As part of its continuing guidance to taxpayers and practitioners about how its resumption of activities following the government shutdown is impacting pending matters, the Internal Revenue Service has published Frequently Asked Questions (entitled “IRS Update on Shutdown Impact on Tax Court Cases; Important Information for Taxpayers, Tax Professionals with Pending Cases“) regarding Tax Court activities.  These FAQs provide information regarding the shutdown’s effect on Tax Court proceedings, including mail being returned and issues with petitions not being processed.  The text of those FAQs follows:

What should I do if a document I mailed or sent to the Tax Court was returned to me?

The Tax Court website indicates that mail sent to the court through the U.S.  Postal Service or through designated private delivery services may have been returned undelivered.  If a document you sent to the Tax Court was returned to you, as the Tax Court website indicates, re-mail or re-send the document to the Court with a copy of the envelope or container (with the postmark or proof of mailing date) in which it was first mailed or sent. In addition, please retain the original.

My case was calendared for trial.  What does the Tax Court’s closure mean for my pending case?

The Tax Court canceled trial sessions for January 28, 2019 (El Paso, TX; Los Angeles, CA; New York, NY; Philadelphia, PA; San Diego, CA; and Lubbock, TX), February 4, 2019 (Hartford, CT; Houston, TX; San Francisco, CA; Seattle, WA; St. Paul, MN; Washington, DC; and Winston-Salem, NC) and February 11, 2019 (Detroit, MI; Los Angeles, CA; New York, NY; San Diego, CA; and Mobile, AL). The Tax Court will inform taxpayers who had cases on the canceled trial sessions of their new trial dates.

The Tax Court’s website indicates that it will make a decision about the February 25, 2019 trial sessions (Atlanta, GA; Chicago, IL; Dallas, TX; Kansas City, MO; and Philadelphia, PA) on or before February 7, 2019. Taxpayers with cases that are scheduled for trial sessions that have not been canceled or that have not yet been scheduled for trial should expect their cases to proceed in the normal course until further notice.

If my case was on a canceled trial session, when will I have an opportunity to resolve my case with Appeals or Chief Counsel after the government reopens?

After the IRS and Chief Counsel reopen, we will make our best efforts to expeditiously resolve cases.

Where can I get more information about my Tax Court case?

If someone is representing you in your case, you should contact your representative. In addition, the Tax Court’s website is the best place for updates.  The IRS Chief Counsel and Appeals personnel assigned to your case may be furloughed and will not be available to answer your questions until the government reopens.  In addition, The American Bar Association (ABA) is conducting a webinar on January 28, 2019, and you can get more information from the ABA Tax Section website. Taxpayers seeking assistance from Low Income Taxpayer Clinics (LITCs) can find a list of LITCs on the Tax Court’s website.

During the shutdown, does interest continue to accrue on the tax that I am disputing in my pending Tax Court case?

Yes. To avoid additional interest on the tax that you are disputing in your pending Tax Court case, you can stop the running of interest by making a payment to the IRS.  Go to www.irs.gov/payments for payment options available to you.  The IRS is continuing to process payments during the shutdown.

What should I do if I received a bill for the tax liability that is the subject of my Tax Court case?

If you receive a collection notice for the tax that is in dispute in your Tax Court case, it may be because the IRS has not received your petition and has made a premature assessment.  When the government reopens, the IRS attorney assigned to your case will determine if a premature assessment was made and request that the IRS abate the premature assessment.

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According to a notice posted on its website over the weekend, the United States Tax Court will reopen for business and resume full operations tomorrow morning, January 28, 2019.  The Tax Court has been closed for nearly one full month due to the federal government shutdown.  The website further notes that trial sessions scheduled for the weeks of January 28, February 4, and February 11 have been cancelled.  The February 25 trial sessions will proceed as scheduled.

For more up-to-date coverage from Tax Controversy and Financial Crimes Report, please subscribe by clicking here.

On December 28, 2018, at 11:59 p.m., the United States Tax Court closed its doors in light of the federal government shutdown, and has not reopened for business since then. The closure of Tax Court has caused significant concern to many taxpayers and professionals regarding the filing of petitions, the status of scheduled trials, and collection activity, among other issues.

Today, as the president was announcing a deal to temporarily reopen the government, the IRS published a list of frequently asked questions to provide answers to taxpayers and tax professionals about Tax Court cases during the current appropriations lapse. The text of the FAQs follows:

What should I do if a document I mailed or sent to the Tax Court was returned to me?

The Tax Court website indicates that mail sent to the court through the U.S. Postal Service or through designated private delivery services may have been returned undelivered. If a document you sent to the Tax Court was returned to you, as the Tax Court website indicates, re-mail or re-send the document to the Court with a copy of the envelope or container (with the postmark or proof of mailing date) in which it was first mailed or sent. In addition, please retain the original.

My case was calendared for trial. What does the Tax Court’s closure mean for my pending case?

The Tax Court canceled trial sessions for January 28, 2019 (El Paso, TX; Los Angeles, CA; New York, NY; Philadelphia, PA; San Diego, CA; and Lubbock, TX), February 4, 2019 (Hartford, CT; Houston, TX; San Francisco, CA; Seattle, WA; St. Paul, MN; Washington, DC; and Winston-Salem, NC) and February 11, 2019 (Detroit, MI; Los Angeles, CA; New York, NY; San Diego, CA; and Mobile, AL). The Tax Court will inform taxpayers who had cases on the canceled trial sessions of their new trial dates.

The Tax Court’s website indicates that it will make a decision about the February 25, 2019 trial sessions (Atlanta, GA; Chicago, IL; Dallas, TX; Kansas City, MO; and Philadelphia, PA) on or before February 7, 2019. Taxpayers with cases that are scheduled for trial sessions that have not been canceled or that have not yet been scheduled for trial should expect their cases to proceed in the normal course until further notice.

If my case was on a canceled trial session, when will I have an opportunity to resolve my case with Appeals or Chief Counsel after the government reopens? 

After the IRS and Chief Counsel reopen, we will make our best efforts to expeditiously resolve cases.

Where can I get more information about my Tax Court case? 

If someone is representing you in your case, you should contact your representative. In addition, the Tax Court’s website is the best place for updates. The IRS Chief Counsel and Appeals personnel assigned to your case may be furloughed and will not be available to answer your questions until the government reopens. In addition, The American Bar Association (ABA) is conducting a webinar on January 28, 2019, and you can get more information from the ABA Tax Section website . Taxpayers seeking assistance from Low Income Taxpayer Clinics (LITCs) can find a list of LITCs on the Tax Court’s website.

During the shutdown, does interest continue to accrue on the tax that I am disputing in my pending Tax Court case? 

Yes. To avoid additional interest on the tax that you are disputing in your pending Tax Court case, you can stop the running of interest by making a payment to the IRS. Go to www.irs.gov/payments for payment options available to you. The IRS is continuing to process payments during the shutdown.

What should I do if I received a bill for the tax liability that is the subject of my Tax Court case? 

If you receive a collection notice for the tax that is in dispute in your Tax Court case, it may be because the IRS has not received your petition and has made a premature assessment. When the government reopens, the IRS attorney assigned to your case will determine if a premature assessment was made and request that the IRS abate the premature assessment.

For more up-to-date coverage from Tax Controversy and Financial Crimes Report, please subscribe by clicking here.

The IRS has been cracking down on conservation easement transactions for over ten years. Nevertheless, taxpayers have continued to claim charitable contribution deductions attributable to the donation of conservation easements and promoters have continued to assemble investments utilizing conservation easement charitable deductions. The IRS began focusing on syndicated conservation easement transactions when it issued Notice 2017-10, designating syndicated conservation easement transactions as listed transactions. These syndicated investments involve the use of partnerships to raise funds from investors, who are allocated a share of a charitable contribution deduction attributable to conservation easements donated on land owned by the partnership. In fall of 2018, the IRS doubled down on its attacks of these investments when syndicated conservation easements were added to the list of LB&I compliance campaigns. While the IRS continues to crack down on these arrangements, taxpayers have continued litigating the finer points of these transactions. On the flipside, DOJ has begun cracking down on promoters who market these transactions. Below are details on the most recent developments.

Pine Mountain Preserve v. Comm’r

This case involves three conservation easements covering various portions of an assemblage of over 2,000 acres of land. The land was located in what sounds like a beautiful location in Alabama for development of recreational and horse properties. Over three years, three different easements were granted on various portions of 1,300 of the 2,000 acres. The first two easements reserved the right to allow for small parcels of development, in a location to be agreed upon between the property owner and the charity holding the easement.

Relying on its prior rulings in Belk v. Comm’r, 140 T.C. 1 (2013), supplemented by T.C. Memo. 2013-154, aff’d 774 F.3d 221 (4th Cir. 2014) and Bosque Canyon Ranch v. Comm’r, T.C. Memo. 2015-130, vacated and remanded sub nom. 867 F.3d 547 (5th Cir. 2017), the court determined that the first two easements did not a qualified real property interest due to the uncertainty created by the reservation to create pockets of development on the property subject to the conservation easement. [We note that the Tax Court was not persuaded by the Fifth Circuit opinion in Bosque Canyon and declined to follow it since this case is not appealable to the Fifth Circuit.] However, while the third easement contained a reservation for installing a water tower, it did not allow for the parties to choose after the easement areas for development within the easement area. Thus, the third easement was determined to be a qualified real property interest.

Valuation of the third easement was discussed in a Memorandum opinion issued simultaneously with the full Tax Court opinion addressing the validity of the easement. The court found the taxpayer’s expert overvalued the potential development of the property in determining the value of the easement but that the IRS expert undervalued the easement by ignoring the development potential of the property. The court went to great lengths to discuss in detail the misgivings of both valuation expert’s opinions but the result for the taxpayer was not horrible. In the end, the court valued the easement based on 50% of the value determined by both experts. Considering this meant a $4.8 million charitable contribution deduction was allowed, this was not a total loss for the taxpayer.

Wendell Falls v. Comm’r

Sometimes developers want open space or a park included in a master plan for a residential community as a way to make the community more desirable. In that instance, because the developer expects to benefit as a result of the easement, the law does not allow a charitable contribution deduction, essentially because the contribution lacks donative intent or because the donation lacks value when weighed against the value of the expected benefit. This is exactly what happened in Wendell Falls. Here, a developer chose to place an easement on a parcel of land after it had already designed the parcel as a park in the master plan. In April of 2018, the court determined that because the highest and best use of the eased parcel was as a park, as outlined in the developer’s master plan, the easement requiring it to be preserved as a park did not diminish its value, therefore the easement had no value. However, the court did determine that the taxpayer was not subject to penalties.

The taxpayer asked the court to reconsider several of its findings, arguing that the court should have considered the value of the easement and separately considered the value of the enhancement to the donor’s property separately. The taxpayer also asserted that the receipt of a substantial benefits did not alone result in denial of a deduction and that the highest and best use of the parcel was for development rather than a park, attempting to get the court to reconsider values. On November 20, 2018, the court issued its opinion that the value of the substantial benefit expected was in excess of the value of the easement, and that parkland was the highest and best use of the property based on the proposed development. Unfortunately, the taxpayer lost all of its $1.8 million charitable contribution deduction.

Lawsuits against Promoters

The government had has enlisted another tactic for shutting down conservation easements by bringing actions against the organizers of conservation easement syndication schemes. On December 28, 2018, the Department of Justice filed a compliant in the Northern District of Georgia asserting that a group of defendants assembled partnership which were “nothing more than a thinly veiled sale of grossly overvalued federal tax deductions under the guise of investing in a partnership.” The complaint asserts that the defendants’ conservation easement syndicates have generated $2 billion in conservation easement charitable contribution deductions. The complaint seeks to enjoin the defendants from continuing to promote such schemes, and asks the court to order the defendants to disgorge all profits received as a result of the conservation easement syndicates.

The defendants include a conservation manager/broker dealer, an appraiser, and various professionals associated with EcoVest Capital, Inc., an entity that sponsors real estate investments focused on conservation. The promotional materials mentioned in the compliant set forth an example where in exchange for a $750,000 investment, an investor would receive $2 million of deductions, generating tax savings of $1 million. The syndicates were sold as securities exempt from registration through broker-dealers. The easement syndicates involved properties located in Alabama, Georgia, Indiana, Kentucky, North Carolina, South Caroline, Tennessee, and Texas.

Any taxpayer who may have invested in a syndicated conservation easement through Ecovest or any other investment advisor should carefully review Notice 2017-10 and related the disclosure requirements for listed transactions. Those taxpayers should also consult with a tax attorney to consider strategies for mitigating any damages.

For more up-to-date coverage from Tax Controversy and Financial Crimes Report, please subscribe by clicking here.

Yesterday the Tax Court issued two decisions discussing the impact of Section 280E on cannabis businesses.  One of these cases addresses the application of Section 280E to licensed and non-licensed entities.  Both cases address the application of penalties to cannabis businesses.

Alternative Health Care Advocates v. Comm’r

This case involves a California dispensary, Alternative Healthcare Advocates (“Alternative”), that operated similarly to the dispensary at issue in the Patients Mutual I case issued last month and discussed here.  Alternative was taxed as a C corporation.  Alternative sold marijuana and non-marijuana products.  Alternative claimed deductions other than cost of goods sold (“COGS”) on its tax returns.

In addition,  a management company, Wellness Management Group, Inc. (“Wellness”), was established for purposes of providing employees to dispensaries.  Wellness elected to be taxed as an S corporation.   Wellness’s deductions consisted of compensation, salaries and wages, rent, taxes and licenses, advertising, and other deductions.  Wellness’s only customer was Alternative.

The IRS allowed Alternative to deduction the total COGS claimed on its returns.  Applying Section 280E, the IRS disallowed all deductions claimed on Alternative’s return.  The IRS also disallowed all deduction claimed on Wellness’s returns, asserting that it also was subject to Section 280E.  This is the first case dealing with whether Section 280E applies to a non-licensed taxpayer.

Alternative argued that selling medical marijuana under state law did not fall within the Section 280E requirement that the taxpayer’s activities consist of drug trafficking and that it was permitted to allocate expenses between its trafficking and non-trafficking activities.  For the same reasons set forth in Patients Mutual, the court rejected these arguments and held that Alternative was not entitled to the deductions claimed on the returns.

Wellness argued that its activities did not consist of trafficking in a controlled substance.  The court concluded that “the only difference between what Alternative did and what Wellness did (since Alternative acted only through Wellness) is that Alternative had title to marijuana and Wellness did not.”  Slip Op. at 28.  The court held that Wellness employees were engaged in the purchase and sale of marijuana on behalf of Alternative and that Wellness did not need to obtain title to the marijuana in order to be involved in the trafficking of marijuana.

Given the harsh result, Wellness argued that applying Section 280E to both Alternative and Wellness was “inequitable because deductions for the same activities would be disallowed twice.”  As we have previously highlighted, the courts have not been sympathetic to the inequities of Section 280E.  Here, the court bluntly concluded that “[t]hese tax consequences are a direct result of the organizational structure petitioners employed.”

Other Observations

  • The Tax Court gave an detailed discussion of the definition of trafficking that should be reviewed by any business solely engaged in the cannabis industry, even if not a state-licensed entity.
  • The amount of cost of goods sold claimed on the return was sustained.  The importance of engaging good accountants to prepare returns and properly determine COGS cannot be underestimated.

The Applicability of Penalties to Cannabis Companies

The Tax Court held that Alternative was subject to penalties because in determining their liabilities they relied on the CHAMP case, which the court concluded was factually distinguishable from Alternative’s facts, and because they provided no evidence that it relied on their accountant for advice on whether Section 280E applied.  As we have seen in other cases, while the facts are not clear, this finding leads us to believe that no expenses were disallowed pursuant to Section 280E.

In contrast, the Tax Court ruled in the Patients Mutual II case that the taxpayer’s reporting positions were reasonable based on the timing of prior Section 280E litigation, such as CHAMP and Olive, in relation to when the tax returns were filed.  The court also noted that “[k]eeping good books and records was one of Harborside’s strengths.”  Slip. Op. at 6.

 

 

In the latest Tax Court opinion addressing the application of Section 280E to cannabis businesses there is no good news.  However, there is some new guidance.  In Patients Mutual Assistance Collective Corp. v. Comm’r, 151 T.C. No. 11, the taxpayer made a litany of arguments to convince the court that their business, or a portion of their business was not subject to Section 280E.  These include arguments we have seen before, including (1) that the business was not trafficking in controlled substances, here, because the government had abandoned a civil forfeiture action, and (2) that because a portion of the business involved branding and the sales of non-marijuana products, deductions related to these operations should not be subject to Section 280E.  These arguments failed and only make it clear that similar arguments are likely to be unavailing.  In fact, the Court spends ten pages discussing why the entire business is integrated and subject to Section 280E.  Taxpayers hoping to establish a separate trade or business that is not subject to Section 280E now have clarity, but also an extremely high bar.

New Holdings:  Inventory Accounting Rules

The new developments addressed in this case involve the application of inventory rules to cannabis businesses.  Previous cases focused primarily on the previously discussed arguments and failed to give any detailed guidance on how to apply the inventory rules.  The Court clearly and strongly concluded that the more expansive Section 263A  inventory cost rules do not apply to businesses subject to Section 280E.  The Court reasoned that “if something wasn’t deductible before Congress enacted section 263A, taxpayers cannot use that section to capitalize it..Section 263A makes taxpayers defer the benefit of what used to be deductions-it doesn’t shower that as grace on those previously damned.”  Slip Op. at 53.

The Court’s conclusion is based on the notion that we go back in time to 1982 to determine what is includible in inventory costs.  The Court refers to Treas. Reg. section 1.263A-1(c)(2) which states:

Any cost which (but for section 263A and the regulations thereunder) may not be taken into account in computing taxable income for any taxable year is not treated as a cost properly allocable to property produced or acquired for resale under section 263A and the regulations thereunder. Thus, for example, if a business meal deduction is limited by section 274(n) to 80 percent of the cost of the meal, the amount properly allocable to property produced or acquired for resale under section 263A is also limited to 80 percent of the cost of the meal.

While this reasoning is understandable, if we turn the question on its head, we could also ask whether the section 280E disallowance is determined before or after inventory costs are calculated.  For example, even if there is a meals and entertainment expense that is clearly includible in inventory costs, no one is going to argue that 100% of meals and entertainment is includible in inventory costs.  In this case, you are determining inventory costs and deductions, and then applying Section 274.   So, it is easy to see how those provisions overlap.  However, if inventory costs are determined based on the applicable inventory rules and then Section 280E is applied, then you have a different result because Section 263A expands what can be included in inventory costs, and the remaining deductions are subject to Section 280E.  That result is not inconsistent with the notion that items such as meals and entertainment and penalties are not deducted in determining taxable income regardless of whether they are a deduction under Section 162 or an inventory cost under Section 471 or 263A.

The Harsh Result

It is important to note that the Court analyzed and concluded that the taxpayer was a reseller and not a producer.  Because the taxpayer did not itself grow marijuana, this is not surprising.  The Section 471 rules that apply to resellers do not allow for extensive indirect costs to be included in inventory.  Thus, for businesses that do not produce or manufacture, they will continue to face significant challenges by the IRS if they are including indirect costs in inventory costs.  For cultivators and producers, careful consideration should be given to how the 471 rules apply, depending on the activities of the business.

Still to Come

The Court reserved its analysis of whether penalties apply for a opinion to be issued at a later date.  However, the Court hints that there might be some relief when it states that the overlap between Section 280E and 263A created a “confusing legal environment.”  One can hope that given the lack of guidance addressing the specifics of how the inventory rules apply to cannabis businesses, the IRS and the court will give taxpayers  doing their best to apply Section 280E the benefit of reprieve from penalties.

Other Notes

If you are entertained by Judge Holmes’ opinions, be sure you read the footnotes.  Footnotes 3 and 6 are my favorites.

I have recently penned a Law360 article discussing lessons learned from recent tax decisions impacting cannabis businesses.  We will continue to cover this topic on this blog.

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There is not too much to say about the Tax Court’s latest decision involving a marijuana company.  In Loughman v. Commissioner, T.C. Memo 2018-85, the operators of a Colorado marijuana dispensary argued that for a marijuana dispensary operating as an S corporation, Section 280E discriminates against S corporation shareholders by double taxing income when shareholder salary is disallowed pursuant to Section 280E as a deduction from flow-through S corporation income and also included on the shareholder’s individual tax return as W-2 wages.  The Tax Court noted that the regime was not discriminatory, but rather applied equally, because Section 280E disallows salaries not attributable to cost of goods sold whether or not the salaries are paid to the shareholder.

One of the harsh realities of operating a marijuana business is that Section 280E creates double taxation for owners who receive payments for services from marijuana companies.  It would seem the only way to avoid this is if the owner’s sole responsibility is activities related to the production of inventory. However, any officer/owner’s responsibilities are bound to include some sort of management and oversight.  While making an election to be taxed as a C corporation can minimize the cost of double taxation in this situation, it won’t eliminate it.

The Tax Court has shown little sympathy for marijuana companies when it comes to the harsh realities of Section 280E.  The court notes that the taxpayers can elect to be taxed as any type of entity and also elect to operate in any line of business.   Simply, in order to avoid double taxation caused by Section 280E, you are advised to operate a business not subject to Section 280E.

Yesterday, the Tax Court issued its opinion in Alterman v. Commissioner, T.C. Memo 2018-83.  This case involved the operation of a medical marijuana dispensary which was reported on Schedule C.  The opinion includes a long recitation of intricate accounting details that I will address on a summary basis so as to not lose readers other than accountants.  Readers interested in the details should read the opinion linked above.

The important facts are as follows:

  • The taxpayer sold marijuana and non-marijuana products.  The sales of non-marijuana products were 1.4% of gross receipts in 2010 and 3.5% of gross receipts in 2011.
  • On the tax returns, the taxpayer reduced gross receipts by cost of goods sold.  The taxpayer also deducted business expenses.  It does not appear based on the findings of fact that on the original return the taxpayer disallowed any expenses pursuant to Section 280E.
  • It appears the amount of cost of goods sold claimed on the return was, for the most part, amounts paid for purchases of inventory and did not include production costs.  At trial, the taxpayer asserted that it incurred over $100,000 of production costs each year in addition to the amounts paid for purchases of inventory.

The court found:

  • The sales of non-marijuana products were complimentary to the sales of marijuana products and therefore, were not a separate trade or business.  Even if the non-marijuana product sales were a separate trade or business, the record did not give the court any basis for determining the expenses attributable to the secondary business of sales of non-marijuana products.
  • The court applied Section 471 to determine cost of goods sold.  Section 471 allows taxpayers to include direct and indirect production costs in cost of goods sold.
  • The amount of cost of goods sold conceded by the IRS, which does not appear to include production costs, was the allowable amount of cost of goods sold because the taxpayers failed to properly account for beginning and ending inventories.
  • The taxpayer was negligent and subject to the negligence penalty because they did not keep adequate records to compute beginning and ending inventories or adequate books and records.  Further, there was no reasonable cause because the taxpayers did not seek advice regarding inventory accounting or the application of Section 280E.

Lessons and observations:

  • It is important that taxpayers subject to Section 280E use their best efforts to apply Section 280E when filing returns.
  • It is important that taxpayers subject to Section 280E properly classify costs as inventory costs when filing returns and maintain beginning and ending inventories with integrity.
  • It is important that taxpayers retain records needed to substantiate all accounting entries.
  • The substantiation issues are not unique to the marijuana industry.  However, due to high audit rates and the impact of Section 280E, the cost of the failure to substantiate is uniquely burdensome.  That being said, here, it is unclear how the failure to substantiate beginning and ending inventory also creates a restriction on the production costs that should be allowed.  Careful documentation and preparation of returns should overcome some of these burdens.

In Graev III, issued late last year, the Tax Court held that the Commissioner must comply with section 6751(b)(1) as part of his burden of production for tax penalties.  Section 6751(b)(1) requires that an initial penalty determination be approved in writing by the immediate supervisor of the individual making the determination.  As a result of Graev III, the Commissioner faces significant issues in penalty cases, as shown most recently by Becker v. Commissioner, a Judge Holmes decision released last week.

In Becker, a key issue was the fraud penalty under section 6663.  Section 6663 imposes a penalty on any underpayment of tax due to fraud equal to 75% of the underpayment.  The Commissioner determined that the taxpayer, Mr. Becker, was liable for the fraud penalty because he filed his tax returns with the intent to evade tax.  For the fraud penalty, the Commissioner must show by clear and convincing evidence that the taxpayer underpaid and that the underpayment was attributable to fraud.  A number of things can show fraudulent intent, including understating income, keeping inadequate records, failing to file tax returns, implausibly explaining behavior, and concealing assets.

Judge Holmes found that Mr. Becker almost certainly had fraudulent intent.  He consistently understated his income, took large deductions to zero out his returns, and failed to keep sufficient records.  Mr. Becker also provided implausible and inconsistent explanations for his behavior.  At trial, he said that his Schedules C were completely fabricated, but he told the IRS that his accountant told him to report what he reported.  Mr. Becker gave varying explanations for his lack of records as well.  Once he told the IRS that he would give it the documents it requested; later he said that the documents were destroyed by a hurricane.

The Tax Court would normally sustain the Commissioner’s fraud penalty determination on these facts.  But Graev III held that the Commissioner must comply with the section 6751(b)(1) written supervisory approval requirement as part of his burden of production for penalties.  In Becker, the Commissioner never raised section 6751 before or at trial – even though Mr. Becker put the penalties at issue.

As a result, Judge Holmes considered the consequences of failing to comply with Graev III.  Section 6751 is not a new Code section, and Graev III did not create new law.  It simply interpreted section 6751(b)(1).  The Tax Court treats Graev III’s construction of section 6751(b)(1) as the correct construction, even before Graev III was decided.  Thus, Judge Holmes held that Mr. Becker was not liable for the fraud penalty because the Commissioner failed to meet the section 6751(b)(1) supervisor approval requirement – even though Mr. Becker’s fraud was evident.