T.C. Memo. 2011-99



                      UNITED STATES TAX COURT



         DONALD T. AND MARLENE B. ROBINSON, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 20544-08.              Filed May 5, 2011.



     Donald T. and Marlene B. Robinson, pro sese.

     Jason M. Kuratnick, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     WELLS, Judge:   Respondent determined deficiencies, additions

to tax for failure to file timely pursuant to section 6651(a)(1),

and accuracy-related penalties pursuant to section 6662(a) with

respect to petitioners’ Federal income tax as follows:1


     1
      All section references are to the Internal Revenue Code in
                                                   (continued...)
                               - 2 -

                             Addition to Tax        Penalty
     Year    Deficiency      Sec. 6651(a)(1)      Sec. 6662(a)

     2004      $7,965            $645.00           $1,593.00
     2005       9,634             940.75            1,923.80

     The issues we must decide are:    (1) Whether the burden of

proof has shifted to respondent pursuant to section 7491(a); (2)

whether petitioner husband was an employee or an independent

contractor of Temple University; (3) whether petitioners are

entitled to deduct business expenses reported on their returns on

Schedules C, Profit or Loss From Business; (4) whether

petitioners are entitled to deduct employee business and

miscellaneous expenses reported on their returns on Schedules A,

Itemized Deductions; (5) whether petitioners are liable for the

additions to tax under section 6651(a)(1) for failure to file

timely returns; and (6) whether petitioners are liable for

accuracy-related penalties pursuant to section 6662(a).

                          FINDINGS OF FACT

     Some of the facts and certain exhibits have been stipulated.

The parties’ stipulations of fact are incorporated in this

opinion by reference and are found accordingly.    At the time they

filed their petition, petitioners were residents of Pennsylvania.

Petitioners are husband and wife (hereinafter referred to



     1
      (...continued)
effect for the years in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
                                - 3 -

individually as Mr. Robinson or Mrs. Robinson, respectively) who

filed joint tax returns for their 2004 and 2005 tax years (the

years in issue).

     During the years in issue Mr. Robinson was employed as a

full-time professor at Rowan University, where he taught classes

related to criminal justice.    Over the past several decades, Mr.

Robinson has earned income periodically from other activities

such as writing training curriculums for police officers and

providing expert testimony.    Since 1985 a large part of his

outside work has included teaching classes at Temple University

(Temple) and preparing curriculums for Temple’s training

programs.

     Although respondent sometimes characterized Mr. Robinson’s

position at Temple as adjunct professor, Mr. Robinson was

technically a vocational instructor.      The courses he taught were

not part of the university’s regular curriculum; rather, they

were part of its Criminal Justice Training Program (CJTP).      The

courses offered through the CJTP were not offered for college

credit to regular Temple students.      Instead, the students Mr.

Robinson taught were usually police officers or other criminal

justice personnel enrolled in the CJTP’s Municipal Police

Academy.    The students usually were assigned to the CJTP’s

Municipal Police Academy by a Pennsylvania State law enforcement

training commission such as the Pennsylvania Commission on Crime
                                - 4 -

and Delinquency or the Municipal Police Officers’ Education and

Training Commission.   In most cases, Temple operated the courses

under a contract billed to the Commonwealth of Pennsylvania.

     Mr. Robinson was not responsible for managing the enrollment

in his classes, and Temple provided him with classroom space.

Mr. Robinson bore no risk of loss from underenrollment in the

courses, and he had no possibility of earning a profit in excess

of his agreed compensation from Temple.   The curricula he wrote

were prepared at the direction of Temple, which set the deadline

for his finished product.   The topics to be covered in the

curricula were conveyed to him by Temple, but frequently they

were mandated by the State commissions that contracted with

Temple.   Sometimes Mr. Robinson was responsible for only a

portion of the curriculum; at other times he wrote or edited the

entire curriculum.   The completed curricula became the property

of Temple.

     Mr. Robinson was paid an hourly rate for teaching and a flat

rate for updating curricula.2   Before 2003 Mr. Robinson earned


     2
      Although the documents the CJTP submitted to Temple’s
payroll department to report compensation due to Mr. Robinson
provide numbers of hours and hourly rates for his work updating
curricula, those documents are inconsistent with the “Curriculum
Development Proposal” also in the record, which provides a flat
fee for updating curriculums. Because the documents submitted to
the payroll department are generic, because the “Curriculum
Development Proposal” stated the full amount Mr. Robinson would
be paid before the time he had completed the task, and because
the “Curriculum Development Proposal” provides significantly more
                                                   (continued...)
                               - 5 -

substantial income from teaching and updating curricula at

Temple, sometimes as much as $35,000 per year.    However, in

recent years he has not been hired as often by Temple.    During

2004 Mr. Robinson received $1,295 from Temple for teaching 8 days

during the Municipal Police Academy, which met from May to

October, and $500 for updating one curriculum.    His teaching

services and his curriculum updating services were engaged under

separate agreements entered at different times.    During 2005 Mr.

Robinson received $4,145 from Temple for teaching portions of

three different courses, and he received $900 for updating

curricula.   His 2005 income from Temple was paid pursuant to four

separate agreements between Mr. Robinson and Temple.

     From 1985 until 1996 Temple treated Mr. Robinson as an

independent contractor and reported his income on Forms 1099-

MISC, Miscellaneous Income.3   Beginning around 1996, Temple began

to treat Mr. Robinson as an employee and report his income on

Forms W-2, Wage and Tax Statement.     Mr. Robinson requested that

Temple treat him as an independent contractor, but Temple

refused.   Nonetheless, petitioners continued to report Mr.

Robinson’s income on their Schedule C as if he were an


     2
      (...continued)
detail about the agreement between the parties, we conclude that
Mr. Robinson was paid a flat fee for his work updating curricula.
     3
      Petitioner testified that Temple used to report his income
on Form 1099-C, but we assume he meant Form 1099-MISC,
Miscellaneous Income, and not Form 1099-C, Cancellation of Debt.
                                - 6 -

independent contractor.    During the years in issue, Temple

treated Mr. Robinson as a part-time employee and issued him Forms

W-2.

       Temple did not provide Mr. Robinson with an office, and he

completed his work for Temple out of an office in his home.     His

office at home occupied 200 square feet of his 3,500-square-foot

home.    During the years in issue his office was not used by

anyone else except to pass through it.

       During the years in issue Mrs. Robinson was employed as the

general manager for Influence Marketing, a wholly owned

subsidiary of QVC, Inc.    As general manager, she was in charge of

two operations:    One in nearby Pennsylvania and one at the Mall

of America in Minnesota.    Mrs. Robinson’s operations are retail

locations and also attract tourists who receive tours of the QVC

facility.    Additionally, the operation in Pennsylvania has an

audience venue that hosts a variety of events including

interviews with celebrities who endorse QVC products.    Mrs.

Robinson was responsible for the profitability of both locations

and had control over “strategic initiatives”.

       Mrs. Robinson was eligible for reimbursement of her

employee-related expenses.    She made a number of trips to visit

the Mall of America in Minnesota, and each of those trips was

reimbursed in full by Influence Marketing.    In total, she was
                               - 7 -

reimbursed for expenses of $9,886.10 and $8,436.23 during

petitioners’ 2004 and 2005 tax years, respectively.

     Petitioners were involved in a prior dispute before the Tax

Court regarding whether Mr. Robinson qualified as an independent

contractor when he performed services for Temple.   That dispute

ended when the Internal Revenue Service (IRS) stipulated that

petitioners had no deficiency for the year there in issue.     We

take judicial notice of the stipulated decision entered in the

case at docket No. 10791-04S on November 2, 2004.

     Petitioners filed late tax returns for the years in issue.

The IRS did not receive petitioners’ 2004 tax return until April

19, 2007, and it did not receive their 2005 tax return until June

13, 2007.

     On a Schedule C attached to their 2004 tax return,

petitioners reported income of $1,795 and expenses totaling

$25,164 relating to Mr. Robinson’s services to Temple.    On a

Schedule A attached to their return, petitioners also claimed a

miscellaneous deduction of $23,597, in excess of the 2-percent

limitation.   The largest portion of that deduction was from

employee business expenses Mrs. Robinson incurred in her

employment as a manager with Influence Marketing.   Mr. Robinson

also claimed deductions for employee business expenses from his

position as a professor at Rowan University.
                                - 8 -

     Petitioners reported similar expenses on their 2005 tax

return.   On their Schedule C for 2005, petitioners reported

income of $4,045 and expenses totaling $26,826 from Mr.

Robinson’s work at Temple.    On their Schedule A, petitioners

claimed a miscellaneous deduction of $24,030, in excess of the

2-percent limitation.   Most of the deductions on their Schedule A

were from unreimbursed employee business expenses petitioners

claimed from both of their full-time jobs.

     On November 14 and December 12, 2007, respondent mailed

letters to petitioners notifying them that respondent was

examining their 2004 and 2005 tax returns.     During the

examination petitioners did not provide any documentation

substantiating their reported expenses.     Instead, Mr. Robinson

repeatedly insisted throughout the examination that the examining

officer needed to first separately consider whether he qualified

as an independent contractor with regard to the services he

performed for Temple.

     On June 3, 2008, respondent issued petitioners a notice of

deficiency for the years in issue.      In the notice of deficiency,

respondent asserted that:    (1) Mr. Robinson was an employee of

Temple and not an independent contractor; (2) petitioners were

not entitled to deduct the Schedule C expenses reported on their

returns; and (3) petitioners were not entitled to deduct the
                                - 9 -

employee business and miscellaneous expenses reported on their

returns.

     Petitioners timely filed a petition seeking redetermination

of the deficiencies, additions to tax, and penalties.

                               OPINION

I.   Whether the Burden of Proof Has Shifted Under Section
     7491(a)

     We consider as a preliminary matter petitioners’ contention

that the burden of proof has shifted to respondent pursuant to

section 7491(a).   Generally, the Commissioner’s determination of

a deficiency is presumed correct, and the taxpayer has the burden

of proving it incorrect.    Rule 142(a); Welch v. Helvering, 

, 115 (1933).   Section 7491(a)(1) provides an exception

that shifts the burden of proof to the Commissioner as to any

factual issue relevant to a taxpayer’s liability for tax if:    (1)

The taxpayer introduces credible evidence with respect to such

issue; and (2) the taxpayer satisfies certain other conditions,

including substantiation of any item and cooperation with the

Government’s requests for witnesses, documents, other

information, and meetings.   Sec. 7491(a)(2); see also Rule

142(a)(2).   Taxpayers bear the burden of proving that they have

met the requirements of section 7491(a).    Rolfs v. Commissioner,

, 483 (2010).

     Petitioners contend that they have satisfied the

requirements of section 7491(a) and that the burden of proof as
                              - 10 -

to all factual issues affecting the deficiencies in their taxes

should be shifted to respondent.   Respondent contends that the

burden should not shift because petitioners have not

substantiated their claimed expenses and did not cooperate with

respondent’s requests for documentation.   We agree with

respondent that the burden of proof remains with petitioners

because, as we explain below, we conclude that petitioners have

failed to substantiate their reported expenses.

II.   Whether Mr. Robinson Qualified as an Employee or an
      Independent Contractor When He Rendered Services to Temple
      University

      Whether a taxpayer is an independent contractor or an

employee is decided by applying common law principles to the

specific facts and circumstances of the case.     Nationwide Mut.

Ins. Co. v. Darden, 

, 323-325 (1992); Weber v.

Commissioner, 

, 386 (1994), affd. 

 (4th

Cir. 1995).   For guidance on whether a worker qualifies as an

employee under common law principles, courts have generally

looked to the Restatement of Agency.   Cmty. for Creative

Non-Violence v. Reid, 

, 752 n.31 (1989).    Relevant

factors include:   (1) The degree of control exercised by the

principal; (2) which party invests in the work facilities used by

the worker; (3) the opportunity of the individual for profit or

loss; (4) whether the principal can discharge the individual; (5)

whether the work is part of the principal’s regular business; (6)
                              - 11 -

the permanency of the relationship; (7) whether the worker is

paid by the job or by the time; (8) the relationship the parties

believed they were creating; and (9) the provision of employee

benefits.   See Ewens & Miller, Inc. v. Commissioner, 

, 270 (2001); DeTorres v. Commissioner, T.C. Memo. 1993-161;

see also 1 Restatement, Agency 2d, sec. 220 (1958).   We consider

all of the facts and circumstances of each case, and no single

factor is dispositive.   Ewens & Miller, Inc. v. Commissioner,

supra at 270.

     Respondent argues that Mr. Robinson’s working arrangement

with Temple is similar to the taxpayers’ positions as adjunct

professors in Potter v. Commissioner, T.C. Memo. 1994-356, and

Bilenas v. Commissioner, T.C. Memo. 1983-661, and that Mr.

Robinson similarly should be treated as a part-time employee.    In

both of those cases the taxpayers were hired by their respective

universities as adjunct professors to teach semester-long classes

on a class-by-class basis.   The schools determined which courses

those adjunct professors would teach and where they would teach

them.   The schools managed enrollment in the courses and provided

classroom space.   In both cases the universities treated the

relationship as an employer-employee relationship.

     However, certain aspects of the instant case are more

similar to Reece v. Commissioner, T.C. Memo. 1992-335, in which

we held that the taxpayer’s position as an instructor for
                              - 12 -

seminars he conducted as part of a university’s executive

education program was that of an independent contractor, not an

employee.   In Reece, the taxpayer was employed by the university

as a full-time professor, and the taxpayer conducted corporate

seminar services to multiple clients in his spare time.      Some of

the seminars he designed and led were taught through the

executive education program at the university, in classrooms

supplied by the university.   The seminars led by the taxpayer

were short and were not offered for college credit.    The

university considered the taxpayer’s seminar work separate from

his work as a professor and treated him, like its other seminar

instructors, as an independent contractor.

     The principal’s degree of control over the details of the

taxpayer’s work is the most important factor in determining

whether a common law employment relationship exists.    See

Clackamas Gastroenterology Associates, P.C. v. Wells, 

, 448 (2003); Weber v. Commissioner, supra at 387.     In an

employer-employee relationship the principal must have the right

to control not only the result of the employee’s work but also

the means and method used to accomplish that result.    Packard v.

Commissioner, 

, 629 (1975); Youngs v. Commissioner,

T.C. Memo. 1995-94, affd. without published opinion 

(9th Cir. 1996).   The degree of control necessary to find

employee status varies according to the nature of the services
                              - 13 -

provided.   Weber v. Commissioner, supra at 387.   Where the nature

of the work is more independent, a lesser degree of control by

the principal may still result in a finding of an employer-

employee relationship.   Potter v. Commissioner, supra; Reece v.

Commissioner, supra.

     In each of Potter, Bilenas, and Reece, we concluded that the

taxpayer’s position as a professor (whether adjunct or otherwise)

required a certain degree of independence.   Yet in Potter and

Bilenas we concluded that the taxpayer’s work as an adjunct

professor nonetheless resulted in an employer-employee

relationship.   In Reece we stated that although the taxpayer’s

full-time job as a professor was no doubt that of an employee

despite the degree of independence inherent in that position, the

circumstances of the case did not warrant extending that

relationship to cover the taxpayer’s services as a seminar

instructor for the university’s executive education program.

     The amount of control Temple exercised over Mr. Robinson in

his work as a vocational instructor is somewhere between that

exercised over the adjunct professors in Potter and Bilenas and

that exercised over the seminar instructor in Reece.     In both

Potter and Bilenas the university mandated the courses the

respective adjunct professors were to teach, and in Bilenas the

school even selected the textbooks and syllabuses he was to use.

In contrast, in Reece the taxpayer wrote his own course materials
                              - 14 -

and syllabuses even though those materials were published by the

school and were not permitted to be sold separately.   Mr.

Robinson prepares the curricula for the courses he teaches.

Sometimes he is in charge of writing and editing the entire

curriculum; at other times he writes only a portion of it.

However, Mr. Robinson does not select the topics to cover in the

curricula; they are chosen by the State police commissions that

pay Temple.   As in Reece, Temple publishes the work produced by

Mr. Robinson and distributes it with the course materials.

Accordingly, Temple exercises less control over Mr. Robinson’s

teaching work than the universities in Potter and Bilenas, but

more than the university in Reece.

     A significant distinction between the instant case and the

Potter, Bilenas, and Reece cases is that in the instant case part

of Mr. Robinson’s work for Temple during the years in issue

consisted of writing and updating curricula.   His work on the

curricula was separate and distinct from his teaching, and he was

compensated for that work by the job.   Although the taxpayer in

Reece wrote his own curricula, he was not compensated for doing

so and wrote the curricula only to facilitate his teaching.   The

only control Temple asserted over Mr. Robinson’s work updating

curricula was to set the deadlines for his work and convey the

general topics he was to cover.   Temple did not exercise control

over how Mr. Robinson completed the curricula.
                              - 15 -

     The control test suggests that Mr. Robinson was an

independent contractor.   See Packard v. Commissioner, supra at

629; see also Bernstein v. Universal Pictures, Inc., 

, 980 (2d Cir. 1975) (although composers contracted for a

specific output, they worked at their own pace at home and were

not subject to day-to-day supervision, suggesting independent

contractor status because the principal had no right to control

the manner of performance).

     As to the second factor, Temple provided the facilities

where Mr. Robinson taught but did not provide him an office or

any other space in which to write and update curricula.

     The third factor asks whether the individual had the

opportunity for profit or loss.   It is true, as respondent

asserts, that Mr. Robinson’s opportunity for profit or loss did

not depend upon the level of enrollment in his classes.   However,

petitioners contend that the opportunity for profit or loss in

Mr. Robinson’s job as a police trainer did not consist of an

opportunity for profit or loss in individual courses he taught

but rather in how many courses he was hired to teach each year.

Mr. Robinson testified that although most of his outside income

has come from Temple, he has also received compensation from

providing expert testimony, conducting other training, and

curriculum writing.   In Reece the taxpayer likewise provided

services as a seminar instructor both to the university and to
                              - 16 -

other organizations.   Unlike the taxpayer in Reece, Mr. Robinson

recently has not been successful at soliciting other buyers for

his services.   However, the fact that he has not been successful

does not change the nature of his business.

     The fourth factor requires us to consider whether the

principal could discharge the individual.   Because petitioners

did not provide copies of Mr. Robinson’s contracts with Temple,

it is difficult to assess the discharge authority factor.

However, the record does contain several letters from Temple to

Mr. Robinson that suggest he was hired for individual jobs

several times each year.   During 2004 he was separately hired to

teach eight classes and to update curricula, and during 2005

Temple entered into four separate agreements with Mr. Robinson.

Being repeatedly asked to perform discrete tasks under varying

payment terms suggests that if Temple had not satisfied with Mr.

Robinson’s performance, its recourse would have been to not hire

him for any more projects, rather than to discharge him.

     The fifth factor asks whether the work performed by the

taxpayer was part of the principal’s regular business.   Temple is

primarily a university and not a police training academy.

Although teaching is part of its business as a university, the

type of teaching that is central to its mission is teaching for-

credit courses completed by regularly enrolled students.

Teaching noncredit courses to police officers through contracts
                              - 17 -

with the Commonwealth of Pennsylvania is not an essential part of

Temple’s regular business.

     The sixth factor requires us to consider the permanence of

Mr. Robinson’s relationship with Temple.   Although he has been

involved in the CJTP for many years, Mr. Robinson’s duties

teaching and writing curricula have fluctuated throughout that

period and recently have been very minimal.   During 2004, for

instance, Mr. Robinson taught only 8 days and updated one

curriculum.   Moreover, each of those assignments was a separate

engagement with Temple governed by different payment terms.

During 2005 he engaged in four separate agreements with Temple

for remuneration totaling only $5,045.   His position at Temple is

significantly less permanent than that of the taxpayer in Potter,

who had taught semester-long courses for many consecutive years.

Again, Mr. Robinson’s situation is more similar to that of the

taxpayer in Reece, who had been teaching seminars through the

university’s executive education program for many years but

taught multiple small seminars for 12 to 25 days each year.

     The seventh factor asks whether the taxpayer was paid by the

job or by the time.   Mr. Robinson was paid an hourly wage for his

teaching duties, but he was paid a set fee for the curricula he

wrote.   The hourly wage he received for teaching is consistent

with an employer-employee relationship, but the set fee for

writing curricula suggests an independent contractor
                                - 18 -

relationship.    See C.C. Eastern, Inc. v. NLRB, 

, 859

(D.C. Cir. 1995) (that drivers were paid by the job suggested

independent contractor status); Marco v. Accent Publg. Co., 

, 1550 (3d Cir. 1992) (that a photographer was paid by

the job suggested independent contractor status); James v.

Commissioner, 

, 1300 (1956) (that a doctor was given

an annual salary and was not paid by the job suggested employee

status).

     The eighth factor examines the relationship the parties

believed they were creating.     Since 1996 Temple has issued Mr.

Robinson Forms W-2, and it denied his requests to issue him Forms

1099-MISC.     From Temple’s perspective, Mr. Robinson was a part-

time employee.    Temple’s treatment of Mr. Robinson as an employee

is different from the taxpayer’s treatment in Reece, where the

university did not consider the taxpayer’s services as a seminar

instructor to be within an employment relationship; but it is

consistent with the way the universities treated the adjunct

professors in Potter and Bilenas.

     The ninth factor asks whether the alleged employer provided

employee benefits.    Mr. Robinson received no employee benefits

from Temple.

     Considering all of the foregoing facts and circumstances and

applying common law principles, we conclude that Mr. Robinson was

an independent contractor at Temple during the years in issue.
                               - 19 -

III. Whether Petitioners Are Entitled to the Deductions They
     Claimed for Each Year

     Deductions are a matter of legislative grace, and taxpayers

generally bear the burden of proving their entitlement to the

deductions claimed.    Sec. 6001; INDOPCO, Inc. v. Commissioner,

, 84 (1992).    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.    Additionally,

section 212 generally allows the deduction of ordinary and

necessary expenses paid or incurred during the tax year for the

production or collection of income.     Sec. 1.212-1(d), Income Tax

Regs.   The deduction for such expenses must be reasonable in

amount and bear a reasonable and proximate relationship to the

production or collection of taxable income.       Id.   However, a

taxpayer may not deduct personal expenses.    Sec. 262(a).

     Generally, a taxpayer must keep records sufficient to

establish the amounts of the items reported on his Federal income

tax return.    Sec. 6001; sec. 1.6001-1(a), (e), Income Tax Regs.

In the event that a taxpayer establishes that a deductible

expense has been paid but is unable to substantiate the precise

amount, we generally may estimate the amount of the deductible

expense, bearing heavily against the taxpayer whose inexactitude
                              - 20 -

in substantiating the amount of the expense is of his own making.

Cohan v. Commissioner, 

, 543-544 (2d Cir. 1930).        We

generally will not estimate a deductible expense, however, unless

the taxpayer presents sufficient evidence to provide some basis

upon which an estimate may be made.    Vanicek v. Commissioner, 

, 743 (1985).

     Section 274(d) supersedes the Cohan doctrine for certain

categories of expenses.   Sanford v. Commissioner, 

,

827-828 (1968), affd. per curiam 

 (2d Cir. 1969).

Generally, a deduction is disallowed for travel expenses, meals

and entertainment, and listed property unless the taxpayer

properly substantiates:   (1) The amount of the expense; (2) the

time and place of the expense; (3) the business purpose; and (4)

in the case of meals and entertainment, the business relationship

between the taxpayer and the persons being entertained.     Sec.

274(d).   Listed property includes passenger automobiles, any type

of property generally used for entertainment or recreation, any

computer or peripheral equipment, and any cellular phone or other

similar telecommunications equipment.4   Sec. 280F(d)(4).

Generally, deductions for expenses subject to the strict



     4
      Sec. 280F(d)(4) was amended by the Small Business Jobs Act
of 2010, Pub. L. 111-240, sec. 2043(a), 124 Stat. 2560, which
removed cellular phones and other similar telecommunications
equipment from “listed property”. However, that amendment is
effective only for tax years beginning after Dec. 31, 2009. Id.
sec. 2043(b).
                              - 21 -

substantiation requirements of section 274(d) must be disallowed

in full unless the taxpayer satisfies every element of those

requirements.   Sanford v. Commissioner, supra at 827-828; Larson

v. Commissioner, T.C. Memo. 2008-187; sec. 1.274-5T(a), Temporary

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

for listed property that is used both personally and in the

taxpayer’s business are disallowed unless a taxpayer establishes

the amount of business use of the property.    Kinney v.

Commissioner, T.C. Memo. 2008-287; Olsen v. Commissioner, T.C.

Memo. 2002-42, affd. 54 Fed. Appx. 479 (9th Cir. 2003); sec.

1.274-5T(b)(6)(i)(B), Temporary Income Tax Regs., 50 Fed. Reg.

46016 (Nov. 6, 1985).

     Taxpayers may substantiate their deductions by either

adequate records or sufficient evidence that corroborates the

taxpayer’s own statement.   Sec. 274(d).   To satisfy the adequate

records requirement, a taxpayer must maintain records and

documentary evidence that in combination are sufficient to

establish each element of an expenditure or use.    Larson v.

Commissioner, supra; sec. 1.274-5T(c)(2)(i), Temporary Income Tax

Regs., 50 Fed. Reg. 46017 (Nov. 6, 1985).   A contemporaneous log

is not required, but corroborative evidence used to support a

taxpayer’s reconstruction of the expenditure “‘must have a high

degree of probative value to elevate such statement’” to the

level of credibility of a contemporaneous record.    Larson v.
                               - 22 -

Commissioner, supra (quoting section 1.274-5T(c)(1), Temporary

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

     In the absence of adequate records, a taxpayer alternatively

may establish an element of an expenditure by “‘his own

statement, whether written or oral, containing specific

information in detail as to such element’” and by “‘other

corroborative evidence sufficient to establish such element.’”

Id. quoting (section 1.274-5T(c)(3), Temporary Income Tax Regs.,

50 Fed. Reg. 46020 (Nov. 6, 1985)).     Even if an expense would

otherwise be deductible, the deduction may still be denied if

there is insufficient substantiation to support it.    See sec.

1.274- 5T(a), Temporary Income Tax Regs., supra.     We do not

estimate under the Cohan doctrine expenses that are subject to

the requirements of section 274(d).     Sanford v. Commissioner,

supra at 827; Larson v. Commissioner, supra.

     A.   Schedule C Expenses for Mr. Robinson

     For the years in issue petitioners reported the following

expenses for Mr. Robinson on a Schedule C for each year:

          Expense                          2004           2005

     Business use of home                  $438           $457
     Office expense                       4,222          5,128
     Repairs and maintenance              2,760          2,822
     Supplies                             2,943          2,788
     Utilities                            3,356          3,765
     Car and truck                        7,219          7,123
     Travel                               1,003          1,250
     Meals and entertainment                443            393
     Other expenses                       2,780          3,100
       Total                             25,164         26,826
                                - 23 -

     Most of petitioners’ claimed expenses relate to Mr.

Robinson’s use of an office in his home.    Section 280A generally

prohibits the deduction of the costs of a taxpayer’s residence.

However, section 280A(c)(1) permits a deduction for the allocable

portion of a residence that is used exclusively and on a regular

basis as a taxpayer’s principal place of business.    To meet the

regular basis test under section 280A(c)(1), the business use

must be more than occasional or incidental.     Jackson v.

Commissioner, 

, 700 (1981).     It must be continuous,

ongoing, or recurring.     Uphus v. Commissioner, T.C. Memo.

1994-71.

     Petitioners offered no testimony or other evidence regarding

the amount of time Mr. Robinson spent doing work in the office in

his home.   Mr. Robinson had a full-time job at Rowan University

during the years in issue, and he completed only minimal work for

Temple during each year.    The parties stipulated that Mr.

Robinson’s work for Temple was completed out of the office in his

home, but the amount of work he was required to complete was so

minimal that it does not allow us to conclude, in the absence of

any other evidence, that Mr. Robinson used the office in his home

on a regular basis.   Because petitioners bear the burden of

proving that Mr. Robinson regularly used the office in his home

during the years in issue and because they offered no evidence to

prove such regular use, we conclude that petitioners have failed
                               - 24 -

to show that they are entitled to deduct any expenses related to

Mr. Robinson’s use of an office in his home during the years in

issue.   Accordingly, because petitioners may not deduct such

expenses, we sustain respondent’s disallowance of all the expense

deductions petitioners claimed for the business use of their

home, office expenses, repairs and maintenance, supplies, and

utilities, all of which are related to Mr. Robinson’s use of an

office in petitioners’ home, except for cellular phone and

computer expenses, which we treat separately.

     Cellular phones and computers are listed property under

section 280F(d)(4), and therefore related expenses are subject to

strict substantiation under section 274(d).   Petitioners offered

no testimony or other evidence regarding the business purpose of

Mr. Robinson’s cellular phone or Apple computer.   Accordingly,

petitioners have failed in their burden of proof, and we sustain

respondent’s disallowance of petitioners’ cellular phone and

computer expense deductions.

     For the years in issue, petitioners claimed car and truck

expenses for Mr. Robinson’s 2004 Chrysler Pacifica (Pacifica).

Passenger automobiles are listed property under section

280F(d)(4), and expenses associated with their purported business

use therefore are subject to the heightened substantiation

requirements of section 274(d).
                               - 25 -

     For 2004 petitioners reported car and truck expenses

totaling $7,219 for Mr. Robinson’s Pacifica.     To substantiate

those expenses, petitioners provided canceled checks and invoices

from Mr. Robinson’s payments to Chrysler Financial for the

Pacifica, totaling $6,443.67, and miscellaneous receipts from

mechanics, body shops, insurance companies, and tolls, totaling

$3,014.10.   On the Schedule C for Mr. Robinson’s business,

petitioners reported that Mr. Robinson drove the Pacifica 18,000

miles for business, 3,200 for commuting, and 14,800 for other

purposes.    However, petitioners did not provide a log documenting

Mr. Robinson’s business trips, nor did they otherwise explain how

he managed to drive 18,000 miles for his business even though he

taught class only 8 days during 2004.

     For 2005 petitioners claimed car and truck expenses of

$7,123 for Mr. Robinson’s Pacifica.     Petitioners similarly

provided invoices substantiating most of Mr. Robinson’s payments

to Chrysler Financial for the Pacifica, totaling $5,902.78 during

2005.   Petitioners reported on the Schedule C for Mr. Robinson’s

business that Mr. Robinson drove the Pacifica 16,500 miles for

business, zero miles for commuting, and 16,500 miles for other

purposes during 2005.   As with the expenses for 2004, Mr.

Robinson did not supply a log or other means to substantiate the

purposes of his trips or explain how he calculated his miles.

Petitioners provided no other documentation of Mr. Robinson’s car
                               - 26 -

and truck expenses for 2005, and it is unclear from the record

how he arrived at total expenses of $7,123.

     Petitioners offered no testimony or other evidence to

explain how they calculated which automobile expenses were

related to Mr. Robinson’s business and which were not.    The very

round numbers of miles reported on the Schedules C and the

overall lack of any records suggesting how the expenses were

allocated significantly detract from the credibility of the

expenses reported.    We conclude that petitioners have failed in

their burden of satisfying the strict substantiation requirements

of section 274(d), and we therefore sustain respondent’s

disallowance of petitioners’ car and truck expense deductions.

     Petitioners claimed deductions for additional travel

expenses, as well as meal and entertainment expenses, related to

Mr. Robinson’s business during the years in issue.    However, they

provided no documentation or testimony to support their claimed

travel expenses and meal and entertainment expenses.

Accordingly, petitioners have failed in their burden of proof,

and we therefore sustain respondent’s disallowance of deductions

for those expenses.

     Finally, petitioners claimed deductions for “other expenses”

on their Schedules C of $2,780 and $3,100 for their 2004 and 2005

tax years, respectively.    Those expenses reflect the costs of

publications Mr. Robinson purchased during the years in issue.
                                - 27 -

     Petitioners did not provide any receipts or invoices to

substantiate the expenses they deducted for publications for

2004.   Instead, petitioners provided only canceled checks and

credit card statements, which do not give any details about the

items Mr. Robinson purchased.

     Petitioners did provide receipts to substantiate Mr.

Robinson’s expenses for publications for 2005.   The receipts they

provided show that the “publications” Mr. Robinson purchased

included:   Laugh Out Loud Knock-Knock Jokes; several books about

midwives; several television shows on DVD including Gilmore

Girls, Arrested Development, and Friends; several books about

origami; several books on the architect Frank Lloyd Wright; a

Harry Potter book; Witchcraze; Teen Idol; In Her Shoes; A

Christmas Carol; Top Gun; Mary Poppins; 501 Must-See Movies; Good

Will Hunting; The Iliad; The Odyssey; subscriptions to People

magazine, several books on logic, unknown purchases totaling

$68.74 at LexisNexis, and various other publications, some of

which were not listed on the receipts, and some of which the

parties stipulated were not related to Mr. Robinson’s business.

     Although Mr. Robinson admitted during his testimony that

many of the books listed on the receipts for 2005 were unrelated

to his business, petitioners argued that it should not matter

because the receipts and statements they supplied total

approximately $3,900, and they deducted only $2,780 in expenses.
                              - 28 -

However, petitioners appear to have erred in those calculations;

we find that the sum of the receipts they provided falls well

short of the expense deduction they claimed.   The sum of all the

purchases listed on the receipts is $2,201.06, yet petitioners

deducted $3,100 on their 2005 Schedule C.

     Moreover, although we have examined all of the receipts

petitioners provided, we did not find even a single receipt that

would have justified deducting the item’s cost as a business

expense.   Most of the receipts were clearly unrelated to Mr.

Robinson’s business.   The few that might conceivably have been

related to his business as a police instructor (receipts from

LexisNexis and the Pennsylvania State Bookstore) did not list the

items purchased, and Mr. Robinson did not testify or provide

other evidence about how they were related to his business.

During cross-examination Mr. Robinson attempted to justify some

of the expenses that were apparently unrelated to his business.

For instance, he contended that a subscription to People magazine

was a business expense because it contained articles on current

events, that purchases of books on midwifery were business

expenses because he sometimes taught classes on ethics, and that

purchases of books about Frank Lloyd Wright were business

expenses because the architect had been involved in a crime.

We are not persuaded by Mr. Robinson’s testimony that such

expenses were related to his business.   Accordingly, we conclude
                              - 29 -

that petitioners have failed to substantiate any of the

publication expenses they deducted on their Schedules C, and we

therefore sustain respondent’s disallowance of those expenses.

     B.   Schedule A Deductions for Mrs. Robinson’s Expenses

     Pursuant to section 162(a), a taxpayer is entitled to deduct

all of the ordinary and necessary expenses paid or incurred

during the taxable year in carrying on a trade or business.

However, employees cannot deduct such expenses to the extent that

employees are entitled to reimbursement from their employers for

expenditures related to their status as employees.   Orvis v.

Commissioner, 

, 1408 (9th Cir. 1986), affg. T.C.

Memo. 1984-533; Lucas v. Commissioner, 

, 7 (1982).        The

deduction for an employee’s unreimbursed business expenses under

section 162 is claimed on Form 2106, Employee Business Expenses,

and included in the miscellaneous itemized deductions claimed on

Form 1040, U.S. Individual Income Tax Return, Schedule A.     An

individual performing services as an employee may deduct

miscellaneous itemized deductions incurred in the performance of

services as an employee only to the extent such expenses exceed 2

percent of the individual’s adjusted gross income.   Sec. 67(a).

Expenses incurred in the performance of services as an employee

are to be reported as required by the regulations promulgated

under section 162.   See sec. 1.162-17(a), Income Tax Regs.    To

satisfy the requirements of section 162(a), an expense must be
                                - 30 -

ordinary and necessary and have the requisite relationship to the

taxpayer’s business.   The taxpayer bears the burden of proving

that the claimed expenses were ordinary and necessary under

section 162.   The employee must show the relationship between the

expenditures and the employment.    See Rosemann v. Commissioner,

T.C. Memo. 2009-185; Colvin v. Commissioner, T.C. Memo. 2007-157,

affd. 285 Fed. Appx. 157 (5th Cir. 2008); Evans v. Commissioner,

T.C. Memo. 1974-267, affd. in part and revd. in part on another

ground 

 (5th Cir. 1977).

     Petitioners claimed on their tax returns for the years in

issue that Mrs. Robinson was eligible for the following

unreimbursed employee business expense deductions:

          Expense                              2004       2005

     Vehicle expense                           $337       $444
     Parking fees, tolls, and
      transportation                            678     24,876
     Travel expenses                         22,785        765
     Other business expenses                    763      3,915
     Meals and entertainment                  3,258       ---
       Total                                 27,821     30,000

     Mrs. Robinson was the sole driver of petitioners’ 2002

Chrysler Sebring (Sebring) during the years in issue.    On their

Schedule A for 2004 petitioners reported that Mrs. Robinson drove

22,000 miles, 5,000 of which were for business.       They used the

corresponding percentage, 23 percent, to calculate the share of

Mrs. Robinson’s total reported gasoline, oil, repairs, and

vehicle insurance expenses of $1,422 that should be allocated to
                                - 31 -

Mrs. Robinson’s unreimbursed employee business expenses.    In

total, petitioners reported $337 as Mrs. Robinson’s unreimbursed

employee business vehicle expenses during 2004.     Petitioners

did not supply a log or other means to substantiate the business

purposes of Mrs. Robinson’s trips in the Sebring, nor did they

explain the purposes of such trips during their testimony.

     For 2005 petitioners made the same calculation as for 2004,

reporting that Mrs. Robinson traveled 23,000 miles in the

Sebring, 5,000 of which were for business.   For 2005 they claimed

$2,044 in expenses for gasoline, oil, repairs, and vehicle

insurance, and they reported an unreimbursed employee business

vehicle expense of $444.   Petitioners provided no evidence or

testimony to substantiate the business purpose of the miles they

reported on their Schedule A.

     As stated above, passenger automobiles are listed property

and expenses associated with their purported business use are

subject to the heightened substantiation requirements of section

274(d).    Petitioners have the burden of proof, yet they provided

no testimony or other evidence to substantiate the business

purposes of the expense deductions claimed for Mrs. Robinson’s

vehicle.   Accordingly, we conclude that they have failed to prove

that they are entitled to those deductions, and we therefore

sustain respondent’s disallowance of them.
                              - 32 -

     It is unclear from the record how petitioners arrived at the

remainder of the expenses they reported for Mrs. Robinson on

their Schedule A.   Except for invoices from Chrysler Financial

and a single receipt from an auto mechanic, petitioners provided

no receipts to substantiate the $27,821 in unreimbursed employee

business expenses petitioners claimed that Mrs. Robinson incurred

during 2004.   Instead, petitioners provided a list of

uncategorized expenses, culled from credit card statements,

totaling $2,024.25.   During her testimony Mrs. Robinson explained

that three of the charges listed were for visits to tourist

attractions:   The Metropolitan Museum of Art; the Philadelphia

Museum of Art; and the Easton Town Center in Ohio, which Mrs.

Robinson explained was a “lifestyle center” that demonstrated the

direction retail had taken in the last decade.      Mrs. Robinson

explained that she made visits to tourist attractions to look for

ideas or business opportunities that she might employ in her own

business, an activity she labeled “benchmarking”.   Although Mrs.

Robinson believed such “benchmarking” excursions were important

for developing her business, her employer would not reimburse her

for them, and they had to be conducted on her personal time.

Mrs. Robinson did not testify about or otherwise explain any of

the other unreimbursed employee business expenses she deducted

for 2004.
                               - 33 -

       To substantiate Mrs. Robinson’s reported unreimbursed

employee business expenses of $30,000 for 2005, petitioners

supplied invoices and canceled checks from Chrysler Financial for

their payments on the Sebring and 46 uncategorized receipts

totaling $4,270.63.    Many of the receipts are from restaurants,

yet petitioners reported no expenses for meals and entertainment

on Mrs. Robinson’s Schedule A for 2005.    Other receipts show

expenses for parking, airplane tickets, and retail items,

including two purchases of doll clothes at American Girl Place in

New York.    The largest receipt is from a hotel stay at Disney’s

Grand Californian Hotel at Disneyland in Anaheim, California.

Petitioners also included receipts for tickets to Disneyland and

receipts from a visit to Disney World in Orlando, Florida.

During her testimony, Mrs. Robinson explained that she makes an

annual trip to Disney World to “see what’s going on”.    While

there, she visits all of the theme parks to compare the newest

attractions and look at Disney’s retail establishments.    Mrs.

Robinson took these trips during 2005 accompanied by Mr. Robinson

and their daughter.    On at least one of the trips they were also

accompanied by Mrs. Robinson’s mother and Mr. Robinson’s mother.

Nonetheless, petitioners claimed that all of the expenses from

those trips were unreimbursed employee business expenses because

they were important “benchmarking” excursions for Mrs. Robinson’s

job.
                                - 34 -

     If a trip is primarily personal, expenses are not deductible

even if the taxpayer engaged in some business activities at the

destination.   Sec. 1.162-2(b)(1), Income Tax Regs.    Whether

travel is primarily related to the taxpayer’s trade or business

or is primarily personal is a question of fact.     Sec.

1.162-2(b)(2), Income Tax Regs.; see also Holswade v.

Commissioner, 

, 698, 701 (1984).    The amount of time

spent on personal activity during the trip compared with the

amount of time spent on activities directly relating to the

taxpayer’s trade or business is an important factor in

determining whether the trip is primarily personal.     Sec.

1.162-2(b)(2), Income Tax Regs.    The taxpayer must prove that the

trip was primarily related to the trade or business.       Rule

142(a).

     Petitioners have failed to show that Mrs. Robinson’s trips

to visit tourist attractions around the country were ordinary and

necessary for her employment.    See sec. 162(a).   Moreover, the

facts suggest that the primary purpose of her trips was personal

pleasure:   she was always accompanied by other family members and

she took vacation time to make the trips.    The mere fact that

Mrs. Robinson may have garnered some business ideas on her visits

to tourist attractions does not permit her to deduct the costs of

those trips as unreimbursed employee business expenses.

Accordingly, we sustain respondent’s disallowance of all expenses
                                - 35 -

associated with those trips during the years in issue.    Because

we understand petitioners to be claiming that all of Mrs.

Robinson’s unreimbursed employee business expenses relate to her

“benchmarking” excursions, the disallowance of those expenses

dispenses with all of the unreimbursed employee business expenses

claimed by Mrs. Robinson.

     C.   Schedule A Deductions for Mr. Robinson’s Expenses

     Petitioners also claimed unreimbursed employee business

expense deductions for Mr. Robinson on their Schedules A for the

years in issue in the following amounts:

          Expense                            2004         2005

     Vehicle expense                          ---         $262
     Parking fees, tolls, and
      transportation                         $380          324
     Travel expenses                          390          189
     Other business expenses                  465        1,707
     Meals and entertainment                  ---          160
       Total                                1,235        2,642

Petitioners offered no documents, testimony, or other evidence to

substantiate Mr. Robinson’s Schedule A expenses.    Accordingly,

petitioners have failed in their burden of proof, and we

therefore sustain respondent’s disallowance of all such expenses

for the years in issue.

     D.   Schedule A Deductions for Tax Preparation Expenses

     Petitioners also claimed tax preparation expenses of $70 and

$75 for their 2004 and 2005 tax years, respectively.    However,

they did not provide any receipts to substantiate those expenses.
                              - 36 -

Accordingly, petitioners have failed in their burden of proof and

we therefore sustain respondent’s disallowance of their tax

preparation expense deductions.

IV.   Whether Petitioners Are Liable for Additions to Tax Under
      Section 6651(a)(1) for Failure To File Timely Returns

Section 6651(a)(1) provides for an addition to tax where a

failure to file a Federal tax return timely is not due to

reasonable cause or is due to willful neglect.   Pursuant to

section 7491(c), the Commissioner generally bears the burden of

production for any penalty, but the taxpayer bears the ultimate

burden of proof.   Higbee v. Commissioner, 

, 446

(2001).

      Petitioners do not dispute that they were late in filing

their tax returns for the years in issue.   Consequently,

respondent has met his burden of production under section

7491(c), and in order to avoid the section 6651(a)(1) addition to

tax, petitioners have the burden of establishing reasonable cause

and the absence of willful neglect for failure to file timely.

See Calloway v. Commissioner, 

, 45 (2010); Gates v.

Commissioner, 

, 14 (2010).

      Petitioners contend that their failure to file timely is due

to reasonable cause because they were awaiting a decision in a

prior dispute before the Tax Court regarding Mr. Robinson’s

status as an independent contractor.   However, the stipulated

decision in that case was entered on November 2, 2004, and
                               - 37 -

petitioners’ tax returns for the years in issue were not due

until April 15, 2005, and April 17, 2006.      Petitioners offered no

other explanation for why they filed their returns late.

Accordingly, we conclude that petitioners have failed in their

burden of proof, and we therefore sustain respondent’s

determination of the addition to tax under section 6651(a)(1)

against petitioners for their failure to file timely returns.

V.   Whether Petitioners Are Liable for Accuracy-Related
     Penalties Pursuant to Section 6662(a)

     Section 6662(a) imposes an accuracy-related penalty of 20

percent of any underpayment that is attributable to causes

specified in subsection (b).    Subsection (b) applies the penalty

to any underpayment attributable to, inter alia, a “substantial

understatement of income tax” or “Negligence or disregard of

rules or regulations.”

     There is a “substantial understatement” of income tax for

any tax year where the amount of the understatement exceeds the

greater of 10 percent of the tax required to be shown on the

return for the tax year or $5,000.      Sec. 6662(d)(1)(A).   However,

the amount of the understatement may be reduced by any portion of

the understatement attributable to any item for which there was

substantial authority for the taxpayer’s treatment, or with

respect to which the relevant facts were adequately disclosed on

the taxpayer’s return and there was a reasonable basis for the

taxpayer’s treatment.    Sec. 6662(d)(2)(B).
                                - 38 -

     Section 6662(a) and (b)(1) also imposes a penalty for

negligence or disregard of rules or regulations.    Under section

6662(c), “negligence” is “any failure to make a reasonable

attempt to comply with the provisions of this title”.    We have

defined negligence as “a lack of due care or a failure to do what

a reasonable and prudent person would do under the

circumstances.”     Bunney v. Commissioner, 

, 266

(2000).    Failure to maintain adequate books and records or to

substantiate items properly constitutes negligence.    Sec.

1.6662-3(b)(1), Income Tax Regs.    A taxpayer is considered to

have disregarded rules or regulations even if such disregard is

“careless,” meaning that the taxpayer “does not exercise

reasonable diligence to determine the correctness of a return

position that is contrary to the rule or regulation.”    Sec.

1.6662-3(b)(2), Income Tax Regs.

     Generally, the Commissioner bears the burden of production

with respect to any penalty, including the accuracy-related

penalty.    Sec. 7491(c); Higbee v. Commissioner, supra at 446.     To

meet that burden, the Commissioner must come forward with

sufficient evidence indicating that it is appropriate to impose

the relevant penalty.     Higbee v. Commissioner, supra at 446.    The

Commissioner has the burden of production only; the ultimate

burden of proving that the penalty is not applicable remains on

the taxpayer.     Id.
                              - 39 -

     Respondent contends that petitioners are liable for the

penalty pursuant to section 6662 both because they substantially

understated their income tax and because they were negligent.

Petitioners understated their tax liabilities by $7,965 and

$9,634 for their 2004 and 2005 tax years, respectively.    The

amount by which they understated their tax liability for each

year exceeds both:   (1) 10 percent of the amount required to be

shown on their return for each year ($1,925.20 and $2,858.30,

respectively); and (2) $5,000.    Petitioners have the burden of

proof regarding whether any portion of either understatement

should be reduced pursuant to section 6662(d)(2)(B), but they did

not address the issue or present any evidence showing that their

understatements should be reduced.     Accordingly, we conclude that

petitioners have failed in their burden of proof, and we

therefore hold that petitioners are liable for the section 6662

penalty for both years for substantially understating their

income tax.   See sec. 6662(d).   Because we decide petitioners are

liable for the section 6662 penalty on account of their

substantial understatements of their tax liabilities for both

years, we need not consider whether they were also negligent.

     In reaching the foregoing holdings, we have considered all

the parties’ arguments, and, to the extent not addressed herein,

we conclude that they are moot, irrelevant, or without merit.
                        - 40 -

To reflect the foregoing,


                                  Decision will be entered

                             under Rule 155.