A taxpayer may deduct “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” But if the activity giving rise to the expenses “is not engaged in for profit,” these activities are not considered a “trade or business” and are commonly referred to as “hobbies”. Hobby expenses may only be deducted from hobby profits and not from any other income that the taxpayer may have.
In 2014 the Tax Court held that a taxpayer had deducted the expenses of his horse-racing enterprise on his federal income tax returns for 2005 and 2006 erroneously because the enterprise was a hobby rather than a business. The court assessed tax deficiencies. But it also ruled that the business had ceased to be a hobby, and had become a bona fide business, in 2007. He challenged the assessments for 2005 and 2006.
The Tax Court’s ruling that the horse-racing enterprise was a hobby in 2005 and 2006 but became a business in 2007 and remained so in 2008, and every year thereafter (the IRS failed to challenge any deductions for any year after 2008) was held by the Seventh Circuit Court of Appeals to be “untenable; it amounts to saying that a business’s start-up costs are not deductible business expenses-that every business starts as a hobby and becomes a business only when it achieves a certain level of profitability.”
The Seventh Circuit then cited what it felt to be a “goofy regulation” (Treas.Reg. § 1.183-2) and addressed the various factors used to determine whether an activity is engaged in for profit:
(1) Manner in which the taxpayer carries on the activity.
(2) The expertise of the taxpayer or his advisors.
(3) The time and effort expended by the taxpayer in carrying on the activity.
(4) Expectation that assets used in activity may appreciate in value.
(5) The success of the taxpayer in carrying on other similar or dissimilar activities.
(6) The taxpayer’s history of income or losses with respect to the activity.
(7) The amount of occasional profits, if any, which are earned.
(8) The financial status of the taxpayer.
(9) Elements of personal pleasure or recreation.
The Court went on to note, “a business will not be turned into a hobby merely because the owner finds it pleasurable; suffering has never been made a prerequisite to deductibility. Success in business is largely obtained by pleasurable interest therein.”
This case recognizes that every start-up business is not a hobby just because there is no profit at the beginning. Here that Tax Court seemed to take the position that the taxpayer started in the horse racing business as a hobby and then turned it into a business. The Appellate Court rejected this and held for the taxpayer.
If you have any questions regarding start-up businesses, please contact:
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