                    T.C. Summary Opinion 2010-126



                       UNITED STATES TAX COURT



         BAHMAN AHMADIAN AND ZAHRA MOGHADDAM, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14476-09S.              Filed August 30, 2010.



     Omotayo J. Lawal, for petitioners.

     Derek Matta and Randy Durfee, for respondent.



     ARMEN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any




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

other court, and this opinion shall not be treated as precedent

for any other case.

     Respondent determined a deficiency in petitioners’ 2006

Federal income tax of $16,822.

     After concessions,2 the sole issue for decision is whether

petitioners are entitled to a deduction for $24,500 paid to

“Radio Freedom” as a charitable contribution under section 170.

The resolution of this issue turns on whether Radio Freedom is a

charitable organization within the meaning of section 170.

                              Background

     Some of the facts have been stipulated, and they are so

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.

     Petitioners resided in the State of Texas when the petition

was filed.   All references to petitioner in the singular are to

petitioner Bahman Ahmadian.

     In 2006 petitioner wrote checks totaling $24,500 to or for

Radio Freedom.3   According to petitioner, the purpose of Radio

Freedom was “educating the people * * * [about] the meaning of



     2
        Respondent conceded that petitioners are entitled to a
deduction for charitable contributions of $20,631. Petitioners
conceded that they are not entitled to deductions for
contributions made to political organizations or for items
donated in the aftermath of Hurricane Ike.
     3
        The payee of each of the checks for Radio Freedom
includes an individual’s name followed by “- Radio Freedom”.
                                 - 3 -

freedom and who is our enemy”.    Petitioner further explained that

“It’s not [the] United States enemy; it’s the enemy of the

culture * * *; * * * [and] against the Iran regime.”

     According to petitioner, Radio Freedom did not accept

outside advertising but rather was completely supported by

listener donations.   At some point petitioner was part-owner of

Radio Freedom.   The principal owner of Radio Freedom initially

intimated that the station was a nonprofit organization and that

he had filed documents to have the station declared a section

501(c)(3) organization, but he later indicated that Radio Freedom

was a for-profit organization.    Radio Freedom ceased operations

in 2007.

     Petitioners timely filed their 2006 Federal income tax

return.    On Schedule A, Itemized Deductions, petitioners claimed

a deduction for charitable contributions of $56,402.

     In a notice of deficiency, respondent disallowed in full the

deduction claimed by petitioners for charitable contributions on

their Schedule A.   Respondent subsequently conceded $20,631 of

the claimed deduction, and petitioners conceded that they are not

entitled to deductions for political contributions or for in-kind

donations following Hurricane Ike.       The only contributions that

remain at issue are those made to Radio Freedom.
                                - 4 -

                            Discussion4

     Generally, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that those

determinations are erroneous.   Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933).   Deductions are a matter of legislative

grace, and the taxpayer bears the burden of proving entitlement

to any deduction claimed.   Rule 142(a); Deputy v. du Pont, 308

U.S. 488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U.S.

435, 440 (1934).   These rules apply to deductions claimed for

charitable contributions.   See Davis v. Commissioner, 81 T.C.

806, 815 (1983), affd. without published opinion 767 F.2d 931

(9th Cir. 1985).   Although section 7491(a) may serve to shift the

burden under certain circumstances, it does not do so here given

petitioners’ failure to raise the matter and to introduce

credible evidence.

     Section 170(a)(1) allows a deduction for charitable

contributions payment of which is made during the taxable year,

if verified as provided in the regulations.   The term “charitable

contribution” includes a contribution or gift to a corporation,


     4
        At the request of petitioners’ counsel, the Court made
provision for the filing of posttrial memorandum briefs.
Although respondent filed a brief, petitioners did not. Despite
petitioners’ failure, we do not choose to default them under Rule
123. See Stringer v. Commissioner, 84 T.C. 693 (1985), affd.
without published opinion 789 F.2d 917 (4th Cir. 1986). Rather,
we choose to decide the disputed issue based on the evidentiary
record before us. See, e.g., Clark v. Commissioner, T.C. Memo.
2005-292.
                                - 5 -

trust, or community chest, fund, or foundation, with certain

provisos.   Sec. 170(c)(2).

     In order to claim a deduction for a charitable contribution,

a taxpayer must establish that a gift was made to a qualified

entity organized and operated exclusively for an exempt purpose,

no part of the net earnings of which inures to the benefit of any

private individual.   Sec. 170(c)(2); McGahen v. Commissioner, 76

T.C. 468, 481-482 (1981), affd. without published opinion 720

F.2d 664 (3d Cir. 1983).   Qualified entities under section 170

are generally organizations that qualify for an exemption under

section 501(c)(3).    See, e.g., Dew v. Commissioner, 91 T.C. 615,

624 n.7 (1988); Taylor v. Commissioner, T.C. Memo. 2000-17.

     The Internal Revenue Service maintains a list of

organizations eligible to receive tax-deductible charitable

contributions in Publication 78, Cumulative List of Organizations

described in Section 170(c) of the Internal Revenue Code of 1986,

available at

http://www.irs.gov/charities/article/0,,id=96136,00.html.

Radio Freedom was not listed in Publication 78 as an organization

eligible to receive tax deductible charitable contributions for

the year in issue.5




     5
        The search of Publication 78 included possible
permutations of the radio station’s name, including “Freedom
Radio” and “Iran Freedom Radio”.
                                 - 6 -

     Although Publication 78 is not necessarily all inclusive,

petitioner has not demonstrated on the record before us that

Radio Freedom qualifies as an entity eligible to receive

charitable contributions under section 170 or that it was a

qualifying section 501(c)(3) organization in 2006.6        Accordingly,

petitioner is not entitled to a charitable deduction for amounts

paid to Radio Freedom for the year in issue.

                           Conclusion

     We have considered all of the arguments made by petitioners,

and, to the extent that we have not specifically addressed them,

we conclude that they do not support a result contrary to that

reached herein.

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.




     6
        At trial, petitioner did not introduce any documents
regarding the organization or operation of Radio Freedom or
otherwise nor did he call as a witness the principal owner of
“Radio Freedom”. See Wichita Terminal Elevator Co. v.
Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th
Cir. 1947).
