T.C. Summary Opinion 2007-37



                     UNITED STATES TAX COURT



              TRENT DESHAWN ALLSTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15547-05S.              Filed March 7, 2007.



     Trent Deshawn Allston, pro se.

     Diana P. Hinton, for respondent.



     COUVILLION, Special Trial Judge:    This case was heard

pursuant to section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.1    The decision to be entered




     1
      Unless otherwise indicated, subsequent 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.
                               - 2 -

is not reviewable by any other court, and this opinion should not

be cited as authority.

     Respondent determined a deficiency of $4,482 in petitioner’s

Federal income tax for 2002.   After a concession by respondent,2

the issues for decision are:   (1) Whether petitioner is entitled

to deduct certain unreimbursed employee expenses; (2) whether

petitioner is entitled to a deduction for charitable

contributions; and (3) whether petitioner is entitled to a

deduction for medical and dental expenses incurred in 2002.

     At the time the petition was filed, petitioner’s legal

residence was Brooklyn, New York.3

     During taxable year 2002, petitioner was employed as a

campus police officer at Borough of Manhattan Community College.

He also took courses at the college toward a degree in writing

and literature.   Upon the advice of some of his coworkers,

petitioner engaged someone in the payroll department at Borough

of Manhattan Community College to prepare his income tax return

for 2002.   He filed his 2002 Federal income tax return timely,

     2
      Petitioner claimed itemized deductions on a Schedule A,
Itemized Deductions, of $30,010 on his 2002 income tax return.
In the notice of deficiency, respondent disallowed all of the
Schedule A itemized deductions. At trial, respondent conceded
petitioner’s entitlement to deduct $2,965 for State and local
income taxes paid. The remaining issues are all itemized
deductions.
     3
      The parties did not submit an agreed stipulation of facts
at trial. Exhibits, however, were offered into evidence during
the course of the trial.
                                 - 3 -

which included a Schedule A, Itemized Deductions.        Petitioner

reported adjusted gross income of $41,392 and claimed Schedule A

itemized deductions of $30,010.     He reported an overpayment of

tax for the year at issue and claimed a refund of $4,057.

     On Schedule A of his return, petitioner claimed the

following deductions:

                                                       Amount

 Line    1   Medical and dental expenses               $6,970
 Line    4   Net medical deduction                               3,866
 Line    5   State and local income taxes               2,965
 Line    9     Total taxes                                       2,965
 Line   15   Gifts by cash or check                    3,860
 Line   16   Gifts other than by cash or check            500
 Line   18     Total gifts to charity                            4,360
 Line   20   Unreimbursed employee business expenses   19,647
 Line   26   Net limited miscellaneous deductions               18,819
 Line   28     Total itemized deductions                        30,010


     Petitioner’s return was selected for audit examination.

Respondent’s examination division requested documentation to

support petitioner’s claimed Schedule A itemized deductions.

Petitioner did not provide the requested documentation.         In due

course, a notice of deficiency was issued to petitioner for 2002

disallowing the $30,010 of Schedule A itemized deductions for

lack of substantiation.

     Petitioner filed a timely petition with this Court.         He

alleged in his petition that he is not liable for the deficiency

in tax for 2002 because he relied on the representations of his

return preparer.
                                - 4 -

     In due course, an Appeals officer sent petitioner a letter

scheduling a conference and requested documentation to

substantiate the claimed Schedule A itemized deductions for 2002.

Petitioner telephoned the Appeals officer on the scheduled date

to reschedule the conference to a later date.    Petitioner failed

to appear for the rescheduled conference, and he did not respond

to the request for documentation to support his claimed itemized

deductions.

     Thereafter, petitioner was issued a letter for another

conference.    Respondent again requested that petitioner provide

documentation to substantiate his Schedule A itemized deductions

for the year at issue.   Petitioner telephoned respondent to

change the appointment to a subsequent date.    Petitioner appeared

at the later conference but did not provide any of the requested

documentation.   Moreover, as noted earlier, petitioner did not

cooperate in the preparation of a stipulation of facts to present

to the Court at commencement of the trial.

     In general, the Commissioner’s determinations in a notice of

deficiency are presumed correct.    Welch v. Helvering, 

, 115 (1933).   In pertinent part, Rule 142(a)(1) provides the

general rule that “The burden of proof shall be upon the

petitioner”.   In certain circumstances, however, if the taxpayer

introduces credible evidence with respect to any factual issue

relevant to ascertaining the proper tax liability, section 7491
                                - 5 -

places the burden of proof on the Commissioner.    Sec. 7491(a)(1);

Rule 142(a)(2).    Section 7491(a)(1) applies only if the taxpayer

complies with substantiation requirements, maintains all required

records, and cooperates with the Commissioner’s requests for

witnesses, information, documents, meetings, and interviews.

Sec. 7491(a)(2).    The record shows that petitioner did not comply

with the substantiation requirements or cooperate with requests

for documentation, all of which would have facilitated trial of

this case.

     Section 6001 and the regulations promulgated thereunder

require taxpayers to maintain records sufficient to permit

verification of income and expenses.    As a general rule, if the

trial record provides sufficient evidence that the taxpayer has

incurred a deductible expense, but the taxpayer is unable to

adequately substantiate the precise amount of the deduction to

which he or she is otherwise entitled, the Court may estimate the

amount of the deductible expense and allow a deduction to that

extent.    Cohan v. Commissioner, 

, 543-544 (2d Cir.

1930).    Such an estimate is made bearing heavily against the

taxpayer whose inexactitude in substantiating the amount of the

expense is of his own making.

  However, in order for

the Court to estimate the amount of an expense, the Court must

have some basis upon which an estimate may be made.     Vanicek v.

Commissioner, 

, 742-743 (1985).
                                 - 6 -

     Moreover, deductions are a matter of legislative grace and

are allowed only as specifically provided by statute.       INDOPCO,

Inc. v. Commissioner, 

, 84 (1992); New Colonial Ice

Co. v. Helvering, 

, 440 (1934).

     With these well-established principles in mind, the Court

must determine whether petitioner satisfied his burden of proving

that he is entitled to the itemized deductions at issue.

     As previously stated, on his Schedule A for 2002, petitioner

deducted $18,8194 of unreimbursed employee expenses for the

following:

                                                            Amount

     Uniforms and dry cleaning                              $8,860
     Equipment                                               4,980
     Tuition                                                 2,960
     Subscriptions                                           1,987
     Union dues                                                860


     Section 162 allows a deduction for ordinary and necessary

business expenses paid or incurred during the taxable year in

carrying on any trade or business.       Sec. 162(a); Deputy v. du

Pont, 

, 495 (1940).     A trade or business includes the

trade or business of being an employee.       O’Malley v.

Commissioner, 

, 363-364 (1988).      The taxpayer bears

the burden of substantiation.     Hradesky v. Commissioner, 

, 90 (1975), affd. per curiam 

(5th Cir. 1976).

     4
      The amount claimed before the 2-percent floor imposed by
sec. 67(a) was $19,647.
                                 - 7 -

     At trial, petitioner did not offer any receipts or documents

to substantiate his claimed employee business expenses.        Instead,

he testified as to his claimed business expenses.      With respect

to the uniforms and dry cleaning, equipment, and professional

dues, the Court is satisfied that petitioner did incur deductible

expenses for these items.   Although petitioner admitted he did

not have receipts to substantiate these expenses, he testified

credibly with respect to these items and their business purpose.

Petitioner did admit, however, that his return preparer

“exceeded” what was actually spent on uniforms, dry cleaning, and

equipment during the year at issue.      Accordingly, petitioner

conceded that he spent, at most, $4,000 on uniforms and dry

cleaning and $1,200 to $1,500 on equipment in 2002.

     In the absence of adequate substantiation, the Court may, if

convinced by the evidence, estimate the amount of deductible

expenses incurred.   Cohan v. 

at 543-544.

Under the Court’s discretionary authority pursuant to Cohan, the

following amounts are allowed as unreimbursed employee business

expense deductions on Schedule A:

                                                           Amount

     Uniforms and dry cleaning                             $  500
     Equipment                                                350
     Professional dues                                        500
       Total                                               $1,350

     With regard to the $2,960 in unreimbursed employee business

expense for tuition, petitioner testified that his coursework at
                               - 8 -

Borough of Manhattan Community College had nothing to do with his

job as a campus security guard, conceding that the tuition

expense was not, as claimed on his Schedule A, an unreimbursed

employee business expense.   See Evans v. Commissioner, T.C. Memo.

1974-267 (employee must show the relationship between the

expenditures and the employment), affd. 

(5th Cir.

1977).

     With regard to the subscriptions expense, petitioner

testified:   “I have no idea what that is” and conceded that he

was not entitled to the $1,987 deduction.

     As noted earlier, petitioner also claimed charitable

contributions for the following:     (1) By cash or check in the

amount of $3,860, and (2) other than by cash or check in the

amount of $500.   These contributions were disallowed for lack of

substantiation.

     With respect to charitable contributions, section 170 allows

a deduction for charitable contributions during the taxable year

if verified as provided by the regulations.     Sec. 170(a)(1).    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).    The standards for record

keeping and return requirements for deductions for charitable

contributions are set forth in section 1.170A-13, Income Tax
                               - 9 -

Regs.   Under the applicable provisions, a taxpayer claiming a

charitable contribution deduction is required to maintain for

each contribution a canceled check, some communication from the

donee organization acknowledging receipt of a contribution and

showing the date and amount of the contribution, or other

reliable written records showing the name of the donee, along

with the date and amount of the contribution.   Sec. 1.170A-

13(a)(1)(i) to (iii), Income Tax Regs.

     At trial, petitioner testified that he regularly made cash

contributions to the church where he and his former girlfriend

attended services.   He admitted he did not go to church every

Sunday but claimed his cash contributions for the year 2002

totaled $3,860.   Additionally, petitioner testified that he

donated two Sony Playstations to the church constituting the $500

portion of the charitable contributions made other than by cash

or check.

     Petitioner did not offer any substantiating documents to

support his charitable contributions for the year at issue, nor

did he maintain records of the amount of his contributions.

Notwithstanding the Court’s discretionary authority pursuant to

Cohan, a taxpayer must provide some basis upon which an estimate

of the amount of a claimed deduction may be made.   Vanicek v.

.   Without such a basis, any allowance would

amount to unguided largesse.   Williams v. United States, 

10 -

559, 560-561 (5th Cir. 1957).    The Court does not question, as

petitioner claimed at trial, that the church helped him while he

was experiencing a host of personal problems.    Because petitioner

failed to provide any reliable evidence of his claimed

contributions, the Court finds that there is no basis upon which

to estimate petitioner’s charitable contributions for 2002.

Accordingly, respondent is sustained on this issue.

     As previously stated, petitioner claimed an itemized

deduction for medical and dental expenses of $3,866 in excess of

the 7.5-percent limitation under section 213(a).5   Respondent

disallowed the deduction in full for a lack of substantiation.

     Section 213(a) allows as a deduction any expenses that are

paid during the taxable year for the medical care of the

taxpayer, his spouse, and dependents and that are not compensated

for by insurance or otherwise.    Estate of Smith v. Commissioner,

, 318 (1982).   The deduction is allowed only to the

extent that the amount exceeds 7.5 percent of adjusted gross

income.   Sec. 213(a).

     Petitioner admitted at trial that the amount claimed for

medical and dental expenses was not correct and that his medical

expenses were limited to the amount he spent for insurance and

prescription drugs.   He admitted his medical expenses were “not



     5
      The amount reported before the limitation imposed by sec.
213(a) was $6,970.
                             - 11 -

that much” and that his total expenses likely did not exceed 7.5

percent of his adjusted gross income.   Accordingly, respondent is

sustained on this issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.


                                   Decision will be entered

                              under Rule 155.