS record that reflected compliance with administrative procedures. Form 4183, in the court’s view, provided a similar mechanism to demonstrate supervisory approval. The Tax Court concluded that, regardless of whether supervisory approval was required before the TFRP assessment, a record of such prior approval was present in this case.


United States Tax Court Decision for the Week – You be the Judge

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, as a litigator, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

Modified Child Support Order Didn’t Contradict Taxpayer’s Claim That He Was Custodial Parent

The United States Tax Court held that a taxpayer was entitled to take dependency exemptions, the earned income tax credit, and child tax credits for the year at issue. The court found that the IRS’s argument that the taxpayer wasn’t the custodial parent and wasn’t entitled to the exemptions and credits was entirely based on a child support order effective after the year at issue, and thus inapplicable. The court also determined that the taxpayer had reasonable cause for incorrectly claiming head of household filing status and thus was not liable for penalties assessed by the IRS. Tsehay v. Comm’r, T.C. Memo. 2016-200.


Yosef Tsehay, whose first language is not English, worked as a custodian at a community college in Washington. He and his wife were married in 2001 and over the years their relationship was “on-again, off-again.” During 2013, the two were married and living together with their five children in a public housing apartment. Tsehay’s wife was responsible for paying the rent on the public housing unit, and he paid for food and other expenses of his family. In 2014, the couple separated, and during 2015 they were undergoing divorce proceedings.

Although Tsehay paid a tax return preparer to prepare his return, Tsehay electronically filed the 2013 Form 1040A himself. On the return, he claimed: (1) dependency exemption deductions for four children; (2) the earned income tax credit (EITC) for three children; (3) the child tax credit (CTC) for four children; and (4) head of household filing status. He did not attach a Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or a statement conforming to the substance of a Form 8332, to his Form 1040A for tax year 2013.

Following an audit, the IRS disallowed Tsehay’s claimed dependency exemption deductions, earned income tax credit, and child tax credit for 2013. The IRS also changed his filing status from head of household to single and determined an accuracy-related penalty under Code Sec. 6662(a).


Under Code Sec. 151(c), an individual is allowed an exemption deduction for each “dependent,” which is generally defined as a qualifying relative or a qualifying child. In addition, taxpayers are entitled to claim the EITC under Code Sec. 32 and the CTC under Code Sec. 24 for qualifying children. Under Code Sec. 152(c), to be a qualifying child of the taxpayer, the child must have had the same principle place of above as the taxpayer for more than one-half of the tax year.

Under Code Sec. 2(b), a taxpayer can file as a head of household if the taxpayer is unmarried, has paid more than half the cost of keeping up a home for the year, and a qualifying person has lived with the taxpayer for more than half the year.

The Tax Court noted that the IRS’s determinations stemmed from its records showing that Tsehay was not the custodial parent of his minor children and from his failure to attach a copy of Form 8332 or its equivalent to his return. The IRS provided a copy of a child support order to establish that Tsehay was in fact a “noncustodial parent.” However, the court stated, the child support order was entered August 3, 2015, and thus did not apply for the year at issue. The court determined Tsehay had sufficiently established that he and his wife were married during 2013, and thus a Form 8332 to claim dependency exemptions was not required.

The court noted the children claimed on Tsehay’s return as dependents had the same principal place of abode as he did for more than one-half of the year at issue and were his qualifying chidlren, and determined that he was entitled to the dependency exemption deductions claimed on his 2013 return. In addition, because he had “three or more” qualifying children for tax year 2013, the court determined he was entitled to the earned income credit and to child tax credits and the additional child tax credits claimed.

With regard to his filing status, Tsehay explained to the court that because he and his wife had separated by the time he was ready to file his 2013 tax return, he had asked his preparer to file for him as “married filing separately.” The court noted that the preparer erroneously filed his return as “head of household.” Because Tsehay was married for 2013, the court stated he could not qualify for head of household filing status, and noted he also was not eligible to file as single as claimed by the IRS. Instead, the court said, his correct filing status for 2013 was in fact married filing separately.

With regard to the accuracy related penalty, the court observed that Tsehay had a language barrier, sought and relied on professional advice, and was separated from his wife when he filed his return. Under those circumstances, the court stated, Tsehay had reasonable cause and acted in good faith in filing his returns, and declined to impose penalties.

United States Tax Court Decision for the Week – You be the Judge

Unsubstantiated Business Deductions Denied; Penalties Upheld

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

The United State Tax Court, upholding accuracy-related penalties, sustained the IRS’s disallowance of an individual’s deductions for unsubstantiated employee business expenses for his work with a publishing company but allowed the individual to deduct mileage expenses for traveling to county courthouses around the state to build his law practice.
T.C. Memo. 2016-189