David M. Sears and Carol L. McCabe - Page 11

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         Commissioner, T.C. Memo. 1997-168; Ellis v. Commissioner, T.C.               
         Memo. 1984-50; sec. 1.183-2(b)(1), Income Tax Regs.                          
              Mr. Sears admitted that he “had some pretty weak business               
         practices”.  Indeed, there is no indication he prepared a budget             
         or instituted an accounting system to track revenue and expenses.            
         Nor does it appear that he maintained a separate bank account or             
         credit card for the activity.8  Mr. Sears also reflected poor                
         recordkeeping practices by failing to timely file at least two               
         Forms 941, including one that was filed more than 2 years late,              
         and by deducting employee benefit programs expense for costs paid            
         before Ms. McCabe was covered by the reimbursement plan.                     
         Furthermore, his failure to reimburse Ms. McCabe for medical                 
         expenses indicates he viewed his family’s funds and those of the             
         activity as interchangeable.                                                 
              Mr. Sears did apply for a business license from the City of             
         Oroville under the name “American Tax Savers” and registered the             
         Internet domain name “americantaxsavers.com”, although he never              
         established an Internet Web site for the activity.  Mr. Sears                
         also had a written business plan.  However, the business plan                
         consisted of a 25-page, preprinted package from RTP and a 1-page             
         document titled “Explanation of profit potential” signed by Mr.              


               8  Petitioners maintained at least two credit cards,                   
          including a “Quicken Visa Business Card” in both of their names.            
          However, it is not clear from either the account statements or              
          the remainder of the record whether either credit card was used             
          exclusively for the activity.                                               




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