Campbell v. Commissioner

T.C. Memo. 1997-502

UNITED STATES TAX COURT

JOSEPH BALDWIN CAMPBELL, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 9244-95. Filed November 6, 1997.

Lawrence H. Crosby, for petitioner.

Jonathan P. Decatorsmith, for respondent.

MEMORANDUM OPINION

COUVILLION, Special Trial Judge: This case was heard
1
pursuant to section 7443A(b)(3) and Rules 180, 181, and 182.

1
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the year at issue. All Rule
references are to the Tax Court Rules of Practice and Procedure.
At the time the petition was filed, petitioner elected to have
his case considered as a small tax case under sec. 7463. Prior
to commencement of trial, petitioner moved to have the case
considered as a regular case under sec. 7443A(b)(3). The Court
(continued...)
 - 2 -

Respondent determined a deficiency of $8,512 in petitioner's

Federal income tax for 1992 and additions to tax of $1,915, $681,

and $374 under sections 6651(a)(1) and (2) and 6654(a),

respectively.

Following concessions by the parties, as discussed below,

the issues remaining for decision are: (1) Whether per capita

distributions to petitioner from the Prairie Island Tribal

Council arising out of the ownership and operation of a gambling

casino constitute gross income, or whether such income is

"derived directly" from land owned by the Prairie Island Tribal

Council and is excludable from taxation pursuant to laws,

treaties, or agreements between Indian tribes and the United

States Government, and (2) whether unreimbursed expenses incurred

by petitioner in the course of his duties as a member of the

Environmental Protection Committee of the Prairie Island Tribal

Council are deductible in 1992.

Some of the facts were stipulated, and those facts, with the

annexed exhibits, are so found and are incorporated herein by

reference. At the time the petition was filed, petitioner's

legal residence was Welch, Minnesota.

During all years relevant hereto, petitioner was an enrolled

member of the Prairie Island Indian Community in Minnesota and

1
(...continued)
granted petitioner's motion, at which time respondent filed an
answer.
 - 3 -

resided on such tribe's reservation. In 1982, petitioner entered

into a lease with the Prairie Island Tribal Council (tribal

council) wherein petitioner leased from the tribal council 270

acres of the tribe's reservation for purposes of farming. The

lease was for a term of 25 years. Over the entire tract of

leased land, petitioner raised corn, soybeans, wheat, winter

wheat, buckwheat, and seed corn. Petitioner installed various

irrigation equipment over portions of the property.

In 1983, the tribal council began carrying out plans to

build a bingo hall and a casino on a portion of petitioner's

leased land. Pursuant thereto, the tribal council requested that

petitioner cease his farming operations on a specified 10-acre

portion of the land leased to petitioner; the tribal council

intended to use that 10 acres for the building and operation of

the bingo hall and casino. Petitioner agreed to relinquish the

10 acres to the tribal council.

In connection with the further development of casino

operations on petitioner's leased land, the tribal council, in

1984, terminated petitioner's lease on the 270 acres of farmland.

Petitioner, however, continued to farm the land each year. In

1987, the tribal council entered into a second lease with

petitioner for the same 270 acres, less 10 acres "more or less,

presently occupied by a bingo hall and parking lot." The term of

this lease was 10 years, which expired on December 31, 1996.
 - 4 -

In December 1991, the tribal council informed petitioner in

writing that the entire tract of land leased to him would be

required for "community economic development" (i.e., expansion of

the casino buildings and operations), and that petitioner should

cease all farming operations thereon. The correspondence further

stated that the provisions of petitioner's second lease would

terminate upon petitioner's receipt of such correspondence.

Subsequently, petitioner ceased all farming operations on the

leased land. Under the terms of the lease, the tribal council

reserved the right to terminate the lease as to all or part of

the leased property for "economic development" by advising the

lessee in writing on or before January 1 of the year in which the

premises were required for economic development. In such event,

the lessee was not entitled to compensation for termination of

the lease. The lease provided otherwise where the termination

notice was given after January 1 of the year for which economic

development was contemplated. Nevertheless, a dispute arose

between petitioner and the tribal council regarding the tribal

council's right to terminate the lease and the tribal council's

responsibility to reimburse petitioner for damages incurred by

petitioner as a result of such termination. At the time of the

trial of this case, petitioner's continuing dispute with the

tribal council over this issue was scheduled for legal

arbitration proceedings.
 - 5 -

During the years of operation of the casino, each enrolled

member of the Prairie Island Indian Community who lived on the

reservation received per capita distributions of a portion of the
2
casino's earnings for that year. In other words, a portion of

the casino's earnings each year was divided equally among, and

distributed to, each man, woman, and child who was an enrolled

member of the Prairie Island Indian Community who lived on the
3
tribe's reservation. During the year in question, 1992,

petitioner's per capita distribution from the casino operations
4
was $43,380. Each enrolled member of the Prairie Island Indian

Community who lived on the reservation received a $43,380

distribution from the casino operations in 1992. The payment of

the $43,380 per capita distribution to petitioner was reported to

respondent by the tribal council on Form 1099-DIV.

2
The Court surmises from the record that, originally, these
distributions were paid on a quarterly basis, but eventually the
payments were made on monthly basis.
3
Through 1994, each member of the tribe who lived on the
reservation, including children of all ages, received an equal
distribution of the earnings. For 1995 and subsequent years, the
apportionment was altered so that the children (those under the
age of 18) received only 15 percent of the amount of the
distributions received by the adults.
4
Petitioner testified that he received the following per
capita distributions from casino operations for years prior and
subsequent to the year at issue: (1) for 1990--$200, (2) for
1991--$19,000, (3) for 1993--$45,000, (4) for 1994--between
$70,000 and $80,000, and (5) for 1996--between $90,000 and
$100,000. Petitioner did not file a Federal income tax return
for any of these years.
 - 6 -

Petitioner did not timely file his Federal income tax return

for the year at issue. He filed his return for 1992 after the

notice of deficiency was issued. In the notice of deficiency,

respondent determined that petitioner had unreported income of

$43,380 and unreported nonemployee compensation income of $1,951,

both from the tribal council. Respondent further determined that

petitioner had unreported interest income of $98 from Norwest
5
Bank, and that he was liable for self-employment taxes of $275.

Respondent allowed petitioner a self-employment tax deduction of

$138, a standard deduction of $3,600, and one personal exemption

of $2,300. Respondent also determined that petitioner was liable

for additions to tax under section 6651(a)(1) for failure to

timely file a Federal income tax return, section 6651(a)(2) for

failure to timely pay the amount shown as tax on the return, and

section 6654(a) for failure to make estimated tax payments, in

the amounts of $1,915, $681, and $374, respectively.

In a Stipulation of Settled Issues filed with the Court at

trial, petitioner conceded that the nonemployee compensation of

$1,951 from the tribal council and the interest income of $98

from Norwest Bank were includable in gross income for 1992.

Further, petitioner conceded that he was liable for self-

5
All the unreported income adjustments were based on
information reported to respondent by third party payers.
 - 7 -

employment taxes of $275, and that he was liable for the

additions to tax under sections 6651(a)(1) and 6654(a).

Respondent conceded that petitioner was entitled to a self-

employment tax deduction of $138, a standard deduction of $3,600,

and one personal exemption of $2,300. Respondent further

conceded that the addition to tax under section 6651(a)(2) was

not properly applicable in this case, and that it was mistakenly

included in the notice of deficiency.

The determinations of the Commissioner in a notice of

deficiency are presumed correct, and the burden is on the

taxpayer to prove that the determinations are in error. Rule

142(a); Welch v. Helvering, 290 U.S. 111 (1933).

The first issue is whether the per capita distribution of

$43,380 from the tribal council is includable in petitioner's

gross income for 1992. Petitioner contends that this

distribution was in lieu of the income he would have earned from

the land and, therefore, was excludable from gross income.

Section 61 provides that gross income includes "all income

from whatever source derived," unless otherwise provided. The

Supreme Court has consistently given this definition of gross

income a liberal construction "in recognition of the intention of

Congress to tax all gains except those specifically exempted."

Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430 (1955); see

also Roemer v. Commissioner, 716 F.2d 693, 696 (9th Cir. 1983),
 - 8 -

revg. 79 T.C. 398 (1982) ([all] realized accessions to wealth are

presumed to be taxable income, unless the taxpayer can

demonstrate that an acquisition is specifically exempted from

taxation.").

It is well established that American Indians are subject to

Federal income taxation unless an exemption exists in the

language of a treaty or an Act of Congress. Squire v. Capoeman,

351 U.S. 1, 6 (1956); United States v. Willie, 941 F.2d 1384,

1400 (10th Cir. 1991); Cross v. Commissioner, 83 T.C. 561, 564

(1984), affd. sub nom. Dillon v. United States, 792 F.2d 849 (9th

Cir. 1986). The fact that petitioner is an American Indian does

not preclude him from being liable for the payment of income tax.

Hoptowit v. Commissioner, 78 T.C. 137, 145 (1982), affd. 709 F.2d

564 (9th Cir. 1983).

Though not specifically addressed in the Internal Revenue

Code, revenue from casino gambling conducted on American Indian

reservations is specifically subjected to Federal taxes under the

Indian Gaming Regulatory Act, Pub. L. 100-497, 102 Stat. 2467,

2472, 25 U.S.C. sec. 2710 (1994). The Indian Gaming Regulatory

Act provides that "per capita payments [of net revenues from

gaming activities conducted or licensed by any Indian tribe] are

subject to Federal taxation and tribes [must] notify members of

such tax liability when payments are made." 25 U.S.C. sec.

2710(b)(3)(D) (1994). The tribal council did notify petitioner,
 - 9 -

as well as the other tribal members, of the taxability of their

per capita distributions. The tribal council also notified

respondent, on Forms 1099-DIV, of its payment of each per capita

distribution.

To prevail on this issue, petitioner must point to express

exemptive language in some statute or treaty that excludes the

$43,380 distribution from his gross income. Rickard v.

Commissioner, 88 T.C. 188, 192 (1987); Cross v. Commissioner,

supra at 564; see Welch v. Helvering, 290 U.S. 111 (1933).

Petitioner claims that the Indian General Allotment Act of 1887

(Indian General Allotment Act), ch. 119, 24 Stat. 388, 25 U.S.C.

sec. 331-358 (1988) provides such an express exception to Federal
6
income taxation.

The Indian General Allotment Act provided for the allotment

of reservation lands to American Indians to be held in trust for

allottees by the United States for a period of 25 years, or

longer, during which time the allotted land cannot be alienated

or encumbered. Upon expiration of the time limitation, if the

6
Petitioner alleges, and the Court surmises from the record,
that the leased land in this case is governed by the Indian
General Allotment Act rather than by a Federal statute
specifically addressing the tribal lands of the Prairie Island
Indian Community. Nevertheless, it has been held that the test
of entitlement to a Federal income taxation exemption would be
the same under the Indian General Allotment Act of 1887, ch. 119,
24 Stat. 388, 25 U.S.C. sec. 331-358 (1988), and a Federal
statute specifically addressing the tribal lands of the Eastern
Cherokee Indians. See Saunooke v. United States, 806 F.2d 1053,
1055 (Fed. Cir. 1986).
 - 10 -

allottee is determined to be competent to manage his or her own

affairs, a fee patent can be issued to the allottee with respect

to the allotted land. The Indian General Allotment Act serves to

preserve the value of the land in trust until such time as the

Secretary of the Interior determines that the allottee is

competent to hold title to the land in fee simple. County of

Yakima v. Confederated Tribes & Bands of the Yakima Indian

Nation, 502 U.S. 251 (1992).

In Squire v. Capoeman, supra, the Supreme Court concluded

that a Federal income tax exemption was created by the Indian

General Allotment Act for income that an allottee derives

directly from the land held in trust for him. In that case, the

Supreme Court reasoned that there existed a congressional intent

to exempt allotted lands from all charges and encumbrances until

after the fee interest was conveyed to the allottee. It held

that income received by an incompetent Indian from the sale of

standing timber logged off his own allotment was exempt from

Federal income tax, but "reinvestment income" was not. Id. at 9.

The Court stated: "It is clear that the exemption accorded

tribal and restricted Indian lands extends to the income derived

directly therefrom." Id. (quoting Cohen, Handbook of Federal

Indian Law, 265, (1941); emphasis added). The stated rationale

for the "derived directly" standard was that the logging of the
 - 11 -

land caused a diminution of the land's value. The Supreme Court

stated:

Once logged off, the land is of little value. The land no
longer serves the purpose for which it was by treaty set
aside * * * and for which it was allotted to him. * * *
Unless the proceeds of the timber sale are preserved for
* * * [the taxpayer], he cannot go forward when declared
competent with the necessary chance of economic survival in
competition with others. * * * [Squire v. Capoeman, supra
at 10; fn. ref. omitted.]

The courts have held that to allow taxation of the proceeds of

activities that diminish the value of land allotted to an Indian

runs contrary to the rationale underlying Capoeman, for it

reduces the value of that which was to be preserved. See

Anderson v. United States, 845 F.2d 206, 207 (9th Cir.1988). The

"derived directly" standard is settled precedent in this and all

other courts that have addressed this issue. United States v.

Willie, supra at 1400; Saunooke v. United States, 806 F.2d 1053,

1055 (Fed. Cir. 1986); Cross v. Commissioner, supra at 565-566.

In Stevens v. Commissioner, 452 F.2d 741 (9th Cir. 1971),

affg. in part and revg. in part 54 T.C. 351 (1970), affg. in part

52 T.C. 330 (1969), the Court of Appeals for the Ninth Circuit

affirmed this Court's holding that, under the "derived directly"

standard, income from farming and ranching of land acquired by

the Government in trust for an individual Indian was exempt from

Federal income tax. See also United States v. Daney, 370 F.2d

791 (10th Cir. 1966) (income from oil and gas leases tax-exempt);
 - 12 -

Big Eagle v. United States, 156 Ct. Cl. 665, 300 F.2d 765 (1962)
7
(royalties from mineral deposits tax exempt).

The courts have confined the exemption to income received

from activities that diminish or exploit the value of the land

(such as logging, mining, or farming). Income earned through the

investment of capital or labor, such as restaurants, motels,

tobacco shops, and similar improvements to the land, fail to

qualify for the exemption, although the activity takes place on

land held in trust. See Hoptowit v. Commissioner, 78 T.C. at 145

(income received from the operation of a smokeshop on allotted

land was taxable); see also Cross v. Commissioner, 83 T.C. at

566; Beck v. Commissioner, T.C. Memo. 1994-122, affd. without

published opinion 64 F.3d 655 (4th Cir. 1995) (rental income

derived from apartments located on Indian reservation land was

not exempt); Critzer v. United States, 220 Ct. Cl. 43, 597 F.2d

708 (1979) (exemption denied for income received from the

operation of a motel, a restaurant, a gift shop, and from the

rental of a craft shop and apartment units). Under the rationale

of these cases, the income derived from the operation of a casino

would not be derived directly from the land.

7
Citing these cases, in Cross v. Commissioner, 83 T.C. 561,
566 (1984), affd. sub nom. Dillard v. United States, 792 F.2d 849
(9th Cir. 1986), this Court adopted a narrow reading of the
"derived directly" exemption, observing that it had been applied
only in situations where there is exploitation of the land
itself.
 - 13 -

In the instant case, the continued use of the trust land for

casino operations does not decrease the economic value of the

land. In this regard, there is no exploitation of the land by

the Prairie Island Indian Community resulting in a diminution of

the land's value. Moreover, persons gambling and enjoying food

and drink in the casino are paying principally for the use of the

casino facilities. Thus, the per capita distributions petitioner

received were primarily derived from the utilization of a capital

improvement; i.e., the casino, and not from the land itself. See

Beck v. Commissioner, supra.

Petitioner agrees that, absent his possession of a lease to

farm the 270 acres, the $43,380 per capita distribution would be
8
subject to Federal income tax. However, petitioner argues that

the existence of his lease provides him with a special exemption

from the general taxability of the income derived from the casino

operations. Petitioner points out that, if he had farmed the 270

acres in 1992, all the income derived from such farming activity

would have been exempt from Federal income tax under the "derived

directly" standard. Petitioner argues that, because he held a

lease on the land upon which the casino was located and operated,

8
The courts have uniformly denied an exemption for an
Indian's distributive share of income derived from unallotted
tribal lands held in trust for the tribe as a whole. E.g.,
Anderson v. United States, 845 F.2d 206 (9th Cir. 1988); Holt v.
Commissioner, 364 F.2d 38 (8th Cir. 1966), affg. 44 T.C. 686
(1965).
 - 14 -

the $43,380 per capita distribution he received was in lieu of

the farming income he relinquished in order to allow the building

and operation of the casino. Therefore, petitioner contends, the

$43,380 paid to him should be exempt from Federal income tax as

"substitute farming income".

The Court does not disagree that, if petitioner had

continued to farm the leased land, the income derived from his

farming operations would have been "derived directly" from the

land and, thus, would have been exempt from Federal income taxes.

See Stevens v. Commissioner, supra. However, this Court is

unwilling to extend such an exemption to encompass a type of

income that clearly falls outside the bounds of the "derived

directly" standard, and that was clearly intended to be subjected

to Federal income tax under the Indian Gaming Regulatory Act.

The $43,380 per capita distribution to petitioner in 1992 was not

paid in lieu of his potential farming income for that year but,

rather, was paid to petitioner as a result of his status as an

enrolled member of Prairie Island Indian Community and a resident

on the tribal reservation. That petitioner may have held a lease

to farm the 270 acres in 1992 had no bearing on whether or not he

received the per capita distribution in that year, and did not

operate to change the character of the per capita distribution he

received. Each and every enrolled member of Prairie Island

Indian Community who lived on the reservation received an equal
 - 15 -

distribution in 1992; petitioner received that distribution
9
regardless of whether he held a lease on the 270 acres.

Petitioner's argument is wholly without merit.

The Court recognizes the possibility that petitioner may

have incurred some pecuniary damages as a result of his inability

to farm the leased land during the year at issue. Moreover, the

Court understands that petitioner may harbor feelings of

inequitable treatment surrounding his relinquishment of what he

regarded as tax-free farming income and the subsequent receipt by

him of a taxable per capita distribution from the casino

operations. Although the Court may sympathize with petitioner's

quandary, this Court is a court of limited jurisdiction and lacks

general equitable powers. Commissioner v. McCoy, 484 U.S. 3, 7

(1987); Hays Corp. v. Commissioner, 40 T.C. 436 (1963), affd. 331

F.2d 422 (7th Cir. 1964); see sec. 7442. The Court has no

authority to disregard the express provisions of statutes adopted

by Congress, even where the result in a particular case may seem

harsh. See, e.g., Estate of Cowser v. Commissioner, 736 F.2d

9
It is notable that petitioner did not produce any evidence
to show that his lease was still valid in 1992 (i.e., had not
been validly terminated by the tribal council in 1991). This may
be one of the issues to be resolved in the arbitration of
petitioner's dispute with the tribal council. The validity of
the lease is made moot by this Court's determination that the
existence of the lease has no bearing on the taxability of the
subject per capita distribution. Nevertheless, petitioner failed
to prove on this record that the lease was valid during the year
at issue. On this record, it appears that the tribal council
terminated the lease pursuant to the terms of the lease.
 - 16 -

1168, 1171-1174 (7th Cir. 1984), affg. 80 T.C. 783, 787-788

(1983). Petitioner's seemingly unfortunate circumstance does not

affect his Federal income tax liability with regard to the

$43,380 per capita distribution. Petitioner's recourse, if any,

lies in his dispute with the tribal council, which has been

scheduled for legal arbitration.

On this record, the Court holds that the $43,380 per capita

distribution received by petitioner in 1992 was not received in

lieu of farming income. The Court holds further that such

distribution is subject to Federal income tax under the

provisions of the Indian Gaming Regulatory Act and that such

income was not "derived directly" from the trust land.

Respondent, therefore, is sustained on this issue.

The second issue is whether unreimbursed expenses incurred

by petitioner in the course of his duties as a member of the

Environmental Protection Committee (EPC) of the tribal council

are deductible in 1992. Expenses incurred by an employee that

are not reimbursed by the employer are generally deductible under

section 162(a), which allows a deduction for all ordinary and

necessary expenses paid or incurred during the taxable year in
10
carrying on a trade or business. Primuth v. Commissioner, 54

10
For tax years beginning on or after Jan. 1, 1987, as in this
case, miscellaneous itemized deductions, including unreimbursed
employee expenses, are deductible, under sec. 67(a), only to the
extent that the aggregate miscellaneous itemized deductions
(continued...)
 - 17 -

T.C. 374, 377 (1970). To qualify for the deduction, an expense

must be both "ordinary" and "necessary" within the meaning of

section 162(a). Deputy v. duPont, 308 U.S. 488, 495 (1940).

Whether the amount disallowed by respondent constitutes an

ordinary and necessary expense incurred in the operation of the

taxpayer's trade or business as an employee is a question of fact

to be determined from the evidence presented, with the burden

being on the taxpayer to overcome the presumed correctness of

respondent's determination. Rule 142(a); Welch v. Helvering, 290

U.S. 111 (1933); Allen v. Commissioner, T.C. Memo. 1988-166.

Deductions are a matter of legislative grace, and the

taxpayer bears the burden of proving entitlement to any

deductions claimed. New Colonial Ice Co. v. Helvering, 292 U.S.

435, 440 (1934). Furthermore, a taxpayer is required to maintain

records sufficient to establish the amount of his or her income

and deductions. Sec. 6001. Under certain circumstances, where a

taxpayer establishes entitlement to a deduction, but does not

establish the amount of the deduction, the Court is permitted to

estimate the amount allowable. Cohan v. Commissioner, 39 F.2d

540 (2d Cir. 1930). However, there must be sufficient evidence

in the record to permit the Court to conclude that a deductible

expense was incurred in at least the amount allowed. Williams v.

10
(...continued)
exceed 2 percent of the taxpayer's adjusted gross income. Tax
Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085.
 - 18 -

United States, 245 F.2d 559, 560 (5th Cir. 1957). In estimating

the amount allowable, the Court bears heavily against the

taxpayer whose inexactitude is of his or her own making. Cohan

v. Commissioner, supra at 544.

The deduction for travel expenses away from home, including

meals and lodging, under section 162(a)(2), is conditioned on

such expenses being substantiated by "adequate records" or by

sufficient evidence corroborating the claimed expenses pursuant

to section 274(d). Sec. 1.274-5(a)(1), Income Tax Regs. To meet

the adequate records requirements of section 274(d), a taxpayer

"shall maintain an account book, diary, statement of expense or

similar record * * * and documentary evidence * * * which, in

combination, are sufficient to establish each element of an

expenditure". Sec. 1.274-5(c)(2)(i), Income Tax Regs. (emphasis

added). The elements to be proven with respect to each traveling

expense are the amount, time, place, and business purpose of the

travel. Sec. 1.274-5(b)(2), Income Tax Regs. The substantiation

requirements of section 274(d) are designed to encourage

taxpayers to maintain records, together with documentary evidence

substantiating each element of the expense sought to be deducted.

Sec. 1.274-5(c)(1), Income Tax Regs.

Respondent argued that petitioner's position with the EPC

was purely a volunteer position and, therefore, was not in
 - 19 -

11
connection with a profit-motivated trade or business. Further,

respondent argued, petitioner's participation as a member of the

EPC was not regular, continuous, and with the primary purpose of

making a profit as required by section 162. Finally, respondent

argued, petitioner failed to substantiate the amount of his

travel expenses incurred away from home, as required by section

274(d).

The expenses petitioner claimed were travel expenses

incurred with respect to trips taken by petitioner in connection

with his duties as spokesperson for the EPC. Petitioner

introduced into evidence a computer-generated printout, which he

had prepared in anticipation of trial, of the amounts and

descriptions of his claimed expenses. However, petitioner failed

to produce any receipts or other similar corroborative evidence

to substantiate the various amounts, times, places, or business

purposes of his claimed expenses. In short, petitioner failed to

introduce any documentary evidence sufficient to support his

claimed expenses incurred in connection with his duties as a

member of the EPC.

The Court finds that petitioner's records are insufficient

to satisfy the stringent substantiation requirements of section

274(d). In the case of travel expenses, specifically including

11
Petitioner admitted at trial that his position with the EPC
was a volunteer position.
 - 20 -

meals and lodging while away from home, as well as in the case of

entertainment, section 274(d) overrides the so-called Cohan

doctrine discussed earlier in this opinion. Sanford v.

Commissioner, 50 T.C. 823, 827 (1968), affd. per curiam 412 F.2d

201 (2d Cir. 1969); sec. 1.274-5T(a), Temporary Income Tax Regs.,

50 Fed Reg. 46014 (Nov. 6, 1985). The Court is unable to use its

discretion in allowing any of the travel expenses claimed by

petitioner. Since petitioner did not substantiate his expenses

under section 274(d), respondent is sustained on this issue. The

Court finds it unnecessary to consider the other arguments raised

by respondent on this issue.

Decision will be entered

for respondent.