Irwin v. Commissioner

T.C. Memo. 1996-490

UNITED STATES TAX COURT

PENNEL PHLANDER IRWIN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 23534-94. Filed October 30, 1996.

Pennel Phlander Irwin, pro se.

Daniel J. Parent, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

PANUTHOS, Chief Special Trial Judge: This case was heard

pursuant to the provisions of section 7443A(b)(3) and Rules 180,

181, and 182.1 Respondent determined deficiencies inpetitioner's

Federal income taxes, and accuracy-related penalties as follows:

1
All section references are to the Internal Revenue Code
as amended, unless otherwise indicated. All Rule references are
to the Tax Court Rules of Practice and Procedure.
 - 2 -

Sec. 6662(a)
Year Deficiency Accuracy-Related Penalty

1990 $3,522 $704
1991 4,383 877
1992 4,906 981

After a concession by petitioner,2 the issues for decision

are: (1) Whether respondent's determination in the notice of

deficiency was arbitrary; (2) whether petitioner has any remedy

in this Court in regard to respondent's purported misconduct in

the course of examining petitioner's returns; (3) whether

petitioner is entitled to claimed Schedule C deductions for

various expenses incurred pursuant to his activities as a free-

lance writer; (4) whether petitioner is liable for self-

employment taxes with respect to his net income earned as a free-

lance writer; and (5) whether petitioner is liable for the

accuracy-related penalty under section 6662(a).

FINDINGS OF FACT

Some of the facts have been stipulated, and those facts are

so found. The stipulated facts and attached exhibits are

incorporated herein by reference. At the time of the filing of

the petition, petitioner resided in Lodi, California.

During the years in issue, petitioner worked as an

electronics training instructor for the Department of Defense.

At that time, petitioner was also a self-employed writer,

reporting items of income and deductions on Schedules C.

2
Petitioner concedes that slot machine winnings of $1,421,
reported on Schedule C for 1991, should be recharacterized as
"other income".
 - 3 -

Petitioner received a B.A. degree in history from California

State University at Sacramento. He has written five unpublished

novels, including: Great Woods Poppy; Trappers; Forever Three

Friday; Positively People; and Atla One, the first of a trilogy.

With respect to his activities as a "self-employed

writer/editor/educator", petitioner reported income and claimed

expenses on Schedules C as follows:3

Expenses 1990 1991 1992

Car and truck expenses $4,187 $5,633 $10,228
Insurance 2,549 2,917 2,597
Legal and professional services 139 100 545
Office expense 157 1,498 1,647
Vehicle lease 2,621 2,639 2,658
Lease of other business property 3,222 2,925 3,130
Repairs and maintenance 48 582 629
Taxes and licenses 445 535 527
Travel, meals, and entertainment 1,892 738 1,833
Utilities 1,393 2,263 1,702
Postage 75 151 211
Research 9,455 10,237 4,366
Writing experimentation 67 255 171
Telephone 784 910 804

Total expenses 27,034 31,383 31,048
1
Gross income 2,356 1,421 3,419

Net income/loss (24,678) (29,962) (27,629)
1
Petitioner now concedes that this amount
constituted gambling income, unrelated to his writing
activities. See supra note 2.

3
The items and amounts listed are taken from petitioner's
amended returns (Forms 1040X) for the years 1990, 1991, and 1992.
On the amended returns, petitioner claimed larger deductions than
claimed on his original returns. The notice of deficiency
specifically disallows the amounts claimed on both the original
and the amended returns.
 - 4 -

Petitioner's claimed deductions include, inter alia: (1) The

costs related to leasing petitioner's purported home office, a

five-room modular building located on a 5-acre compound, where

petitioner and his wife also resided; (2) all utility costs

associated with the purported home office; (3) the costs

associated with furnishing petitioner's purported home office,

including the costs related to purchasing a television, washing

machine, bed, and hot tub; (4) the cost of purchasing an

insurance policy on petitioner's life; (5) all costs associated

with three cars used by petitioner and members of his family,

including the costs incurred in driving between petitioner's job

location as a military instructor in Sacramento, California, and

his purported home office in Lodi, California; (6) expenses

incurred in traveling to Michigan, where he attended his mother's

funeral; (7) his daughter's dormitory expenses at college; (8)

dental expenses for himself and his family; and, (9) all costs

associated with the telephone in petitioner's home office, which

was the only telephone line in the dwelling.

As indicated in the notice of deficiency, respondent denied

all of petitioner's claimed deductions, with the exception of

expenses for postage and depreciation attributable to the cost of

certain office equipment.4 Respondent determined that the

4
Respondent allowed petitioner deductions for postage in
the amounts of $70 in 1990, $143 in 1991, and $211 in 1992.
Respondent allowed deductions for depreciation expenses in the
 - 5 -

expenses underlying the denied deductions were either personal in

nature, or inadequately substantiated. On the other hand, in a

2-page document entitled "The Audit of '91", by Pennel P. Irwin,

petitioner states in part:

Because of the nature of the business, expenses vary
depending upon the type of writing being done. For
non-fiction writing, expenses are limited to just those
items directly related to the subject being researched.
For fiction writing all personal experiences and
observations are all business experiences and
observations * * * so there is no distinction between
personal and business costs * * *. (Example: Upon
awaking in the morning the toiletry and dressing
process carried out by myself, and observed in others,
is research whose end observations are included in the
fictional writing for similar actions carried on by the
various characters; and therefore, different grooming
products would be justifiable research expenses as well
as different clothing that conveys fit and feel * * *.)
Thus all expenses I incur are either for business
research or business maintenance or business
production, though I have, out of choice, not declared
all of these---such as food, clothing, toiletries or
amusements.

In an attempt to substantiate his claimed deductions, petitioner

provided copies of canceled checks, drawn on his personal

account. Petitioner, however, failed to indicate the precise

nature of the expenses underlying many of the checks. For

example, petitioner lists many of the expenses under the broad

rubric, "research materials", without specifying the expenditure

in any detail.

During the course of the examination of petitioner's return,

respondent sought certain materials, including a log or diary to

amounts of $101 in 1991 and $172 in 1992, attributable to the
costs of a computer disk drive and a cabinet.
 - 6 -

substantiate where petitioner had traveled, and the business

purpose of his travel expenses. Respondent also requested an

itemized list of petitioner's business-related telephone calls.

Petitioner refused to provide the requested materials to

respondent's agents.

At trial, petitioner reiterated the same objections made

during the course of the examination, arguing that respondent

engaged in prior restraint of free speech in violation of the

First Amendment of the U.S. Constitution by seeking to examine

petitioner's "works in progress", and that respondent's

examination of petitioner's copyrighted literary works resulted

in copyright infringement. Petitioner also argued that

respondent's determinations in the notice of deficiency were

arbitrary and without foundation. In short, petitioner fervently

believes that because his activities involve writing, the First

Amendment and copyright protections entitle him to deduct any

expenses which he deems ordinary and necessary, without being

questioned.

OPINION

1. General

Petitioner makes various claims of illegal and

unconstitutional conduct by agents of respondent. We have

attempted to limit our discussion to those matters with a hint of

plausibility. With respect to the more frivolous claims,
 - 7 -

however, "We perceive no need to refute these arguments with

somber reasoning and copious citation of precedent; to do so

might suggest that these arguments have some colorable merit."

Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984).

(A) Arbitrariness of respondent's determinations in
notice of deficiency

Petitioner repeatedly claims that respondent's notice of

deficiency was "arbitrary, capricious, and without foundation".

Generally, the notice of deficiency is presumed correct, and the

taxpayer carries both the burden of proof and the burden of going

forward with evidence. Dellacroce v. Commissioner, 83 T.C. 269,

280 (1984). When a taxpayer establishes that a statutory notice

is arbitrary or without foundation, however, the Commissioner

bears the burden of going forward with evidence. Alanis v.

Commissioner, T.C. Memo. 1995-263. The cases dealing with

arbitrary determinations, however, involve issues of omitted

income, where the Commissioner failed to introduce any

substantive evidence indicating that the taxpayer had received

income as determined in the notice of deficiency. E.g.,

Weimerskirch v. Commissioner, 596 F.2d 358 (9th Cir. 1979), revg.

67 T.C. 672 (1977). In this case, respondent's determination was

based upon petitioner's failure to establish that he is entitled

to claimed deductions.
 - 8 -

Deductions are a matter of legislative grace, and petitioner

bears the burden of proving entitlement to any claimed

deductions. Rule 142(a); INDOPCO, Inc. v. Commissioner, 503 U.S.

79, 84 (1992). This is not a situation where respondent

determined that petitioner had omitted income, and it is evident

that the notice of deficiency was based upon an examination of

petitioner's returns. As such, we reject petitioner's claim that

the determination in the notice of deficiency was arbitrary.

(B) Respondent's actions in conducting the examination

We now turn to petitioner's claim that respondent engaged in

an unconstitutional prior restraint of speech in her attempt to

examine "confidential" details of petitioner's research in regard

to his works in progress. Petitioner appears to object to

respondent's request for information during the examination of

the returns. Respondent, in an attempt to ascertain the

correctness of a taxpayer's return, may examine any books,

papers, records, or other data which may be relevant or material

to such inquiry. Sec. 7602(a). Even if the "confidential"

materials in question were somehow not subject to examination,

petitioner must present other evidence sufficient to meet his

burden of proving entitlement to the deductions in question.

Coulter v. Commissioner, 82 T.C. 580, 581-582 (1984); Mayo v.

Commissioner, a Memorandum Opinion of this Court dated Oct. 30,

1951 (disallowing deductions for lack of substantiation where
 - 9 -

petitioner refused to provide records, invoking Fifth Amendment).

For the foregoing reasons, we reject petitioner's assertions.

Petitioner also contends that respondent, in the course of

the examination, abridged petitioner's copyright interest in a

1993 article entitled, "The Audit of '91". Petitioner's

copyright infringement claims have no foundation. Respondent is

entitled to examine petitioner's literary works in order to

establish whether there was a connection between petitioner's

claimed business deductions and petitioner's business as a

writer. Accordingly, we reject petitioner's arguments.

2. Schedule C Deductions

We now turn to the question of whether petitioner may

properly claim the deductions in question. As explained supra,

petitioner bears the burden of proving entitlement to any claimed

deductions. In this regard, taxpayers must keep sufficient

records to establish the amount of deductions or other matters

required to be shown on the taxpayer's return. Sec. 1.6001-1(a),

Income Tax Regs.

Section 162(a) generally allows a deduction for "ordinary

and necessary" expenses incurred while carrying on a trade or

business. Respondent does not appear to question that

petitioner's writing activities constitute a "trade or business".

Respondent, however, argues that petitioner has failed to prove

that the deductions claimed are "ordinary and necessary" expenses
 - 10 -

arising from petitioner's writing activities. An ordinary and

necessary expense is one which is appropriate and helpful to the

taxpayer's business and which results from an activity which is

common and accepted practice. Boser v. Commissioner, 77 T.C.

1124, 1132 (1981), affd. without published opinion (9th Cir.

1983). Where taxpayers establish that they have incurred trade

or business expenses, but are unable to substantiate the precise

amount of the expenses, we may estimate the amount of the

deductible expenses. Cohan v. Commissioner, 39 F.2d 540, 543-544

(2d Cir. 1930). However, we cannot estimate deductible expenses

unless the taxpayer presents evidence sufficient to provide some

rational basis upon which estimates may be made. Vanicek v.

Commissioner, 85 T.C. 731, 743 (1985).

Section 262 denies a deduction for any personal, living, or

family expenses. The distinction between deductible trade or

business expenses on the one hand, and nondeductible personal

expenses on the other, is based on a weighing and balancing of

the facts and circumstances of each case. R.R. Hensler, Inc. v.

Commissioner, 73 T.C. 168, 176-177 (1979). With respect to

deductions under section 162, the taxpayer bears the burden of

proving that an expense was incurred for business, rather than

personal reasons. Walliser v. Commissioner, 72 T.C. 433, 437

(1979). Specifically, taxpayers must show that the expense was

incurred primarily to benefit their business, and there must have
 - 11 -

been a proximate, rather than remote or incidental, relationship

between the claimed expense and petitioner's business. Id.

We have also recognized that some expenditures are so

"inherently personal" that they are never deductible, regardless

of the relative importance of the expenditures in connection with

the taxpayer's trade or business. Fred W. Amend Co. v.

Commissioner, 55 T.C. 320, 325-326 (1970), affd. 454 F.2d 399

(7th Cir. 1971). As we noted in Bakewell v. Commissioner, 23

T.C. 803, 805 (1955), where we held that the taxpayer could not

deduct the cost of a hearing aid:

We believe that a hearing aid is so personal as to
come within the meaning of section 24(a)(1). Even if
it is used in petitioner's business, * * * the device
is so personal as to preclude it from being a business
expense. A businessman's suit, a saleslady's dress,
the accountant's glasses are necessary for their
businesses but the necessity does not overcome the
personal nature of these items and make them a
deductible expense. * * *

In this case, petitioner suggests that his status as a writer of

fiction can convert otherwise personal expenses into deductible

business expenses, simply because the expenditure is related to

something petitioner may wish to write about. We shall address

separately each category of claimed expenses.

(A) Home Office Deductions

Petitioner describes his entire five-room modular home as a

"business location", and claims deductions for all expenses

relating to rent, utilities, maintenance, furnishings, and
 - 12 -

insurance. Section 280A(a) provides that, generally, taxpayers

may not deduct expenses (that are otherwise allowable) with

respect to the use of a dwelling unit that also serves as the

taxpayer's residence during the taxable year. There are several

exceptions to this rule. The limitations imposed by section 280A

do not apply to expenses attributable to any portion of a

taxpayer's dwelling unit used both exclusively and on a regular

basis as the principal place of petitioner's trade or business.

Sec. 280A(c)(1)(A). In the present instance, respondent argues

that petitioner has failed to show that the business use of his

residence was regular and exclusive.

In order for a taxpayer to establish use on a "regular"

basis, the business use must be more than occasional or

incidental. Jackson v. Commissioner, 76 T.C. 696, 700 (1981). A

taxpayer "exclusively" uses a portion of his dwelling in a trade

or business if the portion in question is not used for other than

business purposes. Sec. 1.280A-2(g)(1), Proposed Income Tax

Regs., 45 Fed. Reg. 52404 (Aug. 7, 1980); Hefti v. Commissioner,

T.C. Memo. 1993-128. Petitioner has not offered sufficient

evidence regarding the amount of time and nature of the work

conducted at his home to establish regular use. Browning v.

Commissioner, T.C. Memo. 1988-293, affd. 890 F.2d 1084 (9th Cir.

1989). Furthermore, petitioner has failed to prove that any

portion of his home was used exclusively for his writing
 - 13 -

activities. Browning v. Commissioner, 890 F.2d at 1087-1088.

Petitioner has failed to establish that the business use of his

home is within the exception provided in section 280A(c)(1)(A).

As such, petitioner's dwelling unit does not qualify as a home

office, and we deny petitioner's claims for deductions related to

his home.

(B) Car and Truck Expenses

Petitioner claims automobile expense deductions with respect

to three vehicles used during the years 1990, 1991, and 1992.

Petitioner's automobile logs, offered as substantiation for these

expenses, were not prepared contemporaneously. Petitioner claims

that all the vehicles in question were used exclusively for

business purposes.

(1) 1985 Nissan Sentra

For 1990, petitioner claims that he used his 1985 Nissan

exclusively for business purposes. The total mileage for the

year is 23,900 miles. Of this amount, 22,767 miles are travel

between petitioner's teaching job in Sacramento, and his

residence in Lodi.5 We find that petitioner's primary motivation

in traveling between Sacramento and Lodi was to commute to and

from the home where he and his family resided. Petitioner would

have returned to his Lodi residence regardless of whether it also

5
The remaining 1,133 miles relate to travel away from
petitioner's home and are separately discussed infra.
 - 14 -

served as his writing compound. As such, the expenses in

question were nondeductible personal commuting expenses. Curphey

v. Commissioner, 73 T.C. 766, 777-778 (1980); Mazzotta v.

Commissioner, 57 T.C. 427, 429 (1971), affd. per curiam 465 F.2d

1399 (2d Cir. 1972), affd. without opinion 467 F.2d 943 (2d Cir.

1972).

(2) 1988 Toyota Pickup

Petitioner's wife (Ms. Irwin) was a teacher who also

assisted petitioner with his writing activities on a part-time

basis. Ms. Irwin was the primary driver of a 1988 Toyota pickup

leased by petitioner. Petitioner claims 1,297 business miles

driven in 1990, 2,618 in 1991, and 2,164 in 1992. Apart from

identifying each log entry as "writing research travel",

petitioner offers no evidence regarding the business purpose of

any of the miles driven. As such, we deny petitioner's claims

for deductions with respect to the Toyota pickup.

(3) 1990 Toyota Camry

For the years 1991 and 1992, petitioner claims that he used

his 1990 Toyota Camry for business purposes. The purported

business mileage is 22,616 for 1991, and 21,850 for 1992. Of

these amounts, petitioner's commuting mileage totals 21,806 in

1991, and 21,420 in 1992. As explained supra, expenses relating

to commuting are nondeductible. In attempt to substantiate the

remaining mileage, petitioner introduces a copious amount of
 - 15 -

material, including insurance policies, gas station receipts, and

canceled checks. While these materials establish the amounts

expended, petitioner has completely failed to specify the

business purpose of each expense underlying the receipt or

canceled check. Thus, petitioner has failed to provide any

specific evidence that would indicate that he used the car in

pursuit of his writing activities. Petitioner's claimed

deductions relating to the 1990 Toyota are not allowable. Cobb

v. Commissioner, 77 T.C. 1096, 1101 (1981); Telfeyan v.

Commissioner, T.C. Memo. 1988-425, affd. without published

opinion 881 F.2d 1086 (11th Cir. 1989).

(C) Dues and Publications

Petitioner claims deductions for various magazine

subscriptions and membership dues. Petitioner must provide

evidence sufficient to establish a specific connection between

the expenditures and petitioner's trade or business as a writer.

Gorman v. Commissioner, T.C. Memo. 1986-344. Petitioner has

failed to establish any connection, and we sustain respondent's

determination on this issue.

(D) Insurance

Petitioner claims a deduction for a life insurance policy

providing $50,000 in benefits upon his death. Generally, the

cost of life insurance is not deductible. Sec. 1.262-1(b)(1),

Income Tax Regs. Therefore, we sustain respondent on this issue.
 - 16 -

We also reject petitioner's claims for deductions related to

the expense of insuring his vehicles. As previously discussed,

petitioner has failed to establish any business use of the

vehicles in question. Therefore, we sustain respondent on this

issue.

(E) Office Expenses/Supplies

Petitioner claims deductions for "supplies" related to his

literary activities. Most of these expenses, such as furniture

for his residence, a washing machine, and a microwave oven, are

inherently personal. Section 262 precludes such deductions. The

record, however, indicates that petitioner incurred deductible

expenses for stationery and envelopes. We allow petitioner a

deduction with regard to these expenses in amounts equal to $5.55

in 1990 and $35.43 in 1991.

(F) Travel, Meals, and Entertainment

Taxpayers may deduct travel expenses incurred while away

from home in pursuit of a trade or business. Sec. 162(a)(2).

Traveling expenses, however, are governed by the strict

substantiation requirements of section 274(d). Under section

274(d), petitioner must substantiate the amount of the expense,

the time and place of the travel, and the business purpose of the

expense. If petitioner fails to meet the provisions of section

274(d), we cannot employ the principles of Cohan v. Commissioner,

39 F.2d 540 (2d Cir. 1930), to estimate petitioner's travel
 - 17 -

expenses. Keating v. Commissioner, T.C. Memo. 1995-101; sec.

1.274-5(a), Income Tax Regs.

Petitioner claims deductions with respect to: (1) Trips to

Reno, Nevada, in 1990 and 1991; (2) a trip to Michigan in 1990,

including expenses for his daughter, employed as a "research

assistant"; (3) trips to Lake Tahoe, Nevada, in 1990 and 1992;

and (4) a trip to Pacific Grove, California, in 1991. In a

misguided attempt to protect the names of purported writing

sources, petitioner has refused to provide sufficient evidence,

such as contemporaneously prepared logs or diaries, from which we

could ascertain the business purpose of his travel. Sec. 1.274-

5T(c)(2), Temporary Income Tax Regs., 50 Fed. Reg. 46017 (Nov. 6,

1985). Furthermore, we are convinced that some of petitioner's

expenditures, such as the costs of travel to Michigan with his

daughter to attend petitioner's mother's funeral and conduct

"research" for Great Woods Poppy, were undoubtedly personal in

nature. As petitioner has failed to meet the substantiation

requirements of section 274(d), we sustain respondent's denial of

all travel expenses.

(G) Research

Petitioner introduced canceled checks, attributable to a

variety of expenditures, purportedly related to his literary

research. While petitioner lists the amounts of expenditures, he

failed to present any detailed evidence concerning the specific

nature of each expenditure. Many of these expenditures are
 - 18 -

inherently personal in nature, including: The cost of his

family's dental work; the cost of his daughter's college

education, Ates v. Commissioner, T.C. Memo. 1985-469; personal

grooming expenses, Hynes v. Commissioner, 74 T.C. 1266, 1289-1292

(1980); and the cost of a television used in his home, O'Connor

v. Commissioner, T.C. Memo. 1986-444; sec. 1.262-1(b)(9), Income

Tax Regs. These expenses are nondeductible. With respect to the

remaining expenditures, petitioner's testimony was vague and

self-serving. As petitioner has failed to specify the business

purpose of any item of expense, we sustain respondent's

determination disallowing deductions for all research expenses.

(H) Telephone Expenses

Petitioner claims deductions for telephone expenses.

Petitioner testified that one telephone line was located at his

residence. Section 262(b) provides that the cost of basic local

telephone service provided to the first telephone line at the

taxpayer's residence is a nondeductible expense. Furthermore,

petitioner has refused to provide details regarding the nature of

long distance calls, invoking the First Amendment. As discussed

supra, we rejected petitioner's arguments concerning

constitutional violations, and we accordingly uphold respondent's

disallowance of all telephone expenses.

(I) Charitable Contributions

During 1990, petitioner contributed $75 to a public radio

station and $35 to the Roman Catholic Church. Generally,
 - 19 -

contributions to charitable organizations are deductible as

itemized deductions. Secs. 170(a), 67(b)(4). Petitioner claims

that these expenses were incurred for the purpose of collecting

research for his writing activities, thereby rendering the

expenses deductible under section 162. Petitioner, however, has

failed to specify the precise nature of the research materials he

received in consideration for the payments in question. As such,

we regard the payments as charitable contributions under section

170. Petitioner did not elect to itemize deductions on his 1990

return. Therefore, he is not entitled to a charitable

contribution deduction.

3. Self-Employment Tax

With regard to his writing activities, petitioner reported

self-employment income in 1990 and 1992. Respondent asserts that

these amounts are subject to the self-employment tax imposed by

section 1401. Petitioner has the burden of proving that

respondent erroneously determined liability for the self-

employment tax. Snyder v. Commissioner, T.C. Memo. 1995-285.

Petitioner has failed to address this issue. As such, we sustain

respondent's determination imposing the self-employment tax on

the Schedule C income.

4. Accuracy-Related Penalty Under Section 6662(a)

Respondent determined that petitioner is liable for the

accuracy-related penalty provided under section 6662(a). The

accuracy-related penalty is equal to 20 percent of any portion of
 - 20 -

underpayment attributable to a taxpayer's negligence or disregard

of rules and regulations. Sec. 6662(a), (b)(1). The term

"negligence" includes any failure to do what a reasonable and

ordinarily prudent person would do under the same circumstances.

Neely v. Commissioner, 85 T.C. 934, 947 (1985). The term

"disregard" includes any careless, reckless, or intentional

disregard. Sec. 6662(c). The penalty does not apply to any

portion of an underpayment for which there was reasonable cause

and with respect to which the taxpayer acted in good faith. Sec.

6664(c). Respondent's determination imposing the accuracy-

related penalty is presumed correct, and taxpayers bear the

burden of proving that they are not liable for the accuracy-

related penalty imposed by section 6662(a). Rule 142(a);

Tweeddale v. Commissioner, 92 T.C. 501, 505 (1989).

While petitioner may honestly believe that he is entitled to

deductions for the expenses in question, his position is not

reasonable under the circumstances. Prudent individuals in

petitioner's position would be aware that engaging in the trade

or business of a writer does not transform personal expenses into

deductible business expenses, simply because "life's experiences"

are incorporated into their literary materials. Additionally,

petitioner offered little evidence to substantiate the business

relationship between the expenses and his literary activities.

Petitioner has not met his burden of proof with respect to the
 - 21 -

accuracy-related penalty, and respondent is, accordingly,

sustained on this issue.

To reflect the foregoing,

Decision will be entered

under Rule 155.