Olsen v. CIR ( 2022 )

Appellate Case: 21-9005 Document: 010110763506 Date Filed: 11/04/2022 Page: 1
FILED
United States Court of
PUBLISH Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 4, 2022
FOR THE TENTH CIRCUIT Christopher M. Wolpert
_________________________________ Clerk of Court
PRESTON OLSEN; ELIZABETH
OLSEN,
Petitioners - Appellants,
v. No. 21-9005
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
_________________________________
Appeal from the United States Tax Court
(CIR No. 26469-14 & No. 21247-16)
_________________________________
Paul W. Jones, Hale & Wood, LLP, Salt Lake City, Utah, for Petitioners-
Appellants.
Robert J. Branman, Attorney, U.S. Department of Justice, Tax Division
(David A. Hubbert, Deputy Assistant Attorney General, and Joan I.
Oppenheimer, Attorney, with him on the brief), Washington, D.C., for
Respondent-Appellee.
_________________________________
Before HARTZ, BACHARACH, and EID, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This appeal addresses the denial of tax benefits relating to Mr.
Preston Olsen’s purchases of solar lenses. These benefits are available only
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if the taxpayer has a profit motive for the purchases. Applying this
requirement, the tax court disallowed tax benefits in part because Mr.
Olsen had lacked a profit motive. 1 In our view, the tax court did not err in
rejecting a profit motive, so we affirm.
I. Mr. Olsen enters into a lens-sale-and-leaseback transaction with
Mr. Neldon Johnson’s enterprise.
Mr. Olsen bought the lenses in 2009, 2011, 2012, 2013, and 2014,
through a program created by Mr. Neldon Johnson. Under the program, Mr.
Johnson would use the lenses in a new system to generate electricity by
heating a liquid to generate steam and drive a turbine.
Mr. Johnson never finished the system. He did build nineteen test
towers by 2006. Nine years later, though, he had completed the lenses on
only one tower and hadn’t decided whether those lenses would heat water,
oil, or molten salt.
Mr. Johnson funded the program through investors like Mr. Olsen.
The investors bought lenses from Mr. Johnson’s companies (at first
International Automated Systems, Inc. and later RaPower3, LLC) and
leased the lenses to another of Mr. Johnson’s companies (LTB).
1
Mr. Olsen and his spouse filed joint tax returns, so both Mr. and Mrs.
Olsen petitioned the tax court and appealed the tax court’s ruling. But the
parties agree that Mr. Olsen had acted alone in buying the lenses, so we
discuss his motive rather than Mrs. Olsen’s.
2
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Under the leases, LTB promised to place the lenses in service and to
operate them. Once the system began producing revenue, LTB would pay
Mr. Olsen’s company (PFO Solar, LLC) $150 per lens per year.
Based on this arrangement, Mr. Olsen’s company made a down
payment of 30% of the lens price. The rest of the price would be due in
installments starting five years after the system started producing revenue. 2
But the system never generated any revenue.
2
The tax court said that the obligation to pay more would be triggered
by the generation of electricity, not revenue. But the trigger for other
payments involved the production of revenue rather than electricity.
3
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II. The Olsens claim depreciation deductions and solar energy
credits.
From 2009 to 2014, the Olsens annually claimed depreciation
deductions and solar energy credits. The depreciation deduction recognizes
that business property declines in value through wear and tear,
obsolescence, or exhaustion. I.R.C. § 167(c)(1). To compensate for a
decline in value, the taxpayer can deduct losses from the amount of taxable
income. I.R.C. § 167(a). A solar energy credit also exists, allowing a credit
equaling 30% of the basis for qualifying equipment that “uses solar energy
to generate electricity.” I.R.C. § 48(a)(3)(A).
From 2009 to 2014, the Olsens reported wages of $140,000 to
$183,000. To offset these wages, the Olsens claimed depreciation
deductions and solar energy credits based on the full price of the lenses,
rather than the 30% that Mr. Olsen’s company had paid. See Part I, above.
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These claims allowed the Olsens to pay little or no federal income taxes. 3
So the Olsens came out ahead even though they had never obtained any
money from the leases.
III. The IRS and the tax court disallow the tax benefits, and we apply
dual standards over the legal conclusions and factual findings.
The IRS issued notices of deficiency, disallowing the deductions and
solar energy credits that the Olsens had claimed from 2010 to 2014. The
Olsens challenged the deficiency notices. For this challenge, the Olsens
needed to show a right to the deductions and credits. T.C. R. 142(a). The
tax court found the showing insufficient, and the Olsens appeal.
In deciding this appeal, we apply the same standards governing
review of a civil bench trial. I.R.C. § 7482(a)(1). For the tax court’s legal
conclusions, we conduct de novo review; for the factual findings, we apply
the clear-error standard. Petersen v. Comm’r, 924 F.3d 1111, 1114 (10th
Cir. 2019).
IV. The Olsens had no right to deductions for depreciation based on
the absence of a profit motive.
For the depreciation deductions, the Olsens bore the burden of proof.
INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84 (1992). To satisfy this burden,
the Olsens needed to show that Mr. Olsen had bought the solar lenses to
3
From 2009 through 2013, the Olsens paid no federal income taxes. In
2014, the Olsens paid $1,538 in federal income taxes on $183,344 of
wages—an effective tax rate of 0.8%.
5
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make a profit. See I.R.C. §§ 167(a), 183. The tax court did not clearly err
in rejecting the existence of a profit motive, so we affirm the tax court’s
disallowance of depreciation deductions. 4
The need for a profit motive comes from the text of the tax code.
Under the code, a taxpayer may claim a depreciation deduction only if the
property is “used in the trade or business” or “held for the production of
income.” I.R.C. § 167(a)(1), (2). Property is used in a trade or business or
held for the production of income only if the taxpayer has a profit motive.
See Wiles v. United States, 312 F.2d 574, 576 (10th Cir. 1962) (using
property in a trade or business); Cannon v. Comm’r, 949 F.2d 345, 348 &
n.2 (10th Cir. 1991) (holding property for the production of income); see
also I.R.C. § 183(a) (requiring that a taxpayer engage in an activity for
profit to justify a deduction for that activity). An incidental profit motive
is not enough; the Olsens needed to show that “profit [had been] the
dominant or primary objective of the venture.” Cannon, 949 F.2d at 350.
Applying this standard, the tax court found that the Olsens had not
shown a profit motive. This finding was factual, so we apply the clear-
error standard. Id. at 349. This standard is deferential: Even if we would
4
The tax court also found that Mr. Olsen had not placed the solar
lenses in service or operated the business with regularity or continuity. We
need not address these findings because the Olsens would not be entitled to
the tax benefits even if Mr. Olsen had placed the lenses in service and
operated the business with regularity and continuity.
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have arrived at a different finding, we must affirm if the tax court’s
“account of the evidence is plausible in light of the record viewed in its
entirety.” Id. (quoting Anderson v. Bessemer City, 470 U.S. 564, 573–74
(1985)). The Olsens have not shown clear error.
The tax court must gauge a taxpayer’s intent based on “the unique
circumstances of a case.” Nickeson v. Comm’r, 962 F.2d 973, 977 (10th
Cir. 1992). Although the taxpayer’s intent involves a subjective question,
the tax court should give “greater weight . . . to objective facts than to the
taxpayer’s mere statement of his intent.” Treas. Reg. § 1.183-2(a); accord
Cannon, 949 F.2d at 351 n.8 (“[A] taxpayer’s statement of intent is given
less weight than objective factors in determining such intent.”).
We have used two sets of factors to assess the taxpayer’s intent:
1. the nine nonexclusive factors listed in Treasury Regulation
§ 1.183–2(b), Cannon, 949 F.2d at 350, and
2. five signs that the taxpayer lacks a profit motive, Nickeson, 962
F.2d at 977.
But “each case is unique,” and neither set of factors is exclusive; so the tax
court must consider “all of the unique circumstances of a case.” Id.
In considering these circumstances, the tax court probed the relevant
factors and found no profit motive.
1. Nine Factors in the Treasury Regulation
In reviewing this finding, we consider the Treasury Regulation’s nine
non-exclusive factors.
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1. The “[m]anner in which the taxpayer carries on the activity.”
Treas. Reg. 1.183-2(b)(1). The tax court found that Mr. Olsen had not
conducted the activity in a business-like manner, observing that
 the entity owning the lenses had lacked substantial business
records, a separate bank account, a business plan, or a
marketing strategy, and
 the lessee (LTB) hadn’t signed any of the lease agreements or
made any lease payments.
We can consider not only these observations, but also the purchase
agreements in 2012, 2013, and 2014. All of these agreements contained
deadlines that had already passed at the time of signing. And Mr. Olsen
kept buying lenses for three years after commenting that the seller’s “stuff
always look[ed] a little like junk.” Appellants’ App’x vol. 3, at 751
(Jan. 10, 2012 email from Mr. Olsen to his sister); see p. 11, below.
Despite this evidence, the Olsens point to Mr. Olsen’s efforts to
manage the business (such as registering his limited liability company,
using that entity to buy the lenses, and tracking his agreements). But the
Olsens can’t base clear error on their disagreement with the tax court’s
weighing of evidence. Anderson v. Bessemer City, 470 U.S. 564, 573–74
(1985). We thus conclude that the tax court didn’t clearly err by weighing
this factor against the Olsens.
2. “The expertise of the taxpayer or his advisors.” Treas. Reg.
§ 1.183-2(b)(2). The tax court found that this factor weighed against a
8
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profit motive because Mr. Olsen (1) had lacked expertise in solar energy or
equipment leasing and (2) hadn’t consulted experts in solar energy or
equipment leasing.
The Olsens challenge this finding, arguing that Mr. Olsen (1) used
the internet to research the science underlying the lenses and (2) consulted
his sister, who was a chemistry professor. But this regulatory factor calls
for extensive study or consultation of experts in the field. Treas. Reg.
§ 1.183-2(b)(2). The tax court didn’t clearly err by requiring more of Mr.
Olsen than basic internet research and consultation with a chemistry
professor. See Westbrook v. Comm’r, 68 F.3d 868, 878 (5th Cir. 1995)
(applying this factor against the taxpayers, despite their consultation of
experts in the industry’s scientific and technical aspects, based on the
failure to “seek expert advice regarding the economic or business
aspects”).
The Olsens also point to Mr. Olsen’s testimony that he had monitored
the project through quarterly visits to the site. But the tax court discounted
that testimony, noting that Mr. Olsen had “maintained no travel logs and
documented no travel expenses,” Appellants’ App’x vol. 9, at 2185; and
the Olsens don’t say how we can reject this credibility determination. So
the tax court didn’t clearly err by weighing this factor against the Olsens.
See United States v. Apperson, 441 F.3d 1162, 1195 (10th Cir. 2006)
(noting that an appellant had not explained how the district court had erred
9
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and had thus “failed to sufficiently place [the] rulings at issue”); see also
pp. 11–12, below.
3. “The time and effort expended by the taxpayer in carrying on
the activity.” Treas. Reg. § 1.183-2(b)(3). The tax court found that Mr.
Olsen hadn’t spent much time on the business based on
 an observation that Mr. Olsen had visited the site only “once or
twice” over five years and
 his concession “that his [business] activities [had been] limited
to” writing annual checks to buy lenses, renewing the limited
liability company each year, maintaining copies of the
agreements, and deciding annually how many lenses to buy.
Appellants’ App’x vol. 9, at 2204. With this observation and concession,
the tax court pointed out that the promoters had assured Mr. Olsen of his
freedom “to work as little . . . as he would like in his solar business.” Id.
at 2197.
Despite that assurance, the Olsens insist that Mr. Olsen spent
“substantial” time on his lens business. But the Olsens don’t discuss the
tax court’s reasoning or conclusion. With no such discussion, we see no
clear error in the district court’s finding as to Mr. Olsen’s time and effort.
See United States v. Apperson, 441 F.3d 1162, 1195 (10th Cir. 2006)
(noting that an appellant didn’t adequately challenge the rulings, relying
on a failure to explain how the district court had erred); see also pp. 9–10,
above.
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4. The “[e]xpectation that assets used in [the] activity may
appreciate in value.” Treas. Reg. § 1.183-2(b)(4). The tax court found that
Mr. Olsen hadn’t expected the lenses to appreciate in value because they
“were essentially worthless” except for a “very unlikely” chance that the
project would produce electricity at a commercial rate. Appellants’ App’x
vol. 9, at 2204. The Olsens disagree, arguing that the tax court should have
credited Mr. Olsen’s asserted belief in the technology based on expert
testimony that the lenses could generate electricity.
The tax court declined to credit Mr. Olsen’s asserted belief in the
lens technology, and we afford “even greater deference to the trial court’s
[credibility] findings” than to other factual findings because the trial court
had the opportunity to observe the witnesses’ testimony. Anderson v.
Bessemer City, 470 U.S. 564, 575 (1985).
The tax court explained its credibility determinations, noting that Mr.
Olsen’s testimony was “self-serving” and undermined by his statement that
the equipment “‘look[ed] a little like junk.’” Appellants’ App’x vol. 9,
at 2203–04 (quoting Appellants’ App’x vol. 3, at 751 (Jan. 10, 2012 email
from Mr. Olsen to his sister)); see p. 8, above. The Olsens don’t say why
this credibility finding was wrong, so we defer to the tax court’s
assessment of Mr. Olsen’s expression of confidence in the system. See
United States v. Apperson, 441 F.3d 1162, 1195 (10th Cir. 2006) (noting
that an appellant had not explained how the district court had erred and had
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thus “failed to sufficiently place [the] rulings at issue”); see also p. 10,
above.
The Olsens argue that expert testimony shows the reasonableness of
Mr. Olsen’s alleged optimism about the technology. But this argument
ignores much of the expert testimony.
The Olsens’ expert witness testified that he had seen a test system
and thought that it was “technically viable to generate electricity.”
Appellants’ App’x vol. 7, at 1809. But this witness conceded that the
system “wasn’t connected to anything” and “wasn’t putting anything on the
[electric] grid.” Id. at 1808–10.
The government’s expert witness went further, testifying that the
system
 couldn’t generate electricity,
 might be able to generate electricity in five years, but only if
Mr. Johnson were to change course by increasing his
investment and hiring new experts, and
 would never be commercially viable.
The Olsens disregard much of the expert testimony, focusing only on
the conclusion that the system might be able to generate electricity in five
years. But the tax court could reasonably consider the rest of the expert
testimony to find that Mr. Olsen hadn’t expected the lenses to appreciate in
value.
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Finally, the Olsens rely on Mr. Olsen’s testimony that he had bought
roughly a million shares in International Automated Systems, Inc., the
entity that had sold the solar lenses. The tax court didn’t discuss this
testimony, but it wouldn’t have compelled a contrary finding. The tax court
didn’t question the profitability of International Automated Systems.
According to the tax court, this entity obtained its profitability by selling
lenses for prices “vastly” above the manufacturing costs. Appellants’
App’x vol. 9, at 2178.
Mr. Olsen was one of those purchasers paying “vastly” above the
manufacturing costs. So even if Mr. Olsen had expected the stock price of
International Automated Systems to rise, why would he have expected a
profit from the lenses that he had bought? He was locked into an
arrangement to (1) buy the lenses for prices vastly above the
manufacturing costs and (2) lease them for free unless the system were to
produce revenue. See p. 3, above. And even if the system were to produce
revenue, Mr. Olsen’s company would recoup only $150 per year for each
lens. See id. Mr. Olsen could thus expect International Automated Systems’
share price to rise, but only at the expense of companies (like his) that had
bought the lenses at inflated prices.
* * *
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The record supports the tax court’s finding that Mr. Olsen had not
expected the lenses to appreciate in value. So the tax court did not clearly
err in applying this factor.
5, 6, and 7. The taxpayer’s profits and losses. Treas. Reg. § 1.183-
2(b)(5) to (7). Factors 5, 6, and 7 concern whether the taxpayer had a
reasonable hope of making a profit. Factor 5 addresses the taxpayer’s
“success . . . in carrying on other . . . activities,” Factor 6 addresses the
“taxpayer’s history of income or losses with respect to the activity,” and
Factor 7 addresses “[t]he amount of occasional profits, if any, which are
earned.” Id. If the taxpayer has sustained losses beyond an initial startup
period or realized only “[a]n occasional small profit from an activity
generating large losses,” the taxpayer is less likely to have a profit motive.
Treas. Reg. § 1.183-2(b)(6) to (7). In contrast, taxpayers more likely have
a profit motive when they’ve had sustained periods of net income or
substantial occasional profits. Id. When taxpayers experience losses, the
tax court can still find a profit motive based on a record of creating profits
from unprofitable enterprises. Treas. Reg. § 1.183-2(b)(5).
The tax court found that these factors weighed against the Olsens.
The lenses never generated any revenue for Mr. Olsen, and Mr. Johnson
never produced a commercially usable volume of electricity. Despite the
lack of revenue or production, Mr. Olsen continued to purchase more
lenses. After Mr. Olsen made the down-payments for these purchases, the
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promoters breached their promises by failing to place the lenses in service.
Despite these breaches, Mr. Olsen didn’t seek a refund. He instead
continued to buy more lenses.
The Olsens argue that Mr. Olsen continued to buy lenses because he
believed in the future success of the technology. But the tax court
discounted Mr. Olsen’s credibility, and the Olsens have not challenged the
tax court’s assessment of credibility. See p. 10, above. So the tax court
could reasonably find that these factors had weighed against the Olsens.
See Cannon v. Comm’r, 949 F.2d 345, 352 (10th Cir. 1991) (concluding
that an eleven-year period of substantial losses constituted “persuasive
evidence” that the taxpayer had no profit motive).
8. The taxpayer’s financial status, including other sources of income.
Treas. Reg. § 1.183-2(b)(8). This factor may weigh against a profit motive
if the taxpayer has obtained “[s]ubstantial income from sources other than
the activity (particularly if the losses from the activity generate substantial
tax benefits).” Id. In applying this factor, the tax court found that this
factor had weighed against the Olsens because Mr. Olsen (1) had
“substantial wage income” and (2) used the losses from the lenses to nearly
eliminate his tax liability. 5 Appellants’ App’x vol. 9, at 2205.
5
In 2014, the Olsens apparently miscalculated and had to pay federal
taxes of $1,538. The Olsens paid no federal taxes in any of the other years
at issue. See p. 5 n.3, above.
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The Olsens argue that this factor is neutral because any tax benefits
from business losses would have been offset by the losses themselves. See
Engdahl v. Comm’r, 72 T.C. 659, 670 (1979) (“As long as tax rates are less
than 100 percent, there is no ‘benefit’ in losing money.”). For example, if a
taxpayer loses $1,000 and has a top marginal tax rate of 25%, the $1,000
deduction would yield tax savings of $250. But the taxpayer would still
lose $1,000 in the business, creating a net loss of $750.
But this reasoning would apply only if the taxpayer had actually lost
$1,000. The Olsens claimed losses based on the full purchase price of the
lenses even though Mr. Olsen (1) had paid only 30% of the price at the
time of purchase and (2) wouldn’t owe the remaining 70% until after the
system had started generating revenue. See p. 3, above. So the Olsens
ultimately claimed more in tax deductions than they had paid for the
lenses.
The Olsens counter that they might eventually need to pay the rest of
the purchase prices. But the government’s expert witness opined that the
system would never generate a commercial volume of power. Without a
commercial volume of power, the system would never generate any revenue
and Mr. Olsen would never owe more for the lenses. So the tax court did
not clearly err by treating the Olsens’ losses as largely “artificial.”
Appellants’ App’x vol. 9, at 2206.
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9. The presence of personal motives. Treas. Reg. § 1.183-2(b)(9).
The final factor provides that taxpayers may lack a profit motive when they
have personal or recreational motives for conducting the activity. Id. The
tax court did not discuss any personal or recreational motives. But the
Olsens invoke this factor, denying any purpose involving pleasure or
recreation.
No one suggests a personal or recreational motive. To the contrary,
the tax court found a motive to avoid taxes. That finding wasn’t
undermined by the absence of a personal or recreational purpose. See
Westbrook v. Comm’r, 68 F.3d 868, 878 (5th Cir. 1995) (concluding that
the lack of a personal or recreational purpose had been “outweighed by
other facts establishing the lack of a profit motive”).
* * *
The tax court didn’t clearly err in applying the nine regulatory
factors.
2. Five Signs of a Motivation Driven by Tax Benefits
We’ve identified five common characteristics of activities suggesting
the absence of a profit motive: (1) the marketing materials focus on
expected tax benefits, (2) the taxpayer buys the item for a grossly inflated
price without negotiating, (3) the taxpayer doesn’t ask the seller about
potential profitability, (4) the taxpayer lacks control over activities, and
(5) the taxpayer uses nonrecourse debt. Nickeson v. Comm’r, 962 F.2d 973,
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977 (10th Cir. 1992). The district court could reasonably rely here on three
of these circumstances:
1. The marketing materials focused on projected tax benefits.
2. Mr. Olsen paid a grossly inflated purchase price for the lenses
without negotiating.
3. Mr. Olsen lacked control over the business.
First, the marketing for the lenses focused on projected tax benefits.
See Appellants’ App’x vol. 9, at 2206. For example, the promotional
materials said:
 “Your objective in purchasing your [solar-energy lens] systems
is to zero out your taxes.”
 “Buy our solar units with your tax money instead of giving it
away to the IRS.”
Id. at 2178, 2180. And an early email pitched Mr. Olsen on the tax benefits
while saying little about the possibility of a profit:
Liz said you may be interested in our new solar tax credit
program. I would like to set up a time where we could talk about
it in more detail but I will give you the basics of the program
now.
1. Decide how much you owe in taxes (personally
or business)
2. Buy our solar units with your tax money rather
than give it away to the IRS.
3. Give the IRS forms #3468, #3800, #4562 and
Schedule C instead of money.
4. Receive nearly double your investment from
the IRS in tax benefits.
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5. Get income off of your equipment for $35 [sic]
years.
Also, for each unit bought, our company will give $30,000 to a
not-for-profit organization of your choice in your name if you
would like to set this up too.
Appellants’ App’x vol. 3, at 703. This marketing weighed against a profit
motive. See Nickeson, 962 F.2d at 977 (stating that “marketing on the basis
of projected tax benefits” is a “common component[]” of transactions
lacking a profit motive).
Second, Mr. Olsen paid a grossly inflated purchase price without
negotiating. Mr. Olsen conceded that he’d not negotiated the purchase
price, and the record contains no evidence about the market value of the
lenses. The promoters told Mr. Olsen the purchase price for each lens:
$30,000 in 2009 and $3,500 from 2011 to 2014. After paying for the
lenses, Mr. Olsen had to lease them to a Johnson entity. That lease would
be free unless the system produced revenue. See p. 3, above. And if the
system were to produce revenue, the Johnson entity would pay Mr. Olsen’s
company only $150 per year. See id. At that rate, it’d take over 23 years
for Mr. Olsen to break even. And there was no evidence suggesting that the
lenses would even last that long.
Despite the one-sided nature of the transaction, Mr. Olsen did not
even try to negotiate the purchase price. The willingness to forgo any
negotiation suggests the lack of a profit motive. See Nickeson, 962 F.2d
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at 977 (stating that “grossly inflated purchase price[s] set without
bargaining” are common components of transactions lacking profit
motives).
Third, Mr. Olsen lacked control over the activities. In fact, after
buying lenses for two years, Mr. Olsen admitted that he did not fully
understand the project, explaining “that people ask[ed] [him] what it [was]
specifically that they [would] be purchasing and [he didn’t] know.”
Appellants’ App’x vol. 9, at 2186. Given his lack of understanding, he
apparently lacked any control over the operations.
Mr. Olsen not only lacked an understanding, but never took
possession of the lenses that he had bought and couldn’t identify which
ones were his. Given his inability to identify his own lenses, the tax court
could reasonably find a lack of control over the business, which would
weigh against a profit motive. See Nickeson, 962 F.2d at 977 (stating that a
“taxpayer[’s] lack of control over activities” is a common component of
transactions lacking a profit motive). 6
6
We’ve said that nonrecourse liability could signal the lack of a profit
motive. See pp. 17–18, above. The Olsens point out that Mr. Olsen incurred
personal liability for his future payments. But those payments would
become due only after the system had started generating revenue. See p. 3,
above. And the tax court found it “very unlikely” that the system could
ever create enough electricity to earn any revenue. Appellants’ App’x vol.
9, at 2204. So even though Mr. Olsen could incur personal liability, the
remoteness of that possibility could reasonably weigh against a profit
motive.
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* * *
The Olsens haven’t shown clear error in rejecting a profit motive
based on the marketing materials, payment of a grossly inflated purchase
price without negotiation, and lack of control. At most, the Olsens have
shown that the tax court could have weighed the evidence differently. But
more is necessary to show clear error. Anderson v. Bessemer City, 470 U.S.
564, 574 (1985).
3. Motivation for Tax Benefits Rather than a Profit
The Olsens argue that a profit motive can exist when a taxpayer
intends to make a profit after taxes even if the tax benefits were essential
to profitability. The government takes a different approach, distinguishing
between motives to profit and save in taxes. See Simon v. Comm’r, 830
F.2d 499, 500 (3d Cir. 1987) (“‘[P]rofit’ means economic profit,
independent of tax savings.”); Thomas v. Comm’r, 792 F.2d 1256, 1258
(4th Cir. 1986) (same); Holmes v. Comm’r, 184 F.3d 536, 543 (6th Cir.
1999) (same); Wolf v. Comm’r, 4 F.3d 709, 713 (9th Cir. 1993) (same). The
tax court could reasonably reject a profit motive under either approach by
doubting profitability even after the payment of taxes.
The Olsens rely on Sacks v. Commissioner, 69 F.3d 982 (9th Cir.
1995), where the Ninth Circuit held that a taxpayer’s investment wasn’t a
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sham even though the activity had become profitable only because of a
solar energy credit. Id. at 991. 7 There the Ninth Circuit recognized that
 Congress sometimes used tax incentives to change investor
behavior and
 when Congress did intend for tax incentives to change investor
behavior, a profit motive might exist even if the tax benefit had
been essential to profitability.
Id. at 991–92. But there the Ninth Circuit said that a profit motive cannot
arise solely from a desire for a tax benefit: the court must ask “whether the
taxpayer [had] intended to do anything other than acquire tax deductions.”
Id. at 987. So taxpayers might have a profit motive if they intend for a tax
credit to turn an activity that’s otherwise unprofitable into a profitable
venture. But it’s not enough if the taxpayer’s primary intent is to save in
taxes.
The Olsens have not shown an expectation for the solar leasing
business to become profitable even with the tax benefits. To the contrary,
the tax court found that Mr. Olsen had intended big tax losses to offset his
7
Courts addressing allegations of a sham transaction generally ask two
questions: (1) whether the taxpayer’s “subjective business motivation” was
to make a profit and (2) whether the transaction had “objective economic
substance.” Jackson v. Comm’r, 966 F.2d 598, 601 (10th Cir. 1992).
Because the first question (subjective business motivation) requires us to
determine whether a profit motive existed, we can draw on cases
considering whether the transaction was a sham. Nickeson v. Comm’r, 962
F.2d 973, 976 (10th Cir. 1992). So we can consider the Ninth Circuit’s
opinion in Sacks v. Commissioner even though it involved consideration of
a sham transaction.
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wage income; and the Olsens have not shown clear error in this finding. So
the Ninth Circuit’s explanation doesn’t apply here.
To reverse on this ground, we would need to conclude that taxpayers
have a profit motive whenever their primary motives are to save in taxes.
But we’ve said that a taxpayer lacks a good-faith profit motive when a
transaction “was ‘the naked sale of tax benefits.’” Nickeson v. Comm’r,
962 F.2d 973, 977–78 (10th Cir. 1992) (quoting Brock v. Comm’r, 58
T.C.M. (CCH) 826, 836 (1989)). We thus can’t assume a profit motive
whenever the taxpayer’s primary motive is to save in taxes.
* * *
The tax court found that Mr. Olsen had bought the lenses with the
main purpose of saving in taxes rather than making a profit, and this
finding wasn’t clearly erroneous. So Mr. Olsen did not use the lenses in a
trade or business or hold them for the production of income. The tax court
thus correctly disallowed the depreciation deductions.
V. The Olsens could not obtain solar energy credits.
To obtain the solar energy credits, the Olsens needed to show a right
to deductions for depreciation or amortization. I.R.C. § 48(a)(3)(C). But
the Olsens could not claim the depreciation deductions because Mr. Olsen
had lacked a profit motive. See Part IV, above. And the Olsens don’t assert
eligibility for amortization. So the Olsens could not obtain the solar energy
credits.
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In their reply brief, the Olsens argue that the credits would be
available if the lack of a profit motive had constituted the only reason to
deny the deductions for depreciation. For this argument, the Olsens assert
that I.R.C. § 183 limits a depreciation deduction to the taxpayer’s gross
income from the activity. The Olsens lacked any income from the lenses,
so this interpretation of § 183 would limit the depreciation deduction to
zero. But the Olsens argue that the solar energy credits would remain
available because the depreciation deductions were limited rather than
disallowed. The Olsens waived this argument by failing to make it in their
opening brief. Wheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008).
VI. Conclusion
The tax court didn’t commit reversible error in denying the
depreciation deductions and the solar energy credits. So we affirm the tax
court’s decision.
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Preston Olsen, et al. v. Commissioner of Internal Revenue, No. 21-9005
BACHARACH, J., concurring
I join with the majority opinion. But I write separately to add that
even with a profit motive, the Olsens wouldn’t have qualified for the
desired tax benefits. For the depreciation deductions, the Olsens needed to
show not only a profit motive but also placement of the lenses in service.
Treas. Reg. § 1.167(a)-10(b). Property is “placed in service” when it is
“placed in a condition or state of readiness and availability for a
specifically assigned function.” Treas. Reg. § 1.167(a)-11(e)(1)(i).
The Olsens argue that the lenses were placed in service as
components of a solar energy system or as property held out for lease. But
the tax court properly rejected both arguments.
1. The lenses were not placed in service as components of a solar
energy system.
We haven’t decided when a component is placed in service. Is the
component placed in service when it’s ready to be used in the larger
system even if it’s not ready to operate? Or is the component placed in
service when the system as a whole is available for the component’s
specifically assigned function? The Olsens urge the first approach, but the
tax court adopted the second approach.
I would conduct de novo review of the tax court’s approach. See
Sealy Power, Ltd. v. Comm’r, 46 F.3d 382, 393 (5th Cir. 1995) (conducting
de novo review of the tax court’s definition of the legal standard for
Appellate Case: 21-9005 Document: 010110763506 Date Filed: 11/04/2022 Page: 26
determining when an asset is placed in service); Armstrong World Indus.,
Inc. v. Comm’r, 974 F.2d 422, 431 (3d Cir. 1992) (conducting “plenary
review” of the tax court’s approach to determine when components of a
larger system had been placed in service).
The Fifth Circuit has considered when interdependent components
are “placed in service.” Sealy Power, Ltd., 46 F.3d at 390. When the
components are “designed to operate as a system,” the Fifth Circuit
considers a component “placed in service” only when “the entire system
reaches a condition of readiness and availability for its specifically
assigned function.” Id. The Third Circuit has adopted the same approach:
When a part is “essential to the operation of the project as a whole and
cannot be used separately to any effect,” the part is placed in service only
when the whole project enters service. Armstrong World Indus., Inc.,
974 F.2d at 434.
I would adopt this approach because a part is “read[y] and availab[le]
for a specifically assigned function” only if it can serve that function.
Treas. Reg. § 1.167(a)-11(e)(1)(i). If a part can serve its assigned function
only as a component of a larger system, the part would enter service only
when the rest of the system is ready and available for use.
The Olsens take a different approach, citing
 a tax court opinion holding that a component of a solar energy
system constitutes solar energy property, Cooper v.
Commissioner, 88 T.C. 84, 116–17 (1987), and
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 opinions discussing whether equipment had been placed in
service when it was ready to use, but not operated through no
fault of the taxpayer.
These opinions shed little light here.
The first opinion, Cooper, does not address when components of an
energy-generating system are placed in service. In Cooper, the court did
discuss components of energy systems. But this discussion focused on
placement into service when a system had been held out for rent. 88 T.C.
at 113–14. So Cooper could bear on whether the lenses had been placed in
service in an equipment-leasing-business—but not in a power-generating
system. See Part 2, below.
The Olsens also point to opinions addressing placement into service
when external circumstances prevented use of the property. For example,
property may be unusable because of the weather. See Schrader v. Comm’r,
34 T.C.M. (CCH) 1572 (T.C. 1975) (air conditioner installed but not
needed due to weather), aff’d, 582 F.2d 1374 (6th Cir. 1978) (mem.); Sears
Oil Co. v. Comm’r, 359 F.2d 191, 198 (2d Cir. 1966) (barge delivered and
outfitted, but unable to be used until a frozen canal had thawed). Or
property may become useable only when other work is done. See SMC
Corp. v. United States, No. CIV-1-79-252, 1980 WL 1636 (E.D. Tenn.
Aug. 12, 1980) (unpublished) (shredder and crane could not be operated
until a utility had installed power lines), aff’d, 675 F.2d 113 (6th Cir.
1982) (per curiam). These opinions don’t bear on when a component of a
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larger system is ready for its assigned use. So I would conclude that the tax
court applied the right legal standard.
Because the tax court used the right legal standard, I would review
its application of that standard for clear error. See Ampersand Chowchilla
Biomass, LLC v. United States, 26 F.4th 1306, 1312–14 (Fed. Cir. 2022)
(applying the clear-error standard to the Court of Federal Claims’
conclusions about power facilities’ specifically assigned functions and the
years that they’d been placed in service). The lenses would have entered
service only if the system itself had been ready and available for its
designated purpose of generating commercial electricity. The tax court
didn’t clearly err in finding a failure to prove that state of readiness and
availability.
The tax court applied five factors to determine whether the system
was ready and available to generate commercial electricity:
1. “[W]hether the necessary permits and licenses for operation
have been obtained . . . .”
2. “[W]hether critical preoperational testing has been completed
. . . .”
3. “[W]hether the taxpayer has control of the facility . . . .”
4. “[W]hether the unit has been synchronized with the
transmission grid . . . .”
5. “[W]hether daily or regular operation has begun.”
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Sealy Power, Ltd. v. Comm’r, 46 F.3d 382, 395 (5th Cir. 1995). The tax
court found that each factor weighed against a finding of placement into
service:
[The Johnson companies] had obtained no permits for operation
of a solar energy plant. There is no evidence that they had
completed “critical preoperational testing.” Quite the contrary:
[the government’s expert] in reviewing Mr. Johnson’s material
discovered “no tests, no test reports, [and] no documentation of
any type” and found no evidence that the Delta site had “been
recently used for any test activity.” The solar plant had not “been
synchronized with the transmission grid”; “daily or regular
operation” of the facility obviously had not begun; and no one
had assumed “control” of a functional power plant. Indeed, [the
government’s expert] credibly testified that the project, even if
completed, would never be capable of generating electricity on
a commercial scale.
Appellants’ App’x vol. 9, at 2209.
The Olsens do not challenge the tax court’s application of these
factors, arguing instead that the plant had “reach[ed] a condition of
readiness and availability for its specifically assigned function—to
generate electricity.” Appellants’ Opening Br. at 26. But the Olsens have
not shown that the plant was ready and available to generate commercial
electricity.
The Olsens’ expert witness did not undermine the tax court’s finding.
The expert witness testified that even though he’d seen a tower generate
electricity, the system “wasn’t connected to anything.” Appellants’ App’x
vol. 7, at 1806–08. Given the lack of a connection, he acknowledged that
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 production of energy for an electric grid would have required
the Johnson enterprises to buy more equipment,
 only one tower had a full array of 70 lenses, and
 “thousands of lenses” had not been installed.
Id. at 1835. This expert testimony doesn’t suggest readiness or availability
of a system to generate commercial electricity.
And the government’s expert witness confirmed that the system
hadn’t been placed in service. He testified that
 the existing design would not allow generation of usable
electricity and
 the system could generate usable electricity in five years only
if Mr. Johnson were to replace his team with expert engineers.
Given the expert testimony, the tax court reasonably found that the
Olsens had not shown the system’s readiness to generate usable electricity.
So the tax court didn’t clearly err in finding that the Olsens’ lenses hadn’t
been ready and available for their designated purpose.
2. The lenses were not placed in service in an equipment-leasing
business.
The Olsens argue in the alternative that they placed the lenses into
service in an equipment-leasing business. But the Olsens do not address the
tax court’s factual finding that the lenses had never been held out for lease.
For this finding, I would apply the clear-error standard. See
Ampersand Chowchilla Biomass, LLC v. United States, 26 F.4th 1306,
1312–14 (Fed. Cir. 2022) (applying the clear-error standard to the Court of
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Federal Claims’ conclusion about facilities’ specifically assigned functions
and the year that they’d been placed in service); Armstrong World Indus.,
Inc. v. Comm’r, 974 F.2d 422, 429–30 (3d Cir. 1992) (applying the clear-
error standard to the tax court’s determination of when leased properties
had been placed in service).
Because the Olsens do not address the tax court’s reasoning, they
have not shown clear error. See United States v. Apperson, 441 F.3d 1162,
1195 (10th Cir. 2006) (noting that an appellant had not explained how the
district court had erred and had thus “failed to sufficiently place [the]
rulings at issue”). So even if the Olsens had shown a profit motive, they
wouldn’t have been entitled to the depreciation deductions. And without
eligibility for these deductions, the Olsens couldn’t have obtained the solar
energy credits. See Maj. Op., Part V.
* * *
Because the lenses weren’t placed in service, the Olsens couldn’t
have obtained the depreciation deductions or energy credits even if Mr.
Olsen had a profit motive.
7