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https://www.courtlistener.com/api/rest/v3/opinions/4624487/ | PETE C. VALENTI and PEGGY R. VALENTI, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, RespondentValenti v. CommissionerDocket No. 12836-92United States Tax CourtT.C. Memo 1994-483; 1994 Tax Ct. Memo LEXIS 491; 68 T.C.M. (CCH) 838; October 4, 1994, Filed *491 Decision will be entered for respondent. For petitioners: Paul R. Roper. For respondent: Guy H. Glaser. RAUMRAUMMEMORANDUM OPINION RAUM, Judge: The Commissioner determined income tax deficiencies of $ 43,175 and $ 12,404 for petitioners' 1988 and 1989 taxable years. At issue is whether petitioners were entitled to deduct wagering losses in excess of wagering gains for each of those tax years, pursuant to section 1621 or were instead prohibited from deducting such amounts by reason of section 165(d). The facts have been stipulated. All references to petitioner in the singular are to petitioner Pete C. Valenti. Petitioners are husband and wife. At the time they filed their petition, they resided in Arcadia, California.The parties have stipulated that "In tax years 1988 and 1989, petitioner was engaged in the trade or business of wagering on horse races." For both years, petitioners included*492 as part of their joint Federal income tax return (Form 1040) an attached Schedule C (entitled "Profit or Loss From Business"), in which they reported petitioner's profit or loss from gambling activities, which consisted of wagering on horse races. The Schedule C for 1988 for wagering activities reported gross receipts of $ 151,644 and expenses of $ 305,862, resulting in a $ 154,198 net loss from wagering. The Schedule C for 1989 for wagering activities reported gross receipts of $ 120,640 and expenses of $ 164,940, resulting in a $ 44,300 net loss from wagering activities. Petitioners deducted the foregoing Schedule C net wagering losses in full against their other taxable income on their respective Forms 1040 for 1988 and 1989. In disallowing these deductions, the Commissioner's notice of deficiency stated "Your deduction for gambling losses cannot exceed the amount of your gambling winnings." 2 Petitioners maintain that, pursuant to section 162(a), the net wagering losses represented a deductible trade or business expense. On the other hand, the Commissioner argues that the deduction of net wagering losses was precluded by section 165(d), which specifically prohibits taxpayers*493 from deducting wagering losses, except to the extent of their wagering gains. Petitioners also contend that the wagering loss limitations in section 165(d) as applied to those engaged in the trade or business of gambling are unconstitutional as violative of equal protection. We hold against petitioners on both statutory and constitutional grounds. 1. Application of Section 165(d) to Net Wagering Losses Incurred as Part of a Trade or BusinessPursuant to section 162(a), taxpayers are generally permitted to deduct "all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business". In contrast, section 165(d) provides that "Losses from wagering transactions shall be allowed only to the extent of the gains from such transactions." Since petitioner's horse wagering is both a "trade or business" and a "gambling" activity, both sections 162(a) and 165(d) must be considered together. *494 At issue is which of those provisions is controlling in determining the deductibility of net gambling losses -- that is, gambling losses in excess of gambling gains -- incurred by a taxpayer engaged in the trade or business of wagering on horses, or to put the matter differently, whether section 165(d) operates as a limitation on section 162(a). To resolve the apparent "conflict" between sections 162(a) and 165(d) in regard to wagering as a trade or business, courts have looked to the rule "that a specific statute controls over a general one". Bulova Watch Co. v. United States, 365 U.S. 753">365 U.S. 753, 758 (1961); Nitzberg v. Commissioner, 580 F.2d 357">580 F.2d 357, 358 (9th Cir. 1978); 3United States v. Bates, 429 F.2d 557">429 F.2d 557, 559 (9th Cir. 1970); Skeeles v. United States, 118 Ct. Cl. 362">118 Ct. Cl. 362, 373, 95 F. Supp. 242">95 F. Supp. 242, 247 (1951). And in all of the cited cases involving sections 162(a) and 165(d), the latter provision has been viewed as the more "specific statute". As explained in Nitzberg v. Commissioner, supra at 358: The losses here*495 are described * * * under both sections [i.e., sections 162(a) and 165(d)] of the code, and the question is -- which section applies? * * * section 162(a) deals with a wide variety of businesses while * * * section 165(d) deals specifically with gambling losses. * * *Thus, it has been held both by this Court and various courts of appeals that wagering losses cannot be deducted, except to the extent of the taxpayer's gains from wagering activities, and it has been so held even where such activities were conducted as a trade or business as opposed to a hobby. Boyd v. United States, 762 F.2d 1369">762 F.2d 1369 (9th Cir. 1985); Estate of Todisco v. Commissioner, 757 F.2d 1">757 F.2d 1, 6-7 (1st Cir. 1985), affg. T.C. Memo. 1983-247, but remanding for factual recomputation; Nitzberg v. Commissioner, supra; Skeeles v. United States, supra; Offutt v. Commissioner, 16 T.C. 1214">16 T.C. 1214 (1951); Kozma v. Commissioner, T.C. Memo. 1986-177; Ward v. Commissioner, T.C. Memo. 1986-237.*496 Petitioners attempt to overcome this well-established line of cases on a variety of theories. For example, petitioners argue that section 162(a) is the more specific statutory provision and section 165(d) the more general provision. Their theory is that section 165(d) applies to gambling losses generally, whereas section 162(a) applies more specifically to losses incurred from gambling as a business*497 activity. The argument, while admittedly creative, is without merit. Section 162(a) is not limited to gambling losses, but instead applies to all trade or business expenses, of which gambling is only one possible type. In sharp contrast, section 165(d) is, by its very terms, limited to losses from gambling transactions. Moreover, the provisions in section 165(d) first appeared in our revenue law as section 23(g) of the Revenue Act of 1934, ch. 277, tit. I, 48 Stat. 689. 4 At that time the familiar deduction now in section 162(a) for the "ordinary and necessary expenses * * * in carrying on any trade or business" then in section 23(a) of the Revenue Act of 1934, supra, merely carried over in identical language the same deduction that had already appeared in section 23(a) of the Revenue Acts of 1932 and 1928, as well as in section 214(a) of the Revenue Acts of 1926, 1924, 1921, and 1918.5 Plainly, the enactment of section 23(g) of the Revenue Act of 1934, supra, was intended as a limitation upon the then long standing familiar deduction (now in section 162(a)) for "the ordinary and necessary expenses paid or incurred * * * in carrying on any trade or business". *498 To contend otherwise is to belabor a clearly erroneous point. Nevertheless, petitioners undertake to do so by reliance on the Supreme Court's opinion in Commissioner v. Groetzinger, 480 U.S. 23">480 U.S. 23 (1987). Petitioners state their position as follows: Respondent seeks to extend the restrictions of section 165(d) to gambling activities undertaken as a trade or business. However, at the time of the enactment of section 165(d)*499 and its [statutory] predecessor, gambling had not been recognized as a trade or business. This recognition did not occur until the [U.S. Supreme Court's] decision in Commissioner of Internal Revenue v. Groetzinger, supra, in 1987. Thus, clearly at the time Congress enacted section 165(d) and its predecessor, it was looking only toward casual gambling activities as being within the ambit of that code section. 6 [Pet. Opening Brief at p. 4]*500 Accordingly, petitioners reason, since petitioner's gambling activities were not of a merely casual nature but were instead conducted as a trade or business activity, first recognized as such in 1987 in Groetzinger, they were not limited by section 165(d) but were instead properly deductible in full as trade or business expenses under section 162(a). This argument is flawed for a number of reasons. First, it ignores the fact that long prior to Groetzinger, a considerable number of cases had recognized that individuals could be engaged in the trade or business of gambling. See, e.g., Boyd v. United States, supra; Nitzberg v. Commissioner, supra; Gajewski v. Commissioner, 84 T.C. 980">84 T.C. 980 (1985); Ditunno v. Commissioner, 80 T.C. 362 (1983); Offutt v. Commissioner, supra.Second, petitioners' discussion of Groetzinger ignores the fact that Groetzinger did not at any point consider the interplay between sections 162(a) and 165(d) (or its statutory forerunners), because the restriction in section 165(d) was*501 not at issue in that case. The issue in Groetzinger was whether a full-time gambler, who made wagers solely on his own account, was engaged in a trade or business under section 162for purposes of treating his gambling losses as a tax preference item under the minimum tax scheme governed by sections 55 and 56. Petitioners have also relied on Bathalter v. Commissioner, T.C. Memo 1987-530">T.C. Memo. 1987-530, 54 T.C.M. (CCH) 902">54 T.C.M. 902, a case which involved the same issue as Groetzinger, but which similarly does not support them. Indeed, a dictum in Balthalter ironically undermines petitioners' position: If petitioner had had a loss in his gambling business, rather than the $ 2,725.11 gain the parties stipulated to * * * then section 165(d) would have served to prevent petitioner from using that loss to offset other income. Since petitioner did not have a loss in his gambling business, section 165(d) does not operate at all in the instant case. [Bathalter v. Commissioner, supra at 905; emphasis added.]We hold that petitioners' imaginative attempt to twist the plain meaning of the statutory provisions must fail. Section 165(d)*502 is controlling here. 2. Equal Protection Under the LawFinally, petitioners argue that the Commissioner's disallowance of the deduction for petitioner's net wagering losses violates their constitutional right to equal protection under the law. Like petitioners' other arguments, their equal protection claim is without merit. Petitioners' contention is in essence that, by applying the wagering loss restrictions of section 165(d) to petitioners and others engaged in the trade or business of gambling, the Commissioner treats such taxpayers differently than other taxpayers engaged in different trades or businesses. On brief, petitioners state that "equal protection * * * requires that those who are similarly situated must be treated in the same manner and prevents classifications which do not afford equal treatment to those in the same circumstance." (Pet. Opening Brief at p. 8) We reject petitioners' attempt to strike down the statute on the equal protection ground. Although there is an equal protection clause in the Fourteenth Amendment as a limitation on the powers of the States, there is no comparable clause explicitly applicable to legislation enacted by the United States. *503 However, the due process clause of the Fifth Amendment has been construed as imposing an equal protection requirement in respect of classification to the extent that "discrimination [resulting from such classification] may be so unjustifiable as to be violative of due process." Bolling v. Sharpe, 347 U.S. 497">347 U.S. 497, 499 (1954) (fn. ref. omitted). 7The wide scope of powers of the legislature*504 under the Fourteenth Amendment in the matter of classification was discussed at length by the Supreme Court in Carmichael v. Southern Coal Co., 301 U.S. 495">301 U.S. 495, 509-510 (1937): It is inherent in the exercise of the power to tax that a state be free to select the subjects of taxation and to grant exemptions. Neither due process nor equal protection imposes upon a state any rigid rule of equality of taxation. * * * This Court has repeatedly held that inequalities which result from a singling out of one particular class for taxation or exemption, infringe no constitutional limitation. * * * Like considerations govern exemptions from the operation of a tax imposed on the members of a class. A legislature is not bound to tax every member of a class or none. It may make distinctions of degree having a rational basis, and when subjected to judicial scrutiny they must be presumed to rest on that basis if there is any conceivable state of facts which would support it. * * * [Citations omitted; emphasis supplied.]And as to the matter of classification by Congress, Steward Machine Co. v. Davis, 301 U.S. 548">301 U.S. 548 (1937),*505 is particularly significant. There, the Supreme Court responded to a challenge to a Federal tax upon employers, where it was argued, among other grounds, that the statute was invalid because it didn't apply to employers of less than eight, to agricultural labor, to domestic service in a private home, as well as to various other classes. In holding the tax valid the Supreme Court stated at 584: The Fifth Amendment unlike the Fourteenth has no equal protection clause. * * * But even the states, though subject to such a clause, are not confined to a formula of rigid uniformity in framing measures of taxation. * * * They may tax some kinds of property at one rate, and others at another, and exempt others altogether. * * * They may lay an excise on the operations of a particular kind of business, and exempt some other kind of business closely akin thereto. * * * If this latitude of judgment is lawful for the states, it is lawful, a fortiori, in legislation by the Congress, which is subject to restraints less narrow and confining. * * * [Citations omitted; emphasis added.]There is certainly ample basis for singling out gambling for treatment different from that available*506 to other trades or business. The history of gambling was discussed at length in Skeeles v. United States, 118 Ct. Cl. 362">118 Ct. Cl. 362, 365-368, 95 F. Supp. 242">95 F. Supp. 242, 242-244 (1951), tracing it back millennia, as far back as the Talmud, which, the Court noted, "classes gambling winnings with thievery." The Court of Claims also recounted moral opposition to gambling by churches generally, and discussed anti-gambling legislation over the years. Further, we take judicial notice of the fact that although gambling has many defenders and sponsors, there is also widespread public opposition to professional gambling, and that there is at least some public perception that organized crime has infiltrated the business world of gambling. Plainly, a classification that differentiates the business of gambling from other business has "a rational basis, and when subjected to judicial scrutiny * * * [it] must be presumed to rest on that basis if there is any conceivable state of facts which would support it." Carmichael v. Southern Coal Co., supra at 509. The argument that section 165(d) violates equal protection as applied to those*507 engaged in the trade or business of gambling borders on the frivolous. We reject it without further discussion. Decision will be entered for respondent. Footnotes1. Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the years at issue.↩2. The terms "wagering" and "gambling" are hereinafter used interchangeably. ↩3. Although the Ninth Circuit's opinion involved a reversal of a Memorandum Opinion of this Court, the reversal has been explained as being occasioned by the major dispute there as to "whether the particular expenses were 'losses from wagering transactions' of that taxpayer." See Bathalter v. Commissioner, T.C. Memo. 1987-530, 54 T.C.M. (CCH) 902">54 T.C.M. 902, 905. Also, the opinion of the Court of Appeals has since been accepted in this Court as setting forth a correct analysis of the statutory provisions involved. Kozma v. Commissioner, T.C. Memo. 1986-177↩. 4. The provisions were redesignated section 23(h) in the Revenue Act of 1938, ch. 298, 52 Stat. 447, 461, and continued as such in the 1939 Code until they became the current section 165(d)↩ as enacted in the 1954 Code.5. Revenue Act of 1932, ch. 209, tit. I, 47 Stat. 169, 179 Revenue Act of 1928, ch. 852, tit. I, 45 Stat. 791, 799 Revenue Act of 1926, ch. 27, tit. II, 44 Stat. 9, 26 Revenue Act of 1924, ch. 234, tit. II, 43 Stat. 253, 269 Revenue Act of 1921, ch. 136, tit. II, 42 Stat. 227, 239 Revenue Act of 1918, ch. 18, tit. II, 40 Stat. 1057, 1066↩6. It is quite true that the provisions of section 165(d) when originally enacted as section 23(g) of the Revenue Act of 1934, ch. 277, tit. I, 48 Stat. 689, were intended to eliminate the distinction between those losses incurred in illegal and those in legal gambling and to clear up much of the confusion then existing in respect of losses of casual gamblers as well as of those who gambled extensively and claimed unsuccessfully that they were in a trade or business. See Skeeles v. United States, 118 Ct. Cl. 362">118 Ct. Cl. 362, 369-373, 95 F. Supp. 242">95 F. Supp. 242, 244-247 (1951). However, the fact remains that these new provisions did operate as a limitation upon deductions claimed as trade or business deductions now provided for in section 162(a)↩.7. In Brushaber v. Union Pac. R.R., 240 U.S. 1">240 U.S. 1 (1916), the Supreme Court dealt with a broad attack upon the constitutionality of the 1913 income tax statute enacted after the adoption of the Sixteenth Amendment. Included in the attack was the contention that the statute unconstitutionally discriminated in a considerable number of situations between various classes of taxpayers. Although the Court did not use the words "equal protection", it nevertheless held constitutionally valid the wide variety of differences challenged. Id.↩ at 21-25. | 01-04-2023 | 11-21-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4624489/ | THOMAS R. MANSFIELD, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, RespondentMansfield v. CommissionerDocket No. 15531-91United States Tax CourtT.C. Memo 1994-325; 1994 Tax Ct. Memo LEXIS 333; 68 T.C.M. (CCH) 102; July 18, 1994, Filed *333 Decision will be entered for respondent. For petitioner: William Randolph Klein. For respondent: James F. Kearney. CLAPPCLAPPMEMORANDUM FINDINGS OF FACT AND OPINION CLAPP, Judge: By statutory notice of deficiency, respondent determined that petitioner misappropriated $ 372,468 in 1983 from his employer, of which amount, $ 261,677 had been repaid. Respondent increased petitioner's 1983 taxable income by $ 110,791 ($ 372,468 - $ 261,677) and determined a deficiency in and additions to petitioner's 1983 tax as follows: Additions to TaxYearDeficiencySec. 6653(a)(1) Sec. 6653(a)(2) Sec. 6661 1983$ 47,406$ 2,370.301$ 11,851.50By amended answer respondent determined that only $ 75,454 of the misappropriated amount had been repaid in 1983 and, therefore, increased petitioner's income by an additional $ 186,223, and increased the deficiency in and additions to petitioner's 1983 tax as follows: Additions to TaxYearDeficiencySec. 6653(a)(1) Sec. 6653(a)(2) Sec. 6661 1983$ 93,112$ 4,655.701$ 23,278Thus, the*334 total deficiency in tax and additions to tax are: Additions to TaxDeficiencySec. 6653(a)(1) Sec. 6653(a)(2)Sec. 6661$ 140,518.00$ 7,026.0050% of the interest$ 35,129.50due on $ 140,518.00The issues for decision are: (1) Whether petitioner had $ 297,014 in income from misappropriated funds from his employer in 1983. We hold that he did. (2) Whether petitioner is liable for additions to tax under section 6653(a)(1) and (2). We hold that he is. (3) Whether petitioner is liable for an addition to tax under section 6661. We hold that he is. All section references are to the Internal Revenue Code in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated. FINDINGS OF FACT We incorporate by reference the stipulation of facts and attached exhibits. Petitioner resided in Naples, Florida, at the time the petition was filed. After receiving an undergraduate degree in history and a graduate degree in journalism from Northwestern University, petitioner worked in a variety of sales and advertising positions before unsuccessfully attempting to start his own athletic surfacing *335 and contracting business. Petitioner then became a sales representative for Harry S. Peterson Company, Inc., (Peterson) a company selling commercial waterproofing materials, from 1979 until August or September 1983. At some point during petitioner's employment, he improperly obtained funds from his employer by accepting checks from customers in payment for work done by Peterson and depositing them into his personal bank account. In 1983, petitioner was prosecuted and pled guilty in the United States District Court for New Jersey to wire fraud and embezzling $ 372,468. Petitioner made restitution payments of $ 75,454 to Peterson in 1983. Petitioner did not report the funds improperly obtained from his employer on his 1983 Federal income tax return. Petitioner understated his 1983 income by $ 297,014 ($ 372,468 taken less $ 75,454 repaid in 1983). OPINION The first issue for decision is whether petitioner had income of $ 297,014 in 1983 from funds misappropriated from his employer. Respondent's determinations are presumed correct, and petitioner generally bears the burden of proving them to be erroneous. Rule 142(a); .*336 In this case, however, respondent bears the burden of proof with respect to the increased amount of the deficiency. Rule 142(a). Petitioner argues that the funds he took from Peterson were not embezzled funds because he did not intend to deprive his employer of the funds permanently. Petitioner explained that after depositing customers' checks into his personal bank account, he turned the money over to a man who promised petitioner a 20-percent return on his investment within a 30-day period. After earning the promised short-term return on his investment, petitioner intended to return the money to Peterson before its absence would be noted under Peterson's accounting system. However, the man and the money disappeared, never to be seen again. Petitioner claims he was a victim of a con artist who persuaded him to take the money on a short-term basis for a "very needy charitable purpose". In pleading guilty to wire fraud and embezzlement in 1983 and in his testimony before this Court, petitioner admitted to misappropriating $ 372,468 from his employer in 1983. The record does not support any inference that these funds were anything other than embezzlement income. His intention*337 to return the money after making a short-term return on investment does not prevent the money from being includable in his 1983 income. It is well settled that embezzled funds are includable in the gross income of the embezzler in the year in which the funds are misappropriated. ; , affg. . A taxpayer restoring embezzlement income may deduct such repayment in the year repaid. . Although the parties stipulated that petitioner repaid $ 75,454 in 1983, petitioner argues that all but $ 28,000 was repaid in 1983. Petitioner maintains that in late 1983, after turning himself in and agreeing to pay restitution, he turned over to the District Court three pieces of real estate which it sold in 1984. To support his claim, petitioner submitted a schedule of restitution payments and attached documents. In particular, petitioner refers us to a letter from Peterson's attorney dated January 9, 1984, acknowledging*338 receipt of 2 checks petitioner endorsed to Peterson totaling $ 50,021. The letter indicates that the checks related to mortgage refinancing transactions involving petitioner's properties and that the proceeds from such transactions were "fully dedicated to the restitution of the embezzled monies." The letter does not indicate that the properties were sold. Furthermore, the letter does not state that the checks were either written or received in 1983, and therefore, does not support a finding that the amounts should be counted towards restitution payments made in 1983. After careful examination of the schedule and the remaining documents submitted by petitioner, we conclude that the evidence does not support a finding that petitioner repaid more than the stipulated amount of $ 75,454 in 1983. Accordingly, we sustain respondent's determination that petitioner understated his 1983 income in the amount of $ 297,014. Additions to TaxRespondent determined that petitioner is liable for additions to tax under section 6653(a)(1) and (2) for 1983. Section 6653(a) imposes two additions to tax if any part of the underpayment is due to negligence or intentional disregard of rules*339 or regulations. Negligence has been defined as a lack of due care or a failure to do what a reasonable person would do under the circumstances. (quoting , affg. in part and remanding in part ; see , affg. . Petitioner proffered no argument or evidence rebutting respondent's determination that the underpayment was attributable to negligence. Petitioner has admitted that he embezzled $ 372,468 in 1983 and that not all of the amount misappropriated was repaid in 1983. Petitioner was negligent in not reporting the misappropriated funds as income. Accordingly, we sustain respondent's determination of additions to tax under section 6653(a)(1) and (2) for 1983. Respondent also determined that petitioner substantially understated his 1983 income tax liability, making him liable for the addition to tax provided for in section 6661. Section *340 6661(a) imposes a 25-percent addition to tax on the portion of any underpayment attributable to a substantial understatement of income tax for any year. An understatement of tax is "substantial" if it exceeds the greater of $ 5,000 or 10 percent of the tax required to be shown on the return for the year. Sec. 6661(b)(1)(A). An understatement is the difference between the amount required to be shown on the return and the amount actually shown on the return. Sec. 6661(b)(2). The section 6661 addition may be avoided if petitioner established that he had a reasonable basis in law for what he did or if petitioner made a full disclosure of the facts on his return. Petitioner has done neither. The amount of understatement as redetermined by this Court results in the applicability of section 6661 here. Accordingly, we hold that petitioner is liable under section 6661 for an addition to tax in 1983. In accordance with the foregoing, Decision will be entered for respondent.Footnotes1. 50 percent of the interest due on $ 47,406.↩1. 50 percent of the interest due on $ 93,112.↩ | 01-04-2023 | 11-21-2020 |