Wrap-Up Questions for Chapter 10

1 Of course, state legislatures may carve out exceptions. Purchases of food might not be subject to a sales tax, or to a reduced sales tax. Purchases of services might not be subject to a sales tax. Online purchasers from out-of-state sellers who have no physical presence within a state are not (yet) subject to sales taxes. See Quill v. North Dakota, 504 U.S. 298 (1992).

2^ Taxpayers who are married filing jointly are subject to this tax to the extent their wages or self-employment income exceed $250,000. Taxpayers who are married filing separately are subject to this tax to the extent their wages exceed one-half that amount. All other taxpayers are subject to this tax to the extent their wages exceed $200,000. I.R.C. §§ 3101(b)(2), 1401(b)(2). Moreover, an individual is subject to a 3.8% Medicare tax on his/her “net investment income” to the extent his/her modified AGI exceeds a threshold amount. I.R.C. § 1411(a) The threshold amount is $250,000 for taxpayers who are married filing jointly, one-half that amount for taxpayers who are married filing separately, and $200,000 for all others. I.R.C. § 1411(b).

3^ Self-employed taxpayers must pay both halves of these taxes. See § 1401.

4 See William P. Kratzke, The Imbalance of Externalities in Employment-Based Exclusions from Gross Income, 60 The Tax Lawyer 1, 3-8 (2006) (noting that employment taxes reach even income that the income tax would not reach because of the standard deduction and personal exemptions applicable to the latter).

5 The federal income tax applies to the worldwide income of citizens and permanent residents of the United States.

6 This figure is derived from the accompanying table, SOI Tax Stats at a Glance. The portion of total tax revenues derived from corporate income taxes is 11.9%, from employment taxes (Social Security and Medicare) 35.3%, from excise taxes 2%, from gift taxes 0.1%, and from estate taxes 0.7%. Do these percentages surprise you?

7 Your author had a double major as an undergraduate – Political Science and the Far Eastern & Russian Institute. His LL.M. is not in tax law. He learned income tax law the same way you are going to: by reading the Code, studying texts, and talking to people.

8 We refer to this phenomenon as the declining marginal utility of money.

9 Constitutional scholars have observed that the phrase “direct taxes” (see Art. I, § 9, cl. 4 of U.S. Constitution) refers to taxes whose burden cannot be transferred to another, e.g., head taxes. Implicitly, “indirect taxes” are taxes whose burden can be transferred to another, e.g., excise taxes. The point at which a transferee is not willing to pay the “indirect tax” constitutes a practical limit on congressional power to increase such taxes.

10 See William P. Kratzke, The (Im)Balance of Externalities in Employment-Based Exclusions from Gross Income, 60 The Tax Lawyer 1 (2006).

11 See William P. Kratzke, Tax Subsidies, Third-Party Payments, and Cross-Subsidization: America’s Distorted Health Care Markets, 40 U. Mem. L. Rev. 279, 311-12 (2009) (tax subsidized health insurance makes more money available to health care providers).

12 There is a separate sub-section on “basis,” infra.

13 We will not spend any more time on the AMT. You should be aware that it exists and of its basic approach to addressing a particular (perceived) problem.

14 SOI Tax Statistics at a Glance notes that 56.3% of individual taxpayers pay a tax preparer. Certainly, many more purchase off-the-shelf tax preparation programs. Close to 100,000,000 taxpayers received assistance by calling or walking into an IRS Office or taking advantage of an IRS program.

15 26 U.S.C. § 3101(a) (for “Old-Age, Survivors, and Disability Insurance;” 6.2%); 26 U.S.C. § 3101(b) (for “Hospital Insurance;” 1.45% and 2.35% for amounts over a certain threshold).

16 26 U.S.C. § 3111(a) (for “Old-Age, Survivors, and Disability Insurance;” 6.2%); 26 U.S.C. § 3111(b) (for “Hospital Insurance;” 1.45%).

17 That is, gain on the sale of property that a taxpayer owns for more than one year.

18 See Marbury v Madison, 5 U.S. 137, 177 (duty of courts to say what the law is and to expound and interpret it). In other countries, court constructions of a code are persuasive authority only. The Code still prevails in such countries over court pronouncements insofar as they might guide persons other than parties to a particular case.

19 In Mayo Found. for Med. Educ. and Res. v. U.S., 562 U.S. 44 (2011) the Supreme Court held that reviewing courts should give Chevron deference when passing upon the validity of Treasury Department (i.e., IRS) regulations. 562 U.S. at 55-56 (upholding regulation providing that employee normally scheduled to work 40 or more hours per week does not perform such work incident to and pursuant to course of study; employer not exempt from paying employment taxes). Chevron, U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) established a two-part framework by which courts determine whether to defer to administrative rulemaking: (1) Has Congress addressed the precise question at issue? If not: (2) Is the agency rule “arbitrary or capricious in substance, or manifestly contrary to the statute.” If not, then the reviewing court is to defer to the agency rule. 562 U.S. at 52-53. In King v. Burwell, ___ U.S. ___, ___ S. Ct. ___ (2015), the Court refused to defer to the IRS on the question whether the tax credits of 26 U.S.C. § 36B were available to those who purchased health insurance through federal exchanges rather through than state exchanges. An IRS regulation said “yes.” The Court nevertheless made its own determination because this was an extraordinary case.
The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly.
Slip opinion at 8.

20 See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 40-45 (1976) (taxpayer unable to show that tax benefit given to other taxpayers caused injury to itself that any court-ordered relief would remedy).

21 See Boris I. Bittker, A “Comprehensive Tax Base” as a Goal of Income Tax Reform, 80 Harv. L. Rev. 925, 934 (1967) (arguing that many of the changes necessary to create truly comprehensive tax base would be unacceptable).

22 Henry C. Simons, Personal Income Taxation 50 (1937).

23 The Zimbabwean dollar once fit this description.

24 A person tends to value what s/he already has more than what s/he does not have.

25 The only exception to this principle is the trade or business of trafficking in certain controlled substances. See § 280E.

26 ... or amortization or cost recovery.

27 But see Commissioner v. Groetzinger, 480 U.S. 23 (1987) (full-time gambler who makes wagers solely for his own account is engaged in a “trade or business” within meaning of § 162).

28 Title I. – Income Tax

Part I. – On Individuals”

“Sec. 2. (a) That, subject only to such exemptions and deductions as are hereinafter allowed, the net income of a taxable person shall include gains, profits, and income derived, ... also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever: Provided, that the term ‘dividends’ as used in this title shall be held to mean any distribution made or ordered to be made by a corporation, ... out of its earnings or profits accrued since March first, nineteen hundred and thirteen, and payable to its shareholders, whether, in cash or in stock of the corporation, ... which stock dividend shall be considered income, to the amount of its cash value.”

29 There was no SHS definition of “income” in 1919.

30 Insofar as compensation for nonphysical personal injuries appears to be excludable from gross income under 26 C.F.R. § 1.104-1, the regulation conflicts with the plain text of § 104(a)(2); in these circumstances the statute clearly controls. See Brown v. Gardner, 513 U.S. 115, 122 (1994) (finding “no antidote to [a regulation’s] clear inconsistency with a statute”).

31 Though it is unclear whether an income tax is a direct tax, the Sixteenth Amendment definitively establishes that a tax upon income is not required to be apportioned. [citation omitted].

32 Pollock II also held that a tax upon the income of real or personal property is a direct tax. 158 U.S. at 637. Whether that portion of Pollock remains good law is unclear. See Graves v. New York ex rel. O’Keefe, 306 U.S. 466, 480 (1939).

33 Many Northern delegates were opposed to the three-fifths compromise on the ground that if slaves were property, then they should not count for the purpose of representation. Apportionment effectively meant that if the slaveholding states were to receive representation in the House for their slaves, then because apportioned taxes must be allocated across states based upon their representation, the slaveholding states would pay more in taxes to the national government than they would have if slaves were not counted at all in determining representation. See Ackerman, supra, at 9. Apportionment was then limited to direct taxes lest it drive the Congress back to reliance upon requisitions from the States. See id. at 9-10.

34 For the same reason, we infer from Knowlton that a tax laid upon an amount received in settlement of a suit for a personal nonphysical injury would also be an excise. See 178 U.S. at 55.

35 Aside from being part of the restructuring agreement, the taxpayer’s transfer of $6,123 cash to the PCA has little significance for the purposes of the present appeal.

36 I.R.C. § 108(a)(1)(B) provides that “gross income does not include any amount which (but for this subsection) would be includable in gross income by reason of the discharge (in whole or in part) of indebtedness of the taxpayer if ... the discharge occurs when the taxpayer is insolvent.” ...

37 Despite the technical accuracy of the decision, one wonders about the propriety of the government’s exhaustive pursuit of this matter in view of the taxpayers’ dire financial situation and continued insolvency.

38 The Tax Code makes a substantial contribution to urban sprawl.

39 Many gamblers have learned the hard way that there is a limit to what they can deduct from their gambling winnings. § 165(d) (wagering losses deductible only to extent of gain from wagering transactions).

40 Memorandum R-49 listed 10 criteria for classifying mortgages as substantially identical.

“The loans involved must:”

“1. involve single-family residential mortgages,”

“2. be of similar type (e.g., conventionals for conventionals),”

“3. have the same stated terms to maturity (e.g., 30 years),”

“4. have identical stated interest rates,”

“5. have similar seasoning (i.e., remaining terms to maturity),”

“6. have aggregate principal amounts within the lesser of 2½% or $100,000 (plus or minus) on both sides of the transaction, with any additional consideration being paid in cash,”

“7. be sold without recourse,”

“8. have similar fair market values,”

“9. have similar loan-to-value ratios at the time of the reciprocal sale, and”

“10. have all security properties for both sides of the transaction in the same state.”

41 By exchanging merely participation interests, rather than the loans themselves, each party retained its relationship with the individual obligors. Consequently, each S & L continued to service the loans on which it had transferred the participation interests and made monthly payments to the participation-interest holders.

42 According to undisputed testimony in the tax court, it was the consensus of the Bruce board that the Celotex assets were selling at a bargain price and also that the dovetailing of the two companies’ sales operations would result in substantial economies.

43 Two years previously, Gilbert accomplished a merger with Bruce of another corporation controlled by him, Empire National Corporation, and in the process he had made some unauthorized withdrawals of Empire funds, all of which he paid back.

44 When attempting to file in the New York County Clerk’s office on June 13 or 14, Bruce was told that it would have to pay a mortgage tax of at least $10,000 because the assignment included real property. ...

45 As of the date of trial in the tax court, less than $500,000 had been raised through sales of the assigned assets. Pursuant to an agreement reached between Bruce and the government in 1970, 35% of these proceeds have been paid over to the government pending the outcome of this lawsuit.

46 Quinn v. Commissioner, supra at 619, 623-25, relied on by the Commissioner, involved taxation of funds received without any contemporaneous recognition of the obligation to repay, and it is therefore distinguishable from the present case.

47 If Gilbert had been intending to abscond with the $1,953,000, it is difficult to see how he could have hoped to avoid detection in the long run. Since his equity in the corporation itself was worth well over $1,953,000, it would have been absurd for him to attempt such a theft.

48 The cases including “tips” in gross income are classic examples of this. See, e.g., Roberts v. Commissioner, 176 F.2d 221.

49 Subtracting the stock basis of $51,073 from the gift tax paid by the donees of $62,992, the Commissioner found that petitioners had realized a long-term capital gain of $11,919. After a 50% reduction in long-term capital gain, 26 U.S.C. § 1202, the Diedrichs’ taxable income increased by $5,959.

50 ....

It should be noted that the gift tax consequences of a conditional gift will be unaffected by the holding in this case. When a conditional “net” gift is given, the gift tax attributable to the transfer is to be deducted from the value of the property in determining the value of the gift at the time of transfer. See Rev. Rul. 75-72, 1975-1 Cum. Bull. 310 (general formula for computation of gift tax on conditional gift); Rev. Rul. 71-232, 1971-1 Cum. Bull. 275.

51 “The tax imposed by section 2501 shall be paid by the donor.”

Section 6321 imposes a lien on the personal property of the donor when a tax is not paid when due. The donee is secondarily responsible for payment of the gift tax should the donor fail to pay the tax. 26 U.S.C. § 6324(b). The donee’s liability, however, is limited to the value of the gift. Ibid. This responsibility of the donee is analogous to a lien or security. Ibid. See also S. Rep. No. 665, 72d Cong., 1st Sess., 42 (1932); H.R. Rep. No. 708, 72d Cong., 1st Sess., 30 (1932).

52 ....

A conditional gift not only relieves the donor of the gift tax liability, but also may enable the donor to transfer a larger sum of money to the donee than would otherwise be possible due to such factors as differing income tax brackets of the donor and donee.

53See generally Committee on the Budget United States Senate 112th Cong., Tax Expenditures: Compendium of Background Material on Individual Provisions, S. Prt. 112-45 at 1013-19 (2012), available at http://www.gpo.gov/fdsys/pkg/CPRT-112SPRT77698/pdf/CPRT-112SPRT77698.pdf

54 The exclusion also does not extend to interest derived from a bond “not in registered form.” § 103(b)(3) as defined in § 149. This basically means that the bond must be offered to the public, have a maturity date more than one year after the date of issue, and not be offered exclusively to persons who are not U.S. persons and/or payable only outside of the United States. Moreover, the interest on some private activity bonds is excluded from a taxpayer’s gross income. See § 141(f) and §§ 142 to 145.

55 However, such interest might be a “tax preference” item, § 57(a)(5) (private activity bonds), and so subject to the AMT. § 55(b)(2)(B).

56 ... in my view.

57 “3. As a general rule, the test of ‘convenience of the employer’ is satisfied if living quarters or meals are furnished to an employee who is required to accept such quarters and meals in order to perform properly his duties.” 1941 Cum. Bull., at 15, citing O.D. 915, supra, n. 18.

58 “The better and more accurate statement of the reason for the exclusion from the employee’s income of the value of subsistence and quarters furnished in kind is found, we think, in Arthur Benaglia, 36 B.T.A. 838, where it was pointed out that, on the facts, the subsistence and quarters were not supplied by the employer and received by the employee ‘for his personal convenience[,] comfort or pleasure, but solely because he could not otherwise perform the services required of him.’ In other words, though there was an element of gain to the employee, in that he received subsistence and quarters which otherwise he would have had to supply for himself, he had nothing he could take, appropriate, use and expend according to his own dictates, but, rather, the ends of the employer’s business dominated and controlled, just as in the furnishing of a place to work and in the supplying of the tools and machinery with which to work. The fact that certain personal wants and needs of the employee were satisfied was plainly secondary and incidental to the employment.”

Van Rosen v. Commissioner, 17 T.C. at 838.

59 “[T]he provisions of an employment contract ... shall not be determinative of whether ... meals ... are intended as compensation.”

60 See Boris I. Bittker, Martin J. McMahon, Jr., & Lawrence A. Zelenak, Federal Income Taxation of Individuals ¶ 4.05[2] at 4-21 (3d ed. 2002).

61 We have recently described a seller-financed transaction as an ‘amalgam of two distinct transactions. First, there is a transfer of the asset from the seller to the buyer. Then, there is a ‘loan’ from the seller to the purchaser of all or a portion of the purchase price.’ Finkelman v. Commissioner, T.C. Memo. 1989-72. If respondent’s ‘cash’ argument is based on the second part of this bifurcated description of a seller-financed transaction, the result would completely nullify section 108(e)(5) since no transactions would ever qualify for section 108(e)(5) relief.

62 Had Zarin not paid the $500,000 dollar settlement, it would be likely that he would have had income from cancellation of indebtedness. The debt at that point would have been fixed, and Zarin would have been legally obligated to pay it.

63 The Commissioner argues that the decision in Hall was based on United States Supreme Court precedent since overruled, and therefore Hall should be disregarded. Indeed, the Hall court devoted a considerable amount of time to Bowers v. Kerbaugh-Empire Co., 271 U.S. 170 (1926), a case whose validity is in question. We do not pass on the question of whether or not Bowers is good law. We do note that Hall relied on Bowers only for the proposition that “‘a court need not in every case be oblivious to the net effect of the entire transaction.’” United States v. Hall, 307 F.2d at 242, quoting Bradford v. Commissioner, 233 F.2d 935, 939 (6th Cir. 1956). Hall’s reliance on Bowers did not extend to the issue of contested liability, and even if it did, the idea that “Courts need not apply mechanical standards which smother the reality of a particular transaction,” id. at 241, is hardly an exceptional concept in the tax realm. See Commissioner v. Tufts, 461 U.S. 300 (1983); Hillsboro Nat’l Bank v. Commissioner, 460 U.S. 370 (1983).

64 The loss was the difference between the adjusted basis, $1,455,740, and the fair market value of the property, $1,400,000. ... [You should recognize that this was the treatment that the Tax Court accorded such transactions in Collins, supra.]

65 The Commissioner determined the partnership’s gain on the sale by subtracting the adjusted basis, $1,455,740, from the liability assumed by Bayles, $1,851,500. Of the resulting figure, $395,760, the Commissioner treated $348,661 as capital gain, pursuant to § 741 of the Internal Revenue Code of 1954, and $47,099 as ordinary gain under the recapture provisions of § 1250 of the Code. The application of § 1250 in determining the character of the gain is not at issue here.

66 Crane also argued that, even if the statute required the inclusion of the amount of the nonrecourse debt, that amount was not Sixteenth Amendment income because the overall transaction had been “by all dictates of common sense ... a ruinous disaster.” The Court noted, however, that Crane had been entitled to and actually took depreciation deductions for nearly seven years. To allow her to exclude sums on which those deductions were based from the calculation of her taxable gain would permit her “a double deduction ... on the same loss of assets.” The Sixteenth Amendment, it was said, did not require that result.

67 The Commissioner might have adopted the theory, implicit in Crane’s contentions, that a nonrecourse mortgage is not true debt, but, instead, is a form of joint investment by the mortgagor and the mortgagee. On this approach, nonrecourse debt would be considered a contingent liability, under which the mortgagor’s payments on the debt gradually increase his interest in the property while decreasing that of the mortgagee. Note, Federal Income Tax Treatment of Nonrecourse Debt, 82 Colum. L. Rev. 1498, 1514 (1982); Lurie, Mortgagor’s Gain on Mortgaging Property for More than Cost Without Personal Liability, 6 Tax L. Rev. 319, 323 (1951); cf. Brief for Respondents 16 (nonrecourse debt resembles preferred stock). Because the taxpayer’s investment in the property would not include the nonrecourse debt, the taxpayer would not be permitted to include that debt in basis. Note, 82 Colum. L. Rev. at 1515; [citation omitted].
... We note only that the Crane Court’s resolution of the basis issue presumed that, when property is purchased with proceeds from a nonrecourse mortgage, the purchaser becomes the sole owner of the property. 331 U.S. at 6. Under the Crane approach, the mortgagee is entitled to no portion of the basis. Id. at 10, n. 28. The nonrecourse mortgage is part of the mortgagor’s investment in the property, and does not constitute a coinvestment by the mortgagee. But see Note, 82 Colum. L. Rev. at 1513 (treating nonrecourse mortgage as coinvestment by mortgagee and critically concluding that Crane departed from traditional analysis that basis is taxpayer’s investment in property).

68 The Court of Appeals for the Third Circuit, in Millar, affirmed the Tax Court on the theory that inclusion of nonrecourse liability in the amount realized was necessary to prevent the taxpayer from enjoying a double deduction. 577 F.2d at 215; cf. n 4, supra. Because we resolve the question on another ground, we do not address the validity of the double deduction rationale.

69 Professor Wayne G. Barnett, as amicus in the present case, argues that the liability and property portions of the transaction should be accounted for separately. Under his view, there was a transfer of the property for $1.4 million, and there was a cancellation of the $1.85 million obligation for a payment of $1.4 million. The former resulted in a capital loss of $50,000, and the latter in the realization of $450,000 of ordinary income. Taxation of the ordinary income might be deferred under § 108 by a reduction of respondents’ bases in their partnership interests.

Although this indeed could be a justifiable mode of analysis, it has not been adopted by the Commissioner. Nor is there anything to indicate that the Code requires the Commissioner to adopt it. We note that Professor Barnett’s approach does assume that recourse and nonrecourse debt may be treated identically.

The Commissioner also has chosen not to characterize the transaction as cancellation of indebtedness. We are not presented with, and do not decide, the contours of the cancellation-of-indebtedness doctrine. We note only that our approach does not fall within certain prior interpretations of that doctrine. In one view, the doctrine rests on the same initial premise as our analysis here – an obligation to repay – but the doctrine relies on a freeing-of-assets theory to attribute ordinary income to the debtor upon cancellation. See Commissioner v. Jacobson, 336 U.S. 28, 38-40 (1949); United States v. Kirby Lumber Co., 284 U.S. 1, 284 U.S. 3 (1931). According to that view, when nonrecourse debt is forgiven, the debtor’s basis in the securing property is reduced by the amount of debt canceled, and realization of income is deferred until the sale of the property. See Fulton Gold Corp. v. Commissioner, 31 B.T.A. 519, 520 (1934). Because that interpretation attributes income only when assets are freed, however, an insolvent debtor realizes income just to the extent his assets exceed his liabilities after the cancellation. Lakeland Grocery Co. v. Commissioner, 36 B.T.A. 289, 292 (1937). Similarly, if the nonrecourse indebtedness exceeds the value of the securing property, the taxpayer never realizes the full amount of the obligation canceled, because the tax law has not recognized negative basis.
Although the economic benefit prong of Crane also relies on a freeing-of-assets theory, that theory is irrelevant to our broader approach. In the context of a sale or disposition of property under § 1001, the extinguishment of the obligation to repay is not ordinary income; instead, the amount of the canceled debt is included in the amount realized, and enters into the computation of gain or loss on the disposition of property. According to Crane, this treatment is no different when the obligation is nonrecourse: the basis is not reduced as in the cancellation-of-indebtedness context, and the full value of the outstanding liability is included in the amount realized. Thus, the problem of negative basis is avoided.

70 We will not consider § 483, but its rules are similar to those we examine here for the transactions to which it applies.

71 Table 1 in chapter 2 provides values that are compounded annually. Hence, these values are not quite accurate in the context of § 1272, which requires daily compounding.

72 Technically, § 1272(a)(3 and 4) requires a recalculation of interest based upon an increasing “issue price” and a decreasing length of time until redemption.

73 Table 3 in chapter 2 provides values that are compounded annually. Hence, these values are not quite accurate in the context of § 1274, which requires semiannual compounding.

74 The personal exemption and the standard deduction assure that some income is not subject to any income tax.

75 Only $10,000 of each taxpayer’s taxable income would be subject to the 20% rate of income tax.

76 This is really a misnomer. The “assignment of income” doctrine prevents assignment of income. A more accurate name would be the “non-assignment of income” doctrine.

77 The stock of The Heim Company was owned as follows: plaintiff 1%, his wife 41%, his son and daughter 27% each, and his daughter-in-law and son-in-law 2% each

78 These decisions were distinguished by Judge Magruder in Commissioner v. Reece, 1 Cir., 233 F.2d 30. In that case, as in the case at bar, the taxpayer assigned his patent to a corporation in return for its promise to pay royalties, and later made a gift of the royalty contract to his wife. It was held that this was a gift of income-producing property and was effective to make the royalties taxable to her. See also Nelson v. Ferguson, 56 F.2d 121 (3rd Cir.), cert. denied, 286 U.S. 565; Commissioner v. Hopkinson, 126 F.2d 406 (2d Cir.); and 71 Harvard Law Review 378.

79 ... including social security, medicare, and unemployment taxes, as well as income taxes.

80 See generally Paula Wolff, Annot., What constitutes trade or business under Internal Revenue Code (U.S.C.A. Title 26), 161 A.L.R. Fed. 245 (2008).

81 Commissioner v. Groetzinger, 480 U.S. 23, 35 (1987) (alternative minimum tax; citation omitted).

82 §§ 183(a) and (b)(2). Furthermore, a taxpayer must attribute a share of deductions allowable without regard to whether an activity is engaged in for profit, e.g., real estate taxes, to the activity, § 183(b)(1). This has the effect of reducing by displacement the allowable deduction for expenses attributable to the hobby or amusement activity. Moreover, the deductions are “below-the-line” and subject to the 2% floor of § 67 for miscellaneous deductions. A presumption in favor of the taxpayer to the effect that the “activity is engaged in for profit” arises if s/he derives gross income from the activity greater than deductions attributable to it for three of the previous five consecutive tax years. § 183(d).

83 Letter Ruling 9331001.

84 Ordinary expenses: Commissioner v. People’s Pittsburgh Trust Co., 60 F.2d 187, expenses incurred in the defense of a criminal charge growing out of the business of the taxpayer; American Rolling Mill Co. v. Commissioner, 41 F.2d 314, contributions to a civic improvement fund by a corporation employing half of the wage earning population of the city, the payments being made, not for charity, but to add to the skill and productivity of the workmen ...; Corning Glass Works v. Lucas, 59 App. D.C. 168, 37 F.2d 798, donations to a hospital by a corporation whose employees with their dependents made up two-thirds of the population of the city; Harris & Co. v. Lucas, 48 F.2d 187, payments of debts discharged in bankruptcy, but subject to be revived by force of a new promise. Cf. Lucas v. Ox Fibre Brush Co., 281 U.S. 115, where additional compensation, reasonable in amount, was allowed to the officers of a corporation for services previously rendered.

Not ordinary expenses: Hubinger v. Commissioner, 36 F.2d 724, payments by the taxpayer for the repair of fire damage, such payments being distinguished from those for wear and tear; Lloyd v. Commissioner, 55 F.2d 842, counsel fees incurred by the taxpayer, the president of a corporation, in prosecuting a slander suit to protect his reputation and that of his business; One Hundred Five West Fifty-Fifth Street v. Commissioner, 42 F.2d 849, and Blackwell Oil & Gas Co. v. Commissioner, 60 F.2d 257, gratuitous payments to stockholders in settlement of disputes between them, or to assume the expense of a lawsuit in which they had been made defendants; White v. Commissioner, 61 F.2d 726, payments in settlement of a lawsuit against a member of a partnership, the effect being to enable him to devote his undivided efforts to the partnership business and also to protect its credit.

85 Other federal court decisions on the point are in conflict. [citations omitted].

86 The two sections are in pari materia with respect to the capital-ordinary distinction, differing only in that § 212 allows deductions for the ordinary and necessary expenses of nonbusiness profitmaking activities. See United States v. Gilmore, 372 U.S. 39, 44-45 (1963). ...

87 ... [W]herever a capital asset is transferred to a new owner in exchange for value either agreed upon or determined by law to be a fair quid pro quo, the payment itself is a capital expenditure, and there is no reason why the costs of determining the amount of that payment should be considered capital in the case of the negotiated price and yet considered deductible in the case of the price fixed by law. See Isaac G. Johnson & Co. v. United States, 149 F.2d 851 (C.A.2d Cir.1945) (expenses of litigating amount of fair compensation in condemnation proceeding held capital expenditures).

88 § 167. Depreciation.

(a) General rule. There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) –

(1) of property used in the trade or business, or

(2) of property held for the production of income.

89 § 263. Capital expenditures.

(a) General rule. No deduction shall be allowed for –

(1) Any amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate.

90 For purposes of the issue here presented, the key phrase of § 167(a)(1) is “property used in the trade or business.” ...

Since the Commissioner appears to have conceded the literal application of § 167(a) to Idaho Power’s equipment depreciation, we need not reach the issue whether the Court of Appeals has given the phrase “used in the trade or business” a proper construction. For purposes of this case, we assume, without deciding, that § 167(a) does have a literal application to the depreciation of the taxpayer’s transportation equipment used in the construction of its capital improvements.

91 § 161. Allowance of deductions. In computing taxable income under § 63(a), there shall be allowed as deductions the items specified in this part, subject to the exceptions provided in part IX (§§ 261 and following, relating to items not deductible).”

92 The Committee on Terminology of the American Institute of Certified Public Accountants has discussed various definitions of depreciation and concluded that:

These definitions view depreciation, broadly speaking, as describing not downward changes of value regardless of their causes, but a money cost incident to exhaustion of usefulness. The term is sometimes applied to the exhaustion itself, but the committee considers it desirable to emphasize the cost concept as the primary, if not the sole, accounting meaning of the term: thus, depreciation means the cost of such exhaustion, as wages means the cost of labor.” 2 APB Accounting Principles, Accounting Terminology Bulletin No. 1 -- Review and Resume 48, p. 9512 (1973) (emphasis in original).

93 The general proposition that good accounting practice requires capitalization of the cost of acquiring a capital asset is not seriously open to question. The Commissioner urges, however, that accounting methods, as a rule, require the treatment of construction-related depreciation of equipment as a capital cost of the facility constructed. Indeed, there is accounting authority for this. See, e.g., W. Paton, Asset Accounting 188, 192-193 (1952); H. Finney & H. Miller, Principles of Accounting – Introductory 246-247 (6th ed. 1963) (depreciation as an expense should be matched with the production of income); W. Paton, Accountants’ Handbook 652 (3d ed. 1943); Note, 1973 Duke L.J. 1377, 1384; Note, 52 N.C. L. Rev. 684, 692 (1974).

94 § 261. General rule for disallowance of deductions. In computing taxable income no deduction shall in any case be allowed in respect of the items specified in this part.

95 Approximately 21% of National Starch common was exchanged for Holding preferred. The remaining 79% was exchanged for cash.

96 Compare the Third Circuit’s opinion, 918 F.2d at 430, with NCNB Corp. v. United States, 684 F.2d 285, 293-294 (4th Cir. 1982) (bank expenditures for expansion-related planning reports, feasibility studies, and regulatory applications did not “create or enhance separate and identifiable assets,” and therefore were ordinary and necessary expenses under § 162(a)), and Briarcliff Candy Corp. v. Commissioner, 475 F.2d 775, 782 (2d Cir. 1973) (suggesting that Lincoln Savings “brought about a radical shift in emphasis,” making capitalization dependent on whether the expenditure creates or enhances a separate and distinct additional asset). See also Central Texas Savings & Loan Assn. v. United States, 731 F.2d 1181, 1184 (5th Cir. 1984) (inquiring whether establishment of new branches “creates a separate and distinct additional asset” so that capitalization is the proper tax treatment).

97 Petitioner contends that, absent a separate-and-distinct-asset requirement for capitalization, a taxpayer will have no “principled basis” upon which to differentiate business expenses from capital expenditures. We note, however, that grounding tax status on the existence of an asset would be unlikely to produce the bright-line rule that petitioner desires, given that the notion of an “asset” is itself flexible and amorphous. See Johnson, 53 Tax Notes, at 477-478.

98 See, e.g. McCrory Corp. v. United States, 651 F.2d 828 (2d Cir. 1981) (statutory merger under 26 U.S.C. § 368(a)(1)(A)); Bilar Tool & Die Corp. v. Commissioner, 530 F.2d 708 (6th Cir. 1976) (division of corporation into two parts); E. I. du Pont de Nemours & Co. v. United States, 432 F. 2d 1052 (3rd Cir. 1970) (creation of new subsidiary to hold assets of prior joint venture); General Bancshares Corp. v. Commissioner, 326 F.2d 712, 715 (8th Cir.) (stock dividends), cert. denied, 379 U.S. 832 (1964); Mills Estate, Inc. v. Commissioner, 206 F.2d 244 (2d Cir. 1953) (recapitalization).

99 See, e.g., Motion Picture Capital Corp. v. Commissioner, 80 F.2d 872, 873-874 (CA2 1936) (recognizing that expenses may be “ordinary and necessary” to corporate merger, and that mergers may be “ordinary and necessary business occurrences,” but declining to find that merger is part of “ordinary and necessary business activities,” and concluding that expenses are therefore not deductible); Greenstein, The Deductibility of Takeover Costs After National Starch, 69 Taxes 48, 49 (1991) (expenses incurred to facilitate transfer of business ownership do not satisfy the “carrying on [a] trade or business” requirement of § 162(a)).

100 § 166. Bad debts.
(a) General rule. –

(1) Wholly worthless debts. – There shall be allowed as a deduction any debt which becomes worthless within the taxable year.

* * * *
(d) Nonbusiness debts. –

(1) General rule. – In the case of a taxpayer other than a corporation –

(A) subsections (a) and (c) shall not apply to any nonbusiness debt; and

(B) where any nonbusiness debt becomes worthless within the taxable year, the loss resulting therefrom shall be considered a loss from the sale or exchange, during the taxable year, of a capital asset held for not more than 6 months.

(2) Nonbusiness debt defined. – For purposes of paragraph (1), the term ‘nonbusiness debt’ means a debt other than –

(A) a debt created or acquired (as the case may be) in connection with a trade or business of the taxpayer; or

(B) a debt the loss from the worthlessness of which is incurred in the taxpayer’s trade or business.

101 Reg. § 1.166-5 Nonbusiness debts.
* * * *

(b) Nonbusiness debt defined. For purposes of section 166 and this section, a nonbusiness debt is any debt other than –

* * * *

(2) A debt the loss from the worthlessness of which is incurred in the taxpayer’s trade or business. The question whether a debt is a nonbusiness debt is a question of fact in each particular case. ...

For purposes of subparagraph (2) of this paragraph, the character of the debt is to be determined by the relation which the loss resulting from the debt’s becoming worthless bears to the trade or business of the taxpayer. If that relation is a proximate one in the conduct of the trade or business in which the taxpayer is engaged at the time the debt becomes worthless, the debt comes within the exception provided by that subparagraph. ...

102 This difference in treatment between the loss on the direct loan and that, on the indemnity is not explained. See, however, Whipple v. Commissioner, 373 U. S. 193 (1963).

103 “A debt is proximately related to the taxpayer’s trade or business when its creation was significantly motivated by the taxpayer’s trade or business, and it is not rendered a non-business debt merely because there was a non-qualifying motivation as well, even though the non-qualifying motivation was the primary one.”

104 “You must, in short, determine whether Mr. Generes’ dominant motivation in signing the indemnity agreement was to protect his salary and status as an employee or was to protect his investment in the Kelly Generes Construction Co.” “Mr. Generes is entitled to prevail in this case only if he convinces you that the dominant motivating factor for his signing the indemnity agreement was to insure the receiving of his salary from the company. It is insufficient if the protection or insurance of his salary was only a significant secondary motivation for his signing the indemnity agreement. It must have been his dominant or most important reason for signing the indemnity agreement.”

105 “Even if the taxpayer demonstrates an independent trade or business of his own, care must be taken to distinguish bad debt losses arising from his own business and those actually arising from activities peculiar to an investor concerned with, and participating in, the conduct of the corporate business.” 373 U.S. at 202.

106 § 29.23(a)-4. REPAIRS.— The cost of incidental repairs which neither materially add to the value of the property nor appreciably prolong its life, but keep it in an ordinarily efficient operating condition, may be deducted as expense, provided the plant or property account is not increased by the amount of such expenditures. Repairs in the nature of replacements, to the extent that they arrest deterioration and appreciably prolong the life of the property, should be charged against the depreciation reserve if such account is kept. (See §§ 29.23(l)-1 to 29.23(l)-10, inclusive.) [The regulation that the court quoted became the substance of Reg. § 1.162-4 (superseded after 2011). As we shall see, Treasury and the IRS have substantially revised it.]

107^ This was the test of Plainfield-Union Water Co. v. Commissioner, 39 T.C. 333, 334 (1962), nonacq. on other grounds, 1964-2 C.B. 8.

108^ Guidance Regarding Deduction and Capitalization of Expenditures Related to Tangible Property, 71 Fed. Reg. 48590 (2006).

109^ Guidance Regarding Deduction and Capitalization of Expenditures Related to Tangible Property, 73 Fed. Reg. 12838 (2008).

110^ Guidance Regarding Deduction and Capitalization of Expenditures Related to Tangible Property, 76 Fed. Reg. 81060 (2011).

111^ Guidance Regarding Deduction and Capitalization of Expenditures Related to Tangible Property, 78 Fed. Reg. 57686-01 (2013).

112 No claim for deduction was made by the taxpayer for the amounts spent in traveling from Mobile to Jackson. ...

113 [The pertinent regulation] does not attempt to define the word “home,” although the Commissioner argues that the statement therein contained to the effect that commuters’ fares are not business expenses, and are not deductible “necessarily rests on the premise that home,’ for tax purposes, is at the locality of the taxpayer’s business headquarters.” Other administrative rulings have been more explicit in treating the statutory home as the abode at the taxpayer’s regular post of duty. See, e.g., O.D. 1021, 5 Cum. Bull. 174 (1921); I.T. 1264, I-1 Cum. Bull. 122 (1922); I.T. 3314, 1939-2 Cum. Bull. 152; G.C.M. 23672, 1943 Cum. Bull. 66.

114 Conceivably men soon may live in Florida or California and fly daily to work in New York and back. Possibly they will be regarded as commuters when that day comes. But, if so, that is not this case and, in any event, neither situation was comprehended by Congress when § [162] was enacted.

115 The language is:

“All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business. . . .”

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