                  T.C. Summary Opinion 2009-127



                      UNITED STATES TAX COURT



    LESLIE ADORNO DE CHACING AND JOSE CHACIN, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12954-08S.            Filed August 11, 2009.



     Leslie Adorno De Chacing and Jose Chacin, pro sese.

     Matthew D. Carlson, for respondent.



     GERBER, Judge:   This case was heard pursuant to the

provisions of section 74631 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,


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 2005, the taxable year in
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                                - 2 -

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

case.    Respondent determined a $3,338 deficiency in petitioners’

income tax for 2005.    The sole issue for our consideration is

whether petitioners are entitled to deduct any portion of the

$19,203 claimed as employee business expenses on Schedule A,

Itemized Deductions, of their 2005 Form 1040, U.S. Individual

Income Tax Return.

                             Background

     Petitioners are Jose Chacin (Mr. Chacin) and Leslie Adorno

De Chacing (Ms. De Chacing).    Petitioners filed a joint Form 1040

for 2005 with the filing status “Married filing jointly”.

Petitioners resided in California at the time their petition was

filed.    Mr. Chacin was employed as a carpenter during 2005.   Ms.

De Chacing was employed as a loan officer/mortgage account

executive during 2005.    On Schedule A of their 2005 Form 1040,

petitioners claimed $19,203 of employee business expenses,2

including the following amounts:    Travel--$13,813; union dues--

$240;3 uniforms and clothing--$1,630; tools--$850; and business

referrals--$2,670.    The “business referrals” expenses were




     2
      We note that the business expenses represent a gross amount
before application of the 2-percent of adjusted gross income
threshold under sec. 67(a).
     3
      At trial respondent conceded that petitioners are entitled
to a $240 deduction for union dues.
                                - 3 -

attributable to Ms. De Chacing, and the remaining expenses were

attributable to Mr. Chacin.

       Mr. Chacin worked on a daily basis for a building

contractor.    Each day he drove from his home to the building

contractor’s office and received his assignment for the day.        He

would then proceed to the jobsite and perform as instructed for

the day.    He drove approximately 121 miles each day.

Approximately 2 days each week Mr. Chacin would proceed from the

first job to a second job where he also worked as a carpenter.

The second job was near his home, but he drove there from his

first job.    Of the $13,813 claimed for travel, $8,640 was based

upon a 40.5-cents-per-mile rate (for miles driven before

September 1, 2005) and $5,173 was based upon a 48.5 cents per

mile rate (for miles driven after August 31, 2005).      See Rev.

Proc. 2004-64, sec. 5.01, 2004-2 C.B. 898, 900, as modified by

Announcement 2005-71, 2005-2 C.B. 714.

       Mr. Chacin maintained a log of his daily mileage.    He would

list the odometer reading and allow that reading to stand until

there were nonbusiness miles.    Because he drove to the same work

location each day, it was not necessary to make a posting each

day.    Mr. Chacin did not distinguish his mileage from his first

job to his second because the second was in the vicinity of his

residence.    Additionally, he believed that all of his mileage was

deductible.
                               - 4 -

                            Discussion

     Section 162 permits a deduction for ordinary and necessary

expenses incurred in a trade or business.     With respect to

certain expenses, including use of listed property such as an

automobile, section 274(d) requires more stringent

substantiation.   Secs. 274(d)(4), 280F(d)(4)(A)(i).    To meet the

section 274(d) requirements, a taxpayer must establish the

expenditure with adequate records or present sufficient evidence

to corroborate his own statements.     Sec. 1.274-5T(c)(1),

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

The elements to be established are the amount, date, and business

purpose of the use of an automobile.     Sec. 1.274-5T(b)(6),

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

     After review of Mr. Chacin’s log and his testimony, we are

satisfied that he has met the substantiation requirements of

section 274(d).   We must still decide, however, whether his

transportation costs were deductible within the meaning of

section 162.   To be deductible, travel expenses must be

reasonable and necessary and incurred while away from home in the

pursuit of business.   Commissioner v. Flowers, 326 U.S. 465

(1946).   However, in general, the cost of daily commuting to and

from work is a nondeductible personal expense.     Id. at 473-474;

sec. 1.162-2(e), Income Tax Regs.    A taxpayer may deduct daily

transportation expenses that he incurs in going between his
                                - 5 -

residence and a work location that is temporary and that is

outside the metropolitan area where he lives and normally works.

Brockman v. Commissioner, T.C. Memo. 2003-3; Aldea v.

Commissioner, T.C. Memo. 2000-136; Rev. Rul. 99-7, 1999-1 C.B.

361.   In addition, when a taxpayer is away from home on a

temporary basis, his living or travel expenses may be considered

deductible business expenses.    Peurifoy v. Commissioner, 358 U.S.

59, 60 (1958).    Employment has been defined as “temporary” if it

is foreseeably terminable or lasts for a relatively short fixed

duration.    Boone v. United States, 482 F.2d 417, 419 (5th Cir.

1973).

       Mr. Chacin’s construction job was neither temporary nor away

from home.    Although each morning he would stop at the

construction company office for direction as to his duties for

the day, that was merely part of his commute from his home to his

job.    There was no showing that his employment with the

construction company was either “temporary” or “away from home”,

or that the jobsites were outside the metropolitan area where he

lived and worked.    Accordingly, petitioner is not entitled to a

deduction for the entire cost of his transportation to and from

his job.

       With respect to Mr. Chacin’s mileage from his first job to

his second, it is a long-established principle that

transportation costs between jobs or jobsites may be deductible
                               - 6 -

under certain circumstances.   Steinhort v. Commissioner, 335 F.2d

496 (5th Cir. 1964), affg. and remanding T.C. Memo. 1962-233;

Heuer v. Commissioner, 32 T.C. 947, 953 (1959), affd. 283 F.2d

865 (5th Cir. 1960).

     Approximately 2 days each week, Mr. Chacin drove from his

first job to a second job location which was near his home.

Accordingly, one-half of his mileage on those days (between jobs)

was not commuting and is deductible.   On the basis of the record,

we hold that petitioners are entitled to transportation expenses

of $5,525 for the 2005 tax year.

     For 2005 Mr. Chacin claimed expenditures had been made for

tools and protective clothing for use on his carpentry jobs:

$850 was claimed for tools and $1,630 for protective clothing.

There was some testimony about these expenditures, and

petitioners also provided their bank statements, along with some

written notations about the generic category of various

expenditures (i.e., “Jose work clothes”).   Mr. Chacin’s

recordkeeping on these items falls short of showing specific

purchases, but petitioners did provide some photographs of

certain equipment and work clothing.   In spite of these

shortcomings, we are satisfied that petitioners are entitled to

some deduction.   The photographs revealed that the work clothing

was not suitable for everyday wear.    See Yeomans v. Commissioner,

30 T.C. 757, 767-769 (1958).
                               - 7 -

     The Court may estimate allowable expenses under Cohan v.

Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930), but only if

there is sufficient evidence in the record to provide a basis for

the estimate, Vanicek v. Commissioner, 85 T.C. 731, 742-743

(1985), and the section 274(d) substantiation requirements do not

apply.   Such approximations should be made even though it may be

necessary to bear heavily upon the taxpayer, whose inexactitude

is of his own making.

     We have exercised our best judgment and find that

petitioners are entitled to deductions of $200 for tools and $400

for work clothing for the 2005 tax year.

     Finally, we consider Ms. De Chacing’s claimed expenditures,

totaling $2,670,4 for referral fees, gifts, and lunch and

entertainment.   During 2005 Ms. De Chacing was a loan

officer/mortgage account executive with a mortgage company.   She

indicated that it was customary to send gifts to borrowers to

show appreciation for their business and to promote referrals.

She also indicated that she would provide mortgage company

employees, such as loan processors, underwriters, and others with

gifts, lunches, and dinners to ensure that her loans received

prompt processing.   Additionally, Ms. De Chacing indicated that

     4
      The amount claimed on petitioners’ 2005 income tax return
was a composite amount for “TOOLS/REFERRALS FOR BUSINESS
EXPENSES” totaling $3,520. As discussed above, $850 of that
amount was claimed for tools, leaving $2,670 for Ms. De Chacing’s
claimed expenditures.
                                 - 8 -

it was customary to pay 25 percent of her commission to anyone

who had referred a loan customer.

     In support of her testimony, Ms. De Chacing provided bank

statements that included charges for meals, which she had

designated with handwritten notations.       These notations were not

made contemporaneously.   No supporting documentary evidence was

provided with respect to any 25-percent commissions or gifts to

loan customers.   With respect to lunches for loan processors, Ms.

De Chacing testified that she bought lunch, coffee, etc., on

several occasions for two loan processors.       The stringent

recordkeeping requirements of section 274(d) apply for these

types of expenditure.   See sec. 274(d)(2) and (3).

     Considering the record and the evidence offered, we are

unable to find that petitioners are entitled to any portion of

the $2,670 claimed for meals, entertainment, gifts, or

commissions.

     We are uncertain whether the petitioners’ allowable

deductions will exceed the standard deduction.       We leave it to

the parties to compute which approach will give petitioners a

larger deductible amount.

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.
