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Business or hobby which is it

Business or Hobby: Which is It?

All audio is streamed through your computer speakers.

There were  several attendance verification questions presented during the LIVE webinar to qualify for CPE of the LIVE event only.

For the archived/recorded version of this webinar, the link at the end of this presentation will be to final exam on the topics and learning objectives covered during this webinar plus there are also 3 online  review questions to answer per hour.


Business or hobby

Business or Hobby

That is the Question

IRC §162 & 183

Presented by Andrew G. Poulos, EA, ABA, ATP


Learning objectives

Learning Objectives

Upon completion of this webinar you will be able to:

  • Assess and determine if your clients are operating a real business vs. a hobby. 

  • List nine factors to consider for differentiating between business vs. hobby losses.

  • Implement the use of a list of key questions and items to help analyze and distinguish between a business or a hobby.

  • Recognize the guidelines needed to understand the differences in IRC Sec. 162 vs. IRC Sec. 183.

  • Determine which category a venture falls in, and what the tax effects are if for operating a hobby vs. a business.  

  • Recognize the hobby loss limitation rules and calculate how to deduct expenses for a hobby versus a business. 


Tigta report

TIGTA Report

  • 9/27/07 – “Significant Challenges Exist in Determining Whether Taxpayers with Schedule C Losses are Engaged in Tax Abuse”

  • Review looked at high income SB/SE taxpayers

  • Total income of $100,000 or more


Tigta report continues

TIGTA Report Continues

  • Losses reported on Schedule C of Form 1040

  • Activities considered to be NOT for profit


Tigta audit results

TIGTA Audit Results

  • Hobby expenses limited to hobby income

  • 1.5M with significant other income filed Schedule C, only losses for 2002-2005

  • 73% prepared by tax professionals

  • 2.8B in taxes avoided in 2005


Notes in tigta report

Notes in TIGTA Report

  • Only Schedule C losses included

  • 4 years of consecutive losses

  • Total income sources of $100,000 or greater

  • No Schedule F, only Form 1040


Changes are needed

Changes Are Needed

“To prevent taxpayers from continually deducting losses in potentially not-for-profit activities to reduce their tax liabilities.”


Is hobby a for profit endeavor

Is Hobby a For-Profit Endeavor?

  • FS-2008-23 – June 2008

  • IRS reminds taxpayers with guidelines

  • IRC Section 183 – Hobby Loss Rule

  • In general: deductions allowed for ordinary and necessary business expenses


Irc sec 162 considerations

IRC Sec. 162 Considerations

  • Ordinary and necessary expenses – trade or business

  • Ordinary – common and accepted in the trade or business of taxpayer

  • Necessary – appropriate for the trade or business of taxpayer


Is activity important

Is Activity Important?

  • Qualifies as business – If carried on with actual and honest expectation of earning a profit

  • Activity not for profit – Losses may not be used to offset other income

  • Income – Related Expense = Loss


Is it a business expense

Is it a Business Expense?

  • Must meet requirements of:

    a) Carrying on Trade or Business

    b) For Production of Income

  • Failing to meet either, consider IRC Sec. 183


For consideration

For Consideration

  • Relevant Factors

  • Include all pertinent facts

  • IRC 183 – Activities Not Engaged in For Profit – Hobby Loss


We must understand

We Must Understand

  • Understand deductible business expenses

    vs.

  • Non-deductible hobby expenses


Distinguishing between

Distinguishing Between

  • Business Activity – IRC § 162 Expenses

  • Non-business “for profit” – IRC § 212 Expenses

  • Not engaged in for profit – IRC § 183 limitations on deductions

  • Personal activity – Deductions disallowed by IRC § 262 except to extent not otherwise allowable


Applicable code sections

Applicable Code Sections

  • Sec. 162 - Trade or Business Expenses

    Deduction for all ordinary and necessary expenses

  • Sec. 212 – Expenses for production of Income – for individuals:

    1) Production/collection of income,

    2) Management/conservation/maintenance of property held for production of income, and

    3) Connection with determination, collection, or refund of any tax


Sec 183 activities not engaged in for profit

Sec. 183 – Activities Not Engaged in for Profit

  • Individual or S Corp – If NOT engaged in for Profit there is NO deduction

  • Exceptions:

    • Deductions allowed without engagement for profit

    • Deduction equals to deductions allowed if FOR PROFIT, if gross income exceeds deductions allowed without engagement for profit


Presumption

Presumption

  • Profit in 3 out of 5 years

  • Profit 2 out of 7 years - Horse Business

  • Presumed Activity for Profit

  • Unless IRS establishes to the contrary


9 factors to consider

9 Factors To Consider

  • Manner taxpayer carries on activity

  • Expertise of taxpayer or advisors

  • Time and Effort

  • Expectation of Asset appreciation

  • Success with similar or dissimilar activities

  • History of income/loss

  • Occasional profits

  • Financial status

  • Elements of personal pleasure or recreation


Factors to determine if activity engaged in for profit

Factors to Determine if Activity Engaged In for Profit

  • Do time and effort indicate intent for profit?

  • Do you depend on income from activity?

  • Are losses due to circumstances out of your control or due to start-up expenses?

  • Have you changed operations to improve profitability?


Additional factors

Additional Factors

  • Is your knowledge adequate to make this a profitable activity?

  • What about profit in the past with similar activities?

  • Was there a profit in some years?

  • Any anticipation of profit in future from asset appreciation?


Practitioner alert

Practitioner Alert

  • Activity is “presumed” for profit if:

  • Profit in at least 3 of last 5 years

  • Includes current year

  • Profit in at least 2 of last 7 years if horses


If activity not for profit

If Activity Not for Profit

  • Losses not used to offset other income.

  • Losses occur when expenses exceed income.

  • Limit applies to:

    IndividualsPartnerships

    EstatesTrusts

    S CorporationsNOT C Corps


Allowable hobby deductions under irc 183

Allowable Hobby DeductionsUnder IRC 183

  • Activity NOT carried on for profit

  • Allowable deductions cannot exceed income


Deductions for hobby activities

Deductions for Hobby Activities

  • Schedule A, Form 1040

  • Deduct in following order:

  • Full deduction for home mortgage interest and taxes

  • Deductions not resulting in basis adjustment, advertising, insurance premiums and wages may be taken to extent gross income is more than deductions under 1


Deductions for hobby activities1

Deductions for Hobby Activities

3. Deductions that reduce basis taken last

Depreciation and Amortization

Only to extent gross income is more than deductions taken in step 1 & 2


History in a snap shot

History in a Snap Shot

  • Revenue Act of 1943 as IRC § 270

  • Intension – limit individuals with multiple sources of income to reduce overall tax liabilities

  • IRC § 270 repealed by Tax Reform Act of 1969 for years after 12/31/69

  • Replaced with IRC § 183


Irs code 183

IRS Code § 183

  • Applies to Individuals, Partnerships, S Corps and Trusts and Estates

  • Not C Corporations

  • No IRC or Regulations defines – just guidance

  • Historically a difficult issue


Generally

Generally

IRC allows deduction of expenses:

1) In trade or business – IRC § 162

2) Production or collection of income, management, conservation or maintenance of property held for production of income – IRC § 212


Honest objective of making a profit

Honest Objective of Making a Profit

  • Keanini v. Comr., 94 T.C. 41 (1990) citing

  • Golanty v. Comr., 72 T.C. 411, 425 (1979), aff’d without published opinion, 647 F. 2d 170 (9th Cir. 1981)

  • Dreicer v. Comr., 78 T. C. 642 (1982), aff’d without opinion, 702 F. 2d 1205 (D.C. Cir. 1983)


Taxpayers bear burden of proof

Taxpayers Bear Burden of Proof

  • Hendricks v. Comr. - 1994

  • Comr. v. Groetzinger – 1987

  • Bot v. Comr. – 2003

  • Am. Acad. Of Family Physicians v. U.S. - 1996


Taxpayer must

Taxpayer MUST

  • Devote time to business

  • Honest belief profitable in the future

  • Show what projected profit is to be


Not engaged in for profit

NOT Engaged In for Profit

  • § 183(b) allows:

    • Deductions allowable without regard to activity for profit

    • Deductions for amounts allowable if engaged in for profit, to extent of gross income remaining


Treas regs 1 183 1 e

Treas. Regs § 1.183-1(e)

Gross Income:

All income, including sales, exchanges or dispositions and all other gross receipts

Reduced by COGS

Personal or nondeductible items will be excluded by IRS Examiner.


Other tax return items affected

Other Tax Return Items Affected

  • SE tax

  • Deduction for Health Insurance Premiums

  • AMT

  • Itemized Deductions

  • AGI

  • Personal exemption phase out

  • Roth IRA Contributions


Caution

CAUTION

AGI affects many items:

Rental losses

Medical expense

Casualty losses

Miscellaneous deductions

Adoption expense credit

Interest on education loans


Amt alert

AMT Alert

Problem with Code § 183

Many not-for-profit expenses are reported on Schedule A – Miscellaneous

Not deductible for AMT purposes


Treas reg 1 183 2 b

Treas. Reg. § 1.183-2(b)

  • 9 Factors cited in Reg. – non-exclusive

  • Manner in which conducted

  • Expertise of taxpayer or advisor(s)

  • Time and effort expended

  • Expectation assets may appreciate in value


Reg continued

Reg. Continued

  • Success of taxpayer in similar or dissimilar activities

  • Taxpayer’s history of income or loss with respect to activity

  • Amount of occasional profits, if any

  • Financial status of taxpayer, and

  • Elements of personal pleasure or recreation


How many factors needed

How Many Factors Needed?

  • No single factor controls

  • Number does not control

  • More weight given to objective facts than to taxpayer’s statement of intent

  • Dreicer v. Comr. - 1982


Review questions for self study cpe

Review Questions for Self Study CPE:

Now’s the time to answer the first set of review questions.

Click here:

http://www.proprofs.com/quiz-school/story.php?title=NTc1NzQz


Profit in early years

Profit in Early Years

  • No blank check for future losses

  • Profit objective in early years no guarantee not treated as not-for-profit in later years

  • Daugherty v. Comr. - 1983

  • Dennis v. Comr. - 1984


Presumption under 183 d

Presumption Under § 183(d)

Safe Harbor:

Engaged in activity for profit

3 out of 5 years

2 out of 7 for horse activity


Code 183 e election

Code § 183(e) - Election

Taxpayer is allowed to postpone determination of § 183(d) presumption.


Code 162

Code § 162

  • Allows deductions for “trade or business” ordinary and necessary expenses

  • Bona fide business must exist

  • Expenses appropriate to carrying on “trade or business” and not capital expenditure. Not with respect to residence – exception IRC § 280A

  • Welch v. Helvering - 1933


Multiple activities

Multiple Activities

  • Treas. Regs. § 1.183-1(d)

  • 2 or more separate activities not aggregated for not-for-profit determination

  • Unless sufficiently interconnected


Are activities interconnected

Are Activities Interconnected?

  • Based upon all facts and circumstances

    • Degree of organizational and economic interrelationship,

    • Business purpose for various activity, and

    • Similarity of various undertakings.

      Commissioner generally accepts taxpayers justification of interconnected activities UNLESS cannot be supported and each activity treated separately.


Taxpayer s subject to 183

Taxpayer’s Subject to § 183

  • Individuals – IRC § 183(a)

  • S corporations – IRC § 183(a) – Treas. Regs. § 1.183-1(f)

  • Partnerships – reflected in partnership’s distributive shares – IRC § 703(a)

  • Trusts and Estates – IRC § 641(b)


C corporations

C Corporations

The provisions of IRC § 183 do not apply to C corporations.


Election to postpone determination

Election to Postpone Determination

  • IRC § 183(e)

  • Election to postpone determination of presumption until close of 4th taxable year or 6th taxable for horse activities

  • Following 1st taxable year engaged in activity.


If election made

If Election Made

  • Taxpayer may file returns in the interim on assumption activity is for profit

  • Activity generating losses – not carried on for full profit presumption period, taxpayer may elect to postpone determination

  • After filing of required returns – case file returned to IRS examiner for determination


Making the election

Making the Election

  • Form 5213, Election to Postpone Determination as To Whether the Presumption Applies That an Activity is Engaged in for Profit

  • Used when taxpayers wish to postpone determination

  • Election made by Partnership or S Corporation is binding upon all persons


When to file

When to File

  • Within 3 years after the due date of the return - No extensions

  • For 1st year of the activity

  • Not later than 60 days after notice from IRS proposing to disallow deductions of activity


Practitioner note

Practitioner Note

Form 5213 is rarely used by taxpayers until IRS proposes to disallow the activity as not engaged in for profit.


Placing in suspense

Placing in Suspense

  • Election made

  • IRS will generally close case to suspense until end of presumption period

  • Upon filing of all returns for periods, case returned to IRS Examiner for determination


If taxpayer wishes to file an 183 e election

If Taxpayer Wishes to File an§ 183(e) Election

The IRS Examiner should:

1. Secure fully completed and properly signed Form 5213

2. Advise taxpayer of suspense process and to retain all pertinent books and records for each of the presumptive years


Form 5213

Form 5213

  • Election to Postpone Determination

    1. Who Should File

    2. When to File

    3. Automatic Extension of Period of Limitations


What about the statute of limitations

What About the Statute of Limitations ?

  • Filing of Form 5213 automatically extends statute for any deficiency attributable to the activity

  • Example: Activity subject to a 5 year presumption period beginning in 2004 and ending 2008, the period of limitations automatically extends to April 15, 2012 for all tax years in presumption period.


Supporting law revenue rulings

Supporting Law Revenue Rulings

  • Rev. Rul. 55-258 – Not engaged in for profit – taxable but not for SE purposes

  • Rev. Rul. 75-14 – FRV required to relative, deduction only for expenses if itemizing

  • Rev. Rul. 77-320 – Partnership, reflected in distributive share

  • Rev. Rul. 2004-32 – OIH cannot be created to convert nondeductible personal living expenses


Supporting law case law

Supporting Law Case Law

  • Numerous § 183 Court Cases

  • Some opinions favor taxpayers

  • Others support the Government’s position

  • Cases supportive of the taxpayer’s position should be used to defend taxpayer’s position


Suggested interview questions for each of 9 relevant factors

Suggested Interview Questions for Each of 9 Relevant Factors

Practitioners should use to determine if activity is or is not for profit:

Background and general description of the business.

How are the business records maintained?


More interview questions

More Interview Questions

What efforts are made in terms of attracting customers and securing suppliers or products necessary for the business?

When is a profit expected?


Expertise of the taxpayer advisors

Expertise of the Taxpayer/Advisors

  • Background information about type of activity prior to start up

  • Taxpayer’s relevant education

  • Reliance on others in starting or developing business

  • Research or extensive study regarding business

  • Other life experience to prepare

  • Related organizations and how long


Time and effort expended

Time and Effort Expended

  • May be given more weight if no personal or recreation aspects

  • Is this a full or part=time activity?

  • Who is involved with the daily operations?


Expectation assets will appreciate

Expectation Assets will Appreciate

  • Profit encompasses appreciation

  • List assets used in the activity


Success of taxpayer

Success of Taxpayer

  • If taxpayer has engaged in similar activities in the past, converting unprofitable to profitable, may indicate engaged in for profit

  • What other activities has the taxpayer had previous success?


Taxpayer s history of income loss

Taxpayer’s History of Income/Loss

  • Losses sustained beyond period customarily thought to bring to profit, unless not due to control of taxpayer may indicate not engaged in for profit

  • Series of net income years would be strong evidence activity engaged in for profit


Occasional profits

Occasional Profits

  • Large losses and only small profits = activity not engaged in for profit

  • Opportunity for substantial profit on highly speculative venture = activity engaged in for profit

  • What profits have been earned in any year?

  • What amount of an investment has the taxpayer made in the business?


Financial status of taxpayer

Financial Status of Taxpayer

  • No substantial income or capital from other sources = engaged in for profit

  • Personal or recreational elements = engaged in not for profit

  • Does taxpayer have substantial income or capital from other sources?


Elements of personal pleasure

Elements of Personal Pleasure

  • An activity will not be treated as not engaged in for profit merely because the taxpayer has purposes other than solely to make a profit

  • Deriving personal pleasure from the activity is insufficient to determine activity not engaged in for profit

  • Was taxpayer involved or interest in this activity prior to establishing it as a business?


Arlene case study

Arlene – Case Study

  • Sales of artwork in 2008

  • 10 years before and years after 2008

  • Gallery showings and efforts of Mary, a professional art consultant recommendations

  • Impressive witnesses, knowledgeable about art can testify about Arlene’s abilities, reputation and potential


1998 through 2007 schedule c

1998 through 2007 (Schedule C)

YearExpensesGross Inc.Losses

1998$16,093$ 7,586 $ 8,507

1999 6,363 1,280 5,083

2000 15,328 8,790 6,538

2001 16,565 8,192 8,373

2002 19,328 11,042 8,286

2003 23,218 4,363 18,855

2004 21,828 400 21,428

2005 26,113 1,325 24,788

2006 34,135 18,299 15,836

2007 46,995 5,975 41,020

2008 82,900 7,700 75,200


And in 2008

And, in 2008

Arlene reported an additional loss of $75,200


More facts about arlene

More Facts About Arlene

  • Keeps checks and receipts for expenditures in labeled envelopes

  • Relies on Gordon Goodman, EA to review and determine which expenses were business and to prepare income tax returns


Arlene s living arrangements

Arlene’s Living Arrangements

  • Martha’s Vineyard in warmer months

  • New York City rest of year – traveling between and elsewhere at various times

  • Rents small studio/apartment and two separate rooms in NYC hotel

  • Rooms not connect to apartment


Office in home

Office In Home

  • Uses portion of studio/apartment as living area and rest as studio/work area

  • Two other rooms as storage space for art

  • Does not shop or socialize, spending most of her time working on creating art, producing and promoting it

  • Apartment is filled with her art


More about arlene

More About Arlene

  • Due to toxic plastic resin needs to work in well-ventilated space

  • Rents loft in NYC for toxic material use as well as to store art work

  • She also rented another loft to store her paintings


Business or hobby which is it

Cost

Rent at hotel$ 400.00

Rent – 2 other rooms$ 550.00

Annual cost$ 11,400

Disputed cost$ 6,339

EA took 50% as business$ 1,092

Plus rent for 2 other rooms$ 4,754

Loft rent$ 6,175

Warehouse storage $ 819

No rent for Martha’s Vineyard


Other expenses

Other Expenses

  • Insurance on artwork$ 1,000

  • Liability insurance on apartment $ 30

  • Purchase of Volvo station wagon for $18,750 on 6/11/08 – used in business

  • Previously used older car for same business purposes – delivery, supplies, etc


More expenses

More Expenses

  • Insurance and parking space in NYC garage

  • Older car moved to Martha’s Vineyard

  • Volvo in NYC

  • Insurance carried on both cars


Arlene s deductions

Arlene’s Deductions

  • Parking$ 1,214

  • Automobile expenses$ 1,257

  • Insurance on both cars$ 3,470

  • Depreciation $ 4,688

  • No tentative investment credit of $750 on Volvo taken


Analysis of depreciation

Analysis of Depreciation

  • $627 for a $4,181 Computer

  • $112 for upholstery on furniture in NYC apartment

  • $46 for a $307 humidifier

  • $15 for telephone

  • All acquired in 1984

  • $427 in tentative investment credit, but did not use

  • $5 for typewriter and $23 for unidentified item, acquired before 2008


  • There was more

    There was More

    • Contract labor paid$2,304

    • Materials$5,970

    • Professional services$8,169

      Mr. Goodman, EA – 8 years


    And finally

    And Finally

    • Entertainment - $1,629

    • Studio expense - $450

    • Travel - $3,334, Egypt $2,000, other $1,334 including ferry trips & travel to Martha’s Vineyard

    • Telephone - $1,372

    • $10 per month allocated of telephone for personal use, deducting $1,252, including all long-distance.

    • Advertising - $74

    • Dues and publications - $176

    • Freight - $12


    Let us not forget

    Let Us Not Forget

    • Interest - $50

    • Office expense - $98

    • Repairs - $125

    • Xmas and gifts - $189

    • Publicity Photos - $1,023

    • Credit card fee - $20

    • Taxis - $305


    Irs determination

    IRS Determination

    • 2006, 2007 and 2008 – Activities not engaged in for profit

    • Disallowed all Schedule C deductions to extent they exceeded her gross receipts


    Irs findings

    IRS Findings

    • Receiving director’s fees and dividends, no longer dependent on artistic activities

    • Long history of losses

    • Great personal pleasure derived from creating artwork and seeing it displayed

    • Income from other sources enabled her to pursue art career


    Conclusion

    Conclusion

    • Arlene is sculptor and painter

    • Worked full time as an artist for many years

    • Engaged in artistic endeavors all adult life

    • From 1959, when divorced from husband, through 1974, supported herself entirely with income from artistic endeavors


    Arlene

    Arlene

    • Sold art work and taught classes for family owned company

    • After death of mother became BOD member, earning Director fees in 1975

    • She received $63,000 in cash plus stock

    • In 1984, received $559,875 in partial liquidation of her stock, continuing to receive dividends


    Arlene then

    Arlene Then …

    • Was not dependent upon the sale of her art work for her livelihood

    • Obtained a number of fellowships at artists’ colonies

    • From the early 1970s through the early 1980s she was awarded 13 fellowships and 2 awards in recognition of her potential as an artist


    Art displayed

    Art Displayed

    • 1973-1984 work was in numerous exhibitions at museums and art galleries

    • Displayed where art sold for a profit

    • Gallery showings in the 1970’s, 1978 and 1984

    • Shown in galleries and museums, after the year in issue


    Arlene s art work

    Arlene’s Art Work

    • Exhibited with very financially successful artists

    • Required she contact galleries and museums to have work accepted for exhibition

    • Word of mouth, showings and exhibitions, reviews by art critics and advertising efforts, reputation spread

    • Museums sent invitations to view and Arlene held private showings at her apartment in NYC


    Art activities for profit

    Art Activities for Profit

    • Section 183 allows deductions

    • Ordinary and necessary if not engaged in for profit to extent of gross income, less amount allowable regardless of whether activity not engaged in for profit


    Considerations

    Considerations

    • Arlene has shown pursuit of artistic activities with objective of making a profit

    • Test is “actual and honest objective of making a profit”

    • Expectation might not have been reasonable but objective to make a profit

    • All considerations made


    Factors pointing to profit objective

    Factors Pointing to Profit Objective

    • Improving skills

    • Time devoted

    • Fellowships for artists

    • Did not require lavish lifestyle

    • Promotion of work by herself

    • Promotion of work by others

    • Consistently sold art

    • Personal pleasure not sufficient

    • History of losses less persuasive in art field than others

    • Record is replete with evidence of showings and exhibitions of work as result of her efforts to promote


    While not selling as much as hoped

    While Not Selling as Much as Hoped

    • Arlene sought recognition and profit, maintaining large inventory

    • Arlene will enjoy greater financial benefits, having much success and recognition and who wants to sell and intends to make a profit

    • Unlike Porter v. Commissioner – 1969-288, the taxpayer did not sell much art and only for small amounts over a 10-year period


    Further considerations

    Further Considerations

    • Arlene, a lifelong artist

    • Sold much more art for significant amounts

    • Is nationally recognized with work shown and exhibited in well-known galleries

    • Impressive listing of witnesses

    • At any time, Arlene might become more commercially successful and earn enough to cover losses


    Review questions for self study cpe1

    Review Questions for Self Study CPE:

    Now’s the time to answer more review questions.

    Click here:

    http://www.proprofs.com/quiz-school/story.php?title=NjA0MjE3


    Final conclusion

    Final Conclusion

    • I conclude that she engaged in the activity with “the actual and honest objective of making a profit”.

    • Based on Stella Waitzkin v. Commissioner, T.C. Memo, 1992-216


    Thank you for participating in this webinar below is the link to the online survey and cpe quiz

    Thank you for participating in this webinar.Below is the link to the online survey and CPE quiz :

    http://webinars.nsacct.org/postevent.php?id=10802 Use your password for this webinar that is in your email confirmation.

    You must complete this survey and the quiz or final exam (for the recorded version) to qualify to receive CPE credit.

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    Phone:  (800) 966-6679

    [email protected]


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