Filed: Mar. 13, 2019
Latest Update: Mar. 03, 2020
Summary: 17-4133 Harrell v. Commissioner of Internal Revenue UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOT
Summary: 17-4133 Harrell v. Commissioner of Internal Revenue UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTA..
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17‐4133
Harrell v. Commissioner of Internal Revenue
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the
2 Second Circuit, held at the Thurgood Marshall United States Courthouse, 40
3 Foley Square, in the City of New York, on the 13th day of March, two thousand
4 nineteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 REENA RAGGI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ________________________________________
12
13 CHRISTOPHER S. HARRELL, SR.,
14 INGRID T HARRELL,
15
16 Petitioners‐Appellants,
17
18 v. 17‐4133
19
20 COMMISSIONER OF INTERNAL
21 REVENUE,
22
1 Respondent‐Appellee.
2
3 ________________________________________
4
5 FOR PETITIONERS‐APPELLANTS: CHRISTOPHER HARRELL, INGRID
6 HARRELL, pro se, Staten Island,
7 NY.
8
9 FOR RESPONDENT‐APPELLEE: DEBORAH K. SNYDER, KAREN G.
10 GREGORY, for RICHARD E.
11 ZUCKERMAN, Principal Deputy
12 Assistant Attorney General,
13 Department of Justice,
14 Washington, D.C.
Appeal from an order and decision of the United States Tax Court
(Thornton, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the decision of the district court is
AFFIRMED in part and REMANDED to correct certain arithmetic errors in the
calculations of the deficiency judgment.
Appellants Christopher and Ingrid Harrell, pro se, appeal from a May 8,
2017 decision of the Tax Court denying their claims to income tax exclusions and
deductions related to their annuity income, and an October 27, 2017 decision
finding deficiencies in their 2009 and 2010 income taxes in the amounts of $7,071
and $4,236, respectively. The Commissioner moves for a limited remand to
correct arithmetic errors in the Tax Court’s computations. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
We review the Tax Court’s legal conclusions de novo and its factual
findings for clear error. Chai v. Comm’r of Internal Revenue, 851 F.3d 190, 204
(2d Cir. 2017); see I.R.C. § 7482(a)(1).
1. The taxpayer bears the burden of proving entitlement to a deduction or
that a claimed exclusion falls within an exclusionary provision of the Code.
Scheidelman v. Comm’r of Internal Revenue, 755 F.3d 148, 154 (2d Cir. 2014)
(citing INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84 (1992)) (deductions); Taggi v.
United States, 35 F.3d 93, 95 (2d Cir. 1994) (exemptions).1
The Harrells argue that the Tax Court failed to apply the “general rule,”
pursuant to which, gross income includes annuity payments, except the portion
of the annuity “which bears the same ratio to such amount as the investment in
the contract (as of the annuity starting date) bears to the expected return under
the contract (as of such date).” I.R.C. § 72(b)(1). An employee’s “investment in
the contract” is the consideration paid for the contract from the employee’s
taxable income. Id. § 72(c)(1), (f)(1). In addition, the laws then treated up to
$5,000 in employer benefits “paid by reason of the death of the employee” as an
additional investment in the contract. See id. § 101(b)(1), (2)(A), (D) (1994),
repealed by Small Business Job Protection Act of 1996, PL 104–188, § 1402,
August 20, 1996, 110 Stat 1789.
As the Tax Court found, the Harrells failed to demonstrate that the
investment in contract here included any amount above the $5,000 exclusion.
The Harrells argue that they are entitled to deduct $11,245 in required “basic”
employee contributions because the contributions constitute an investment in the
contract. However, investment in a contract only applies to taxable income.
According to plan documents, the required “basic” employee contributions were
pre‐tax, and the Harrells produced no evidence that the $11,245 included any
after‐tax contributions. Therefore, there is no error in the Tax Court’s
calculation of the ratio between the $5,000 investment in contract to the expected
return under the contract. Accordingly, there is no error in the Tax Court’s
1
The burden of proof shifts to the Commissioner under certain circumstances. See
I.R.C. § 7491(a). But the Tax Court determined that burden shifting was not applicable
in this case. And the Harrells have waived any argument on this issue. See LoSacco
v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995) (issues not raised in a pro se
appellate brief are abandoned).
3
determination that the Harrells were entitled to exclude only $86 per year from
their gross income on the above basis for 2009 and 2010.
2. The Tax Court also correctly found that the Harrells were not entitled to
deduct funeral and estate expenses from their income. The Harrells argue that
this deduction can be taken from the annuity, which they contend constitutes an
estate asset from which they can claim the expenses as an estate tax deduction.
However, funeral and estate expenses are “personal, living, or family expenses,”
which may not be deducted on an income tax return unless specifically
permitted. See I.R.C. § 262; Beck v. Comm’r of Internal Revenue, 82 T.C.M.
(CCH) 738, 2001 WL 1188462, at *10 (T.C. Oct. 9, 2001). The Harrells have not
identified a provision permitting such a deduction, nor have they identified a
basis for their assertion that they can claim estate tax deductions on an income
tax return.
3. Rule 155 directs the parties to file computations consistent with the Tax
Court’s determination of the issues. Tax Ct. R. 155(a), (b). The Tax Court
resolves any disputes between the parties. Tax. Ct. R. 155(b). Arguments
under Rule 155 are “confined strictly to the consideration of the correct
computation . . . resulting from the findings and conclusions made by the Court,”
and the parties are not permitted to raise arguments as to “the issues or matters
disposed of by the Court’s [prior] findings and conclusions or to any new
issues.” Tax Ct. R. 155(c).
The Harrells argue that the Tax Court’s Rule 155 computations are
erroneous because they differ from the Harrells’ own computations. However,
their brief fails to offer any reason that the Tax Court’s calculations are incorrect,
or identify the ways that their calculations differ from the Tax Court’s. And the
numbers that the Harrells used to produce their amended returns differ from the
stipulations. For example, the Harrells stipulated to a $3,350 deduction for real
estate taxes in 2009, but they claimed a $13,100 deduction in their amended
return. Because the Harrells did not contest these stipulated facts prior to the
Rule 155 proceedings, their later assertion of different figures is improper in a
Rule 155 proceeding. See Tax Ct. R. 155(c).
4
The Commissioner points out that the Tax Court miscalculated the
Harrells’ tax deficiency for both years by (1) adding the excludable $86 portion of
the annuity to the Harrells’ taxable gross income, rather than subtracting it and
(2) failing to include a $250 deduction for educator expenses that the Harrells
had initially claimed and the Commissioner never contested. The Tax Court
therefore overstated the Harrells’ deficiencies by $30 for 2009 and $44 for 2010,
and the correctly calculated deficiencies are $7,041 for 2009 and $4,192 for 2010.
Because these are plain errors, we remand to correct the Rule 155 calculations.
4. The Harrells’ argue that the Commissioner improperly withheld their
2017 tax refund. However, taxpayers are not entitled to a stay of collection
pending judicial review unless they file a bond. I.R.C. § 7485.
5. The Harrells argue that they are entitled to claim additional business
expenses because they received erroneous advice from an IRS employee on that
issue, and that they are entitled to relief from interest liability resulting from the
Commissioner’s delays in assessing their tax deficiency. Because the Harrells
did not raise these arguments before the Tax Court, we will not consider them on
appeal. See Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (“[I]t is a
well‐established general rule that an appellate court will not consider an issue
raised for the first time on appeal.”).
We have considered all of the Harrells’ remaining arguments and find them
to be without merit. Accordingly, we AFFIRM the decision of the Tax Court in
all respects except for its calculation of the Harrells’ tax deficiencies and REMAND
to correct the arithmetic errors described above.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
5