T.C. Memo. 2009-221



                       UNITED STATES TAX COURT



         ARTHUR BRUCE AND LINDA LEE COPPIN, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 3921-08, 7032-08.1    Filed September 23, 2009.



     Arthur Bruce and Linda Lee Coppin, pro sese.

     J. Robert Cuatto, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     HALPERN, Judge:    By notices of deficiency, respondent

determined deficiencies of $2,411 and $2,385 in petitioners’

Federal income tax for taxable (calendar) years 2004 and 2005.

The deficiencies for both years involve various employee business

deductions that respondent disallowed.



     1
      The cases were consolidated by order of the Court dated
Dec. 2, 2008.
                               - 2 -

     Unless otherwise stated, section references are to the

Internal Revenue Code in effect for the years in issue, and Rule

references are to the Tax Court Rules of Practice and Procedure.

     We round all dollar amounts to the nearest dollar.

                         FINDINGS OF FACT

     Some facts are stipulated and are so found.     The stipulation

of facts, with accompanying exhibits, is incorporated herein by

this reference.   Petitioners resided in Arizona when they filed

the petition.

     During 2004 and until April 17, 2005, Arthur Bruce Coppin

(petitioner) was a case initiation clerk at the U.S. Bankruptcy

Court for the Central District of California, responsible for

“fully [supporting] the Clerk’s Office in all areas of

operations, such as case administration, case closing, intake and

records”.   Petitioner performed those duties at the bankruptcy

court.

Petitioners’ 2004 and 2005 Federal Income Tax Returns

     For 2004 and 2005, petitioners jointly filed Forms 1040,

U.S. Individual Income Tax Return.     For those 2 years,

petitioners had gross income of $41,969 and $46,991.     On Forms

2106, Employee Business Expenses, submitted with their Schedules

A, Itemized Deductions, petitioners claimed the following

deductions:
                                     - 3 -

                 Description                   2004         2005

Vehicle expenses                              $6,896       $7,682
Parking fees, tolls, and
  transportation expenses                        901        1,609
Travel expenses while away
  from home overnight                            923          984
Other business expenses                        9,063        8,533
Meal and entertainment expenses                2,163        2,874
     Total1                                   19,945       21,682
      1
    Because of rounding, the sum of the 2004 deductions appears
to exceed the total.

                                    OPINION

I.    Preliminary Matters

          A.   The 14-Day Rule

          At trial, petitioner sought to introduce into evidence 12

exhibits not stipulated.         We sustained respondent’s objections to

10 of them on the ground that petitioner had failed to comply

with our standing pretrial order, which states that any

“documents or materials” that a party expects to use at trial,

but which are not stipulated, must “be identified in writing and

exchanged by the parties at least 14 days before the first day of

the trial session.”        The order states that we may “refuse to

receive * * * any document or material not so stipulated or

exchanged”.        Petitioner argues that he was first notified of that

14-day rule on November 21, 2008, at a meeting with respondent’s

counsel fewer than 14 days before trial in these cases.        Yet we

sent petitioner two copies of our standing pretrial order (one

for each docket) dated July 1, 2008, and petitioner never

suggested--and does not suggest--that he did not receive them.
                                   - 4 -

He thus had more than adequate notice; his argument is without

merit.

     B.     Petitioner’s Right To Testify

     On brief, petitioner states that we denied not only his

“submission of evidence”, but also “any testimony based upon that

evidence.”     Petitioner avers:    “This severely prejudiced any

outcome of the trial.”

     At trial, moments before petitioner took the stand, we

expressly told him:     “I again tell you that you are free to

testify in support of your claims.”        Once he had taken the stand,

we said again:     “Now, this is the time for you to testify in

support of your case.”       At no time did we suggest that our

refusal to accept proffered written evidence in any way

restricted the scope of his testimony, and petitioner said

nothing to imply that he thought his right to testify was in any

way limited.     Further, we asked petitioner more than once after

he testified whether he had any other evidence he wanted to

present.     He responded:    “I believe I have presented my case,

sir.”     Therefore, we deny that petitioner suffered any prejudice.

     C.     Petitioner’s Employment Status

     Petitioner insists that he was not a Federal employee but

rather was an at will employee.       Petitioner seems to believe that

the former is entitled “to receive compensation for certain job

expenses and may receive an official expense account” but that

the latter is not so entitled.       Without accepting petitioner’s

statements as true, we note that his argument is unnecessary:
                                     - 5 -

Respondent concedes that petitioner was never reimbursed for any

of his claimed expenses.

II.   Petitioner’s Employee Business Expense Deductions

      Section 162(a) permits “as a deduction all the ordinary and

necessary expenses paid or incurred during the taxable year in

carrying on any trade or business”.          To be deductible, ordinary

and necessary expenses must be “directly connected with or

pertaining to the taxpayer’s trade or business”.         Sec. 1.162-

1(a), Income Tax Regs.

      Personal, living, or family expenses are not deductible

except as otherwise expressly permitted.         Sec. 262(a).

      A.   2004

      Petitioner bears the burden of proof.        See Rule 142(a).2   In

support of his claimed employee business expense deduction of

$19,945, petitioner offers detailed records and receipts of his

monthly expenses and testified in part to explain those records

and receipts.

            1.    Vehicle Expenses

      Petitioner’s $6,896 deduction includes almost all the

expenses related to maintaining and running a car, including

everything from gas to petitioner’s driver’s license.

      Petitioner concedes that he cannot deduct commuting

expenses.    On his 2004 tax return, petitioner stated that he and

      2
      Petitioner makes no argument that the burden of proof has
shifted to respondent pursuant to sec. 7491(a), and we would not
sustain such an argument. Among other things, as discussed
infra, petitioner has introduced no credible evidence that he is
entitled to the deductions here in issue. See sec. 7491(a)(1).
                               - 6 -

his wife had only one car and that they drove 18,743 miles.

Petitioner stated that his “[a]verage daily roundtrip” commute

was 30 miles and that he commuted 938 miles; petitioner also

stated that he drove 16,020 business miles.   That is, 85 percent

of the total miles petitioner and his wife drove were his

noncommuting business miles.   Thus, in 2004, petitioner contends

that he drove to and from work only 31 times and that he and his

wife drove, in addition, only 1,785 personal miles, or less than

5 miles a day.

     Petitioner has failed to substantiate his vehicle expenses

under section 274(d).   See sec. 280F(d)(4) (defining “any

passenger automobile” as “‘listed property’”, any deduction

related to which requires substantiation under section

274(d)(4)).   On brief, petitioner states that he “frequently

attended training meetings, lunch meetings, and scheduled work at

* * * other locations”, and that he presented “evidence in the

form of daily written logs, receipts, notes * * *, and * * *

testimony during trial.”   Petitioner quotes the flush language in

section 274(d), which lists the four elements of the expense that

the taxpayer must substantiate, and evidently he believes that

his records and receipts run the gamut of those requirements.3

     3
      In pertinent part, sec. 274(d) provides that no deduction
shall be allowed with respect to “any listed property”

     unless the taxpayer substantiates by adequate records
     or by sufficient evidence corroborating the taxpayer’s
     own statement (A) the amount of such expense or other
     item, (B) the time and place of the travel,
     entertainment, amusement, recreation, or use of the
                                                   (continued...)
                                 - 7 -

They do not.     Specifically, petitioner offers no evidence of “the

time and place of the travel” or “the business purpose of the

expense”.    See sec. 274(d); see also Rule 143(b) (“[S]tatements

in briefs * * * do not constitute evidence.”).    Petitioner’s

records may detail his vehicle expenses, but they offer no

evidence regarding his business use of his car.    Petitioner has

failed to satisfy his burden of proof.    We deny petitioner’s

$6,896 deduction for vehicle expenses.

            2.   Parking Fees, Tolls, and Transportation Expenses
     Petitioner’s $901 deduction includes only the cost of

monthly bus passes.    In support of the deduction, petitioner

alleges that he took public transportation to work.    Yet

petitioner concedes that he cannot deduct commuting expenses.

See, e.g., Neal v. Commissioner, 

(9th Cir. 1982)

(holding that ordinary commuting expenses are nondeductible

personal expenditures), affg. T.C. Memo. 1981-407.    There is no

deduction analogous to the exclusion in section 132(f) for the

qualified transportation fringe benefit.    We deny petitioner’s

$901 deduction for parking fees, tolls, and transportation

expenses.




     3
      (...continued)
     facility or property, or the date and description of
     the gift, (C) the business purpose of the expense or
     other item, and (D) the business relationship to the
     taxpayer of persons entertained, using the facility or
     property, or receiving the gift. * * *
                                 - 8 -

            3.   Travel Expenses While Away From Home Overnight

     Petitioner’s $923 deduction, according to his records and

receipts, includes various expenses from three alleged business

trips.   Petitioner, however, has failed to substantiate those

expenses under section 274(d).    See sec. 274(d)(1).

Specifically, petitioner offers no evidence of “the time and

place of the travel” or “the business purpose of the expense”.

See sec. 274(d).    Petitioner’s records may detail the amounts of

his expenses, but they do not explain when, where, or why he

traveled.    Petitioner has failed to satisfy his burden of proof.

We deny petitioner’s $923 deduction for travel expenses while

away from home overnight.

            4.   Other Business Expenses

     Petitioner’s $9,063 deduction includes expenses for

“grooming”, clothing, and dry cleaning.     Petitioner deducted

additional expenses pursuant to section 280A(c)(1) for his “home

office”, including the cost of one-quarter of his rent, half his

electric bill, and his phone and Internet bill.     On brief,

petitioner concedes he is not entitled to deduct the cost of his

phone service.    See sec. 262(b).   Although petitioner deducted

many other expenses, he does not explain how any of those other

expenses related to his business of being an employee of the

bankruptcy court; moreover, he cites no authority to support

those items.4    We take petitioner’s omission as his concession.

     4
      For example, petitioner deducted the cost of postage,
office supplies, personal checks, his health club membership, and
                                                   (continued...)
                                    - 9 -

See Mendes v. Commissioner, 

, 312-313 (2003) (“If an

argument is not pursued on brief, we may conclude that it has

been abandoned.”).

               a.   Grooming, Clothing, and Dry Cleaning Expenses

       “Haircuts are nondeductible personal expenses even when

required as a condition of employment.”          Boltinghouse v.

Commissioner, T.C. Memo. 2007-324.          Petitioner is not entitled to

deduct any expense relating to his appearance.         See

of clothing to be deductible as an ordinary and

necessary business expense, (1) the clothing must be required or

essential in the taxpayer’s employment, (2) the clothing cannot

be suitable for general or personal wear, and (3) the clothing

cannot be so worn.       E.g., Deihl v. Commissioner, T.C. Memo. 2005-

287.       On brief, petitioner states that his “shirts, work slacks *

* *, and soft-soled work shoes” were all “specific to court needs

and not suitable for general wear.”

       Petitioner misunderstands the cases he cites to support his

deduction for work clothes.       For example, petitioner cites Hynes

v. Commissioner, 

(1980).          In Hynes v. 

at 1291, we denied a television newsman any deduction for
the cost of his work clothes, stating:         “The fact that the

petitioner chose not to wear his business clothes when he was

away from the station does not mean that such clothes were not

suitable for his private and personal wear.         Indeed, most people

       4
      (...continued)
business gifts. At trial, petitioner conceded that no work duty
required him to pay for a health club membership.
                                 - 10 -

do not wear their business clothes at home.”      Petitioner fails to

distinguish himself from the taxpayer in Hynes because he fails

to offer any evidence to show that his work clothes are not

suitable for general wear by him and by men in general.5      Indeed

(other than receipts) petitioner offers no evidence at all

related to his claimed expenses for work clothes.      Because he

offers no evidence that the expenses he seeks to deduct were

related to clothing required or essential to his employment and

unsuitable for general wear, petitioner has failed to satisfy his

burden of proof.    Petitioner’s clothing expenses thus are

nondeductible personal expenses under section 262(a), as are his

expenses for dry cleaning.    See Boltinghouse v. 

.

          b.   Home Office Expenses

     In pertinent part, section 280A provides the following:

     SEC. 280A.    DISALLOWANCE OF CERTAIN EXPENSES IN
                   CONNECTION WITH BUSINESS USE OF HOME * * *

          (a) General Rule.--Except as otherwise provided in
     this section, in the case of a taxpayer who is an
     individual * * *, no deduction otherwise allowable
     under this chapter shall be allowed with respect to the
     use of a dwelling unit which is used by the taxpayer
     during the taxable year as a residence.

                   *    *    *     *      *   *    *


     5
      On brief, petitioner states that the cuffs of his shirts
have “severe ink stains” and thus his shirts are “not suitable
for general wear”. First, “statements in briefs * * * do not
constitute evidence.” Rule 143(b). Second, even if petitioner
wore his work clothes only when at work, those clothes are
nonetheless “of a type that people ordinarily wear” and, for that
reason, are “suitable for general wear”. Boltinghouse v.
Commissioner, T.C. Memo. 2007-324.
                                - 11 -

          (c) Exceptions for Certain Business * * * Use;
     Limitation on Deductions for Such Use.--

               (1) Certain business use.--Subsection
          (a) shall not apply to any item to the extent
          such item is allocable to a portion of the
          dwelling unit which is exclusively used on a
          regular basis--

                    (A) as the principal place of
               business for any trade or business
               of the taxpayer * * *

                 *     *    *     *      *    *    *

          In the case of an employee, the preceding
          sentence shall apply only if the exclusive
          use referred to in the preceding sentence is
          for the convenience of his employer. For
          purposes of subparagraph (A), the term
          “principal place of business” includes a
          place of business which is used by the
          taxpayer for the administrative or management
          activities of any trade or business of the
          taxpayer if there is no other fixed location
          of such trade or business where the taxpayer
          conducts substantial administrative or
          management activities of such trade or
          business.

     We deny petitioner any deduction under section 280A(c)(1)

for his home office.   First, petitioner offers no evidence that

his home office was for the convenience of his employer, alleging

on brief only that he had the implied consent of his employer to

use a home office for secondary duties.      Second, petitioner

concedes that his home office was in his bedroom; petitioner thus

cannot satisfy the requirement that his home office be

exclusively used as his principal place of business.      Third,

petitioner concedes that the bankruptcy court was his principal

place of business.   Each of those reasons is sufficient to deny

petitioner any deduction under section 280A(c)(1).
                                - 12 -

            c.   Conclusion

     For the reasons stated, we deny petitioner’s $9,063

deduction for other business expenses.

            5.   Meal and Entertainment Expenses

     Petitioner’s $2,163 deduction includes his expenses at

various restaurants and one-third of various grocery bills.

(Petitioner deducted one-third of each grocery bill because each

day he had “three meals and one at the court”.)      Petitioner also

deducted various entertainment expenses (including movie tickets

for himself and his wife).    Petitioner cites three cases to

support his deduction for meal expenses.    He cites no cases and

makes no argument to support his deduction for entertainment

expenses.    We take that as his concession that he is not entitled

to any deduction for entertainment expenses.       See Mendes v.

at 312-313 (“If an argument is not pursued on

brief, we may conclude that it has been abandoned.”).

     First, petitioner cites Sutter v. Commissioner, 

,

173 (1953), for the proposition that “the presumptive

nondeductibility of personal expenses may be overcome only by

clear and detailed evidence * * * that the expenditure in

question was different from or in excess of that which would have

been made for the taxpayer’s personal purposes.”       Petitioner

argues:   “Those differences [here] include preparation, quality,

and quantity of meals prepared for the specific purpose of

lunch.”   Contrary to that statement, however, petitioner offers

no evidence that he spent any more than he would have spent had
                              - 13 -

he eaten all his meals at home; indeed, petitioner offers no

evidence that his lunches at work differed in any way from his

lunches at home.   We therefore accord petitioner’s statement on

brief no weight.   See Rule 143(b).

     Second, petitioner cites Christey v. United States, 

(8th Cir. 1988), to support his deductions for “lunch

expenses * * * using the formula of 1/3 of food cost--a fair

fraction based on actual items purchased.”     In Christey, the

Court of Appeals for the Eighth Circuit held that State highway

patrol officers were “entitled to deduct as ordinary and

necessary business expenses under § 162(a) of the Internal

Revenue Code expenses incurred for restaurant meals while on

duty.”

(fn. ref. omitted).    Christey, however, is

distinguishable.   The Court of Appeals focused on the “specific

instructions concerning meal breaks while on duty” that the

officers had to follow.

     The restrictions here and their cumulative effect are
     substantial. The troopers must eat at certain times
     and places [i.e., a public restaurant]. The troopers
     remain on duty throughout their meals. They may not
     bring a meal from home or return home to eat their
     meal. As part of their job the troopers are required
     during their meal break to be available to the public
     not only to respond to emergencies but to provide any
     information the public may seek. Thus, they are
     frequently interrupted during meals and are subject to
     being called away from a meal for an emergency, whether
     they have eaten what they have paid for or not.

(fn. refs. omitted).     The Court of Appeals found

that, as a result, the regulation governing meal breaks while on

duty “effectively requires the troopers ‘to spend amounts

different from or in excess of amounts they would have spent for
                               - 14 -

their own personal purposes.’”

n.11 (quoting Sutter

v. 

at 173).     As we 

, petitioner

offers no evidence that his lunches at work differed in cost or

in kind from his lunches at home.      Christey is inapposite.

     Third, petitioner cites Moss v. Commissioner, 

,

212 (7th Cir. 1985), affg. 

(1983), for the

proposition that “meals are deductible under section 162(a) when

they are ordinary and necessary business expenses (provided the

expense is substantiated with adequate records, see section

274(d)) even if they are not within the express permission of any

other provision”.    Petitioner argues that he “provided adequate

records in the form of daily logs, receipts, and testimony that

substantiate the validity of his meal expenses while at work.”

If by “validity” petitioner means “cost”, then we might agree.

But petitioner must substantiate more than the cost, and he has

failed to do so.    See sec. 274(d).    Moreover, petitioner has

failed to distinguish Moss, in which the Court of Appeals for the

Seventh Circuit denied the taxpayer any deduction for meal

expenses under section 162(a).    The taxpayer sought to deduct his

meal expenses because he and his partners met daily to eat lunch

at a cafe to discuss the work of their law firm.      See Moss v.

at 212.    The Court of Appeals stated that

even if “it was necessary for Moss’s firm to meet daily to

coordinate the work of the firm” and even if “lunch was the most

convenient time”, “it does not follow that the expense of the

lunch was a necessary business expense.”

.   Indeed,
                                - 15 -

“to allow a deduction for all business-related meals would confer

a windfall on people who can arrange their work schedules so they

do some of their work at lunch.”

   We find Moss

directly on point; its facts are analogous and its reasoning is

persuasive.    We reach the same result here.

     “Daily meals are an inherently personal expense, and a

taxpayer bears a heavy burden in proving they are routinely

deductible.”     Moss v. Commissioner, 

.    “[A]lthough

taxpayers may find it necessary to eat meals away from their

personal residences because of the exigencies of their

businesses, this circumstance, alone, will not ordinarily provide

a basis for the deduction of the cost of these meals.”       Coombs v.

Commissioner, 

, 1272 (9th Cir. 1979), affg. on this

issue 

(1976) and affg. Cox v. United States, 42 AFTR

2d 78-5373, 78-2 USTC par. 9572 (D. Nev. 1978).       Petitioner has

failed to satisfy his burden of proof.      We deny petitioner’s

$2,163 deduction for meal and entertainment expenses.

     B.   2005

     Petitioner offers no evidence for 2005 comparable to that he

offered for 2004.    At trial, petitioner acknowledged that he had

not “had enough time to prepare” “the 2005 case” and that he

hoped for “extra time”.    We interpreted that as a motion to

continue, and respondent objected.       Petitioner acknowledged that

he could have asked the Court to try the 2005 case at a later

date, but said that, because respondent’s counsel had objected to

certain exhibits that he had wanted to include in the stipulation
                                - 16 -

of facts, petitioner had “decided to proceed” with trial rather

than pursue “any of the other options available”.     We then denied

the motion to continue and granted respondent’s motion to

consolidate the two cases.

       At trial, we warned petitioner:   “I caution you, there is

not * * * any evidence that you made any of the expenditures for

2005 * * *.    There is no evidence that any specific expenditure

was made.”    We asked:   “Is there anything further you want the

Court to consider?”    He replied:    “I believe I have presented my

case, sir.”

       On brief, petitioner states:

       (1) I was unemployed for 9 months of the tax year
       2005.

       (2) I spent one entire year trying to resolve the
       issues re: 2004 tax year. All my attempts to resolve
       have proven futile.

       (3) I have no desire to prolong this examination of my
       2005 tax filing, and do not wish to repeat the prior
       year’s attempts at resolution.

       We take petitioner’s statements at trial and on brief as a

concession that in 2005 he was not entitled to an employee

business expense deduction of $21,682.     We so find.

III.    Conclusion

       Petitioners ask us to consider their economic hardship.   We

are not a court of equity, however.      See Paxman v. Commissioner,

, 576 (1968) (“[N]ot only is the Tax Court not a court

of equity but * * * petitioners, in effect, are asking us to

legislate changes in the statute as enacted by Congress”.), affd.
                             - 17 -

(10th Cir. 1969).   We sustain the deficiencies of

$2,411 and $2,385 that respondent determined for 2004 and 2005.


                                         Decisions will be entered

                                    for respondent.