David B. Graham



On December 13, 2016, the Department assessed the Taxpayer for personal income tax, interest, and penalty for the periods January 1, 2009 through December 31, 2015. On March 3, 2017, the Taxpayer filed a formal protest with the Department. In 2011, the Taxpayer started horseracing activities. From 2012 through 2015, the Taxpayer incurred expenses based on the horseracing activities and with those losses he claimed deductions against his personal income tax. The Department argues that the activities for 2012-2015 were not for profit and therefore cannot be used in the deduction. However, the Department acknowledged that the assessment of personal income tax for 2009 and 2011 in this case was in error because they were not within the applicable statute of limitations. The Taxpayers argument is that he has a plan and purpose for the activities and expects to make income throughout his retirement from the horseracing profits. The Departments disallowance follows suit with the federal deduction for expenses incurred while engaging in trade or business per 26 USCS Sec 162. The deduction is disallowed when the activity being engaged in is found to not be a for-profit activity, The Hearing Officer decided to use the nine factor test in federal regulation to determine if the activity was for profit during the time at issue. The factors are: 1) the manner in which the person carries on the activity; 2) the expertise of the person and his or her advisors; 3) the time and effort put into the activity; 4) the expectation that assets may appreciate in value; 5) the person’s success in carrying on similar or dissimilar activities; 6) the history of income or loss with respect to the activity; 7) the amount of profits earned; 8) the financial status of the person; and 9) the elements of personal pleasure and recreation. Based on the information presented, the Hearing Officer determined that the activity was not motivated by profit. The Hearing Officer concluded that the Taxpayer did not overcome the presumption of correctness and establish a right claim to the deduction. The Hearing Officer concluded that interest is mandatory by statute and was assessed correctly, the Taxpayer is liable for the penalty due and the disallowance of the deduction for 2012 through 2015 was reasonable therefore the Taxpayers protest based on these periods is denied. The Hearing officer determined that the Department lacked the authority in this case to assess taxes prior to 2012 and believes that the Taxpayers protest should be granted for tax years 2009 through 2011. For the reasons above, the Taxpayer’s protest was granted in part and denied in part.