ARMEN, Special Trial Judge.
This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect when the petition was filed.
Respondent determined a deficiency in petitioners' 2010 Federal income tax of $6,949 and an accuracy-related penalty of $1,390 under section 6662(a) and (d) for a substantial understatement of tax.
After concessions by petitioners,
(1) Whether petitioners are liable for tax on income of $33,125
(2) whether petitioners are liable for the accuracy-related penalty under section 6662(a) and (d). We hold that they are not.
Some of the facts have been stipulated, and they are so found. We incorporate by reference the parties' stipulation of facts and supplemental stipulation of facts and accompanying exhibits.
Petitioners resided in New York at the time that the petition was filed.
In 2010 Mrs. Brach was employed in a bakery. Mr. Brach was disabled during 2010 and was unable to engage in gainful employment.
In September 1984 Mr. Brach acquired an insurance policy on his life from Guardian Life Insurance Co. (Guardian). The policy had a cash value portion and a dividends portion; the former grew with the age of the policy, and the latter grew with investments made through the policy. Under the terms of the policy, Mr. Brach was permitted to borrow against the policy in an amount not in excess of its cash value. Also under the terms of the policy, Mr. Brach was permitted to terminate the policy and receive as a distribution the cash value of the policy plus any accrued dividends minus any outstanding debts against the policy.
In or around 1995 Mr. Brach borrowed against the cash value of the policy. Interest due on the loan accrued at a specified annual percentage rate pursuant to the terms of the loan agreement. Petitioners did not pay back the loan.
In November 2010 Mr. Brach was obliged to surrender the policy after petitioners became unable to pay the premium or make loan repayments. Upon surrender, policy proceeds paid the outstanding loan in full, and Mr. Brach received a check for $3,786, which represented the net value of the policy.
Surrender of the policy gave rise to a gross distribution of $65,903. At the time of surrender, Mr. Brach's investment in the contract was $32,778.
Guardian issued a Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., for 2010 reflecting a gross distribution of $65,903 and taxable income of $33,125. The latter amount represented the difference between the gross distribution, $65,903, and Mr. Brach's investment in the contract, $32,778.
Petitioners retained Moses Neuman, an enrolled agent who practiced before the Internal Revenue Service as a tax professional, to prepare their 2010 tax return.
On the basis of petitioners' income and expenses, assets, and various loan liabilities, Mr. Neuman determined that petitioners were insolvent and were not required to report on their 2010 return cancellation of indebtedness income in respect of the surrender of the life insurance policy. Further, given petitioners' modest income (exclusive of the distribution arising from the surrender of the life insurance policy), Mr. Neuman determined that no part of petitioners' Social Security benefits was taxable. Finally, Mr. Neuman determined that it was unnecessary to attach to petitioners' return a Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Basis Adjustment), the Forms 1099-SSA issued by the Social Security Administration, or the Form 1099-R issued by Guardian.
In March 2012 respondent issued to petitioners a notice of deficiency for 2010, determining a deficiency of $6,949 and an accuracy-related penalty of $1,390 under section 6662(a) and (d). Petitioners timely filed a petition for redetermination.
Petitioners invoke section 108. They argue that the surrender of their life insurance policy gave rise to cancellation of indebtedness income and that because they were insolvent at the time, no part of the distribution is includible in gross income by virtue of section 108(a)(1)(B).
Respondent argues that petitioners failed to prove that they were insolvent. But more fundamentally, respondent argues that because the surrender of the life insurance policy resulted in the full satisfaction of an outstanding debt (i.e., Guardian was paid in full and did not forgive any part of Mr. Brach's indebtedness), section 72 is the key Code section. The Court agrees with respondent that section 108 is not relevant and that section 72 provides the touchstone for decision. Accordingly, the issue of petitioners' insolvency vel non need not be decided.
Gross income includes all income from whatever source derived. Sec. 61(a). Section 61 lists specific forms of gross income, including income from life insurance contracts. Sec. 61(a)(10).
For Federal income tax purposes, petitioners' life insurance policy loan was a true loan.
Where an insurance policy is terminated and the proceeds are used to satisfy a loan against the policy, the payment against the loan is treated as if the taxpayers received the payment and applied it against the outstanding loan.
The tax treatment of a distribution from a life insurance policy is governed by section 72. Thus, an amount received in connection with a life insurance contract which is not received as an annuity generally constitutes gross income to the extent that the amount received exceeds the investment in the insurance contract. Sec. 72(e)(1)(A), (5)(A), (C);
In the instant case, Mr. Brach owned a life insurance policy with Guardian. He took out a loan against the policy. After petitioners became financially unable to pay the premium or make loan repayments, the policy was surrendered in November 2010. The surrender of the policy gave rise to a gross distribution of $65,903. Upon surrender of the policy, the distribution proceeds were first used to satisfy Mr. Brach's outstanding loan against the policy, which loan was paid in full. Net proceeds of $3,786 were then paid in cash to Mr. Brach. Clearly, Guardian did not forgive (or write off, cancel, or discharge) any part of the loan for the simple reason that it was paid in full.
At the time of surrender, Mr. Brach's investment in the contract was $32,778, which portion of the gross distribution was nontaxable.
Petitioners did not receive income from the discharge of indebtedness. A discharge of indebtedness occurs when "the debtor is no longer legally required to satisfy his debt either in part or in full."
Section 6662(a) and (b)(2) imposes an accuracy-related penalty equal to 20% of the amount of any underpayment of tax that is attributable to a substantial understatement of income tax. By definition, an understatement is the excess of the tax required to be shown on the tax return over the tax actually shown on the return. Sec. 6662(d)(2)(A). An understatement of income tax is "substantial" if it exceeds the greater of $5,000 or 10% of the tax required to be shown on the return. Sec. 6662(d)(1)(A).
With respect to a taxpayer's liability for any penalty, section 7491(c) places on the Commissioner the burden of production, thereby requiring the Commissioner to come forward with sufficient evidence indicating that it is appropriate to impose the penalty.
In the instant case, respondent's notice of deficiency determines the accuracy-related penalty on the basis of a substantial understatement of income tax.
Section 6664(c)(1) provides an exception to the imposition of the accuracy-related penalty with respect to any portion of an underpayment if the taxpayer establishes that there was reasonable cause for such portion and the taxpayer acted in good faith with respect to such portion. The decision as to whether the taxpayer acted with reasonable cause and in good faith is made on a case-by-case basis, taking into account the pertinent facts and circumstances, including the taxpayer's knowledge, education, and experience, as well as the taxpayer's reliance on professional advice.
Petitioners contend they had reasonable cause and acted in good faith in relying on advice from their return preparer, Mr. Neuman.
Reliance on a professional tax adviser's advice may demonstrate reasonable cause and good faith if, taking into account all the facts and circumstances, the reliance was reasonable and the taxpayer acted in good faith. Sec. 1.6664-(4)(b)(1), (c)(1), Income Tax Regs. Reliance on a tax adviser may be reasonable and in good faith if the taxpayer establishes: (1) The adviser was a competent professional with sufficient expertise to justify reliance; (2) the taxpayer provided necessary and accurate information to the adviser; and (3) the taxpayer actually relied in good faith on the adviser's judgment.
Petitioners retained Mr. Neuman, an enrolled agent, to prepare their 2010 tax return. As an enrolled agent, Mr. Neuman practiced before the Internal Revenue Service as a tax professional, a fact known to petitioners. Petitioners provided Mr. Neuman with Mrs. Brach's Form W-2, both Forms 1099-SSAs in respect of their Social Security benefits, and the Form 1099-R in respect of the surrender of the life insurance policy. Mr. Neuman determined that because petitioners were insolvent, they were not required to include any income from the surrender of the life insurance policy on their 2010 tax return and that they did not need to attach a Form 982, the Form 1099-R, or the Forms 1099-SSA to their tax return when it was filed. Mr. Neuman explained to petitioners why, in his judgment, income from the surrender of the insurance policy need not be reported on their tax return. Mr. Neuman also advised petitioners that Social Security benefits are not reportable if a taxpayer's other income is sufficiently modest.
The status of enrolled agent can tend to show competence.
Next, petitioners provided to Mr. Neuman complete and accurate information, specifically including Mrs. Brach's Form W-2, both Forms 1099-SSA regarding petitioners' Social Security benefits, and the Form 1099-R regarding the surrender of the life insurance policy.
Finally, petitioners relied in good faith on Mr. Neuman's judgment. It is clear from the record that petitioners are not experienced in tax matters. Mr. Neuman explained to petitioners that because of their insolvency and otherwise modest income, no part of either the distribution from Guardian or their Social Security benefits would be taxable and that petitioners need not attach to their return either Form 982 or any Form 1099. Petitioners had no reason not to accept Mr. Neuman's advice, and they filed their tax return accordingly.
In sum, the Court finds that petitioners acted in good faith and reasonably relied on Mr. Neuman, an enrolled agent, to whom they fully disclosed all information necessary to determine their proper tax liability for 2010.
We have considered all of the arguments advanced by the parties, and, to the extent not expressly addressed, we conclude that those arguments do not support results contrary to those reached herein.
To give effect to our disposition of the disputed issues,
Other adjustments made by respondent in the notice of deficiency, namely the increase in the child tax credit and the disallowance of both the earned income tax credit and the additional child tax credit, are mechanical in nature and have not been otherwise contested by petitioners. The resolution of these other adjustments also depends on the disposition of the disputed substantive issue.
