T.C. Memo. 2014-102

UNITED STATES TAX COURT

RICHARD A. CANATELLA, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 13787-12. Filed May 28, 2014.

Richard A. Canatella, pro se.

L. Katrine Shelton and Joseph E. Nagy, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

CHIECHI, Judge: Respondent determined a deficiency in, an addition under section 6651(a)(1) to, and an accuracy-related penalty under section 6662(a) 1

All section references are to the Internal Revenue Code (Code) in effect for 1

the year at issue. All Rule references are to the Tax Court Rules of Practice and

Procedure.
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[*2] on petitioner’s Federal income tax (tax) for his taxable year 2007 of

$132,005, $6,602.25, and $26,401, respectively.

The issues remaining for decision for petitioner’s taxable year 2007 are:2

(1) Is petitioner entitled to deduct under section 162(a) certain claimed business expenses in excess of those that respondent conceded? We hold that he is

not.

(2) Is petitioner liable for the addition to tax under section 6651(a)(1)? We

hold that he is.

(3) Is petitioner liable for the accuracy-related penalty under section

6662(a)? We hold that he is.

FINDINGS OF FACT

Many of the facts have been deemed established pursuant to Rule 91(f).

Petitioner resided in California at the time he filed the petition. 

During 2007, petitioner operated a law practice as a sole proprietorship

under the name of Cotter & Del Carlo. 

The parties raised at the trial in this case an issue regarding the amount of 2

the gross receipts of petitioner that must be included in Schedule C, Profit or Loss

From Business (Schedule C), for his taxable year 2007. We need not resolve that

issue. See infra notes 4 and 5.
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[*3] During 2007, petitioner maintained, and had signatory authority over,

certain bank accounts (petitioner’s bank accounts) at U.S. Bank, Countrywide

Bank, Citibank, Washington Mutual Bank, and World Savings Bank. 

On April 15, 2008, petitioner and Zini Canatella (Ms. Canatella) filed Form 3

4868, Application for Automatic Extension of Time To File U.S. Individual Income Tax Return, for their taxable year 2007. Respondent granted an extension of

time to October 15, 2008, within which petitioner and Ms. Canatella were required

to file their tax return for their taxable year 2007 (2007 return). The accountant

(petitioner’s accountant) who prepared the 2007 return of petitioner and Ms.

Canatella signed that return on October 27, 2008. Petitioner and Ms. Canatella

signed their 2007 return on October 28, 2008, and filed it with respondent on October 29, 2008. 

Petitioner attached to the 2007 return Schedule C, Profit or Loss From Business, for his law practice (2007 Schedule C). In the 2007 Schedule C, petitioner

reported gross receipts totaling $441,124 and claimed the following expenses totaling $423,182 (2007 claimed Schedule C expenses):

Ms. Canatella is petitioner in the case at docket No. 8821-13.

3
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[*4] Expense Amount

Advertising $8,647

Contract labor 87,345

Depreciation and sec.

 179 expense deduction 8,025

Office expense 24,326

Rent or lease 18,000

Repairs and maintenance 7,275

Travel, meals, and

 entertainment 11,792

Other expenses 257,772

 Total 423,182

At a time not established by the record, respondent commenced an examination of petitioner’s 2007 return (respondent’s examination). As part of that examination, respondent’s revenue agent (revenue agent) assigned to that examination

asked petitioner to provide him with certain documents pertaining to petitioner’s

2007 return. Petitioner did not provide the revenue agent with those documents. 

Consequently, the revenue agent issued summonses on behalf of respondent (respondent’s summonses) to the respective banks at which petitioner maintained

petitioner’s bank accounts. Pursuant to respondent’s summonses, those banks

provided the revenue agent with the bank statements for the respective bank accounts that petitioner maintained during 2007 (2007 bank statements). 
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[*5] The revenue agent examined the 2007 bank statements and prepared a bank

deposits analysis for petitioner’s taxable year 2007 on the basis of that examination (respondent’s bank deposits analysis). That bank deposits analysis showed,

inter alia, the total amount of deposits into each of petitioner’s bank accounts during each month in 2007. In preparing respondent’s bank deposits analysis, the

revenue agent attempted to ascertain whether any of the deposits into petitioner’s

respective bank accounts during 2007 is nontaxable because, for example, a deposit had been made as a result of a transfer of funds from one of petitioner’s bank

accounts to another of those accounts. The revenue agent reduced the total deposits during 2007 by (1) all deposits that the revenue agent determined to be nontaxable, (2) all deposits that were attributable to Ms. Canatella’s business income that

she reported in Schedule C-EZ, Net Profit From Business, that she attached to the

2007 return, (3) all deposits that the revenue agent concluded represented (a) interest income or (b) retirement pension income that petitioner reported in his 2007

return, and (4) the gross receipts totaling $441,124 that petitioner reported in the

2007 Schedule C. The revenue agent concluded that the balance of the total deposits, i.e., $46,233.31, constituted gross receipts from petitioner’s law practice

during 2007 that he failed to report in the 2007 Schedule C.
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[*6] Respondent issued to petitioner and Ms. Canatella a notice of deficiency

(notice) for their taxable year 2007. In that notice, respondent determined, inter

alia, that petitioner has unreported 2007 Schedule C gross receipts from his law

practice of $46,233.31. In making that determination, respondent relied on respondent’s bank deposits analysis that the revenue agent had prepared. In the

notice, respondent further determined to disallow $338,047.76 (disallowed 2007

Schedule C expenses) of the 2007 claimed Schedule C expenses of $423,182.

4

Respondent also determined in the notice that petitioner and Ms. Canatella are liable for their taxable year 2007 for the addition to tax under section 6651(a)(1) and

the accuracy-related penalty under section 6662(a). 

OPINION

Petitioner bears the burden of proving that the determinations in the notice

that remain at issue are erroneous. See Rule 142(a); Welch v. Helvering, 290 5

Respondent concedes on brief that petitioner is entitled to deduct under sec. 4

162(a) an expense of $87,939.90 that consists of a payment that petitioner made

during 2007 from one of petitioner’s bank accounts to one of his clients (2007 client amount) and that petitioner had not included in his 2007 claimed Schedule C

expenses.

Petitioner maintains that in preparing respondent’s bank deposits analysis

5

the revenue agent erroneously failed to reduce the total deposits in petitioner’s

bank accounts during 2007 by $87,939.90, the 2007 client amount. According to

petitioner, that failure caused respondent to overstate by $87,939.90 the amount of

(continued...)
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[*7] U.S. 111, 115 (1933). Moreover, deductions are a matter of legislative grace,

and petitioner bears the burden of proving entitlement to any deduction claimed. 

See INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992). The Code and the

regulations thereunder required petitioner to maintain records sufficient to establish the amount of any deduction claimed. See sec. 6001; sec. 1.6001-1(a), Income

Tax Regs.

We turn initially to the disallowed 2007 Schedule C expenses of

$338,047.76. It is petitioner’s position that he is entitled to deduct those expenses

under section 162(a). In support of that position, petitioner relies primarily on

(1) certain schedules showing by month and type of expense the total amount that

he claims he paid for each type of expense during each month in 2007 in carrying

on his law practice (petitioner’s summary claimed expense schedules) and (2) a

document titled “Profit & Loss Detail” showing by month and type of expense the

(...continued) 5

petitioner’s 2007 Schedule C gross receipts that respondent determined in the

notice. Respondent disagrees. However, as discussed supra note 4, respondent

concedes on brief that petitioner is entitled to deduct under sec. 162(a) the 2007

client amount of $87,939.90. The tax result for petitioner in the 2007 Schedule C

is the same regardless of whether the amount of his 2007 Schedule C gross

receipts is reduced by $87,939.90 or whether he is entitled under sec. 162(a) to

deduct the 2007 client amount of $87,939.90. Therefore, we need not resolve the

issue of whether the amount of petitioner’s 2007 Schedule C gross receipts that

respondent determined in the notice is overstated by $87,939.90.
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[*8] amount that he claims he paid for each type of expense during each month in

2007 in carrying on his law practice (petitioner’s detailed claimed expense

schedules). (We shall sometimes refer collectively to petitioner’s summary

claimed expense schedules and petitioner’s detailed claimed expense schedules as

petitioner’s records.) According to petitioner, petitioner’s records are

“undisputedly substantiation for [the claimed 2007] Schedule C business

expenses”. 

In an attempt to understand petitioner’s position with respect to the disallowed 2007 Schedule C expenses of $338,047.76, the Court asked petitioner

certain questions while he was testifying at the trial in this case, including the

following:

THE COURT: Okay, let’s move on to each of the expenses,

and I'll tell you what they are, just in the order in which they were in

the statutory notice of deficiency. Meals and entertainment of

$2,436, what do you have to tell me in support of your position that

that entire amount is deductible?

THE WITNESS: As far as I’m concerned, every expense is

allowable, and if the examiner didn’t allow it, it’s because he didn’t

accept cancelled checks, bank statements, and documentation that

prove under, I believe, 7491 of the probate -- I mean, of the revenue

code that we’re entitled to the allowance.
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[*9] THE COURT: So you believe that having a

cancelled check or a credit card [statement] entitles you

to each of the deductions, is that right?

THE WITNESS: Yes.

As we understand petitioner’s position with respect to the disallowed 2007

Schedule C expenses, petitioner maintains that he is entitled to deduct under section 162(a) any expense that he is able to establish he paid during 2007 (e.g.,

through canceled checks or credit card statements). Any such position reflects a

misunderstanding, or a disregard, of the requirements of section 162(a).

Section 162(a) generally allows a deduction for ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business. In general, an expense is ordinary if it is considered normal, usual, or cus- 6

tomary in the context of the particular business out of which it arose. See Deputy

v. du Pont, 308 U.S. 488, 495 (1940). Ordinarily, an expense is necessary if it is

appropriate and helpful to the operation of the taxpayer’s trade or business. See

Commissioner v. Tellier, 383 U.S. 687, 689 (1966); Carbine v. Commissioner, 83

T.C. 356, 363 (1984), aff’d, 777 F.2d 662 (11th Cir. 1985). The determination of

For certain expenses otherwise deductible under sec. 162(a), such as ex6

penses for travel, meals, and entertainment, see sec. 274(d)(1) and (2), and expenses for a cellular telephone that is “listed property”, see sec. 280F(d)(4), a taxpayer must also satisfy the substantiation requirements set forth in sec. 274(d)

before such expenses will be allowed as deductions.
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[*10] whether an expenditure satisfies the requirements for deductibility under

section 162 is a question of fact. See Commissioner v. Heininger, 320 U.S. 467,

475 (1943). 

Respondent does not dispute that petitioner paid most of the expenses

shown in petitioner’s records. However, as we understand respondent’s position,

respondent maintains that, except for certain expenses shown in petitioner’s records that respondent allowed in the notice, petitioner failed to establish that the

expenses shown in petitioner’s records that he proved he paid during 2007 are

ordinary and necessary expenses that he paid or incurred in carrying on his law

practice. 

On the record before us, we find that petitioner has failed to carry his burden of establishing through petitioner’s records, or otherwise, that any of the disallowed 2007 Schedule C expenses of $338,047.76 is an ordinary and necessary

expense that he paid or incurred in carrying on his law practice.

Based upon our examination of the entire record before us, we find that petitioner has failed to carry his burden of establishing that he is entitled for his tax-
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[*11] able year 2007 to deduct under section 162(a) the disallowed 2007 Schedule

C expenses of $338,047.76.

7

We turn next to the issues presented under sections 6651(a)(1) and 6662(a). 

Respondent bears the burden of production with respect to any addition to tax or

penalty. See sec. 7491(c); Higbee v. Commissioner, 116 T.C. 438, 446-447

(2001). To satisfy respondent’s burden of production, respondent must come forward with “sufficient evidence indicating that it is appropriate to impose” the

addition to tax or penalty. Higbee v. Commissioner, 116 T.C. at 446. Although

respondent bears the burden of production with respect to any addition to tax or

penalty, respondent “need not introduce evidence regarding reasonable cause * * *

or similar provisions. * * * the taxpayer bears the burden of proof with regard to

those issues.” Id.

With respect to section 6651(a)(1), that section imposes an addition to tax

for failure to file timely a tax return. Respondent granted an extension of time to

October 15, 2008, within which petitioner and Ms. Canatella were required to file

Assuming arguendo that we had found that petitioner had carried his bur- 7

den of establishing for his taxable year 2007 his entitlement to deductions under

sec. 162(a) for certain of the disallowed 2007 Schedule C expenses subject to sec.

274(d), petitioner would still have to satisfy the requirements of sec. 274(d) with

respect to those expenses. On the record before us, we find that petitioner has

failed to carry his burden of establishing that he satisfies those requirements.
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[*12] their 2007 return. Petitioner and Ms. Canatella did not file their 2007 return

until October 29, 2008. 

On the record before us, we find that respondent has satisfied respondent’s

burden of production under section 7491(c) with respect to the addition to tax under section 6651(a)(1) that respondent determined for petitioner’s taxable year

2007.

The addition to tax under section 6651(a)(1) does not apply if the failure to

file timely is due to reasonable cause, and not due to willful neglect. See sec.

6651(a)(1). Petitioner argues that his failure to file timely his 2007 return was due

to reasonable cause, and not due to willful neglect, because (1) he relied on petitioner’s accountant to prepare his 2007 return and (2) that accountant testified at

the trial in this case that he “believe[d] it was timely filed, given our last extension

filing deadline.” On the record before us, we reject petitioner’s argument.

Petitioner’s accountant signed the 2007 return of petitioner and Ms.

Canatella on October 27, 2008, and petitioner and Ms. Canatella signed their 2007

return on October 28, 2008. Those respective signing dates were after October 15,

2008, the date by which petitioner and Ms. Canatella were required to file their

2007 return.
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[*13] On the record before us, we find that petitioner has failed to carry his burden of establishing that his failure to file timely his 2007 return was due to reasonable cause, and not due to willful neglect.

Based upon our examination of the entire record before us, we find that

petitioner has failed to carry his burden of establishing that he is not liable for an

addition to tax under section 6651(a)(1) for his taxable year 2007. 

With respect to section 6662(a), that section imposes an accuracy-related

penalty of 20 percent of the underpayment to which section 6662 applies. Section

6662 applies to the portion of any underpayment which is attributable to, inter alia,

negligence or disregard of rules or regulations, sec. 6662(b)(1), or a substantial

understatement of tax, sec. 6662(b)(2).

The term “negligence” in section 6662(b)(1) includes any failure to make a

reasonable attempt to comply with the Code. Sec. 6662(c). Negligence has also

been defined as a failure to do what a reasonable person would do under the circumstances. See Leuhsler v. Commissioner, 963 F.2d 907, 910 (6th Cir. 1992),

aff’g T.C. Memo. 1991-179; Antonides v. Commissioner, 91 T.C. 686, 699

(1988), aff’d, 893 F.2d 656 (4th Cir. 1990). The term “negligence” also includes

any failure by the taxpayer to keep adequate books and records or to substantiate
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[*14] items properly. Sec. 1.6662-3(b)(1), Income Tax Regs. The term

“disregard” includes any careless, reckless, or intentional disregard. Sec. 6662(c).

For purposes of section 6662(b)(2), an understatement is equal to the excess

of the amount of tax required to be shown in the tax return over the amount of tax

shown in the return. Sec. 6662(d)(2)(A). An understatement is substantial in the

case of an individual if the amount of the understatement for the taxable year exceeds the greater of 10 percent of the tax required to be shown in the tax return for

that year or $5,000. Sec. 6662(d)(1)(A).

The accuracy-related penalty under section 6662(a) does not apply to any

portion of an underpayment if it is shown that there was reasonable cause for, and

that the taxpayer acted in good faith with respect to, such portion. Sec.

6664(c)(1). The determination of whether the taxpayer acted with reasonable

cause and in good faith depends on all the pertinent facts and circumstances,

including the taxpayer’s efforts to assess the taxpayer’s proper tax liability, the

knowledge and experience of the taxpayer, and the reliance on the advice of a

professional, such as an accountant. Sec. 1.6664-4(b)(1), Income Tax Regs.

Reliance on the advice of a professional may demonstrate reasonable cause

and good faith if, under all the circumstances, such reliance was reasonable and

the taxpayer acted in good faith. Id. In this connection, a taxpayer must demon- 
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[*15] strate that the taxpayer’s reliance on the advice of a professional concerning

substantive tax law was objectively reasonable. See Goldman v. Commissioner,

39 F.3d 402, 408 (2d Cir. 1994), aff’g T.C. Memo. 1993-480. A taxpayer’s

reliance on the advice of a professional will be objectively reasonable only if the

taxpayer has provided necessary and accurate information to the professional. See

Neonatology Assocs., P.A. v. Commissioner, 115 T.C. 43, 99 (2000), aff’d, 299

F.3d 221 (3d Cir. 2002); see also Ma-Tran Corp. v. Commissioner, 70 T.C. 158,

173 (1978).

Respondent argues that petitioner is liable for the accuracy-related penalty

under section 6662(a) because of a substantial understatement of tax under section

6662(b)(2) and petitioner’s negligence or disregard of rules or regulations under

section 6662(b)(1). 

On the record before us, we find that petitioner failed to substantiate under

section 162(a) the disallowed 2007 Schedule C expenses. On that record, we further find that respondent has satisfied respondent’s burden of production under

section 7491(c) with respect to the accuracy-related penalty under section 6662(a).

It is petitioner’s position that under section 6664(c)(1) he had reasonable

cause for, and acted in good faith with respect to, the underpayment for his taxable year 2007 because “petitioner relied upon * * * a competent tax advisor [i.e., 
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[*16] petitioner’s accountant] and operated under an objective disability since

petitioner had no understanding of tax penalties or the bona fides of business

deductions.” 

Petitioner’s accountant testified at the trial in this case that in preparing

petitioner’s 2007 return he relied on information contained in certain handwritten

summary schedules that petitioner had provided to him. Petitioner’s accountant

did not testify that he gave petitioner any advice with respect to his preparation of

petitioner’s 2007 return.

On the record before us, we find that petitioner has failed to carry his burden of establishing that there was reasonable cause for, and that he acted in good

faith with respect to, the underpayment for his taxable year 2007.

Based upon our examination of the entire record before us, we find that

petitioner has failed to carry his burden of establishing that he is not liable for his

taxable year 2007 for the accuracy-related penalty under section 6662(a).

We have considered all of the contentions and arguments of the parties that

are not discussed herein, and we find them to be without merit, irrelevant, and/or

moot. 
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[*17] To reflect the foregoing and the concessions of the parties,

Decision will be entered under

Rule 155.