T.C. Summary Opinion 2006-165
UNITED STATES TAX COURT
LAWRENCE K. AND RUTH L. HARRELL, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17918-05S. Filed October 16, 2006.
Ruth L. Harrell, pro se.
Brian A. Pfeifer, for respondent.
JACOBS, Judge: This case was heard pursuant to the
provisions of section 7463 of the Internal Revenue Code in effect
at the time the petition was filed. Unless otherwise indicated,
subsequent section references are to the Internal Revenue Code in
effect for the year in issue, and Rule references are to the Tax
Court Rules of Practice and Procedure. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority.
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Respondent determined a deficiency of $8,866 in petitioners’
2002 Federal income tax. The issues for decision are: (1) The
amount of noncash charitable contribution deductions which
petitioners are entitled to claim on Schedule A, Itemized
Deductions, and; (2) the amount of the excess unreimbursed
employee and other miscellaneous expenses deduction1 to which
petitioners are entitled.
Background
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. At the time of filing the
petition, petitioners resided in Miami, Florida.
Petitioners timely filed a joint Form 1040, U.S. Individual
Income Tax Return, for taxable year 2002, in which they claimed
as Schedule A deductions medical and dental expenses, charitable
contributions, and excess unreimbursed employee and other
miscellaneous expenses. Respondent determined that the amounts
claimed for these latter deductions were overstated and
accordingly sent petitioners a notice of deficiency. Petitioners
timely petitioned this Court. Petitioners concede, and thus no
1
The excess unreimbursed employee and other miscellaneous
expenses deduction is a Schedule A deduction. The amount equals
the sum of: (1) Unreimbursed employee expenses--job travel,
union dues, job education, etc.; (2) tax preparation fees; and
(3) other expenses--investment, safe deposit box, etc., less an
amount equal to 2 percent (the 2-percent floor) of the taxpayer’s
adjusted gross income. See sec. 67(a).
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longer challenge, respondent’s determinations that they are not
entitled to the medical and dental expense deduction. However,
they continue to challenge respondent’s other determinations.
Discussion
As a general rule, the Commissioner’s determinations in the
notice of deficiency are presumed correct, and the burden of
proving an error is on the taxpayer. Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933). However, pursuant to
section 7491(a), the burden of proof with respect to any factual
issue relating to ascertaining the liability for tax shifts to
the Commissioner if the taxpayer: (1) Maintained adequate
records; (2) satisfied the substantiation requirements; (3)
cooperated with the Commissioner’s agents; and (4) during the
Court proceeding introduced credible evidence with respect to the
factual issue involved. Petitioners did not meet the
substantiation requirements or introduce credible evidence
regarding the disallowed amounts; therefore, the burden of proof
does not shift to respondent.
It is settled law that deductions are a matter of
legislative grace, and the taxpayer must prove that he/she is
entitled to the claimed deductions. INDOPCO, Inc. v.
Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice Co. v.
Helvering, 292 U.S. 435, 440 (1934). With these well-established
propositions in mind, we decide whether petitioners have
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satisfied their burden of proving entitlement to deduct noncash
charitable contributions and excess unreimbursed employee and
other miscellaneous expenses in amounts greater than those
respondent determined.
As noted, petitioners claimed deductions on their 2002
return for charitable contributions, consisting of $3,200 in cash
and $7,753 in noncash contributions. At trial, the parties
stipulated that petitioners were entitled to a deduction of $950
for cash charitable contributions and that the $2,250 balance was
improperly claimed because the disallowed portion was made not by
petitioners but by their family members.
Respondent disallowed the $7,753 deduction for noncash
contributions for lack of substantiation. At trial, respondent
conceded that petitioners are entitled to a deduction for noncash
charitable contributions of $1,600.
Section 170 allows a deduction for charitable contributions
during the taxable year if verified as provided in the
regulations. Sec. 170(a)(1). The term “charitable contribution”
includes a contribution or gift to a corporation, trust, or
community chest, fund, or foundation, with certain provisos.
Sec. 170(c). For example, the recipient organization must have
been “created or organized in the United States or in any
possession thereof, or under the law of the United States, any
State, the District of Columbia, or any possession of the United
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States”. Sec. 170(c)(2)(A). Furthermore, no part of the net
earnings of a qualified organization may inure to the benefit of
any private shareholder or individual. Sec. 170(c)(2)(C).
The charitable contribution deduction is subject to certain
substantiation requirements. Sec. 170(f)(8). No deduction is
allowed for any contribution of $250 or more unless the taxpayer
substantiates the contribution by a contemporaneous written
acknowledgment of the contribution by the qualified donee
organization. Sec. 170(f)(8)(A). This written acknowledgment
must state the amount of cash and a description (but not
necessarily the value) of any property other than cash the
taxpayer donated and whether any consideration was given to the
taxpayer. Sec. 1.170A-13(f)(2), Income Tax Regs.
Petitioners attached to their 2002 Form 1040 a Form 8283,
Noncash Charitable Contributions, listing eight dates on which
they claimed to have made noncash donations to charitable
organizations. At trial, petitioners presented as evidence
receipts that were furnished blank by charitable organizations
and admittedly filled in by petitioners. The receipts, which
total $6,903, purport to show that petitioners made noncash
contributions on seven separate dates during 2002: January 14,
March 15, May 14, June 28, August 16, September 30, and November
21. In addition, petitioners submitted a list, which they
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prepared, of items allegedly contributed on December 31, with a
value of $850,2 but no receipt for this contribution was produced.
The dates on the receipts for January 14 and September 30
appear to have been altered, and we are not satisfied that those
contributions were in fact made during 2002. The list of items
with respect to the purported December 31 contribution does not
support the section 170 deduction because it was prepared
exclusively by petitioners and is therefore not a
“contemporaneous written acknowledgment of the contribution by
the donee organization”.
The remaining five receipts are supported by detailed lists
of items that petitioners allegedly contributed, but the values
listed for the individual items do not add up to the total amount
claimed for each contribution. Additionally, the list of items
purportedly contributed on June 28 includes a situp table and
weights that were also listed in the receipt prepared for the
purported January 14 charitable contribution. And as noted, we
are not satisfied that these items in fact were contributed to
charity in 2002.
2
We note that the sums listed on the various receipts
petitioners produced plus the amount on the list of items they
allegedly contributed on Dec. 31 is less than the amount claimed
for noncash contributions on their 2002 tax return. Moreover,
the values claimed for the individual contributed items listed in
the receipts do not total the claimed sum.
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When a taxpayer establishes that he/she has incurred
deductible expenses but is unable to establish the exact amounts,
we can estimate the deductible amounts, but only if the taxpayer
presents sufficient evidence to establish a rational basis for
making the estimates. See Cohan v. Commissioner, 39 F.2d 540,
543-544 (2d Cir. 1930); Vanicek v. Commissioner, 85 T.C. 731, 742-
743 (1985). In estimating the amount allowable, we bear heavily
on the taxpayer whose inexactitude in substantiating the amount of
the expense is of his own making. See Cohan v. Commissioner,
supra at 544. However, without a rational basis for making the
estimate, any allowance we made would amount to unguided largesse.
Williams v. United States, 245 F.2d 559, 560-561 (5th Cir. 1957).
Respondent concedes that petitioners made noncash
contributions during 2002 but maintains that the value of those
contributions did not exceed $1,600. Considering the record
before us, we do not doubt that petitioners made noncash
charitable contributions during 2002. However, they failed to
provide reliable evidence to prove that the amount thereof
exceeded the $1,600 respondent conceded. We therefore hold that
for 2002 petitioners are entitled to a $2,550 charitable
contribution deduction (rather than the claimed $10,953
deduction), comprising $950 for cash contributions and $1,600 for
noncash contributions.
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We now turn to the amount of the excess unreimbursed employee
and other miscellaneous expenses deduction to which petitioners
are entitled. On their return, petitioners claimed a deduction
for excess unreimbursed employee and other miscellaneous expenses
of $17,600. After considering the 2-percent floor, petitioners
claimed a deduction for excess unreimbursed employee and other
miscellaneous expenses of $15,834. Of this amount, respondent
does not dispute that petitioners are entitled to a deduction of
$690 for unreimbursed employee expenses--union dues. The
remaining components of the claimed deduction are uniforms
($5,625), supplies and equipment ($3,510), job search expenses
($4,800), telephone expenses ($2,850), and tax preparation fees
($125). Respondent disallowed the deduction for all of these
components.
Section 162(a) allows a deduction for ordinary and necessary
business expenses paid or incurred during the taxable year in
carrying on any trade or business. For an expense to be
“ordinary” the transaction that gives rise to it must be of a
common or frequent occurrence in the type of business involved.
Deputy v. du Pont, 308 U.S. 488, 495 (1940). To be “necessary” an
expense must be “appropriate and helpful” to the taxpayer’s
business. Welch v. Helvering, supra at 290 U.S. at 113-114. The
performance of services as an employee constitutes a trade or
business. See sec. 1.162-17(a), Income Tax Regs. The employee
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must show the relationship between the expenditures and the
employment. See Evans v. Commissioner, T.C. Memo. 1974-267, affd.
557 F.2d 1095 (5th Cir. 1977). The taxpayer bears the burden of
substantiation. Hradesky v. Commissioner, 65 T.C. 87, 89 (1975),
affd. per curiam 540 F.2d 821 (5th Cir. 1976). Section 6001 and
the regulations promulgated thereunder require taxpayers to
maintain records sufficient to permit verification of income and
expenses. As previously noted, the Court may in some
circumstances estimate the amount of a deduction to which the
taxpayer is otherwise entitled. Cohan v. Commissioner, supra at
543-544.
Petitioners deducted $5,625 for uniforms for the taxable year
and stipulated that the uniforms Mr. Harrell wore were washed and
ironed at petitioners’ home. The expense of uniforms is
deductible under section 162(a) if: (1) The uniforms are of a
type specifically required as a condition of employment; (2) the
uniforms are not adaptable to general usage as ordinary clothing;
and (3) the uniforms are not so worn. See Yeomans v.
Commissioner, 30 T.C. 757, 767-769 (1958); Beckey v. Commissioner,
T.C. Memo. 1994-514.
Mr. Harrell, in his position with United Parcel Service, was
required to work in a clean uniform every day. Mrs. Harrell
washed and ironed Mr. Harrell’s work uniforms at home. The
employer provided the uniforms but did not reimburse Mr. Harrell
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for the cleaning of his uniforms. Although petitioners would be
entitled to a deduction for the cost of washing and ironing the
uniforms, they provided no evidence upon which we can estimate the
amount thereof. At trial, Mrs. Harrell testified that the amount
claimed was a guess that was based on the hypothesis of paying to
have the uniforms cleaned commercially. Deductions are based on
actual, not hypothetical, costs.
As the uniforms were not sent to a commercial cleaner but
were laundered and ironed at home, the amount claimed is not
allowable. Moreover, the amount claimed ($468.75 per month)
appears grossly inflated. In the absence of a rational basis for
estimating the cost of the cleaning of the uniforms, we sustain
respondent’s disallowance of this component of the claimed
unreimbursed employee and other miscellaneous expenses. See Cohan
v. Commissioner, supra at 543-544.
Petitioners deducted $3,510 for “supplies and equipment” for
the taxable year in issue. Taxpayers carrying supplies on hand
can deduct the costs of those supplies to the extent that the
supplies are actually consumed or used in operation during the
taxable year for which the return is made if the cost of the
supplies was not deducted in a previous year. If the supplies are
incidental and are carried on hand with no record of consumption
kept, the taxpayer may deduct the total cost of such supplies
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purchased during the taxable year for which the return was made.
Sec. 1.162-3, Income Tax Regs.
Petitioners presented no documentation to support their
claimed deduction of $3,510 for supplies and equipment. There is
no rational basis in the record on which we can estimate the
magnitude of this expense. We therefore sustain respondent’s
disallowance of this component of the claimed excess unreimbursed
employee and other miscellaneous expenses deduction.
Petitioners deducted $4,800 for job search expenses in
connection with Mrs. Harrell’s efforts to secure employment as
well as deducting $2,850 for “telephone cell phone” expense for
the taxable year in issue. We consider these two expenses
together because they are subject to more stringent substantiation
requirements than the other components of the disallowed employee
expense deduction.
Job search expenses are deductible under section 162(a) to
the extent they are incurred in searching for new employment in
the employee’s same trade or business. See Primuth v.
Commissioner, 54 T.C. 374, 377-378 (1970). However, if the
employee is seeking a job in a new trade or business, the expenses
are not deductible under section 162(a). See Frank v.
Commissioner, 20 T.C. 511, 513-514 (1953). Job search expenses
include résumé preparation expenses, postage, and travel and
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transportation expenses. See Murata v. Commissioner, T.C. Memo.
1996-321.
Before the taxable year in issue, Mrs. Harrell was employed
as an administrative assistant and during 2002 she was unemployed,
searching for employment. Petitioners’ substantiating evidence
for the job search expenses consists of: (1) Correspondence
between Mrs. Harrell and potential employers; (2) a “work search
form” required by the State of Florida for purposes of
administering the State unemployment compensation program;3 and
(3) a mileage log which shows the addresses of companies which
Mrs. Harrell visited over the course of the year and the dates of
the visits.
The correspondence and work search forms were prepared
contemporaneously with the search for employment and establish to
our satisfaction that Mrs. Harrell incurred deductible job search
expenses. Hampered by a lack of evidence in the record as to the
amount thereof, but recognizing that expenses for a job search
were in fact incurred, we place the amount for that portion of her
job search expenses consisting of résumé preparation, telefax
transmission, and postage at $250. Mrs. Harrell’s remaining job
3
The work search form contains the following language: Each
employer you contact in your search for work must be shown below.
It is important to make as many IN PERSON applications as
possible during EACH WEEK for which you claim benefits. Mrs.
Harrell certified that the information she provided on the report
was correct and complete to the best of her knowledge.
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search expenses consisted of the cost of travel in her own
automobile to potential employers’ places of business. This
portion of her job search expenses is supported by the work search
record with respect to three interviews and by the mileage log.
In the case of travel expenses, entertainment expenses, and
expenses paid or incurred with respect to certain listed property,
section 274 overrides the Cohan doctrine, discussed previously,
and those expenses are deductible only if the taxpayer meets the
stringent substantiation requirements of section 274(d). Sanford
v. Commissioner, 50 T.C. 823, 827-828 (1968), affd. per curiam 412
F.2d 201 (2d Cir. 1969).
Section 274 contemplates that no deduction may be allowed for
expenses incurred for travel on the basis of any approximation or
the unsupported testimony of the taxpayer. Sec. 1.274-5T(a),
Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov. 6, 1985).
Section 274(d) specifically proscribes deductions for travel
expenses in the absence of adequate records or of sufficient
evidence corroborating the taxpayer’s own statement. At a
minimum, the taxpayer must substantiate: (1) The amount of such
expense; (2) the time and place such expense was incurred; and (3)
the business purpose for which such expense was incurred.
Mrs. Harrell’s unemployment compensation work search record
constitutes substantiation within the meaning of section 274 with
respect to three job interviews that required travel. The record
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shows that her round trip travel to those interviews was 28.02
miles per trip, for a total of 84.06 miles. Petitioners did not
present receipts for the actual cost of this travel, but we may
apply the standard mileage rate to determine the allowable
deduction.4 The standard mileage rate for 2002 was 36.5 cents per
mile, so that the total allowable deduction amounted to $30.68.
Unlike the work search record, Mrs. Harrell’s travel log was
not prepared contemporaneously with the purported travel and
appears inaccurate in some respects. The travel log includes
entries that do not appear on the work search record that was
prepared contemporaneously for unemployment compensation purposes.
The job seeker, in preparing the work search record, is
exhorted to document each employer that had been contacted, and
those records (certified by Mrs. Harrell) contain only three
reports of job interviews. Yet the travel log indicates that she
attended eight interviews and traveled on more than 80 occasions,
for a total of more than 5,000 miles, to apply for jobs. We find
that the travel log is unreliable and does not constitute adequate
4
The standard mileage rate is a matter of administrative
convenience by which a taxpayer may compute the amount of
deductible automobile expenses using a standard rate rather than
separately establishing the amount of an expenditure for travel
or transportation. Sec. 1.274-5(j), Income Tax Regs., in part,
grants the Commissioner the authority to establish a method under
which a taxpayer may use mileage rates to substantiate, for
purposes of sec. 274(d), the expense of using a vehicle while
traveling away from home. See Rev. Proc. 2001-54, 2001-2 C.B.
530.
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substantiation for the claimed deductions for Mrs. Harrell’s
travel in the course of her job search.
In addition to applying to traveling expenses, the strict
substantiation requirements of section 274 apply to deductions
with respect to “any listed property (as defined in section
280F(d)(4).” Section 280F(d)(4)(A)(v), in turn, includes “any
cellular telephone” in the definition of listed property. The
only substantiation petitioners submitted with respect to their
cellular telephone expenditures was a letter from Mr. Harrell’s
employer stating that Mr. Harrell used his cellular telephone to
communicate and conduct business with the company and that he was
not reimbursed for those charges. No substantiation was
introduced as to: (1) Specific telephone calls made using the
cellular telephone; (2) the portion of the use that might be
related to Mr. Harrell’s work (rather than to personal calls); or
(3) any other matter that would support a claim that the cellular
telephone was property used in Mr. Harrell’s trade or business of
performing services as an employee. We therefore sustain
respondent’s disallowance of this component of the claimed excess
unreimbursed employee and other miscellaneous expenses deduction.
Finally, petitioners deducted $125 for tax preparation fees.
Petitioners used a commercial software package to prepare their
2002 tax return. The record does not reveal the cost of the
software package, but we recognize that there in fact was a cost.
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We estimate this cost to be $40 and allow a deduction for tax
preparation fees in that amount.
Petitioners’ adjusted gross income for 2002 was $88,311. As
previously noted, see supra note 1, there is a 2-percent floor in
calculating the deduction for excess unreimbursed employee and
other miscellaneous expenses. Thus, petitioners may deduct only
their unreimbursed employee and other miscellaneous expenses that
exceed $1,766 (2 percent times $88,311). The amount of the
unreimbursed employee and other miscellaneous expenses that we
have found are deductible does not exceed that amount.
To reflect the foregoing and concessions by the parties,
Decision will be entered
under Rule 155.