First I would like to correct an assumption that I see. Your tax expert is generally correct, but not necessarily so. Even if you are operating at a loss, you may under certain circumstances still be able to avoid classification as a hobby.
There is a chance of an audit especially if you are a schedule C filer. The IRS has doubled the audits for schedule C filers, because they have found that they are responsible as a class of tax payers, for 65% of all under reporting of income and abuse of deductions.
Eligibility is that you have a legitimate business and file taxes as a business and meet the following criteria:
To qualify for the new five-year carry back provision, a small business must have no greater than an average of $15 million in gross receipts over a three-year period ending with the tax year of the NOL. Businesses with more than $15 million in gross receipts still qualify to carry back their 2008 NOL for two years
What would make you ineligible is that you are not a business or that you had to large a gross receipts.
As long as your gross receipts do not exceed 15 million, and you are an operating business, then you are eligible.
What do I mean by an operating business?
If you file a schedule C and operate a sole proprietorship such as your home based business, then you have business operations and file as a business. You file a schedule SE.
If you are an LLC or S-corp and do not have more than 15 million in gross receipts, you are eligible.
If you are a partnership and file schedule E for partnership income, and you earn 15 million or less in gross receipts, you are eligible.
Being an eligible business means, operating as a business and having 15 million or less in gross receipts.
If you have more than 15 million in gross receipts you are not eligible.
Use form 1045 to file your NOL http://www.irs.gov/pub/irs-pdf/f1045.pdf