                   T.C. Summary Opinion 2007-172



                      UNITED STATES TAX COURT



          BOBBY LORN AND LIBBY C. CLABORN, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16693-05S.             Filed October 3, 2007.



     Bobby Lorn and Libby C. Claborn, pro sese.

     John R. Bampfield, for respondent.



     WHERRY, Judge:   This case was heard pursuant to 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




     1
       All subsequent section references are to the Internal
Revenue Code of 1986, as amended and in effect for the taxable
year at issue. All Rule references are to the Tax Court Rules of
Practice and Procedure.
                                - 2 -

is not reviewable by any other court, and this opinion shall not

be treated as precedent for any other case.

         Respondent determined a deficiency in petitioner’s Federal

income tax for the 2003 taxable year in the amount of $3,592.

The issues now before the Court are:    (1) Whether petitioners are

entitled to an itemized deduction of $2,096 for charitable

contributions of cash to First Presbyterian Church in

Chattanooga, Tennessee (church);2 (2) whether petitioners are

entitled to an itemized deduction in excess of the $25 respondent

allowed for their charitable contribution of property to the

Salvation Army; and (3) whether petitioners are entitled to a

miscellaneous itemized deduction of $21,729 for unreimbursed

employee expenses.




     2
        Respondent concedes that petitioners are allowed a $500
deduction for 20 separate $25 contributions made to their church
in 2003 by check through the use of tithing envelopes. On their
2003 Federal income tax return, petitioners claimed only a $2,000
deduction for contributions to their church in cash rather than
by check. At trial, petitioners claimed such cash contributions
in the amount of $2,096, as set forth on a self-prepared itemized
schedule they prepared for trial. That schedule showed cash
contributions by week to “Lee Anderson’s Class”; “Children’s
Class”; and “Church Offering”. The totals for 2003 were $84, $85
(but petitioners claimed $87 as the result of an addition error),
and $1,925, respectively. The weekly donations to each of the
two “classes” were $2 with one exception, a $1 donation to the
“Children’s Class” for the week of June 22. Respondent also
concedes that petitioners are entitled to a $250 deduction for
contributions made to the Lookout Mountain Education Fund in
2003. That deduction was not allowed in the statutory notice of
deficiency that was issued by respondent in this case.
                                - 3 -

                            Background

     Some of the facts have been stipulated, and the stipulated

facts and accompanying exhibits are hereby incorporated by

reference into our findings.    Petitioners, husband and wife,

resided in Chattanooga, Tennessee, when they filed their petition

in this case.

     Petitioner Bobby Lorn Claborn (Mr. Claborn) is a mechanical

engineer.   Mr. Claborn worked for ResourceTek LLC from January 1

to February 16, 2003, was unemployed for the following 8 months,

and then worked for RWE NUKEM Corporation from October 20, 2003,

through the end of that year.

     While employed by RWE NUKEM Corporation, Mr. Claborn drove

to work each work day.   The distance from his house in

Chattanooga, Tennessee, to the offices of RWE NUKEM Corporation

in Oak Ridge, Tennessee, is approximately 224 miles round trip.

     Petitioners electronically filed a timely joint Form 1040,

U.S. Individual Income Tax Return, for the 2003 taxable year.

Petitioners chose to itemize their deductions and attached a

Schedule A, Itemized Deductions.   The Schedule A reflected total

itemized deductions of $34,100, which included a charitable

contribution deduction of $2,775 and an “other miscellaneous”

deduction of $21,729.3

     3
        This represents the amount by which petitioners’
miscellaneous deductions exceeded 2 percent of their adjusted
                                                   (continued...)
                                - 4 -

     On July 8, 2005, respondent issued the aforementioned notice

of deficiency.   Petitioners then filed a timely petition with

this Court.   A trial was held on March 5, 2007, in Knoxville,

Tennessee.

                              Discussion

I.   Burden of Proof

     As a general rule, the Commissioner’s determination of a

taxpayer’s liability is presumed correct, and the taxpayer bears

the burden of proving that the determination is improper.    See

Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).

However, pursuant to section 7491(a), the burden of proof on

factual issues that affect the taxpayer’s tax liability may be

shifted to the Commissioner where the “taxpayer introduces

credible evidence with respect to * * * such issue”.   In the

instant case, petitioners have neither asserted nor demonstrated

that they satisfied the requirements of section 7491(a),

including the requirement to maintain required records, to shift

the burden of proof onto respondent with respect to any factual

issue.   Consequently, the burden of proof remains on petitioners.

II. General Deduction Rules

     Deductions are a matter of legislative grace, and the

taxpayer must maintain adequate records to substantiate the


     3
      (...continued)
gross income. See sec. 67(a). The amount of petitioners’ total
reported miscellaneous deductions was $23,269.
                                   - 5 -

amounts of any deductions or credits claimed.    Sec. 6001; INDOPCO

Inc. v. Commissioner, 503 U.S. 79, 84 (1992); sec. 1.6001-1(a),

Income Tax Regs.

       Generally, the Court may allow for the deduction of a

claimed expense (other than those subjected to the strict

substantiation requirements of section 274) even where the

taxpayer is unable to fully substantiate it, provided the Court

possesses an evidentiary basis for doing so.    Cohan v.

Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930); Vanicek v.

Commissioner, 85 T.C. 731, 742-743 (1985); sec. 1.274-5T(a),

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

In these instances, the Court is permitted to approximate the

allowable expense, bearing heavily against the taxpayer whose

inexactitude is of his or her own making.    Cohan v. Commissioner,

supra at 544.

III.    Charitable Contributions

       Section 170(a) allows for the deduction of charitable

contributions made to or for the use of an organization described

in section 170(c) and verified as required by the statute and

corresponding regulations.    Section 170(f)(8) generally requires

a taxpayer claiming a charitable contribution deduction greater

than $250 to substantiate the deduction by obtaining a

contemporaneous written acknowledgment of the contribution from

the charitable organization.    Under section 170(f)(8)(B)(i), that
                               - 6 -

written acknowledgment must include “The amount of cash and a

description (but not value) of any property other than cash

contributed.”   In addition, the written acknowledgment must

state, among other things, “Whether the donee organization

provided any goods or services in consideration, in whole or in

part” for the contribution.   Sec. 170(f)(8)(B)(ii).   Finally, a

taxpayer deducting a charitable contribution, regardless of its

amount, is generally required to maintain for each contribution a

canceled check, a receipt from the donee charitable organization

showing the name of the organization and the date and amount of

the contribution, or other reliable written records showing the

name of the donee and the date and amount of the contribution.

Sec. 1.170A-13(a)(1), Income Tax Regs.

     In support of the claimed $2,096 in cash donations to their

church, petitioners have offered the aforementioned self-prepared

list of the contributions and the dates on which they were made,

along with letters from elders of their church stating that

petitioners attend church regularly and participate in church

programs.4

     Notwithstanding the Court’s discretionary authority pursuant

to Cohan, a taxpayer must provide the Court with some basis upon


     4
        Mr. Claborn claims to have made these donations in 44
separate “Church Offering” installments ranging from $25 to $60,
42 separate $2 donations for “Lee Anderson’s Class,” and 42
separate $2 donations and a single $1 donation for “Children’s
Class.”
                               - 7 -

which an estimate of the amount of a claimed deduction may be

made.   Vanicek v. Commissioner, supra.   Without such a basis, any

allowance would amount to “unguided largesse.”    Williams v.

United States, 245 F.2d 559, 560 (5th Cir. 1957).    The

aforementioned documents provided by petitioners in support of

Mr. Claborn’s cash donations, which we believe were not prepared

contemporaneously with those donations, are not reliable enough

to support all of the claimed cash donations.    Specifically, we

do not find the documents reliable enough to support the claimed

$1,925 in “Church Offering” cash donations, especially in light

of the materiality of the amount claimed and the 20 separate $25

contributions that petitioners made to their church in 2003 by

check through the use of tithing envelopes.    In order to satisfy

the regulatory substantiation requirements, checks, receipts, or

other reliable contemporaneous records were required.      See sec.

1.170A-13(a)(1), Income Tax Regs.    As a result, we do not

exercise our discretionary authority pursuant to Cohan with

respect to those cash donations.    However, because petitioners

were regular churchgoers with two children, we do find the

evidence reliable enough to support the claimed 42 separate $2

donations for “Lee Anderson’s Class,” and the 42 separate $2

donations and the single $1 donation for “Children’s Class.”     We

therefore conclude that petitioners are entitled to deduct $169

of cash charitable contributions.
                               - 8 -

      Turning to the value of petitioners’ donation to the

Salvation Army, we note that petitioners have provided a receipt

from the Salvation Army, dated November 21, 2003, reflecting the

donation of three boxes containing clothing and toys.       However,

by failing to state whether the Salvation Army provided any goods

or services in exchange for a contribution that petitioners claim

exceeded $250, the receipt fails to satisfy section

170(f)(8)(B)(ii).   Although we believe that it is unlikely that

petitioners received any goods or services from the Salvation

Army in exchange for their donation, we are required to apply the

statute and cannot escape its clear command.     Weyts v.

Commissioner, T.C. Memo. 2003-68 (“To allow petitioner the

charitable contribution deduction in the circumstances here would

contravene the specific statutory language and purpose of

recordkeeping for contributions in excess of $250.”); see also

Kendrix v. Commissioner, T.C. Memo. 2006-9.     Accordingly,

petitioners have not demonstrated entitlement to a deduction in

excess of the $25 that respondent has allowed for their

charitable contribution of property to the Salvation Army.

IV.   Unreimbursed Employee Business Expenses

      Section 162(a) authorizes a deduction for “all the ordinary

and necessary expenses paid or incurred during the taxable year

in carrying on any trade or business”.   However, taxpayers are

generally barred from deducting the daily cost of commuting to
                                - 9 -

and from work, as a commuting expense is considered to be

personal and nondeductible.    Commissioner v. Flowers, 326 U.S.

465, 473-474 (1946); sec. 1.162-2(e), Income Tax Regs. An

exception to the nondeductibility of commuting expenses involves

situations where the transportation is to and from a temporary

work location.    See Rev. Rul. 90-23, 1990-1 C.B. 28, as amplified

and clarified by Rev. Rul. 94-47, 1994-2 C.B. 18, as modified and

superseded by Rev. Rul. 99-7, 1999-1 C.B. 361.

     Also, certain business expenses described in section 274(d)

are subject to strict substantiation rules that supersede the

Cohan doctrine.    Sanford v. Commissioner, 50 T.C. 823, 827-828

(1968), affd. per curiam 412 F.2d 201 (2d Cir. 1969); sec.

1.274-5T(a), Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov.

6, 1985). Section 274(d) applies to:    (1) Any traveling expense,

including meals and lodging away from home; (2) entertainment,

amusement, and recreational expenses; or (3) the use of “listed

property”, as defined in section 280F(d), including passenger

automobiles.   To deduct such expenses, the taxpayer must

substantiate by adequate records or sufficient evidence to

corroborate the taxpayer’s own testimony:   (1) The amount of the

expenditure or use, which includes mileage in the case of

automobiles; (2) the time and place of the travel, entertainment,

or use; (3) its business purpose; and in the case of
                                - 10 -

entertainment, (4) the business relationship to the taxpayer of

each expenditure or use. Sec. 274(d)(4).

     A. Expenses Relating to Mr. Claborn’s Employment With

ResourceTek LLC

         Mr. Claborn has submitted hotel receipts and a mileage log

in support of claimed deductions relating to his temporary

employment with ResourceTek LLC.5    However, even setting aside

the substantiation requirements, the evidence of record reflects

that Mr. Claborn was reimbursed for the expenses that he incurred

during his brief employment with ResourceTek LLC for which he

claims a deduction.    In that regard, in response to a request

from ResourceTek LLC for a canceled check reflecting that he had

received a per diem allowance, Mr. Claborn was provided a

document reflecting that he was paid an untaxed per diem

allowance that amounted to $400 weekly.6    Although it is unclear

exactly how much of a deduction petitioners think they are

entitled to for expenses relating to Mr. Claborn’s temporary

employment with ResourceTek LLC, petitioners have failed to

demonstrate expenses exceeding Mr. Claborn’s $400 weekly per diem

allowance.    Accordingly, petitioners are denied a deduction for


     5
       Respondent does not contest the temporary nature of Mr.
Claborn’s employment with either ResourceTek LLC or RWE NUKEM
Corporation.
     6
        In addition, Mr. Claborn’s employment agreement with
ResourceTek LLC provided for the possibility of a per diem
allowance.
                             - 11 -

expenses incurred in connection with Mr. Claborn’s employment

with ResourceTek LLC.7

     B. Expenses Relating to Mr. Claborn’s Employment with RWE

NUKEM Corporation

     Petitioners claim a deduction for automobile expenses

incurred by Mr. Claborn while he was temporarily employed by RWE

Nukem Corporation from October 20, 2003, to the end of that year.

As mentioned above, passenger automobiles are listed property

under section 280F subject to the strict substantiation

requirements of section 274(d).

     At trial, Mr. Claborn presented a pocket calendar in which

he made notations of the mileage that he drove to and from work


     7
        On Mar. 8, 2007, petitioners filed a motion to reopen the
record and submitted a Form W-2, Wage and Tax Statement, which
they assert reflects that Mr. Claborn was not paid a per diem
allowance while employed by ResourceTek LLC. Although, in the
spirit of sec. 7463(a) and Rule 174(b), we will grant that
motion, as explained below, that document does not support
petitioners’ argument. The Form W-2 submitted together with the
motion to reopen reflects that Mr. Claborn received $16,922.50 in
wages, tips, and other compensation for his work at ResourceTek,
LLC, in 2003. The document, a payroll ledger prepared by
Tailored Business, which acted as the payroll and bookkeeping
agent for ResourceTek, LLC, indicates that, while working at
ResourceTek, LLC, Mr. Claborn was paid an untaxed per diem
allowance that amounted to $400 weekly. The payroll ledger also
reflects that Mr. Claborn was paid a total of $19,942.50 for his
work at ResourceTek, LLC, in 2003. Thus, it appears that Mr.
Claborn received $3,020 in the form of an untaxed per diem
allowance. Because Mr. Claborn worked at ResourceTek, LLC, for 7
weeks in 2003 and was paid a $400 weekly allowance, it is unclear
why he was paid $3,020 in untaxed per diem benefits rather than
$2,800. In any event, this discrepancy is to Mr. Claborn’s
benefit, as none of the untaxed per diem allowance was reported
on the Form W-2 or taxed by respondent.
                               - 12 -

each day while he was temporarily employed by RWE Nukem

Corporation.   Because Mr. Claborn presented this evidence for the

first time at trial, we do not believe that he maintained

contemporaneous records of his automobile expenses.   And,

although a contemporaneous log is not required in order to

substantiate the deduction, corroborative evidence to support a

taxpayer’s reconstruction of the elements of the expenditure or

use must have “a high degree of probative value to elevate such

statement” to the level of credibility of a contemporaneous

record.   Sec. 1.274-5T(c)(1), Temporary Income Tax Regs., 50 Fed.

Reg. 46014 (Nov. 6, 1985).

     We do not doubt that Mr. Claborn, at some point, attempted

to accurately record his daily mileage.   Nevertheless, the pocket

calendar that he provided at trial does not possess a

sufficiently high degree of probative value to render it credible

as a contemporaneous record.   For example, Mr. Claborn’s calendar

simply contains the number of miles that Mr. Claborn drove each

day, presumably to work.   It does not establish the portion of

his daily mileage attributable to personal transportation.    Nor

does it explain variances in the number of miles recorded.    In

the end, the calendar provided at trial by Mr. Claborn is simply

not definite and reliable enough to support an automobile expense

deduction for 2003.
                              - 13 -

     C. Job-Search Expenses

     Job-search expenses are deductible under section 162(a) to

the extent they are incurred in searching for new employment in

the employee’s same trade or business.    See Primuth v.

Commissioner, 54 T.C. 374, 378-379 (1970); see also Murata v.

Commissioner, T.C. Memo. 1996-321.

     Although respondent asserts that petitioners seek a $5,000

deduction for job-search expenses, petitioners provided no

argument as to that matter at trial, and there is no evidence of

record to support such a deduction.    Consequently, to the extent

that petitioners claim such a deduction, they have not

demonstrated entitlement to it.

      The Court has considered all of petitioners’ contentions,

arguments, requests, and statements.    To the extent not discussed

herein, we conclude that they are meritless, moot, or irrelevant.

     To reflect the foregoing,

                                           Decision will be entered

                                      under Rule 155.
