Fitch v. Comm'r

VASQUEZ, Judge: Petitioners and respondent filed computations for entry of decision under Rule 155¹ in connection with our prior Memorandum Opinion, Fitch v. Commissioner, T.C. Memo. 2012-358 (Fitch I). The parties disagree over the proper computation of petitioners' self-employment tax for 2005, 2006, and 2007 (years in issue). Petitioners resided in California, a community property State, during the years in issue.

For purposes of this supplemental opinion, we incorporate our findings in Fitch I. For convenience and clarity, we repeat here the facts necessary to understand the discussion that follows, and we supplement those facts as appropriate.

During the years in issue Brenda T. Fitch was a licensed real estate agent under California law and a *252 member of the National Association of Realtors, the California Association of Realtors, and the California Desert Association of *246 Realtors. She worked full time as an independent contractor with Remax (realty business), performing duties typical of real estate agents and brokers, including reviewing buyer criteria, soliciting listings, going on caravans, ² and showing, leasing, and selling real property. Petitioners reported the income and expenses with respect to the realty business on a Schedule C, Profit or Loss From Business.

Donald R. Fitch was a certified public accountant (C.P.A.) in California. He owned and operated an accounting practice. He worked an average of about four hours each day in the accounting practice. ³ Petitioners reported the income and expenses with respect to the accounting practice on a second Schedule C.

Apart from their respective businesses, petitioners owned and managed eight rental properties. They chose to keep their properties separate. Mrs. Fitch owned three of the eight properties *253 and Mr. Fitch owned five. They each performed the day-to-day tasks relating to their respective rental properties, although Mr. Fitch occasionally helped Mrs. Fitch with the advertising and repairs *247 for two of her properties. ⁴ They reported the income and expenses with respect to the rental properties on a Schedule E, Supplemental Income and Loss.

On March 22, 2013, respondent filed computations in connection with Fitch I (respondent's computations). Respondent separately computed Mrs. and Mr. Fitch's self-employment tax. Respondent determined that Mrs. Fitch had net income from self-employment with respect to the realty business of $12,498 for 2005, $2,366 for 2006, and $20,659 for 2007. Respondent computed Mrs. Fitch's self-employment tax to be $1,766 for 2005, $334 for 2006, and $2,919 for 2007. Respondent determined that Mr. Fitch had net losses from self-employment with respect to the accounting practice of $69,366 for 2005, $59,132 for 2006, and $64,652 for 2007. Respondent computed Mr. Fitch's self-employment tax to be zero for each of *254 the years in issue. Respondent added Mrs. Fitch's self-employment tax and Mr. Fitch's self-employment tax to arrive at petitioners' self-employment tax of $1,766 for 2005, $334 for 2006, and $2,919 for 2007. ⁵

*248 On May 16, 2013, petitioners filed computations in connection with Fitch I and an objection to respondent's computations (petitioners' computations). Petitioners combined the net income with respect to the realty business with the net losses with respect to the accounting practice in computing their self-employment tax. Petitioners determined that they had net losses from self-employment of $56,868 for 2005, $56,766 for 2006, and $43,993 for 2007. ⁶ Petitioners computed their self-employment tax to be zero for each of the years in issue.

On June 7, 2013, respondent filed a response to petitioners' *255 computations (respondent's response), in which respondent objected to petitioners' computations and requested that the Court enter a decision in accordance with respondent's computations. Petitioners' computations and respondent's response set forth the parties' arguments on the self-employment tax issue. Neither party *249 has raised an objection under Rule 155(c), which prohibits raising new issues in a Rule 155 computation, and we decide this issue on the basis of the current record. ⁷

Section 1401 imposes a tax on the "self-employment income" of every individual. "[S]elf-employment income" is generally defined as the "net earnings from self-employment derived by an individual". Sec. 1402(b). The term "net earnings from self-employment" is generally defined as "the gross income derived by an individual from any trade or business carried on by * * * [the] individual, less the deductions allowed by this subtitle [i.e., subtitle A of title 26] which are *256 attributable to * * * [the] trade or business". Sec. 1402(a); Eades v. Commissioner, 79 T.C. 985, 986 (1982).

In computing the gross income derived by an individual from a trade or business, if any of the income derived from the trade or business (other than a trade or business carried on by a partnership) is community income under community property laws, the gross income and deductions attributable to the *250 trade or business are treated as the gross income and deductions of the spouse carrying on the trade or business. Sec. 1402(a)(5)(A). In Smith v. Commissioner, T.C. Memo. 2011-82, slip op. at 18, we stated by way of illustration that "if a wife runs a business that generates $20,000 in gross income, then, even if the $20,000 is community income, it is treated as the gross income of the wife, not the husband, in the calculation of the net earnings from self-employment." If the trade or business is jointly operated, then the gross income and deductions are treated as the gross income and deductions of each spouse on the basis of their respective distributive shares of the gross income and deductions. Sec. 1402(a)(5)(A).

If a married couple files a joint return, the self-employment *257 tax is computed separately for the husband and for the wife. Sec. 6017; sec. 1.6017-1(b)(1), Income Tax Regs.⁸ Each spouse's self-employment tax liability is added to arrive at the couple's total self-employment tax liability. Sec. 6017; sec. 1.6017-1(b)(1), Income Tax Regs. The liability is joint and several. Sec. 6013(d)(3).

The parties agree that the net losses with respect to the accounting practice are attributable solely to Mr. Fitch for self-employment tax purposes. Their dispute centers on the proper treatment of the net income with respect to the realty business.

Petitioners principally argue that the net income with respect to the realty business should be attributed solely to Mr. Fitch *258 because Mrs. Fitch did not substantially manage and control the realty business. They contend that Mr. Fitch "collaborated and contributed to the management and control of the * * * [realty business] in a multitude of ways". They rely upon section 1402(a)(5)(A) and section 1.1402(a)-8(a), Income Tax Regs., as authority for the proposition that income derived from a business in a community property State is treated as that of the husband for self-employment tax purposes unless the wife exercised substantially all of the management and control of the business. Petitioners alternatively argue that the net income with respect to the realty business should be attributed to each of them on the basis of their respective contributions to the realty business. ⁹

*252 Respondent argues that the realty business was operated solely by Mrs. Fitch, and thus the net income therefrom must be attributed to her alone. As to petitioners' principal argument, respondent argues *259 that it rests upon "outdated material". Respondent contends that section 1402(a)(5)(A) was amended by the Social Security Protection Act of 2004 (SSPA), Pub. L. No. 108-203, sec. 425(b), 118 Stat. at 536,, ^10*260 which had become effective by the years in issue, and that *253 section 1.1402(a)-8(a), Income Tax Regs., ^11*261 had not been updated to reflect the amendment. Respondent further argues that, in any event, petitioners executed a prenuptial agreement, opting out of California's community property laws. As to petitioners' alternative argument, respondent contends that "[t]he record makes it abundantly clear that Brenda Fitch ran the * * * [realty business]" and hence the net income therefrom is attributable solely to her.

We first determine who operated the realty business. The record is replete with evidence of Mrs. Fitch's involvement in the realty business. She was a licensed real estate agent and a member of three professional real estate organizations during the years in issue. Every morning she reviewed business emails, new real estate listings, and buyer criteria for clients. She showed properties to clients and went on caravans to view new properties that were listed with Remax. And although Mr. Fitch was a C.P.A., she also kept and maintained the realty business' accounting records.

On the other hand, petitioners have not shown what involvement, if any, Mr. Fitch had in the realty business. Petitioners argue that Mr. Fitch *262 designed and hosted its principal Web site, set up and maintained its Quicken financial software and contact management system, presented documents to various real estate sellers, and changed locks on various properties, among other things. However, petitioners have not cited to any evidence of these activities in the record, nor can we find any. ¹² Furthermore, Mr. Fitch testified that Mrs. Fitch was the one who maintained the realty business' Quicken records for bank accounts.

*255 In Heinbockel v. Commissioner, T.C. Memo. 2013-125, at *47, we found that the income from a business called "Lydia's World" had to be attributed to Lydia, the taxpayer wife, for self-employment tax purposes. In that case the record was replete with evidence of activities that Lydia had performed with respect to Lydia's World, and her testimony at trial was threaded throughout with references to Lydia's World as her business. Similarly, in this case petitioners referred in their testimony to the realty business as Mrs. Fitch's business. Mr. Fitch testified that when he and Mrs. Fitch dined together, they would talk about *263 "her business". ¹³ (Emphasis added.) He further testified that "she's running her business as a real estate professional. I'm running my business as a CPA". (Emphasis added.) Mrs. Fitch testified that "[i]n terms of my software within my real estate business, every day I'm alerted to brand new listings that come on the market." (Emphasis added.)

On the basis of the foregoing, we find that the realty business was not jointly operated. We find that Mrs. Fitch, and not Mr. Fitch, operated the realty business.

Because Mrs. Fitch operated the realty business, the net income therefrom must be attributed solely to her for self-employment tax purposes. Seesec. 1402(a)(5)(A). We need not address whether petitioners' reliance on section 1.1402(a)-8(a), Income Tax Regs., ¹⁴ in their principal argument is misplaced because under that regulation the net income with respect to the realty business would also be treated as Mrs. Fitch's because she substantially *264 managed and controlled the realty business. We likewise need not address respondent's argument that petitioners opted out of California's community property laws.

Petitioners must separately compute the self-employment tax for Mrs. and Mr. Fitch. Seesec. 6017; sec. 1.6017-1(b)(1), Income Tax Regs. They may not combine the net income with respect to the realty business, which is allocable to Mrs. Fitch, with the net losses with respect to the accounting practice, which are allocable to Mr. Fitch. Seesec. 6017; sec. 1.6017-1(b)(1), Income Tax Regs.

In reaching our holdings herein, we have considered all arguments made, and, to the extent not mentioned above, we conclude they are moot, irrelevant, or without merit.

*257 To reflect the foregoing,

Decisions will be entered in accordance with respondent's computations.