T.C. Summary Opinion 2009-57



                        UNITED STATES TAX COURT



                   CRISTINA A. OSORIO, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 25924-07S.              Filed April 29, 2009.



        Cristina A. Osorio, pro se.

        Christine K. Lane, for respondent.



     DEAN, 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.      Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other

case.     Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code in effect for the year in issue,
                                - 2 -

and all Rule references are to the Tax Court Rules of Practice

and Procedure.

     For 2005 respondent determined a $2,728 deficiency in

petitioner’s Federal income tax.    The issue remaining for

decision1 is whether petitioner is entitled to itemized

deductions in excess of the standard deduction.

                             Background

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.     When the petition was

filed, petitioner resided in Florida.

     During 2005 petitioner worked for Southern Wine and Spirits

as a sales consultant.    Her customer accounts were in the Greater

Miami area.   She drove her own vehicles to service her customer

accounts, which were on an established route that she “had to

stick to to get orders.”    She was not reimbursed by her employer

for her expenditures.    Instead, she claimed $18,458 in

unreimbursed employee expenses on her Schedule A, Itemized

Deductions (before application of the section 67(a) 2-percent

floor).   On her Form 2106, Employee Business Expenses, she

reported her expenses as follows:


     1
      Petitioner presented neither evidence nor argument that she
is entitled to her claimed $120 deduction for tax preparation
fees. Petitioner is therefore deemed to have conceded the issue.
See Nielsen v. Commissioner, 

, 312 (1973); Mikalonis
v. Commissioner, T.C. Memo. 2000-281.
                                 - 3 -

                 Description                              Amount

         Vehicle expense                                 $10,177
         Parking fees, tolls, and
           transportation                                    420
         Travel expenses                                    -0-
         Unspecified business expenses                     7,861
         Meals and entertainment                            -0-
           Total                                          18,458

      Petitioner’s $10,177 deduction for vehicle expense was based

upon 23,520 business miles at standard mileage rates of 40.5 and

48.5 cents per mile for two vehicles.       For vehicles 1 and 2 she

reported business miles of 3,993 and 19,527 and other miles of

545 and 2,510 for a total of 4,538 and 22,037 miles,

respectively.   She did not claim a deduction on her Form 2106 for

the actual transportation expenses of her vehicles.

                               Discussion

I.   Burden of Proof

      The Commissioner’s determinations in a notice of deficiency

are presumed correct, and the taxpayer bears the burden to prove

that the determinations are in error.       See Rule 142(a); Welch v.

Helvering, 

, 115 (1933).        But the burden of proof on

factual issues that affect the taxpayer’s tax liability may be

shifted to the Commissioner where the taxpayer introduces

credible evidence with respect to the issue and the taxpayer has

satisfied certain conditions.     See sec. 7491(a)(1).    Petitioner

has not alleged that section 7491(a) applies, and she has neither

complied with the substantiation requirements nor maintained all
                                - 4 -

required records.   See sec. 7491(a)(2)(A) and (B).    Accordingly,

the burden of proof remains on her.

II.   Unreimbursed Employee Expenses

      Section 162(a) authorizes a deduction for all the ordinary

and necessary expenses paid or incurred during the taxable year

in carrying on any trade or business.   But as a general rule,

deductions are allowed only to the extent that they are

substantiated.   Secs. 274(d) (no deductions are allowed for

gifts, listed property,2 or traveling, entertainment, amusement,

or recreation unless substantiated), 6001 (taxpayers must keep

records sufficient to establish the amount of the items required

to be shown on their Federal income tax returns).     If the

taxpayer establishes that he has incurred a deductible expense

yet is unable to substantiate the exact amount, the Court may

estimate a deductible amount in some circumstances.     Cohan v.

Commissioner, 

, 543-544 (2d Cir. 1930).     But the Court

cannot estimate a taxpayer’s expenses with respect to the items

enumerated in section 274(d).    Sanford v. Commissioner, 

, 827 (1968), affd. per curiam 

 (2d Cir. 1969);

Rodriguez v. Commissioner, T.C. Memo. 2009-22 (the strict

substantiation requirements of section 274(d) preclude the Court

and taxpayers from approximating their expenses).



      2
      The term “listed property” is defined to include passenger
automobiles and cell phones. Sec. 280F(d)(4)(A)(i), (v).
                                  - 5 -

       Section 274(d) and the regulations thereunder require

taxpayers to substantiate their deductions by adequate records or

sufficient evidence to corroborate the taxpayer’s own testimony

as to:    (1) The amount of the expenditure or use; (2) the time of

the expenditure or use; (3) the place of the expenditure or use;

(3) the business purpose of the expenditure or use; and (4) the

business relationship to the taxpayer of the persons entertained

or receiving the gift.    See sec. 1.274-5T(a) and (b), Temporary

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

       As to the “Rules of substantiation”, the temporary

regulation provides that taxpayers must maintain and produce such

substantiation as will constitute proof of each expenditure or

use.    Sec. 1.274-5T(c)(1), Temporary Income Tax Regs., 50 Fed.

Reg. 46016 (Nov. 6, 1985).     Written evidence has considerably

more probative value than oral evidence, and the probative value

of written evidence is greater the closer in time it is to the

expenditure or use.     Id.   Although a contemporaneous log is not

required, a record made at or near the time of the expenditure or

use that is supported by sufficient documentary evidence has a

higher degree of credibility than a subsequently prepared

statement.    Id.   The corroborative evidence required to support a

statement not made at or near the time of the expenditure or use

must have a high degree of probative value to elevate the

statement and evidence to the level of credibility reflected by a
                               - 6 -

record made at or near the time of the expenditure or use

supported by sufficient documentary evidence.   Id.

     To satisfy the “adequate records” requirement of section

274(d), the taxpayer shall maintain an account book, diary, log,

statement of expense, trip sheets, or similar record and

documentary evidence that in combination are sufficient to

establish each element of expenditure or use.   Sec. 1.274-

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

6, 1985).   The adequate record must be prepared or maintained in

such manner that each recording of an element or use is made at

or near the time of the expenditure or use.   Sec. 1.274-

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

(Nov. 6, 1985).   “‘[M]ade at or near the time of the expenditure

or use’ means [that] the elements of an expenditure or use are

recorded at a time when, in relation to the use or making of an

expenditure, the taxpayer has full present knowledge of each

element of the expenditure or use’”.   Sec. 1.274-5T(c)(2)(ii)(A),

Temporary Income Tax Regs., 50 Fed. Reg. 46017 (Nov. 6, 1985).

     The level of detail required in an adequate record to

substantiate the taxpayer’s business use may vary depending on

the facts and circumstances.   Sec. 1.274-5T(c)(2)(ii)(C),

Temporary Income Tax Regs., 50 Fed. Reg. 46018 (Nov. 6, 1985).

For example, a taxpayer’s use of a vehicle for both business and

personal purposes and whose only business use of the vehicle is
                                   - 7 -

to make deliveries to customers on an established route may

satisfy the adequate record requirement by:      (1) Recording the

total number of miles driven during the taxable year, the length

of the delivery route once, and the date of each trip at or near

the time of the trips; or (2) establishing the date of each trip

with a receipt, record of delivery, or other documentary

evidence.    Id.

     To substantiate petitioner’s claimed deduction for

unreimbursed employee expenses she submitted copies of her bank

statements for the period December 17, 2004, through December 15,

2005,3 a 2005 calendar that sets forth the customer’s name, the

purpose of the trip, and the various miles petitioner drove, a

“PM Route List”, an “ON PREMISE MARKETING REPORT”, and her

testimony.

     A.   Petitioner’s Deduction for Vehicle Expenses

            1.     Deduction Based on the Standard Mileage Rate

     Petitioner testified that the mileage figures were

“approximations” of her mileage accrued between each account,

between an account and her employer’s office, between an account

and her home, or between her home and her employer’s office, on

occasions.    She also testified that she had recorded “bits and



     3
      For the sake of completeness, petitioner admitted that she
is not entitled to deductions in 2005 for amounts expended during
the period Dec. 17 through 31, 2004. See also sec. 1.461-1(a)(1)
and (2), Income Tax Regs.
                               - 8 -

pieces of it in 2005”, but she had to go back and “put some stuff

in there at the current year * * * and refill some stuff in,

based on my account list.”   And she testified that she used her

vehicles for personal purposes “very locally, like locally”.

     Petitioner’s testimony established that her mileage figures

were mere estimates of her business use and that she did not

accurately record her business mileage at or near the time of her

business use.4   See sec. 1.274-5T(b)(6)(i)(B), (c)(2), Temporary

Income Tax Regs., 50 Fed. Reg. 46016, 46017 (Nov. 6, 1985).    The

Court therefore finds that petitioner is not entitled to her

deduction for mileage.5   See Sanford v. Commissioner, 50 T.C. at

827; Rodriguez v. Commissioner, T.C. Memo. 2009-22; see also sec.



     4
      Although sec. 1.274-5T(c)(2)(ii)(C), Temporary Income Tax
Regs., 50 Fed. Reg. 46018 (Nov. 6, 1985), provides that the
length of an established delivery route may be recorded once if
the recording takes place at or near the time of the trip, the
Court does not accord much weight to petitioner’s calendar. She
admitted that she did not accurately record the information at or
near the time of the trip and that she supplemented the
information based on information from the current year.

      Putting aside sec. 1.274-5T(c)(2)(ii)(C), Temporary Income
Tax Regs., supra, the Court also does not accord much weight to
petitioner’s calendar because she admitted that she merely copied
the information from one week to the next; e.g., the descriptions
for each Monday (and the other days) are the same throughout
2005.
     5
      The Court notes that any mileage accrued or actual expenses
petitioner paid in commuting between her residence and either her
employer’s office or a customer account are nondeductible
personal expenses. See secs. 162, 262; Fausner v. Commissioner,

 (1973); secs. 1.162-2(e), 1.262-1(b)(5), Income Tax
Regs.
                               - 9 -

1.274-5T(c)(1), Temporary Income Tax Regs., supra (the

substantiation requirements are designed to encourage taxpayers

to maintain records and documentary evidence).

     2.   Deduction Based on Actual Expenses

     Although petitioner did not claim a deduction on her Form

2106 for the actual costs of her transportation expenses, she now

asserts entitlement to a deduction for:   (1) Gas of $1,519.49;

(2) car payments of $3,684.04; (3) insurance of $1,789.21; and

(4) repairs of $382.78.

     As a general rule, however, taxpayers are prohibited from

claiming deductions for automobile expenses using both the actual

cost method and the standard mileage rate.     See Tesar v.

Commissioner, T.C. Memo. 1997-207; Rev. Proc. 2004-64, sec. 5.03,

2004-2 C.B. 898, 900 (taxpayers generally may deduct an amount

based on the standard mileage rate or actual costs).    In

addition, because the Court has concluded that petitioner’s

evidence was not sufficient to substantiate her claimed deduction

based on the standard mileage rate, it also does not sufficiently

substantiate her claimed deduction based on the actual costs of

her transportation expenses.   Petitioner therefore is not

entitled to her claimed deduction based on the actual costs of

her transportation expenses.   See Sanford v. Commissioner, supra

at 827; Rodriguez v. Commissioner, supra.
                                - 10 -

            3.   Deduction for Parking Fees, Tolls, and
                 Transportation Expenses

     Petitioner claimed a $420 deduction on her Form 2106 for

parking fees, tolls, and transportation expenses.    Deductions for

these expenses may generally be deducted as a separate item.     See

Rev. Proc. 2004-64, sec. 5.04, 2004-2 C.B. at 900.

     Petitioner, however, has substantiated expenditures for

parking fees of only $21.25.    The Court therefore finds that

petitioner is entitled to only a $21.25 deduction for parking

fees, subject to section 67(a) (relating to the 2-percent floor

on miscellaneous itemized deductions).    See Cohan v.

Commissioner, 39 F.2d at 544 (estimates of a taxpayer’s

deductions bear heavily against the taxpayer whose inexactitude

is of his or her own making).

     B.   Petitioner’s Deduction for Unspecified Business
          Expenses6

            1.   Meals and Entertainment Expenses

     Although petitioner did not claim a deduction on her Form

2106 for meals and entertainment expenses, she now asserts

entitlement to a $1,169.83 deduction for meals and entertainment

expenses.    On several pages of petitioner’s bank statements, she




     6
      Petitioner testified that she did not know what her claimed
deduction of $7,861 for unspecified business expenses consisted
of. Except as otherwise noted herein, the Court sustains
respondent’s disallowance of petitioner’s deduction for
unspecified business expenses.
                              - 11 -

handwrote:   “Food w/customer”, “meals w/customer”, or “meals” for

charges for several dates at various restaurants.

     Petitioner’s evidence, however, fails to prove the business

relationship to petitioner of the persons entertained.    See sec.

1.274-5T(b)(3)(v), Temporary Income Tax Regs., 50 Fed. Reg. 46015

(Nov. 6, 1985) (requiring the record to show the name, title, or

other designation of the persons entertained sufficient to

establish the business relationship to the taxpayer).    In

addition, it does not indicate the business reason for the

entertainment, the nature of the business benefit derived or

expected to be derived an account of the entertainment, or the

nature of any business discussion or activity.   See sec. 1.247-

5T(b)(3)(iv), (c)(2)(ii)(B), Temporary Income Tax Regs., 50 Fed.

Reg. 46015, 46018 (Nov. 6, 1985).   Because petitioner did not

testify about this issue or provide any other corroborating

evidence, the Court finds that her handwritten notations are not

adequate to substantiate the business purpose of her meals and

entertainment expenses.   See sec. 1.274-5T(c)(1), Temporary

Income Tax Regs., supra; see also Fed. R. Evid. 801(c), 807;

Urban Redev. Corp. v. Commissioner, 

, 332 (4th Cir.

1961), affg. 

 (1960); Tokarski v. Commissioner, 

, 77 (1986).   Accordingly, petitioner is not entitled to a

$1,169.83 deduction for meals and entertainment expenses.     See
                                   - 12 -

Sanford v. Commissioner, supra at 827; Rodriguez v. Commissioner,

supra; see also Fed. R. Evid. 801(c), 807.

          2.     Travel Expenses

     Although petitioner did not claim a deduction on her Form

2106 for travel expenses, she now asserts entitlement to a

$127.75 deduction for travel expenses.      On petitioner’s bank

statement for the period March 17 through April 14, 2005, she

handwrote:   “travel for work” next to a charge for “Ioa

Admissions” in Orlando, Florida, on March 21, 2005.

     Section 1.274-5T(b)(2)(iv) and (c)(2)(ii)(B), Temporary

Income Tax Regs., 50 Fed. Reg. 46015, 46018 (Nov. 6, 1985),

provides that the taxpayer must record the business reason for

the travel or the nature of the business benefit derived or

expected to be derived on account of the travel unless the

business purpose is evident from the surrounding facts and

circumstances.    “For example, in the case of a salesman calling

on customers on an established sales route, a written explanation

of the business purpose of such travel ordinarily will not be

required.”   Sec. 1.274-5T(c)(2)(ii)(B), Temporary Income Tax

Regs., supra.    Petitioner’s evidence shows that her customer

accounts were within the Greater Miami area.      The business

purpose of petitioner’s travel to Orlando, Florida, is therefore

not evident from the facts and circumstances.      Because petitioner

did not testify about this issue or provide any other
                                  - 13 -

corroborating evidence, the Court finds that her handwritten

notation is not adequate to substantiate the business purpose of

her travel.     See sec. 1.274-5T(c)(1), Temporary Income Tax Regs.,

supra; see also Fed. R. Evid. 801(c), 807; Urban Redev. Corp. v.

Commissioner, supra at 332; Tokarski v. Commissioner, supra at

77.   Accordingly, petitioner is not entitled to a $127.25

deduction for travel expenses.      See Sanford v. Commissioner, 50

T.C. at 827; Rodriguez v. Commissioner, T.C. Memo. 2009-22.

           3.    Gift Expenses

      Although petitioner did not claim a deduction on her

Schedule A for gift expenses, she now asserts entitlement to a

$410.32 deduction for gift expenses.       On several pages of

petitioner’s bank statements, she handwrote:       “gift for customer”

for charges for several dates at various merchants.

      Petitioner’s evidence, however, does not describe the gifts.

See sec. 1.274-5T(b)(5)(iii), Temporary Income Tax Regs., 50 Fed.

Reg. 46016 (Nov. 6, 1985).       It does not substantiate the business

reason for the gifts or the nature of the business benefit

derived or expected to be derived on account of the gifts.       See

sec. 1.274-5T(b)(5)(iv), Temporary Income Tax Regs., 50 Fed. Reg.

46016 (Nov. 6, 1985).    And it does not substantiate the business

relationship to petitioner of the gift recipients.       See sec.

1.274-5T(b)(5)(v), (c)(2), Temporary Income Tax Regs., 50 Fed.

Reg. 46016, 46017 (Nov. 6, 1985) (the taxpayer must record the
                              - 14 -

occupation or other information relating to the gift recipient

including name, title, or other designation sufficient to

establish the business relationship).    In addition, without a

receipt or other corroborative evidence to substantiate

petitioner’s claim that she purchased gifts for her customers,

the Court does not accept her self-serving statement that her

purchases were made for those purposes.    See Urban Redev. Corp.

v. Commissioner, supra at 332; Tokarski v. Commissioner, supra at

77; sec. 1.274-5T(c)(1), Temporary Income Tax Regs., supra; see

also Fed. R. Evid. 801(c), 807.   Accordingly, petitioner is not

entitled to a $410.32 deduction for gift expenses.    See Sanford

v. Commissioner, supra at 827; Rodriguez v. Commissioner, supra.

          4.   Cell Phone Expenses

     Although petitioner did not claim a deduction on her Form

2106 for cell phone expenses, she now asserts entitlement to a

$2,893.44 deduction for cell phone expenses.    On several pages of

petitioner’s bank statements, she handwrote:    “verizon phone

bill”, “verizon phone”, “verizon pymt”, etc. for charges for

several dates by “Check”, which do not include the payee’s name,

or “CheckCard * * * Verizon Wireless”.    Petitioner also testified

that she used her cell phone “Mostly for work” and “Rarely” used

it for personal purposes.

     Petitioner’s evidence, however, does not substantiate the

amount of her business use or her total use.    See sec. 1.274-
                                - 15 -

5T(b)(6)(i)(B), Temporary Income Tax Regs., 50 Fed. Reg. 46016

(Nov. 6, 1985).   And it does not substantiate the business

purpose of each business use.    See sec. 1.274-5T(b)(6)(iii),

Temporary Income Tax Regs., 50 Fed. Reg. 46016 (Nov. 6, 1985).

In addition, without a receipt or other corroborative evidence to

substantiate petitioner’s claim of payments to Verizon for her

cell phone use by “Check”, the Court does not accept her self-

serving statement that the “Checks” were issued for that purpose.

See Urban Redev. Corp. v. Commissioner, 294 F.2d at 332; Tokarski

v. Commissioner, 87 T.C. at 77; sec. 1.274-5T(c)(1), Temporary

Income Tax Regs., supra; see also Fed. R. Evid. 801(c), 807.

Accordingly, petitioner is not entitled to a $2,893.44 deduction

for cell phone expenses.   See Sanford v. Commissioner, supra at

827; Rodriguez v. Commissioner, supra; see also Fed. R. Evid.

801(c), 807.

          5.    Supplies Expenses

     Although petitioner did not claim a deduction on her

Schedule A for supplies expenses, she now asserts entitlement to

a $117.96 deduction for supplies expenses.    Petitioner’s

handwritten notations on her bank statements indicate that her

supplies consist of:   (1) $83.31 for folders, pens, paper, etc.

purchased at CVS; and (2) $34.65 for “work-supplies” purchased at

Gulf Liquors.
                                 - 16 -

     Petitioner, however, did not provide any receipts or

testimony to substantiate her deduction for supplies.     Without

other corroborative evidence, the Court does not accept her self-

serving statement that the items were purchased for work

purposes.    See Urban Redev. Corp. v. Commissioner, 294 F.2d at

332; Tokarski v. Commissioner, 87 T.C. at 77; see also Fed. R.

Evid. 801(c), 807.     Accordingly, petitioner is not entitled to a

$117.96 deduction for supplies expenses.

             6.   Clothing, Shoes, and Dry Cleaning Expenses

     Although petitioner did not claim a deduction on her

Schedule A for clothing, shoes, and dry cleaning expenses, she

now asserts entitlement to a $1,489.50 deduction for clothing,

shoes, and dry cleaning expenses.     On several pages of her bank

statements, she handwrote:     “clothes for work”, “clothing for

work”, and “dry cleaning”.

     Clothing is a deductible expense only if it is required for

the taxpayer’s employment, is unsuitable for general or personal

wear, and is not so worn.     See Hynes v. Commissioner, 

, 1290 (1980); Yeomans v. Commissioner, 

, 767

(1958).     If the cost of acquiring clothing is deductible, then

the cost of maintaining the clothing is also deductible.       Fisher

v. Commissioner, 

 (1954), affd. 

 (7th Cir.

1956).
                              - 17 -

     Petitioner testified that she was sometimes required to wear

“logo’d shirts” that her employer provided, but her clothing

expenses did not include amounts for “logo’d shirts”.   Rather,

her clothing expenses included amounts for clothing that she

purchased for professional-looking apparel and shoes.   According

to petitioner, she did not “necessarily” wear the purchased

clothing outside of work, but “I guess” the purchased clothing

could have been worn outside of work.   She also testified that

her dry cleaning expenses were for “the [purchased] clothing that

I wore to work and also for the logo’d shirts”.

     Petitioner’s purchased clothing and shoes consist of items

that are suitable for general or personal wear, and she has

failed to prove otherwise.   The Court therefore finds that the

amounts were expended for personal purposes and as such are not

deductible.   See sec. 262(a) (which generally precludes

deductions for personal, living, or family expenses).   Similarly,

the portion of the dry cleaning expenses for petitioner’s

purchased clothing was also expended for personal purposes and as

such is not deductible.   See id.; Fisher v. Commissioner, supra.

The Court will, however, allow petitioner a deduction for the dry

cleaning of her “logo’d shirts” of $100.96, subject to section
                               - 18 -

67(a) (relating to the 2-percent floor on miscellaneous itemized

deductions).7    See Cohan v. Commissioner, 39 F.2d at 544.

     7.    Grooming Expenses

     Although petitioner did not claim a deduction on her

Schedule A for “Upkeep” (grooming expenses), she now asserts

entitlement to a $1,774.62 deduction for grooming expenses.

Petitioner’s grooming expenses relate to amounts she expended on

her nails and hair.    Petitioner claims that she is entitled to

deduct these amounts because she believes they are “work related”

since she had to “have a certain look.”

     Grooming, however, is an inherently personal expense and

amounts expended for grooming are not deductible regardless of

whether an employer requires a certain look.    Hynes v.



     7
      This amount is based on one-half of the following
substantiated expenditures:

          Date             Description           Amount

          1-26         “SY8 Carriage Clea”        $31.04
          2-03         “SY8 Carriage Clea”          33.84
          2-07         “SY8 Carriage Clea”          15.54
          2-24         “SY8 Carriage Clea”          53.79
          3-24         “Carriage Cleaners”          30.55
          4-25         “Dry-Clean USA”              37.15
                                                 1
            Total                                  201.91
     1
      The Court suspects that the amounts petitioner claims that
she paid for dry cleaning expenses at “Marks Café” were not paid
for those purposes. Because petitioner has not proven that the
amounts were paid for dry cleaning, the Court will not allow
deductions for those amounts. See Cohan v. Commissioner, 

, 544 (2d Cir. 1930).
                                    - 19 -

Commissioner, supra at 1292.         Accordingly, petitioner is not

entitled to a $1,774.62 deduction for grooming expenses.

III.       Itemized Deductions

       The Court has allowed petitioner a miscellaneous itemized

deduction for unreimbursed employee expenses of $122.21.         See

supra pp. 10, 17-18 and note 7.         The $122.21 amount, however,

does not exceed the 2-percent floor of section 67(a); thus,

petitioner is not entitled to the claimed deduction.8

       Taking into account the Court’s determinations and

petitioner’s concession, see supra note 1, her remaining itemized

deductions are State sales taxes of $479 and charitable

contributions of $1,025.         The total of $1,504 is less than the

$5,000 standard deduction for 2005.          See Rev. Proc. 2004-71, sec.

3.10, 2004-2 C.B. 970, 973.         The Court assumes that petitioner

would want the greater amount and therefore sustains respondent’s

use of the standard deduction.         See sec. 63; George v.

Commissioner, T.C. Memo. 2006-121 (taxpayers may either elect the

standard deduction or elect to itemize deductions).

       Other arguments made by the parties and not discussed herein

were considered and rejected as irrelevant, without merit, and/or

moot.




       8
      Petitioners’ adjusted gross income for 2005 is $43,866.           To
exceed the 2-percent floor of sec. 67(a), petitioner’s
miscellaneous itemized deductions must exceed $877.32.
                        - 20 -

To reflect the foregoing,


                                  Decision will be entered

                             under Rule 155.