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Hobby Loss Exposure (IRC §183)

Updated: Jul 1, 2023


June 2023 Tax Court Case:

Tax Court TC Memo 2023-81 Swanson VS. Commissioner

🎣 Recreation Fishing Boat Business

❌ Taxpayer loss

While Mr. Swanson testified credibly about the time he spent on 'Happy Jack Charters' and the obstacles he faced, he did not demonstrate that his fishing charter activity was more than a retirement hobby.

Test #1: Manner in Which TP Carries on the Activity

For section 183 purposes, the key question is not whether the taxpayer keeps records, but whether the taxpayer uses his records to improve profitability and take steps to control expenses and increase income.

-No separate bank account, business plan,

-Did not use business information to improve business

-Got fishing boat license and commercial insurance BUT

-License and insurance were not in order to increase profitability, but rather a requirement to be in business

Test #2: Expertise of Taxpayer

"We do not doubt Mr. Swanson’s fishing expertise, but he did not demonstrate to us that he had any expertise in running a business, much less a fishing charter business."

"Mr. Swanson testified that he joined the Chamber of Commerce but did not explain whether or how it better equipped him to run a profitable fishing charter business. He testified only that he viewed it as another avenue for advertising."


Why does this matter?

IRC §183 says that activities not engaged in for-profit receive less beneficial tax treatment than a business with a profit motive.

The stakes are high, and even higher post-TCJA

If the IRS reassigns an activity from a profit motive activity to a no-profit motive activity, the financial consequences could be immense.

  • Losses from the activity will be non-deductible & do not carry forward

  • Expenses are not deductible from 2018-2025*

  • Tax will increase from lost deduction

  • Penalties and interest on the additional tax will be assessed


​Profit Motive

No Profit Motive (2018-2025)

No Profit Motive (Pre-2018, Post-2025)

W2 Wages




Musician income




Musician expenses




Musician net income




N/D Loss


Taxable income




Tax (25%)




Who is at risk for hobby loss exposure?

Losses in 3 of the last 5 years.

IRC §183 (d) provides that if an activity shows a profit in 3 of the last 5 years then the activity has a profit motive and is not a hobby.

⚠ Common misconception: If you have losses in 3 out of 5 years, it does not mean you are a hobby, it just means you do not automatically qualify under the safe harbor to have a profit motive.

Some activities will get more hobby loss scrutiny than others.

A recent report identified the most likely culprits

The Treasury Inspector General for Tax Administration issued a report in 2016 that concluded that a large number of taxpayers may have circumvented hobby loss rules in order to deduct losses that have cost the US Government several billion dollars.

The report recommended identifying and auditing individual returns that improperly deduct hobby losses that can help reduce noncompliance.

The following returns were sampled to determine the amount of compliance of in the IRC §183 arena:

  • Schedule C loss of > $20,000

  • Schedule C revenue of <$20,000

  • Wages > $100,000

  • 4 consecutive years of losses

The result was 88% of these returns did not comply with hobby loss rules. The IRS uses the research when determining if hobby loss rules should be examined.

How does IRS determine profit motive?

The IRS examines all facts and circumstances in order to determine profit motive; unfortunately, the taxpayer cannot merely state their intent to make a profit.

Some good news: IRS does not consider the likelihood, just the objective of making a profit

✅ Highly speculative ventures with a small likelihood of realizing a profit do have a profit motive (Dreicer v. Comm'r of Internal Revenue)

The expectation of profit does not need to be a reasonable one, but there needs to be a possibility of a big payday down the road that will make the venture profitable.

Example: Wildcat oil drilling is a highly-speculative venture in which the majority of ventures lose money, making it unlikely to realize a profit. However, there is a slim possibility of a very large payday. Case law supports this as a profit-motive business

The 9-Factor Test

IRS Regs 1.183 issued in 1972 created a "nine-factor test" to determine profit motive:

  1. How the taxpayer carries on the activity (keeps accurate books and records)

  2. Taxpayers expertise

  3. Time & effort in carrying out the activity

  4. Expectation that assets used in an activity, such as land, may appreciate in value.

  5. Taxpayers success in other activities

  6. Taxpayers history of income or losses from the activity

  7. Relative amounts of profits & losses

  8. Taxpayers financial status

  9. Whether the activity provides a recreation or involves personal motives

The IRS weighs all the above factors when determining profit motive; no one factor is determinative.

Thoughts on the most important test (#1 - How the taxpayer carries out the activity)

  • Keep accounting records

  • Use separate accounts from personal accounts

  • Consider setting up LLC

  • Write a business plan

  • If you are not profitable, what do you need to do to become profitable?

  • Do the math to determine the best way to become profitable

  • Hire/purchase advice from experts to learn how to become profitable and keep proof that you implemented those decisions.

  • Make changes (and keep records of change) if several years of unprofitability

Other things to know:

  • Taxpayers bear the burden of proving that they engaged in the activity with an actual and honest objective of realizing a profit.

  • Items separately stated on separate schedules cannot be combined for 183 purposes, so be careful with that (for tax preparer).

In conclusion

There is a path to deducting loss activities that have a personal element. However, it is not for a client that does not want to put in the work necessary to substantiate the profit motive.

Ignoring the profit motive rules could lead to a substantial reassessment of tax and it's best to treadwith caution!


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