How Not To Run A Business

by Kenneth Hoffman in , ,

In Leon Solomon Verrett III et ux. (T.C. Memo. 2012-223) the taxpayer's activity was small construction jobs. The construction activity has not generated a profit for any of the 17 years it has operated.

The taxpayer managed his construction activity from a home office. It had a listing in the local telephone directory, but no business plan, dedicated bank account or Internet presence. The taxpayer did not use computer software to track finances although he had done so as a purchasing manager. He was not licensed as a general contractor. The construction activity consequently generated limited income without the license because he could not lawfully undertake larger construction jobs. He owned a tractor, four trailers, various power tools and other machinery that he used in his construction activity. He charged lower rates than did other local contractors. The taxpayer did not follow the industry practice of applying a 20% overhead charge to the cost of materials. Rather, he directed his clients to purchase the materials from a home improvement store. Most of the taxpayer's construction services during the years at issue involved uncompensated projects for his family and his church. The taxpayer used the same tools and equipment for these endeavors that he used when providing paid construction services.

The taxpayers claimed construction activity income of $3,400, $4,000 and $13,395 and expenses of $31,757, $36,152 and $30,174 for the years at issue. The Court looked at the none factors reviewed in determining whether an activity is engaged in with a profit motive and found the taxpayer was not engaged in the activity for profit. The Court noted the taxpayer's decisions regarding pricing, the general contractor's license and unpaid projects, however, show that he was not primarily motivated by profit. It was significant that the construction activity never generated a profit. A for-profit enterprise would not repeatedly and consistently generate losses without changing its practices. The Court also cited that the losses offset his wife's wage income.

In reading the Court's decision, I find the following passage interesting:

B. The Expertise of the Taxpayers or Advisers: The second factor is whether petitioner developed his own expertise and sought guidance from industry experts. See sec. 1.183-2(b)(2), Income Tax Regs. Petitioner acknowledged his practices made the construction activity consistently unprofitable. He testified that he came from a family of construction workers, yet nothing in the record established his relatives were experts or that he consulted with them. We find that petitioner did not demonstrate any business expertise or consult with any experts. This factor weighs against petitioner.

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