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Expense not fulfilled - Bad Debt?

taxproDE
Level 2

Hello Community, 

I have a client that sent a wire for a deposit for a fishing trip in October (the trip was only for a fun getaway, there was no business being attended to on the trip). Later that month, my client received word that the individual running the business had passed away. 

My client now insists that we can take the loss on their 2023 tax return - I've already advised that they cannot do that. 

Short of getting an attorney to file a small claim against the businessess assets - is there anything I am not thinking of to recover the lost funds?

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35 Comments 35
Just-Lisa-Now-
Level 15
Level 15

I dont think an attorney is needed for small claims, but as a tax professional, you shouldnt begiving legal advice anyhow....there no tax losses here.


♪♫•*¨*•.¸¸♥Lisa♥¸¸.•*¨*•♫♪
IRonMaN
Level 15

Out of curiosity, how many dollars are we talking about?

As far as Lisa's point goes, attorneys give out bad tax advice all of the time -------------- what's wrong with a tax preparer giving out bad legal advice once in a while? 😉


Slava Ukraini!
taxproDE
Level 2

$10,500. 

IRonMaN
Level 15

Was your client told that the guy died and you aren't getting your money back, or just that the guy died and your trip is cancelled?  If your client was told tough nuggies, for that dollar amount it might be worth giving a lawyer a call.  But then again, that would depend on how likely there are assets left over to cover the payment.


Slava Ukraini!
taxproDE
Level 2

Essentially, that the guy died and tough nuggies. Here's an excerpt: 

"We have no knowledge of banking for the business or how the money collected for deposits was allocated.  We also do not know when this information may be discovered; however if and when this information becomes available we will update you.

If you have taken insurance for your trip, please contact the insurance company with your concerns."

 

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taxproDE
Level 2

He's now asking for us to issue a 1099-C to the service, huh? I don't know why that my client thinks they can treat this "expense" as a bad debt? Very odd!

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IRonMaN
Level 15

Sounds like the guy was probably a good fisherman but sucked at bookkeeping.


Slava Ukraini!
sjrcpa
Level 15

Sole Proprietor? File a claim against the estate.


Ex-AllStar
taxproDE
Level 2

Not a whole lot of details on the business. I think the assets were all titled in the name of the LLC. 

Also, the LLC only holds boats as far as I know.

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BobKamman
Level 15

I avoid these questions because my intuitive answer is usually not the right answer.  What IRS will tell you (Pub 550) is

Insolvency of contractor. You can take a bad debt deduction for the amount you deposit with a contractor if the contractor becomes insolvent and you are unable to recover your deposit. If the deposit is for work unrelated to your trade or business, it is a nonbusiness bad debt deduction.

"Contractor" conjures an image of an electrician installing a freezer, but why not also the guy who helps you fill the freezer with fish?  

In any case, they told you he's dead, and you believed them?  At least do a Google search for the obituary.  Was the payment made to an individual, or to a business entity? Has the business been sold, or liquidated?  If it does qualify as a nonbusiness bad debt, you have to show reasonable efforts to collect it, and that the remaining balance is totally worthless.  

And sending them a 1099-C is an admission that it is uncollectible.  So I wouldn't do that. 

taxproDE
Level 2

This wasn't really a "contractor" - I don't even think the fish caught would've been stored. From what I understand, it was just trophy fishing. Don't you think the position you're taking is a bit, aggressive?

The payment was made to a business. There's nothing on Google about an obituary for the individual; however, I was able to find a court case from a decade ago.

PATAX
Level 15

Not sure if this is relevant but what about contacting the state attorney general or someone similar. I remember years ago there was a bridal shop business or something like this that had financial difficulties and the brides to be or whoever were going to lose their deposits or dresses, but if my memory serves me right, I think the attorney general or someone tried to help them. But I may be wrong.

sjrcpa
Level 15

Or Better Business Bureau for that area?


Ex-AllStar
sjrcpa
Level 15

Who's the "we" that gave you that nonanswer?


Ex-AllStar
PATAX
Level 15

To me, something just doesn't sound right with this. This is the type of business in my opinion that someone who is poor or lacks funds cannot thrive in. Years ago I used to go on fishing trips up to Lake Erie and the people who owned the boats were not poor.

BobKamman
Level 15

If I give you money and you promise to provide a service, that is a contract.  "Contractor" covers a lot of ground outside the building trades.  

taxproDE
Level 2

That's a good point. 

Let me ask you this - I read through pub 550, I don't see that there needs to be a repayment schedule or any type of guarantee to repay the debt to take the dedution. Is that right?

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BobKamman
Level 15

@taxproDE  No repayment schedule required.  That's where people get hung up, thinking "debt" is the same as "promissory note."  It includes much more than that.  And "guarantee" involves a co-signer, that's a separate set of rules if the guarantor has to pay the debt.  Your word is your bond.  You say you will do something, it's your personal guarantee that it will be done.  

taxproDE
Level 2
@BobKamman One more question - if there is no change of the funds being returned, should a 1099-C be issued essentially saying that the debt cannot be recovered? Why wouldn't a 1099-c need to be issued?
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sjrcpa
Level 15

1099s are issued by businesses.

This was a personal matter.


Ex-AllStar
BobKamman
Level 15

Hint:  Read the 1099-C instructions for "Who Must File."

qbteachmt
Level 15

OMG, this topic cracks me up.

A nonrefunded deposit is not bad debt, clearly not a business arrangement, and who is leading this parade? Tell him to fly there, sneak in at night, and steal a boat in exchange.

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"Level Up" is a gaming function, not a real life function.
BobKamman
Level 15

@qbteachmt  You are listening to your inner voice, but not to this IRS example:

Insolvency of contractor. You can take a bad debt deduction for the amount you deposit with a contractor if the contractor becomes insolvent and you are unable to recover your deposit. If the deposit is for work unrelated to your trade or business, it is a nonbusiness bad debt deduction.

qbteachmt
Level 15

It wasn't for "work" at all. As for any business reference, a 1099c isn't issued for personal. You can make a claim on the estate and the LLC and besides the boats and any equipment, there likely are permits, licenses, and/or certified rights that can be pursued to the new responsible party. It seems there's likely a lot more recourse for this person in real life than in IRC. If it's on a credit card, dispute it. 

*******************************
"Level Up" is a gaming function, not a real life function.
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taxproDE
Level 2

It was a wire transfer - money isn't coming back. 

@qbteachmt you haven't disputed the initital point in PUB 550 that explicitly states, and I quote: 

"Insolvency of contractor. You can take a bad debt deduction for the amount you deposit with a contractor if the contractor becomes insolvent and you are unable to recover your deposit. If the deposit is for work unrelated to your trade or business, it is a nonbusiness bad debt deduction."

Page 54: https://www.irs.gov/pub/irs-pdf/p550.pdf

taxproDE
Level 2

@Just-Lisa-Now- I am curious, what are your thoughts on this post.

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BobKamman
Level 15

I found this interesting provision in the Regulations under Section 166 (bad debts) –

(2) Specific cases. Subject to any provision of section 166 and the regulations thereunder which provides to the contrary, the following amounts are deductible as bad debts: . . .

(iii) Claim against decedent's estate. The excess of the amount of the claim over the amount received by a creditor of a decedent in distribution of the assets of the decedent's estate may be considered a worthless debt under section 166.

https://www.law.cornell.edu/cfr/text/26/1.166-1 

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Just-Lisa-Now-
Level 15
Level 15

@taxproDE wrote:

@Just-Lisa-Now- I am curious, what are your thoughts on this post.


Its a personal loss, you stated it wasnt for business, so I dont see anything tax related involved here. 

He blew it by wiring the money, so he's got not credit card to help him dispute anything.  Legal avenues are his only option as far as I can see, but Im not an attorney, so Im not sure how worthwhile any of those would be. 

Does he know for sure they guy that he sent the money to really died, or was there really ever a real guy, or could this be one big scam?   "Yea, wire me 10k for this fishing trip...oh sorry the guy died, and your money's gone, make a  claim against your trip insurance, too bad, see ya......."  feels kinda scammy to me.


♪♫•*¨*•.¸¸♥Lisa♥¸¸.•*¨*•♫♪
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taxproDE
Level 2

At the onset of this - I agreed with you. 

However, a simple Google search turns up his fishing business, along with a Facebook page stating how much fun people have on this guys fishing boats (my client also had friends that have used this guy before). So, not a scam, despite my initial suspicions as well. 

I am more so curious what your thoughts are on Pub 550. To me, it pretty clearly spells out that you can take a nonbusiness bad debt for paying a contractor that went insolvent. You disagree, I'm just curious as to why you disagree? 

The reason I ask, you are pretty popular within this community, so, I've come to respect your opinion on things. Thanks!

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Just-Lisa-Now-
Level 15
Level 15

Everything I've read about non-business bad debts relates to personal loans that have been defaulted on, I currently have 2 clients taking losses for personal loans that people filed bankruptcy and the courts told them theyre getting nothing from them, so we took the capital loss and Ive never had a reason to dig any further. 

If the regs state that deposits on purchases that go unfulfilled qualify as a non business bad debt then you may have some capital loss to utilize, be sure he documents the efforts made to get the deposit refunded.  

 


♪♫•*¨*•.¸¸♥Lisa♥¸¸.•*¨*•♫♪
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qbteachmt
Level 15

"you haven't disputed the initital point in PUB 550"

What makes you think I intend to?

Since you are using the word "contractor," is there a contract? You can't claim a formal arrangement for some purchase existed, and also point out it was all loosey-goosey with no formal recourse. Submitting for personal vacation losses through the IRS is sort of like submitting a taxable loss for a love scam: "But she took my money and then didn't come see me!"

Is this in a regulated location, like Montana (we have outfitter licensing) or Alaska? That would give him some contact points. You point out that others have been on these trips. That's how social networking can be used to find out more options. Your client likely isn't the only one stiffed.

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"Level Up" is a gaming function, not a real life function.
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BobKamman
Level 15

@taxproDE What you will sometimes find here is not an answer based on any reliable source but on what Eliza Doolittle would call "middle class morality."  If it must involve business, why is there a whole body of law based on nonbusiness (you might even say, "personal") bad debts?  

The Pub 550 example goes back at least 15 years; this is from the 2008 edition:

"Insolvency of contractor. You can take a bad debt deduction for the amount you deposit with a contractor if the contractor becomes insolvent and you are unable to recover your deposit. If the deposit is for work unrelated to your trade or business, it is a nonbusiness bad debt deduction."  

It probably goes back much further than that, maybe even to the years I worked in the IRS National Office and occasionally was asked to review forms and publications.  I know the system.  Paragraphs don't appear in them magically.  This must have been inspired by a court case with those facts.  The court case is likely so old that it can't be found with a Google search.  Pay me enough money and I will find it, but if all your client has at stake is $1,500 (the deduction just reduces LTCG's that are being taxed at 15%) it's not worth it.  On the other hand, it's not worth that much for IRS to audit him either. 

My concern is whether the deposit was paid to an individual, dead or alive, or to an entity that still exists.  It used to be that fraud, even when related to nonbusiness affairs, was deductible.  But that was before the Rich People Tax Relief Act of 2017.  Your client might have benefited from that, for more than $1,500.  

qbteachmt
Level 15

"why is there a whole body of law based on nonbusiness"

"But that was before the Rich People Tax Relief Act of 2017"

Asked and answered, then. How many times do we still get the question about buying a primary residence for at least as much $ as the current one to avoid paying tax on the gain? Does that client even know these regulations changed?

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"Level Up" is a gaming function, not a real life function.
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taxproDE
Level 2

I wish all the client had was $1,500 on the table; his ego is also at stake (which is much more valuable than the number you've provided, at least to him). 

He's in the highest tax bracket, so, ~$2,300 sounds pretty good to him (better than nothing - and that's enough to satisfy his ego). 

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BobKamman
Level 15

@taxproDE  I would have thought that he has an extreme lack of self-confidence if he considers himself someone who can't even catch a fish without paying someone else $10,000 to help with it.