                       T.C. Memo. 1999-310



                     UNITED STATES TAX COURT



                 MICHEL L. DIXON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2596-98.                  Filed September 21, 1999.



     Michel L. Dixon, pro se.

     Marshall R. Jones, for respondent.


             MEMORANDUM FINDINGS OF FACT AND OPINION


     CARLUZZO, Special Trial Judge:   Respondent determined a

$2,339 deficiency in petitioner's 1993 Federal income tax, and an

addition to tax in the amount of $100 under section 6651(a)(1).1

In the petition, petitioner disputes the entire amount of the


     1
      Section references are to the Internal Revenue Code of
1986, as amended and in effect for 1993.
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deficiency and addition to tax and, further, claims an

overpayment.

     The issues for decision are:   (1) Whether petitioner is

entitled to certain miscellaneous itemized deductions, some of

which were claimed on his 1993 Federal income tax return, and

others that support his claim for an overpayment; and (2) whether

petitioner is liable for the addition to tax under section

6651(a)(1) for his failure to file a timely 1993 Federal income

tax return.

                         FINDINGS OF FACT

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

At the time the petition was filed, petitioner resided in San

Clemente, California.

     Petitioner holds several master's degrees, including a

master's degree in education received in 1976.     During 1993, he

was employed in a civilian capacity as an education specialist

for the U.S. Department of Defense.    His post of duty was Ft.

Baker, California.   At the time he was living in Novato,

California, in an apartment that consisted of one bedroom, a

kitchen, a living room with a dining area, and a bathroom.       His

rent expense during that year was $650 per month.

     Petitioner was required to travel from time to time in

connection with his employment with the Department of Defense,

and he did so during the year in issue.     He was entitled to
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reimbursement from his employer if he used his personally owned

automobile in connection with employment-related travel.   In 1994

petitioner submitted a travel voucher to his employer seeking

reimbursement for the use of his personally owned automobile in

connection with employment-related travel that occurred between

November 1991 and September 1994.   His claim was denied with

respect to travel that took place before March 1994 because the

claim was not timely submitted.

     During 1993 petitioner decided to resign or retire from

Federal Government employment and find a job as a school

principal.   In this regard he responded to employment vacancy

announcements published by various school boards, most of which

were located in California.   Typically, petitioner would send a

letter of interest to the school board that had published the

vacancy announcement.   Petitioner prepared the letters using the

personal computer on the table in the dining area of his

apartment.   Sometimes he received a written response to his

letter; other times he received a message on the answering

machine in his apartment.   If an interview was subsequently

arranged, petitioner would usually drive to the location of the

interview.   To save money, petitioner slept in his car on those

occasions when the location of the interview was so far from his

home that he could not drive to, and return from, the interview
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in 1 day.    Through this process, petitioner was offered and

accepted a job in 1994 in Round Valley, California.

     Petitioner's 1993 Federal income tax return was filed on

April 15, 1996.    His adjusted gross income for 1993 was $44,236.

Petitioner elected to itemize deductions and computed the taxable

income and Federal income tax liability reported on his return

accordingly.    Relevant for our purposes, petitioner claimed

miscellaneous itemized deductions totaling $14,984 on the

Schedule A included with his 1993 return.    That deduction is

composed of the following items:

            Unreimbursed employee expenses    $12,463
            Home office expense                 2,521

The unreimbursed employee expenses relate to traveling expenses

petitioner claims to have incurred in looking for employment as a

school principal.

     In the notice of deficiency respondent disallowed the

claimed miscellaneous itemized deductions.    Respondent further

determined that petitioner is liable for an addition to tax of

$100 under section 6651(a)(1) for his failure to file a timely

1993 Federal income tax return.

                               OPINION

     Petitioner claimed a $2,521 home office deduction on his

1993 return.    According to petitioner, he computed the amount of

the deduction on the basis of an examination of his Federal
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income tax return for 1984 when he was living at a different

address and working for a different employer.     Petitioner argues

that he is entitled to a home office deduction for 1993 because:

(1) He wrote letters to various school boards on his personal

computer, which was set up on the table in the dining area of his

apartment; and (2) messages in response to his letters were left

on his home answering machine.

     In general, a taxpayer is not entitled to deduct any

expenses related to the use of a dwelling unit used by the

taxpayer as a residence during the taxable year.     See sec. 280A.

Expenses attributable to a home office are excepted from this

general rule, however, if the expenses are allocable to a portion

of the dwelling unit which is exclusively used on a regular basis

as the principal place of business for the taxpayer's trade or

business.   See sec. 280A(c)(1).

     During 1993, no portion of petitioner's apartment was

exclusively used on a regular basis as petitioner's principal

place of business.   The fact that petitioner might have been

allowed a home office deduction for a prior year under different

circumstances is of no consequence.      Petitioner is not entitled

to a home office deduction for 1993, and respondent's

determination in this regard is sustained.
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     The balance of the disallowed miscellaneous itemized

deductions consists of traveling expenses that petitioner claims

were incurred in seeking employment as school principal.

     In general, section 162(a) allows a taxpayer to deduct all

ordinary and necessary expenses paid or incurred during the

taxable year in connection with the taxpayer's trade or business,

including expenses incurred in searching for new employment in

the same trade or business.   See Cremona v. Commissioner, 58 T.C.

219 (1972); Primuth v. Commissioner, 54 T.C. 374 (1970).

Expenses incurred in seeking a new trade or business, however,

are not deductible.   See Dean v. Commissioner, 56 T.C. 895

(1971).

     There is some question whether the type of employment that

petitioner was seeking in 1993 (school principal) should be

considered the same type of trade or business in which he was

then currently employed (education specialist for the Department

of Defense).   Nevertheless, we give petitioner the benefit of the

doubt on the point and focus our attention on the nature and

amount of expenses that petitioner claims to have incurred.

     Petitioner claimed a $12,463 deduction for traveling

expenses that he claims he incurred in seeking employment as a

school principal.   Of this amount $8,250 is attributable to

vehicle expenses; $472 is attributable to parking fees, tolls,

etc.; $1,941 is attributable to lodging, airfares, etc.; and
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$2,250 is attributable to meals.   Petitioner computed the vehicle

expenses by applying the then standard mileage rate of $.275 per

mile to the 30,000 miles he claims that he drove to attend job

interviews at various locations.

     All of these expenses are subject to the strict

substantiation requirements imposed by section 274(d).

Deductions for expenses subject to section 274(d) are not allowed

"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, * * * [and] (C) the business purpose of the

expense or other item".   Petitioner claims that he recorded all

of the trips that he took to attend job interviews on a calendar

that was offered into evidence but excluded upon respondent's

objection.   Because the calendar was not admitted into evidence,

it has not been taken into consideration.   Furthermore, under the

circumstances, even if petitioner's calendar had been admitted

into evidence, it would have been given very little, if any,

weight.

     Petitioner argues that he was not required to keep

substantiating records for meals and lodging expenses.    According

to petitioner, he is entitled to claim the "government per diem"

amount for each location to which he traveled to attend a job

interview.   It would appear that petitioner relies upon Rev.
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Proc. 93-21, 1993-1 C.B. 529, in support of his argument.       That

revenue procedure relaxes some of the strict substantiation

requirements of section 274(d) under certain circumstances;

however, none apply to petitioner.       Petitioner did not receive a

per diem allowance from any payor, and he did not incur the meals

expense as a self-employed individual.      The revenue procedure

does not apply, and petitioner cannot rely upon it to support any

portion of the deduction claimed on his 1993 return or his claim

for an additional deduction.

     Petitioner has failed to satisfy the requirements of section

274(d) with respect to any traveling expense that he might have

incurred in seeking employment as a school principal during 1993.

Therefore, he is not entitled to a deduction for any such

expense, and respondent's determination in this regard is

sustained.

     Petitioner also now claims that he is entitled to an

additional deduction for unreimbursed travel expenses incurred as

an employee of the Department of Defense.      Petitioner made a

claim to his employer for reimbursement, but his claim was denied

because it was submitted late.    Assuming that the claim was

otherwise valid, had petitioner submitted the reimbursement claim

timely, the claim would have been paid.      If a taxpayer is

eligible to be reimbursed for an expense from his or her employer

but fails to make a proper claim for reimbursement, the expense
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is not deductible.   See Stolk v. Commissioner, 40 T.C. 345, 356

(1963), affd. 326 F.2d 760 (2d Cir. 1964); Podems v.

Commissioner, 24 T.C. 21, 23 (1955); Fast v. Commissioner, T.C.

Memo. 1998-272.   Petitioner is not entitled to an additional

deduction for employment-related travel expenses that would have

been reimbursed by his employer if he had submitted a timely

claim for reimbursement.

     Petitioner's 1993 Federal income tax return was due on or

before April 15, 1994, see sec. 6072(a), but it was not filed

until April 15, 1996.   Section 6651(a)(1) provides for an

addition to tax in the amount of 5 percent of the amount of the

tax required to have been shown on the return if the failure to

file is for not more than 1 month, with an additional 5 percent

for each month in which the failure to file continues, to a

maximum of 25 percent of the tax in the aggregate.    If an income

tax return is not filed within 60 days of the prescribed date for

filing (including extensions), the addition to tax imposed is not

less than the lesser of $100 or 100 percent of the amount

required to be shown as a tax on the return.   The addition to tax

is applicable unless it is shown that the failure to file is due

to reasonable cause and not due to willful neglect.

     Petitioner's 1993 return was not filed within 60 days of

April 15, 1994.   The amount required to have been shown as a tax

on that return exceeds $100.   In the notice of deficiency
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respondent determined that petitioner was liable for a $100

addition to tax under section 6651(a).

     Petitioner explained that he did not file his return on time

because he believed that he was due a refund.   Petitioner's

erroneous belief that he was due a refund does not constitute

reasonable cause for the failure to file a timely Federal income

tax return.   See Krieger v. Commissioner, T.C. Memo. 1993-347,

affd. without published opinion 64 F.3d 657 (4th Cir. 1995).

Because petitioner has not demonstrated that his failure to file

a timely 1993 Federal income tax return was due to reasonable

cause and not due to willful neglect, he is liable for the

addition to tax under section 6651(a)(1) as determined by

respondent.

     To reflect the foregoing,

                                         Decision will be

                                    entered for respondent.
