Scott v. Comm'r

T.C. Summary Opinion 2010-47

UNITED STATES TAX COURT

MARY A. SCOTT, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 8717-09S. Filed April 15, 2010.

Mary A. Scott, pro se.

Anne M. Craig, for respondent.

ARMEN, Special Trial Judge: This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1 Pursuant to section

7463(b), the decision to be entered is not reviewable by any

1
Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
year in issue, and all Rule references are to the Tax Court Rules
of Practice and Procedure.
 - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

Respondent determined a deficiency in petitioner’s 2005

Federal income tax of $2,883. The issues for decision are: (1)

Whether petitioner is entitled to deductions for unreimbursed

employee business expenses, and (2) whether petitioner is

entitled to a deduction for tax preparation fees.

Background

Some of the facts have been stipulated, and they are so

found. We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits. Petitioner resided in the State

of Florida when the petition was filed.

During 2005 petitioner worked as an international flight

attendant for Continental Airlines (Continental).2 Petitioner

began working for Continental in 1986. All of petitioner’s

working flights originated in Newark, New Jersey. Petitioner has

lived with her daughter in the metropolitan area of Tampa,

Florida, for about 17 years in order for her daughter to be

closer to her grandparents.

Because petitioner’s flights abroad originated in Newark,

petitioner drove to Tampa International Airport, parked her car

2
Although petitioner was an international flight
attendant, she had one flight which landed in Honolulu, Hawaii.
Petitioner explained that the airline industry treats Hawaii as
international because it is outside the continental United
States.
 - 3 -

in a fee lot, and commuted by a Continental flight to Newark

either in a jump seat or regular seat. When petitioner returned

from her working flight she commuted back to Tampa via a

Continental flight. During the flights between Tampa and Newark

petitioner did not work as a flight attendant but rather flew as

a passenger. Typically petitioner flew on these flights free of

charge, but if she flew in a regular seat, as opposed to a jump

seat, Continental charged a “trip pass” fee. On several

occasions no seat was available on the flight from Newark to

Tampa, so petitioner flew from Newark to Orlando, Florida, where

she would rent a car and drive to Tampa International Airport in

order to retrieve her car. On the occasion that petitioner

worked back-to-back trips, she would rent a hotel room in Newark

so that she could sleep between her flights. Petitioner also

rented a hotel room in Newark when she attended training sessions

there.

Upon arrival at an international location, Continental

provided transportation from the airport to the hotel for

petitioner and her fellow crew members. Although the hotel and

transportation were paid for by Continental, the crew members

were expected to tip the van drivers at their own expense.

Petitioner’s layover in an international location was

typically 1-1/2 to 2-1/2 days. During the layovers petitioner

incurred various meal and incidental expenses that were not
 - 4 -

reimbursed by Continental, including the tips to the van drivers.

Instead, Continental provided a per diem allowance that was paid

to petitioner via her paycheck. Petitioner’s final pay stub for

2005 shows a year-to-date per diem allowance of $6,206.76. This

final pay stub also shows year-to-date amounts for “FA Union

Dues” of $510 and “trip pass” fees of $170.

The Continental “Inflight Policies & Procedures Manual”

highlights the duties and responsibilities of flight attendants.

Flight attendants are required to carry the following items while

on duty: flashlight, alarm clock, wristwatch, and pen. Although

uniforms are provided by Continental, they are to be clean and in

good repair. Female flight attendants are required to wear plain

black shoes and pantyhose. Luggage used by a flight attendant is

to be company approved and solid black in color. A flight

attendant’s hair must be clean and well kempt, and hands and

fingernails must be clean and well manicured. Finally, the

manual indicates that crew scheduling functions and company

services are available via telephone and through the Internet

from both base and home computers.

In 2005 petitioner paid $135 to have her 2004 Federal income

tax return prepared.

Petitioner timely filed her 2005 Form 1040, U.S. Individual

Income Tax Return, which was completed by a professional tax

preparer. As relevant herein, petitioner’s 2005 return includes
 - 5 -

a Schedule A, Itemized Deductions; a Form 2106, Employee Business

Expenses; and a three-page list of statements. On her Schedule

A, petitioner claimed, inter alia, a deduction for unreimbursed

employee business expenses of $20,813 and a deduction for tax

preparation fees of $135. The Schedule A entry for unreimbursed

employee business expenses also includes the notation “See

Statement 2”. Statement 2 describes the unreimbursed employee

business expenses as follows:

Description Amount

Union and professional dues $510
Uniforms and protective clothing 1,929
From Form 2106 18,374
Total 20,813

The amount for uniforms and protective clothing consists of:

$490 for uniforms (i.e., shoes and luggage), $399 for dry

cleaning and uniform maintenance, $520 for hair and nail

maintenance, and $520 for pantyhose.

On her Form 2106 petitioner reported her expenses as

follows:

Description Amount

Vehicle expenses -0-
Parking fees, tolls, and $1,111
transportation not involving
overnight travel or commuting
to and from work
Travel expenses while away 4,001
from home
Other business expenses 275
Meals and entertainment 24,760
 - 6 -

The amount for parking fees, tolls, and transportation is

the cost petitioner paid to park at Tampa International Airport.

The travel expenses while away from home include: tips to van

drivers of $640; telephone and cellular phone charges of $1,580;

hotel bills of $555; taxi and local transportation costs while on

layovers to go to restaurants and shops of $1,275; “trip pass”

fees of $170; car rentals of $253; and Internet costs of $1,588.

The other business expenses include costs for a flashlight, pens,

batteries, and other required travel items.

The Form 2106 also reflects reimbursements petitioner

received from Continental of $6,207. After taking into account

the reimbursements and a 70-percent allowance factor for

employees subject to U.S. Department of Transportation (DOT)

hours of service limits,3 Line 10 on this form indicates a total

deduction of $18,374, which amount the form instructs to be

entered on Line 20 of Schedule A. However, petitioner’s Line 20

of Schedule A also included the additional amounts as listed in

Statement 2.

In a notice of deficiency, respondent disallowed the

deduction for unreimbursed employee business expenses and the

deduction for tax preparation fees.

3
The 2005 Instructions for Form 2106, at 3, state:
“Employees subject to the DOT hours of service limits include
certain air transportation employees, such as pilots, [and]
crew”.
 - 7 -

Discussion

I. Burden of Proof

In general, the Commissioner’s determination set forth in a

notice of deficiency is presumed correct, and the taxpayer bears

the burden of showing that the determination is in error. Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). Pursuant

to section 7491(a), the burden of proof as to factual matters

shifts to the Commissioner under certain circumstances.

Petitioner has neither alleged that section 7491(a) applies nor

established her compliance with its requirements. Accordingly,

petitioner bears the burden of proof. See Rule 142(a).

Deductions are a matter of legislative grace, and the

taxpayer bears the burden of proof to establish entitlement to

any claimed deduction. Rule 142(a); INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice Co. v.

Commissioner, 292 U.S. 435, 440 (1934). This burden requires the

taxpayer to substantiate claimed deductions by keeping and

producing adequate records that enable the Commissioner to

determine the taxpayer’s correct tax liability. Sec. 6001;

Hradesky v. Commissioner, 65 T.C. 87, 90 (1975), affd. per curiam

540 F.2d 821 (5th Cir. 1976). A taxpayer claiming a deduction on

a Federal income tax return must demonstrate that the deduction

is allowable pursuant to some statutory provision and must

further substantiate that the expense to which the deduction
 - 8 -

relates has been paid or incurred. See sec. 6001; Hradesky v.

Commissioner, supra; sec. 1.6001-1(a), Income Tax Regs.

If the taxpayer establishes that she has incurred a

deductible expense yet is unable to substantiate the exact

amount, the Court may estimate a deductible amount, but may bear

heavily against the taxpayer whose inexactitude is of her own

making. Cohan v. Commissioner, 39 F.2d 540, 544 (2d Cir. 1930).

The taxpayer must present sufficient evidence for the Court to

form an estimate because without such a basis, any allowance

would amount to unguided largesse. Williams v. United States,

245 F.2d 559, 560-561 (5th Cir. 1957); Vanicek v. Commissioner,

85 T.C. 731, 742-743 (1985).

However, the Court cannot estimate a taxpayer’s expenses

with respect to the items enumerated in section 274(d). Sanford

v. Commissioner, 50 T.C. 823, 827-828 (1968), affd. per curiam

412 F.2d 201 (2d Cir. 1969); Rodriguez v. Commissioner, T.C.

Memo. 2009-22 (strict substantiation requirements of section

274(d) preclude the Court and taxpayers from approximating

expenses subject to that section). Section 274 requires strict

substantiation for any traveling expense under section 162 and

listed property such as cellular telephones. See sec.

280F(d)(4). Section 274(d) and the regulations thereunder

require taxpayers to substantiate their deductions by adequate

records or sufficient evidence establishing the amount, time,
 - 9 -

place, and business purpose of the expense to corroborate the

taxpayer’s own testimony. See sec. 1.274-5T(b), Temporary Income

Tax Regs., 50 Fed. Reg. 46014 (Nov. 6, 1985). In the absence of

evidence establishing the elements of the expenditure or use,

deductions must be disallowed entirely. Sec. 274(d); Sanford v.

Commissioner, supra; see also sec. 1.274-5T(a), Temporary Income

Tax Regs., 50 Fed. Reg. 46014 (Nov. 6, 1985).

II. Unreimbursed Employee Business Expenses

Section 162 generally allows a deduction for ordinary and

necessary expenses paid or incurred during the taxable year in

carrying on a trade or business. The term “trade or business” as

used in section 162(a) includes the trade or business of being an

employee. Primuth v. Commissioner, 54 T.C. 374, 377-378 (1970).

The determination of whether an expenditure satisfies the

requirements for deductibility under section 162 is a question of

fact. Commissioner v. Heininger, 320 U.S. 467, 475 (1943). In

general, an expense is ordinary if it is considered normal,

usual, or customary in the context of the particular business out

of which it arose. Deputy v. du Pont, 308 U.S. 488, 495 (1940).

Generally, an expense is necessary if it is appropriate and

helpful to the operation of the taxpayer’s trade or business.

Commissioner v. Tellier, 383 U.S. 687, 689 (1966); Carbine v.

Commissioner, 83 T.C. 356, 363 (1984), affd. 777 F.2d 662 (11th

Cir. 1985). On the other hand, section 262(a) generally
 - 10 -

disallows a deduction for personal, living, or family

expenditures.

For employees in the transportation industry, the Internal

Revenue Service publishes an annual revenue procedure that offers

an exception to the above substantiation requirements for meals

and incidental expenses (M&IE) incurred by an employee while

traveling away from home. See Rev. Proc. 2005-10, sec. 4.04,

2005-1 C.B. 341, 343. Under the exception, transportation

industry employees whose employer provides a per diem allowance

may deduct their meals using the published Federal M&IE rate, in

lieu of claiming actual expenses and maintaining records. Id.

For unreimbursed employee business expenses, the initial

inquiry is whether the taxpayer received reimbursement or had the

right to receive reimbursement from his employer. Orvis v.

Commissioner, 788 F.2d 1406, 1408 (9th Cir. 1986), affg. T.C.

Memo. 1984-533. In other words, a taxpayer may not deduct

unreimbursed expenses if the employee fails to seek reimbursement

for work-related expenses. See Leamy v. Commissioner, 85 T.C.

798, 810 (1985); Podems v. Commissioner, 24 T.C. 21, 23 (1955).

Petitioner received reimbursement for M&IE while on layovers

abroad of $6,207; the remainder of petitioner’s expenses were not

reimbursed, nor was petitioner eligible for reimbursement.
 - 11 -

A. Union and Professional Dues

Petitioner claimed an unreimbursed employee business expense

deduction for union dues of $510. Petitioner’s final pay stub

for 2005 shows a year-to-date amount for union dues of $510.

Therefore, petitioner is entitled to a deduction for union dues

of $510. See sec. 162(a); secs. 1.162-15(c), 1.162-20(c)(3),

Income Tax Regs.

B. Uniforms and Protective Clothing

Petitioner claimed an unreimbursed employee business expense

deduction for uniforms and protective clothing of $1,929, which

includes amounts for shoes, luggage, and pantyhose; dry cleaning

and uniform maintenance; and hair and nail maintenance.

Expenses for uniforms are deductible if the uniforms are of

a type specifically required as a condition of employment, the

uniforms are not adaptable to general use as ordinary clothing,

and the uniforms are not worn as ordinary clothing. Yeomans v.

Commissioner, 30 T.C. 757, 767-769 (1958); Wasik v. Commissioner,

T.C. Memo. 2007-148; Beckey v. Commissioner, T.C. Memo. 1994-514.

As a condition of her employment, petitioner was required to

wear a uniform provided by Continental. Petitioner was also

required to wear plain black shoes and pantyhose, and use

approved luggage. Petitioner testified that she would never wear

pantyhose or her work shoes in her “real life”; nevertheless the
 - 12 -

shoes and pantyhose are adaptable to general use as ordinary

clothing.

Petitioner provided one legible receipt for a purchase of

$63.78 at Luggage Servicing, Inc.4 In light of the number of

trips petitioner flew for Continental in 2005, it is clear that

petitioner’s use of the luggage for work was more than merely

incidental, thus, its expense is deductible.

Therefore, of the amounts deducted for uniforms ($499) and

pantyhose ($520), petitioner is entitled to a deduction of

$63.78; the remaining amounts were expended for personal purposes

and as such are not deductible. See sec. 262(a).

If the cost of acquiring clothing is deductible, then the

cost of maintaining the clothing is also deductible. See Fisher

v. Commissioner, 23 T.C. 218, 225 (1954), affd. 230 F.2d 79 (7th

Cir. 1956). Had petitioner been required to purchase the

Continental uniforms (i.e., slacks, skirt, blouse, jacket), such

expenses would have been deductible as the uniforms were not

adaptable to general use as ordinary clothing. See Yeomans v.

Commissioner, supra. Petitioner claimed a deduction of $399 for

dry cleaning and uniform maintenance, but provided only four

receipts for dry cleaning, two of which appear to be for non-

4
A second receipt in the record that purports to be for
luggage is illegible and, therefore, of no use to the Court.
 - 13 -

work-related attire.5 However, we are satisfied that petitioner

did incur some expenses for dry cleaning and uniform maintenance.

Accordingly, exercising our discretion, but bearing heavily

against petitioner who bears sole responsibility for any

inexactitude, see Cohan v. Commissioner, 39 F.2d at 544, we hold

that petitioner is entitled to a deduction for dry cleaning and

uniform maintenance of $200.

Grooming expenses (i.e., hair and nail maintenance) are

inherently personal expenses, and amounts expended for grooming

are not deductible regardless of whether an employer requires an

employee to be well groomed. Hynes v. Commissioner, 74 T.C.

1266, 1292 (1980). Accordingly, petitioner is not entitled to a

$520 deduction for grooming expenses.

In sum, of the $1,929 petitioner claimed as a deduction for

uniforms and protective clothing, petitioner is entitled to a

deduction of $263.78.

C. Parking Fees, Tolls, and Transportation

Petitioner claimed $1,111 on her Form 2106 for parking fees,

tolls, and transportation expenses that did not involve overnight

5
The first receipt is an item drop-off summary dated July
8, showing an amount of $7.60 and listing two items: brown
cotton skirt and white slacks. The Court notes that the
Continental flight attendant’s uniform does not consist of these
items. The second receipt is a sales receipt dated July 14,
showing a total of $7.60, which date and amount seem consistent
with the drop-off receipt for the brown cotton skirt and white
slacks.
 - 14 -

travel or commuting to and from work. Petitioner explained that

this amount represents the cost of parking her car at Tampa

International Airport. It is well settled that parking fees a

taxpayer incurs as a part of his or her commute are nondeductible

personal expenses. See sec. 262; see also Commissioner v.

Flowers, 326 U.S. 465, 470 (1946); Anderson v. Commissioner, 60

T.C. 834, 835 (1973). Accordingly, petitioner may not deduct

parking expenses.

D. Travel Expenses

On her Form 2106 petitioner claimed $4,001 for travel

expenses while away from home overnight. Petitioner explained

that this amount includes: telephone and cellular phone charges

of $1,580; Internet costs of $1,588; hotel costs of $555; “trip

pass” fees of $170; car rentals of $253; taxis and local

transportation while on layovers of $1,275; and tips to van

drivers of $640.

1. Telephone, Cellular Phone, and Internet Costs

Petitioner stated that flight attendants are required to

have a phone in order for Continental to contact them regarding

schedule changes. However, basic service on the first telephone

line in a taxpayer’s residence is deemed a nondeductible personal

expense. Sec. 262(b). Petitioner has neither alleged that she

used a dedicated line for her Continental activities nor shown

that her telephone expenses were more than the basic service on a
 - 15 -

first telephone line. Thus, she is not entitled to any deduction

for the use of the telephone in her home.

Cellular telephones are included in the definition of listed

property, sec. 280F(d)(4)(A)(v), and are subject to the strict

substantiation requirements of section 274(d). Petitioner has

not introduced evidence sufficient to substantiate the expense

and use of her cellular telephone, and, in fact, only provided

one cellular telephone bill for the period of November 2007.

Further, petitioner did not demonstrate that any business use of

her cellular telephone was other than incidental.6 Accordingly,

petitioner is not entitled to a deduction for cellular telephone

expenses for 2005.

Petitioner stated that flight attendants are required to

have Internet access in order to bid on schedules or for

Continental to contact them in the event of a schedule change.

Petitioner deducted $1,588 for Internet expenditures, but the

record includes only one statement, dated December 4, 2007, with

handwritten notations indicating an Internet access cost of

approximately $33 per month, or $396 for the year.

The Court has characterized Internet expenses as utility

expenses. Verma v. Commissioner, T.C. Memo. 2001-132. Strict

substantiation therefore does not apply, and the Court may

6
Petitioner testified that she did not use her cellular
telephone in foreign countries because it was too expensive to do
so and Continental knew how to reach her at the hotel if need be.
 - 16 -

estimate petitioner’s deductible expenses, provided that the

Court has a reasonable basis for making an estimate. Cohan v.

Commissioner, supra at 544; see Vanicek v. Commissioner, 85 T.C.

at 742-743 (an estimate must have a reasonable evidentiary

basis); Pistoresi v. Commissioner, T.C. Memo. 1999-39.

Petitioner has not demonstrated that her business use of the

Internet was other than incidental, nor has petitioner presented

any evidence upon which the Court can make a reasonable estimate

of its costs. Therefore, petitioner is not allowed a deduction

for costs associated with Internet access.7

2. Commuting Expenses Between Tampa and Newark

Petitioner deducted expenses for hotels in Newark, “trip

pass” fees for flights between Florida and Newark, and car

rentals for renting cars in Orlando and driving back to Tampa to

retrieve her car. These are essentially commuting expenses as

Continental treated petitioner as if she lived in Newark and

petitioner made a personal choice to live in Tampa. See

Commissioner v. Flowers, supra at 473-474. It is clear that, as

a matter of law, a taxpayer’s cost of commuting between the

taxpayer’s personal residence and place of employment, no matter

how far, is a nondeductible personal expense. Id.; secs. 1.162-

2(e), 1.262-1(b)(5), Income Tax Regs. Accordingly, petitioner is

7
We note that Continental provided free Internet access to
petitioner at her home base in Newark.
 - 17 -

not entitled to a deduction for hotel costs in Newark, “trip

pass” fees, and car rental expenses.

3. Transportation Expenses While on Layovers Abroad

Petitioner deducted $1,275 for taxis and local

transportation while on layovers abroad and $640 for tips to the

drivers of the airport transfer vans. As discussed infra, these

expenses are included in petitioner’s per diem allowance for

M&IE. “If an employee * * * computes the amount allowable as a

deduction for meal and incidental expenses for travel away from

home in accordance with * * * this revenue procedure * * * no

other deduction is allowed to the employee * * * with respect to

those expenses.” Rev. Proc. 2005-10, sec. 6.06, 2005-1 C.B. at

348. Accordingly, petitioner is not entitled to a deduction for

transportation expenses while abroad in addition to the deduction

for M&IE discussed infra.

E. Other Business Expenses

Petitioner deducted $275 for supplies/equipment, including a

flashlight, batteries, pens, and other required travel items such

as an alarm clock and wrist watch. Assuming arguendo that these

items are deductible, but see sec. 262(a) (proscribing generally

any deductions for personal, living, or family expenses),

petitioner has not demonstrated that any such items were acquired

in the year in issue or, if so, the amount paid. Accordingly,
 - 18 -

petitioner is not entitled to a deduction for other business

expenses.

F. Meals and Incidental Expenses--Per Diem Allowance

Petitioner claimed $24,760 on her Form 2106 for M&IE. She

reduced this amount by the per diem allowance paid by Continental

of $6,207 and then deducted 70 percent (as an employee subject to

DOT hours of service limits), or $12,987. Petitioner presented

documents from her tax return preparer that suggest the amount of

M&IE should have been $18,587 reduced by the per diem allowance

paid by Continental of $6,207 and deducted at a rate of 70

percent, or $8,666.

As mentioned supra, the Commissioner is authorized to

prescribe rules under which certain types of expense allowances,

including per diem allowances for ordinary and necessary expenses

for traveling away from home, will be regarded as satisfying the

substantiation requirements of section 274(d). Sec. 1.274-5(j),

Income Tax Regs. Under this authority, the Commissioner issued

Rev. Proc. 2005-10, supra, which provides rules for using a per

diem method to substantiate amounts of meals and incidental

expenses. The term “incidental expenses” includes “fees and tips

given” to various individuals and the cost of “transportation

between places of lodging * * * and places where meals are

taken”. Id., sec. 3.02(3), 2005-1 C.B. at 342.
 - 19 -

The per diem method is available to employees only if their

employers pay a per diem allowance in lieu of reimbursing the

actual expenses an employee pays while traveling away from home.

Id., sec. 1, 2005-1 C.B. at 341. The Federal per diem rates for

M&IE for localities outside the continental United States

(OCONUS) are established by the Secretary of Defense for

nonforeign locations (i.e., Hawaii) and the Secretary of State

for foreign locations.8 Id., sec. 3.02(1)(b), 2005-1 C.B. at

342. The OCONUS M&IE rates are updated monthly. Id. The full

applicable Federal M&IE rate is available for a full day of

travel from 12:01 a.m. to 12 midnight and three-fourths of the

applicable rate is available for each partial day in which the

employee is away from home. Id., sec. 6.04, 2005-1 C.B. at 347-

348.9

To illustrate, in 2005 petitioner departed Newark on April

22 at 6:46 p.m. en route to Zurich, Switzerland. Petitioner

returned to Newark from Zurich on April 24 at 1:43 p.m. As a

8
The OCONUS M&IE rates for nonforeign locations (i.e.,
Hawaii) can be found on the U.S. Department of Defense Web site
at http://www.defensetravel.dod.mil/perdiem/perdiemrates.html.
The OCONUS M&IE rates for foreign locations can be found on the
U.S. Department of State Web site at
http://aoprals.state.gov/web920/per_diem.asp.
9
Although Rev. Proc. 2005-10, sec. 6.04, 2005-1 C.B. 341,
347-348, permits proration of the Federal M&IE rate “using any
method that is consistently applied and in accordance with
reasonable business practice” the facts in this case do not
suggest that any other method alluded to in the revenue procedure
would be in petitioner’s best interest.
 - 20 -

result of this trip, petitioner is allowed 1 full day for April

23 and 2 partial days (.75) for April 22 and 24, or 2.5 times the

applicable Federal M&IE rate. The applicable Federal M&IE rate

for Zurich for April 2005, according to the U.S. Department of

State Web site, is $136. Thus, the M&IE rate allowable for this

trip is $340 ($136 X 2.5 = $340). By comparison, petitioner

departed Newark on July 1 at 7:30 p.m. en route to Zurich and

returned to Newark on July 3 at 1:52 p.m., generating a per diem

expense of 2.5 times the applicable Federal M&IE rate. The

applicable Federal M&IE rate for Zurich for July 2005 is $123.

Thus, the M&IE rate allowable for this trip is $307.50 ($123 x

2.5 = $307.50). In order to determine the total Federal M&IE

allowable for 2005, this procedure must be completed for each of

petitioner’s trips during that year. In applying this process to

petitioner’s trip records, the total Federal M&IE allowable for

2005 is $13,199.

The Federal M&IE of $13,199 is the amount that should have

been reported on Line 5 of petitioner’s Form 2106. This amount

is reduced by the amount that Continental reimbursed petitioner

for her per diem allowance ($6,207) to arrive at $6,992. Because

petitioner is an employee subject to the DOT hours of service

limits, petitioner is entitled to deduct 70 percent of this

amount, or $4,894. Accordingly, of the $12,987 petitioner
 - 21 -

claimed as a deduction for M&IE, petitioner is entitled to a

deduction of $4,894.

III. Tax Preparation Fees

A taxpayer may deduct ordinary and necessary expenses

incurred in connection with the determination, collection, and

refund of taxes. See sec. 212(3). Such deductible expenses

include expenses incurred in connection with the preparation of

tax returns. See sec. 1.212-1(l), Income Tax Regs.

Where a taxpayer establishes that she has incurred certain

kinds of expenses but is unable to substantiate the precise

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

deductible expenses. See Cohan v. Commissioner, 39 F.2d at 544.

Petitioner claimed a deduction of $135 for tax preparation

fees. At trial, petitioner provided credible testimony that she

incurred expenses for the preparation of her tax return of $135.

Accordingly, we hold that petitioner is entitled to a deduction

of $135 for tax preparation fees. See id.

Conclusion

We have considered all of the arguments made by petitioner,

and, to the extent that we have not specifically addressed them,

we conclude that they are without merit.

To reflect the foregoing,

Decision will be entered

under Rule 155.