Hobby Losses Post-2017 and Pre-2026 – The Importance of Establishing a Profit Motive

Overview

Court cases are many in which the IRS has asserted that the taxpayer is engaged in an activity without an intent to make a profit.  If the IRS prevails in its claim that the taxpayer’s activity is a hobby, deductions for losses from the activity are severely limited.  The tax result is even harsher as a result of the Tax Cuts and Jobs Act (TCJA). 

What does it take to be conducting an activity with a profit intent?  How did the TCJA change the impact of the “hobby loss” rules?  These are the topics of today’s blog post.

Tax Code Rules

What is a “hobby”?  A “hobby” under the Code is defined in terms of what it is not.  I.R.C. §183.  A hobby activity is essentially defined as any activity that a taxpayer conducts other than those for which deductions are allowed for expenses incurred in carrying on a trade or business or producing income.  I.R.C. §§162; 212.  The determination of whether any particular activity is a hobby activity or not is based on the facts and circumstances of each situation.  It’s a highly subjective determination.  But the Code provides a safe harbor.  I.R.C. §183(d).  Under the safe harbor, an activity that doesn’t involve horse racing, breeding or showing must show a profit for three of the last five years, ending with the tax year in question.  It’s two out of the last seven years for horse-related activities.  If the safe harbor is satisfied (either for horse activities or other activities, a presumption arises that the activity is not a hobby.  The safe harbor applies only for the third (or second) profitable year and all subsequent years within a five-year (or seven-year) safe-harbor period that begins with the first profitable year.  Treas. Reg. §1.183-1(c). 

The burden of proof.  Satisfaction of the safe harbor shifts the burden to prove that the activity is a hobby (i.e., lacks a profit motive) to the IRS.  But the IRS can rebut the for-profit presumption even if the safe harbor is satisfied – although it doesn’t tend to do so without extenuating circumstances.   

What about losses in early years?  As noted above, the safe harbor applies only after a taxpayer incurs a third profitable year within the five-year testing period.  That means that only loss years arising after that time (and within the five-year period) are protected.   Losses incurred in the first several years are not protected under the safe harbor.  It makes no difference whether the activity turns a profit in later years.

Postponing the safe harbor.  It is possible to postpone the application of the safe harbor until the close of the fourth tax year (or sixth (for horse activities) after the tax year the activity begins.  I.R.C. §183(e).   This is accomplished by making an election via Form 5213 to allow losses incurred during the five-year period to be reported on Schedule C.  Thus, if the activity shows a profit for three or more of the five years, the activity is presumed to not be a hobby for the full five-year period.  The downside risk of the election occurs if the taxpayer fails to show a profit for at least three of the five years.  If that happens, a major tax deficiency could occur for all of the years involved.  Thus, filing Form 5213 should not be made without thoughtful consideration.  For example, while the election provides more time to establish that an activity is conducted with a profit intent, it will also put the IRS on notice that an activity may be conducted without a profit intent.  It also extends the statute of limitations for a tax deficiency (and refund claims) associated with the activity.  See, e.g., Wadlow v. Comr., 112 T.C. 247 (1999).    

Showing a Profit Intent – Some Recent Cases

While the IRS is presently not aggressively auditing many returns involving farm-related activities, the hobby loss area involving ag activities is one of them.  So, what does it take to establish the necessary profit intent?  Some recent court decisions provide guidance. 

Cattle ranching activity deemed to be a hobby.  In Williams v. Comr., T.C. Memo. 2018-48, the petitioner grew up on the family ranch in the Texas panhandle.  He then went on to have a career as a chiropractor.  He also operated a publishing and research business and a gun shop. He sold his chiropractic practice and bought an 1,100-acre ranch in south-central Texas. He ran a feeder-stocker cattle operation on the ranch, employing two ranch workers to tend to the cattle. The petitioner also hired a bookkeeper to manage his various business activities and a CPA to do the tax work for his businesses. He put approximately six to eight hours a week into the cattle ranching activity, and also spent time in his other business ventures. He modified his cattle operation after encountering problems that were detrimental to the viability of the business. The petitioner’s publishing business showed an average profit of approximately $300,000 each year; the gun shop was approximately a break-even business; and the cattle business averaged Schedule F losses of about $100,000 annually over a 15-year period, never showing a profit in any year (although losses declined on average over time).

The IRS examined years 2011 and 2012 and disallowed the loss from the ranching activity on the basis that the petitioner did not engage in the activity with a profit intent. The Tax Court analyzed each of the nine factors under Treas. Reg. §1.183-2. Of the nine factors contained therein, only one favored the petitioner - he did not derive any personal pleasure from the cattle ranching activity. The Tax Court determined that the petitioner did not operate the ranch in a businesslike manner; had no formal education in animal husbandry; did not view the hours spent in the activity by the employees as attributable to the petitioner; did not have a reasonable expectation of appreciation of the value of the ranch’s assets (but the Tax Court ignored the building improvements and fences that were built); had no history of running comparable businesses profitably; and had substantial income from other sources that the losses from the ranching activity offset.

Horse activity was a hobby.  In Sapoznik v. Comr., T.C. Memo. 2019-77, the petitioners bought a horse in 2011 and participated in horse shows in 2014 and 2015. The horse was top-ten in its class nationally, and the petitioners hoped to be able to sell the horse for more than its purchase price. However, the lost more than $100,000 and sold the horse for what they paid for it. The petitioners deducted the $100,000 loss and the IRS rejected the deduction and assessed a penalty exceeding $6,000. The Tax Court agreed with the IRS that the activity was a hobby.  The Tax Court noted that the petitioners had not conducted the activity in a businesslike manner. They also had no written business plan and didn’t keep accurate books and records. They also made no changes in how they conducted the activity to reduce expenses or generate additional income, and they did not attempt to educate themselves on how to conduct the activity. They also did not rely on the activity as a major source of their income, and never came close to making a profit. 

Profit was “too gone for too long.” In Donoghue, et ux. v. Comr., T.C. Memo. 2019-71, the petitioners, sustained losses in their horse breeding/racing activity for almost 30 years without ever showing a profit. The husband was a computer programmer and his wife a retired paralegal and business executive. The wife had been a life-long horse enthusiast. They operated the activity via a partnership as a “virtual farm.” The IRS denied the loss deductions from the activity and the Tax Court agreed on the basis that the petitioners couldn’t satisfy the requirements of the regulations under I.R.C. §183. The Tax Court noted that the evidence clearly established that the petitioners didn’t operate the activity in a businesslike manner. They didn’t breed, race or sell any of their horses during the years at issue. While they had separate bank accounts and some records, the records were incomplete or inaccurate. While the petitioners had written business plans, the plans projected net losses and remained essentially unchanged from the original plans 30 years earlier. Also, their long string of unbroken losses was used to offset non-farm income, and the petitioners derived substantial personal pleasure from the activity. They left the “grueling aspects” of the activity to others that they paid, and there was no evidence that they sought expert advice concerning how to make a profit at the activity. Instead, they sought only general advice.

Golf course activity conducted for profit.  In one recent non-ag case, WP Realty, LLP v. Comr., T.C. Memo. 2019-120, a profit intent was found to be present.  The petitioner, a limited partnership, owned and operated a golf course. The limited partner and sole shareholder of the general partner was a real estate developer and developer of golf courses who created a nonprofit corporation to which he planned to donate the golf course at issue. The IRS approval of nonprofit status was conditioned on the corporation focusing only on charitable activities and distributing funds to a medical center. As a result, the golf course gave access to the corporation and members.  The corporation paid rent and members paid fees for golf rounds. The golf course was managed by an experienced manager. The manager kept complete books and records and maintained budgets for the course and facilities. Between 2001 and 2015, the golf course sustained losses which flowed through the petitioner to the limited partner. The golf course reported a net profit in 2016.

The IRS denied the loss deductions on the basis that the golf course was not engaged in its activity for profit. The Tax Court disagreed based on the nine factors of Treas. Reg. §1.183-2(b), a predominance of which favored the petitioner. The golf course was operated in a businesslike manner with complete and accurate books and records, and the records were used to determine when capital improvements should be made. Steps were also taken to make the golf course more profitable. In addition, the managers had extensive experience in the golf industry and in managing golf clubs. The Tax Court also noted that the limited partner had successfully developed two other golf clubs and did not derive substantial tax benefits from the passed-through losses. While a long history of losses was present, that factor was not enough to negate the petitioner’s actual and honest intent to make a profit. 

TCJA Change

The TCJA suspends miscellaneous itemized deductions for years 2018-2025.  Thus, deductions for expenses from an activity that is determined to be a hobby are not allowed in any amount for that timeframe.  I.R.C. §67(g).  But all of the income from the activity must be recognized in adjusted gross income.  That’s painful, and it points out the importance of establishing the requisite profit intent. 

Conclusion

Hobby activities involving agricultural activities (especially those involving horses) have been on the IRS radar for quite some time.  That’s not expected to change.  It’s also an issue that some states are rather aggressive in policing.  See, e.g., Howard v. Department of Revenue, No. TC-MD 160377R, 2018 Ore. Tax LEXIS 35 (Ore. Tax Ct. Mar. 16, 2018); Feola v. Oregon Department of Revenue, No. TC-MD 160081N, 2018 Ore. Tax. LEXIS 48 (Ore. Tax. Ct. Mar. 27, 2018).  It’s also not an issue that the U.S. Supreme Court is likely to review if the taxpayer receives an unfavorable opinion at the U.S. Circuit Court of Appeals level.  See, e.g., Hylton v. Comr., T.C. Memo. 2016-234, aff’d., No. 17-1776, 2018 U.S. App. LEXIS 35001 (4th Cir. 2018), cert. den., No. 18-789, 2019 U.S. LEXIS 966 (U.S. Sup. Ct. Feb. 19, 2019).