Crile v. Comm'r, T.C. Memo. 2014-202

• Decision Date: 02 October 2014
• Docket Number: T.C. Memo. 2014-202,Docket No. 29044-11,Docket No. 9713-10
• Parties: SUSAN CRILE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
• Court: U.S. Tax Court

SUSAN CRILE, Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

T.C. Memo. 2014-202
Docket No. 9713-10
Docket No. 29044-11

UNITED STATES TAX COURT

October 2, 2014

Robert H. Baron, Micaela McMurrough, and Megan Y. Lew, for petitioner.

Jane J. Kim and Michael J. De Matos, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

LAUBER, Judge: Petitioner is an artist and a tenured professor of studio art. With respect to her Federal income tax for 2004-2005 and 2007-2009,

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respondent determined deficiencies in tax, accuracy-related penalties under section 6662(a), and additions to tax under section 6651(a)(1) in the following amounts:¹

Year	Deficiency	Penalty sec. 6662(a)	Addition to tax sec. 6651(a)(1)
2004	$14,575	$2,915	-0-
2005	13,865	2,773	-0-
2007	22,312	4,462	$574
2008	21,638	4,328	-0-
2009	9,254	1,851	-0-

In support of these determinations respondent relies on two theories. First, he contends that petitioner's activity as an artist is "an activity not engaged in for profit" within the meaning of section 183 and hence that she cannot claim deductions in excess of the income she derived from that activity. Second, if petitioner was engaged in a trade or business during these years, respondent contends that many of the deductions she claimed are not, within the meaning of section 162(a), "ordinary and necessary expenses" incurred in carrying on that business.

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At the close of trial, the Court ordered the cases bifurcated for purposes of briefing and opinion. This opinion addresses the first of respondent's theories and concludes that petitioner during the years in issue was engaged in a "trade or business" with the objective of making a profit from her activity as an artist. Respondent's contentions concerning the substantiation of her expenses, the character of those expenses as "ordinary and necessary," and her liability for penalties and additions to tax will be resolved in due course.

FINDINGS OF FACT

The parties filed stipulations of facts with accompanying exhibits that are incorporated by this reference. Petitioner resided in New York when she petitioned this Court.

A. Petitioner's Career as an Artist

Petitioner has had a long, varied, and distinguished career as an artist. She has worked for more than 40 years in media that include oil, acrylic, charcoal, pastels, printmaking, lithograph, woodcut, and silkscreen. She has exhibited and sold her art through leading galleries; she has received numerous professional accolades, residencies, and fellowships; and she is a full-time tenured professor of studio art at Hunter College in New York City. Respondent agrees that petitioner has been a successful, though rarely a profitable, artist.

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During the academic year petitioner devotes roughly 30 hours per week to her art, working mainly at a small studio in her Manhattan apartment. During the summer, she works full time on her art business at a larger studio in upstate New York. The amount of time it takes petitioner to create a finished work of art varies greatly--from one week to two years--depending on its size and complexity. During her career petitioner has created more than 2,000 pieces of art.

Petitioner's artwork hangs in the permanent collections of at least 25 museums. These include the Metropolitan Museum of Art, the Guggenheim Museum, the Brooklyn Museum of Art, the Phillips Collection, the Hirshhorn Museum, and art museums at eight colleges and universities. Museums have a rigorous vetting process for acquiring art. Museum acquisitions boost an artist's reputation in the eyes of collectors and may contribute to price increases for the artist's other works.

Petitioner's artwork has been acquired by for-profit as well as nonprofit entities. Corporations that have purchased petitioner's art (several of which have since merged) include AT&T, Exxon, Texaco, Standard Oil of Ohio, Bank of America, Chase Manhattan Bank, Chemical Bank, Charles Schwab, General Mills, Westinghouse, General Telephone & Electronics, Frito-Lay, Cigna, and Prudential. Her works hang in the collections of six major New York law firms. Govern-

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mental entities that have acquired her art include the Federal Reserve Board, the Library of Congress, and the State Department (for display in U.S. embassies abroad). Such acquisitions, like museum acquisitions, place a "seal of approval" on an artist's works and have the potential to make them more attractive to private collectors.

Petitioner has been represented during her career by at least five New York art galleries, including the Kornblee Gallery, the Fischbach Gallery, the Droll/-Kolbert Gallery, and the Graham Gallery. In 2004 petitioner switched from the Graham Gallery to Michael Steinberg Fine Art, believing that the latter's client base would enable her to increase sales of her artwork. She was represented by Michael Steinberg Fine Art until 2009, when it went out of business during the financial crisis. Petitioner has had affiliations with other art dealers and print publishers that have also sold her work.

Petitioner has received recognition from prestigious arts organizations, both public and private. She has received two awards from the National Endowment for the Arts (NEA)-- a $25,000 award for painting in 1982 and a $15,000 award for drawing in 1989. Petitioner has served on NEA panels to select award recipients, and she has been interviewed by the Smithsonian Institution as part of its Archives of American Art oral history project. During 2003 she was a member of the

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admissions panel for the visual arts at the American Academy in Rome and at the Ranieri Foundation in Civitella, Italy.

"Residencies" are awarded by arts organizations to enable artists to focus on their work without distractions, in an environment conducive to artistic stimulation and productivity. Institutions that have awarded residencies to petitioner include the MacDowell Colony in 1972, the American Academy in Rome in 1990, the Rockefeller Foundation Bellagio Center in 2007, and Yaddo in 1970, 1971, 1973, 1975, 2000-2003, 2005, 2006 and 2009.

Petitioner's work has been reviewed on many occasions by leading art critics. Her first review in the New York Times, appearing in 1971, was written by Hilton Kramer, one of the foremost art critics of his era. Her work was reviewed in the New York Times on 17 subsequent occasions by Mr. Kramer and his successors. Other publications that have reviewed her work include the Boston Globe, Houston Chronicle, Houston Post, Los Angeles Times, St. Louis Post-Dispatch, and New York Magazine. Her work has been reviewed by every major art publication in the United States, including ARTNews, Art in America, ArtForum, Flash Art, and American Artist.

Petitioner performs considerable research in connection with her art, sometimes involving international travel under difficult conditions. During the first

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Gulf War she painted a series entitled "Fires of War," which enjoyed considerable critical and commercial success. To secure documentation for these works, she traveled to Kuwait and accompanied firefighters to burning oil fields. As she described it, the environment in Kuwait in the wake of Saddam Hussein's retreating forces was "virtually a land of fire; black overhead smoke. It looked like night in day; the desert [was] covered with tar and lakes of oil." Works from petitioner's "Fires of War" series were exhibited in Kuwait and were acquired by the Government of Kuwait.

B. Petitioner's Projects During the Years in Issue

During 2004-2009 petitioner worked on five main projects. The first, a series of works titled "Assisi," was based on Giotto's paintings of the life of Saint Francis in the Basilica di San Francesco in Assisi, Italy. Petitioner had an exhibition of these works in 2004 at the Graham Gallery.

Petitioner's second major project was a series titled "Abu Ghraib," based on events that occurred at the Abu Ghraib prison during the Iraq War. Petitioner did considerable research in connection with "Abu Ghraib," including interviews with journalists who had reported from the war zone. Works from "Abu Ghraib" were exhibited in 2006 at the Bertha and Karl Leubsdorf Art Gallery at Hunter College.

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This exhibit was reviewed in the Financial Times, the New York Times, and the Newark Star-Ledger.

Petitioner continued her work on "Abu Ghraib," on both the...