                         T.C. Summary Opinion 2015-58



                         UNITED STATES TAX COURT



                    LINDA S. SPJUTE, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 15048-10S.                        Filed September 21, 2015.



      Perry D. Popovich, for petitioner.

      Daniel J. Bryant and Jeffery D. Rice, for respondent.



                              SUMMARY OPINION


      MARVEL, 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



      1
       Unless otherwise indicated, all section references are to the Internal
Revenue Code (Code) in effect for the year at issue, and all Rule references are to
the Tax Court Rules of Practice and Procedure. Some monetary amounts are
rounded.
                                        -2-

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

other court, and this opinion shall not be treated as precedent for any other case.

      Respondent determined a $14,326 income tax deficiency and a $2,865

accuracy-related penalty under section 6662(a) and (b)(1) with respect to

petitioner’s 2007 taxable year. After concessions2 the issues for decision are

(1) whether petitioner is entitled to deduct certain unreimbursed employee

business expenses that she reported on Schedule A of her Form 1040, U.S.

Individual Income Tax Return, for 2007 (2007 return) in excess of amounts that

respondent conceded; (2) whether petitioner is entitled to deductions that she

claimed with respect to an Internet business activity on Schedule C of her 2007

return in excess of amounts that respondent conceded; and (3) whether petitioner

is liable for an accuracy-related penalty under section 6662(a) and (b)(1).




      2
       Respondent conceded that petitioner is entitled to (1) a dependency
exemption deduction with respect to her live-in boyfriend; (2) an interest expense
deduction of $74,711 claimed on Schedule A, Itemized Deductions; (3) part of the
Schedule A unreimbursed employee business expense deduction comprising
expenses for vehicles of $4,850, union and professional dues of $120, uniforms
and protective clothing of $417, education of $307, a cell phone of $295, and
supplies of $738; and (4) certain business expense deductions claimed on
Schedule C, Profit or Loss From Business, comprising legal and professional fees
of $1,460, office expenses of $400, and supplies expenses of $730. Petitioner
conceded that she is not entitled to a Schedule C depreciation expense deduction.
                                        -3-

                                    Background

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

facts are incorporated herein by this reference. Petitioner resided in California

when she petitioned this Court.

      Petitioner is a registered nurse. During 2007 she worked for ATC Health

Care (ATC) and Medical Staffing Network (MSN) as a teaching nurse. ATC and

MSN were staffing agencies that assigned petitioner to various hospitals where

she performed her duties as a teaching nurse. Petitioner’s job entailed going to the

assigned hospital and putting on simulations in a classroom setting to educate

nurses on different tasks. For each day that she had a teaching assignment,

petitioner drove first to either ATC’s or MSN’s office and then to the assigned

hospital. At the end of the day petitioner drove back to the appropriate office to

turn in her timecard.

      Petitioner testified that she kept contemporaneous records of her trips to and

from her various worksites by maintaining a calendar and an appointment book.

However, she did not offer the calendar or the appointment book into evidence.

Instead, sometime during the audit of her 2007 return, petitioner prepared a log

(reconstructed log) that purportedly summarized the calendar and appointment

book, which she offered into evidence at trial. With the exception of handwritten
                                          -4-

totals on the reconstructed log, which were excluded, the reconstructed log was

admitted into evidence without objection. The reconstructed log included

information regarding petitioner’s job assignments during 2007 and mileage

estimates for her trips to and from her employers’ offices and to and from her

jobsites as well as odometer readings.3

        The reconstructed log purported to show, consistent with petitioner’s

testimony at trial, that she worked for both ATC and MSN for the entire 2007

calendar year. However, petitioner did not start working for ATC until October

2007.

        During 2007 ATC had a standard reimbursement policy for teaching nurses

with respect to certain expenses, but it did not authorize any reimbursement for

business mileage resulting from the use by its employees of personal vehicles to

travel to jobsites barring special circumstances not applicable here. The record

does not disclose whether for 2007 MSN had a reimbursement policy covering the

travel expenses of its teaching nurses.

        During 2007 petitioner’s boyfriend, Randolph Richardson, resided with her

and she supported him. Mr. Richardson engaged in an Internet business activity

        3
       Petitioner testified that she arrived at the mileage numbers in the log by
taking the odometer reading at the time she sold the car and then working back
from that number.
                                        -5-

during 2007, the nature of which is not clear from the record. Because petitioner

assisted in the Internet business activity and funded it, she reported income and

expenses allegedly incurred in operating it on Schedule C of her 2007 return.

Petitioner and Mr. Richardson conducted the Internet business activity out of

petitioner’s house. The Internet business activity had gross income of $3,500 for

2007.

        Neither Mr. Richardson4 nor petitioner kept contemporaneous business

records with respect to the Internet business activity. Petitioner did not

substantiate the Schedule C business expenses that remain in dispute, with the

exception of certain fees for business consulting services that petitioner paid by

check to three different consultants: Steve Sirman, Brian Schaeffer, and Mark

Richardson. Steve Sirman helped Mr. Richardson with software development,

Brian Schaeffer helped Mr. Richardson with hardware development, and Mark

Richardson helped Mr. Richardson with the Internet business activity overall.5

        During most of 2007 petitioner resided in a house on Acacia Street (Acacia

house). In 2007 petitioner purchased another house on Birch Avenue (Birch


        4
       Mr. Richardson died sometime in November 2011 and thus was not
available to testify at trial.
        5
      Respondent conceded that petitioner may deduct $1,460 paid to Mr.
Sirman.
                                        -6-

house). Petitioner purchased the Birch house with the intent to convert it into an

elder care facility, but the conversion did not occur. Sometime in 2007, after

petitioner lost the Acacia house to foreclosure, she moved into the Birch house.

      Petitioner hired a tax return preparer to prepare her 2007 return. On her

2007 return petitioner reported wages of $175,750. On the Schedule C petitioner

reported gross receipts of $3,500, total expenses of $21,381, and a net loss of

$17,881.6

      Respondent issued a notice of deficiency dated March 30, 2010,

disallowing, among other items, petitioner’s Schedule A deduction for

unreimbursed employee business expenses and all of her claimed Schedule C

deductions. Respondent also determined that petitioner was liable for an

accuracy-related penalty under section 6662(a) and (b)(1). Petitioner filed a

timely petition in this Court. Subsequently, petitioner filed a bankruptcy petition

with the U.S. Bankruptcy Court for the Eastern District of California. The

bankruptcy court entered an order dated April 5, 2013, granting petitioner a

      6
        Petitioner’s counsel prepared for petitioner a second Form 1040, dated
September 21, 2014, with respect to her 2007 taxable year. Petitioner, however,
did not sign or file the second return with the Internal Revenue Service, nor was it
ever processed as a return. The return, which had a Schedule C for the Internet
business activity that reported gross receipts of $3,500, total business expenses of
$9,170, and a net loss of $5,670, was admitted into evidence at trial solely to
reflect petitioner’s trial position.
                                        -7-

discharge under section 727 of the Bankruptcy Code and, by order dated May 20,

2013, closed the bankruptcy case.

                                     Discussion

I.    Burden of Proof

      Generally, the taxpayer bears the burden of proving his or her entitlement to

any claimed deduction. See Rule 142(a)(1); INDOPCO, Inc. v. Commissioner,

503 U.S. 79, 84 (1992). This includes the burden of substantiation. See sec. 6001;

Hradesky v. Commissioner, 65 T.C. 87, 89 (1975), aff’d per curiam, 540 F.2d 821

(5th Cir. 1976); sec. 1.6001-1(a), (e), Income Tax Regs.

      If a taxpayer produces credible evidence7 with respect to any factual issue

relevant to ascertaining the taxpayer’s liability for any tax imposed by subtitle A

or B of the Code and satisfies the requirements of section 7491(a)(2), the burden

of proof on any such issue shifts to the Commissioner. See sec. 7491(a)(1).

Petitioner has not alleged that section 7491(a) applies nor established her

compliance with the substantiation and recordkeeping requirements. See sec.

7491(a)(2)(A) and (B). Petitioner therefore bears the burden of proof.

      7
       “Credible evidence is the quality of evidence which, after critical analysis,
the court would find sufficient upon which to base a decision on the issue if no
contrary evidence were submitted (without regard to the judicial presumption of
IRS correctness).” Higbee v. Commissioner, 116 T.C. 438, 442 (2001) (quoting
H.R. Conf. Rept. No. 105-599, at 240-241 (1998), 1998-3 C.B. 747, 994-995).
                                         -8-

II.   Deductions Generally

      Section 162(a) permits a taxpayer to deduct ordinary and necessary

expenses paid or incurred in carrying on a trade or business. See Commissioner v.

Lincoln Sav. & Loan Ass’n, 403 U.S. 345, 352 (1971). A trade or business

expense is ordinary if it is normal or customary within a particular trade, business,

or industry, and it is necessary if it is appropriate and helpful for the development

of the business. Commissioner v. Heininger, 320 U.S. 467, 471 (1943); Welch v.

Helvering, 290 U.S. 111, 113 (1933). The term “trade or business” in section

162(a) includes the trade or business of being an employee. Primuth v.

Commissioner, 54 T.C. 374, 377 (1970).

      A taxpayer ordinarily must maintain adequate records to substantiate the

amounts of his or her income and entitlement to any deductions or credits claimed.

See sec. 6001; sec. 1.6001-1(a), Income Tax Regs. If, however, a taxpayer with

inadequate or nonexistent business records is able to prove that he or she paid or

incurred a deductible business expense but does not prove the amount of the

expense, we may estimate the amount allowable in some circumstances (Cohan

rule). See Cohan v. Commissioner, 39 F.2d 540, 542-544 (2d Cir. 1930). The

taxpayer must introduce sufficient evidence to permit us to conclude that the

taxpayer paid or incurred a deductible expense in at least the amount allowed. See
                                        -9-

Williams v. United States, 245 F.2d 559, 560 (5th Cir. 1957); Vanicek v.

Commissioner, 85 T.C. 731, 743 (1985). In estimating the amount allowable, we

bear heavily upon the taxpayer who failed to maintain required records and to

substantiate deductions as the Code requires. See Cohan v. Commissioner, 39

F.2d at 544.

      For certain kinds of business expenses, section 274(d) overrides the Cohan

rule. See Sanford v. Commissioner, 50 T.C. 823, 827 (1968), aff’d per curiam,

412 F.2d 201 (2d Cir. 1969). Section 274(d) provides that no deduction is allowed

with respect to travel, entertainment, and listed property (as defined in section

280F(d)(4)) unless the taxpayer substantiates by adequate records or by sufficient

evidence corroborating the taxpayer’s own statement (1) the amount of the

expense or item; (2) the time and place of the travel, entertainment, or expense;

(3) the business purpose of the entertainment or expense; and (4) the taxpayer’s

relationship to the person or persons entertained. Section 280F(d)(4) defines

listed property as, inter alia, any passenger automobile or any other property used

as a means of transportation.

      Regulations interpreting the requirement under section 274(d) that travel

expenses be substantiated by adequate records generally provide that a taxpayer

must maintain an account book, a diary, a log, a statement of expense, trip sheets,
                                       - 10 -

or a similar record prepared contemporaneously with the use or expenditure and

documentary evidence (e.g., receipts or bills) of the expenses. See sec. 1.274-

5(c)(2)(iii), Income Tax Regs.; sec. 1.274-5T(c)(2), Temporary Income Tax Regs.,

50 Fed. Reg. 46017 (Nov. 6, 1985). In the absence of adequate records to

substantiate an element of an expense, however, the regulations provide that a

taxpayer may establish an element 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.” Sec. 1.274-

5T(c)(3)(i), Temporary Income Tax Regs., 50 Fed. Reg. 46020 (Nov. 6, 1985).

III.   Petitioner’s Claimed Schedule A Mileage Expense Deduction

       After concessions, the remaining issue relating to deductions claimed on

petitioner’s Schedule A is whether she is entitled to deduct an additional $1,616 of

mileage expense that she claimed as part of her unreimbursed employee business

expense deduction.8 The answer is a resounding no.

       A taxpayer’s cost of commuting between the taxpayer’s residence and the

taxpayer’s place of business or employment generally is a nondeductible personal

expense. Secs. 1.162-2(e), 1.262-1(b)(5), Income Tax Regs. However, the cost of


       8
        Respondent conceded that, of the $6,466 vehicle expense deduction that
petitioner claimed, she is entitled to a deduction of $4,850.
                                       - 11 -

going between one business location and another business location is generally

deductible under section 162(a). See Heuer v. Commissioner, 32 T.C. 947, 951

(1959), aff’d per curiam, 283 F.2d 865 (5th Cir. 1960). Vehicle expenses that are

deducted as business expenses will be disallowed in full unless the taxpayer

satisfies the strict substantiation requirements in section 274(d). Sec. 280F(d)(4).

Petitioner testified that she maintained contemporary records in the form of an

appointment book and a calendar that collectively documented her business

mileage for 2007. However, petitioner did not bring those records to the trial.

Instead she relied on the reconstructed log that she created during the examination

of her 2007 return.

      Petitioner testified at length regarding how she prepared the reconstructed

log. She testified under oath that she had worked for both ATC and MSN

throughout 2007 and carefully explained her work assignments for each employer,

including her work assignments for ATC from January through September 2007.

Unfortunately for petitioner, the document that ATC provided to her summarizing

her work history with ATC shows that she did not start her employment at ATC

until October 2007. That document demolished any credibility that petitioner’s

reconstructed log and her sworn testimony might otherwise have had.
                                        - 12 -

      Respondent allowed a substantial amount of petitioner’s unreimbursed

employee business expense deduction attributable to her vehicle expenses.

Petitioner has failed to prove that she is entitled to any additional vehicle expense

deduction.

IV.   Petitioner’s Claimed Schedule C Deductions

      The remaining issues after concessions relating to deductions claimed on

the Schedule C are whether petitioner is entitled to the following Schedule C

deductions: (1) utilities expenses of $3,400; (2) car and truck expenses of $1,000;

(3) legal and professional services of $2,055; and (4) office expenses of $861.

      A.     Utilities Expenses

      Petitioner asserts that she is entitled to deduct household utilities expenses

of $3,400 for 2007 with respect to a home office.9 Generally, expenses of

maintaining a household, including amounts paid for water, utilities, and similar

expenses, are not deductible. Sec. 1.262-1(b)(3), Income Tax Regs. But the

prohibition on deductions does not apply to an item of expense properly

attributable to a portion of a dwelling that is used “exclusively” and “on a regular


      9
        Initially, petitioner deducted $9,687 in utilities expenses on the Schedule C
for the Internet business activity. Respondent disallowed the entire deduction. At
trial petitioner conceded some expenses and is now seeking only a $3,400 utilities
expense deduction.
                                        - 13 -

basis” as the principal place of business of the taxpayer’s trade or business. See

sec. 280A(c); see also Lofstrom v. Commissioner, 125 T.C. 271, 277-278 (2005);

sec. 1.262-1(b)(3), Income Tax Regs.

      Assuming that a taxpayer has a qualifying trade or business, allowable home

office deductions are strictly limited by section 280A. Home office deductions are

limited to the amount of gross income from the use of the dwelling for a trade or

business, reduced by deductions allocable to the unit regardless of its use as the

location of a trade or business, and further reduced by allocable business

deductions not related to the use of the unit itself. See sec. 280A(c)(5). Where a

portion of a residence is devoted exclusively and on a regular basis to business

purposes, the portion of the costs incurred in maintaining the residence which is

properly attributable to the space used in the business is a question of fact to be

decided in each case. See Feldman v. Commissioner, 84 T.C. 1, 8 (1985), aff’d,

791 F.2d 781 (9th Cir. 1986). In determining the cost attributable to the space

used in a business, we ordinarily consider the number of rooms or square footage

devoted exclusively to business purposes and the total number of rooms (assuming

rooms of approximately equal size) or total square footage and calculate a

percentage of business use that we then use to compute the home office deduction.

Id.; Rodriguez v. Commissioner, T.C. Memo. 2009-22; Swain v. Commissioner,
                                        - 14 -

T.C. Memo. 1996-22, aff’d without published opinion, 96 F.3d 1439 (4th Cir.

1996). Other methods of allocating costs may be reasonable under the

circumstances. Feldman v. Commissioner, 84 T.C. at 8. But the computation of a

home office deduction is necessarily dependent on credible evidence regarding the

size of the home and of the part of a home used exclusively for business and the

total expenses paid by a taxpayer to maintain and operate the home.

      Although petitioner testified to the overall square footage of the Acacia

house and the Birch house, she did not introduce any credible evidence to prove

what parts of these houses were used exclusively for the Internet business activity,

if any.10 Petitioner also did not introduce any credible evidence to prove the total

utilities expenses that she paid for each house during 2007 or the dates in 2007

when she and Mr. Richardson resided in each house. Absent such proof, we must

reject petitioner’s claim for a utilities expense deduction.

      Petitioner argued that the use of a ratio calculated on the basis of square

footage is not a proper method because the Internet business activity consumed a




      10
        The Acacia house was petitioner’s primary residence for most of 2007.
After the Acacia house was foreclosed upon, the Birch house became petitioner’s
primary residence.
                                        - 15 -

disproportionate amount of electricity.11 Petitioner further testified that 66% to

75% of her 2007 utilities expenses was attributable to the Internet business

activity. In support of her argument petitioner testified that her utilities expense

decreased from $500 a month to $50 a month after the Internet business activity

ended.

       Petitioner did not introduce into evidence utility bills sufficient to document

the total amount of her utilities expenses during 2007 or any alleged reduction in

monthly utilities expenses after the Internet business activity ended. Absent such

substantiation, we do not find petitioner’s testimony credible. Even assuming,

however, that we were to find petitioner’s unsubstantiated testimony regarding her

2007 utilities expenses to be credible, she failed to prove that she was entitled to a

home office utilities expense deduction in any event. It also appears that any such

deduction, even if proven, must be disallowed pursuant to the section 280A(c)(5)

limitation.12


       11
         Although her argument is not entirely clear, petitioner seems to suggest
that the more appropriate allocation method is comparing electricity use at the
time the business was operating with the electricity use once the business was no
longer operating.
       12
        The Internet business activity had gross income of $3,500 for 2007. The
qualifying mortgage interest and real estate taxes exceeded the amount of gross
income derived from the business. Because the amount of petitioner’s gross
                                                                      (continued...)
                                       - 16 -

      B.     Car and Truck Expenses

      Petitioner claimed a deduction of $1,000 for car and truck expenses related

to the Internet business but failed to substantiate the expenses. Neither Mr.

Richardson nor petitioner kept any records for the Internet business activity. No

deduction for vehicle expenses is allowed when the taxpayer fails to meet the

stringent substantiation requirements of section 274(d). Accordingly, we sustain

respondent’s determination.

      C.     Legal and Professional Services

      Petitioner claimed a deduction of $6,575 for legal and professional services

expenses on her 2007 return but later conceded all but $2,055 of the claimed

deduction on the second Schedule C. See supra note 5. Respondent conceded that

petitioner is entitled to a deduction of $1,460 for Schedule C legal and

professional services provided by Steve Sirman.13 At trial petitioner produced


      12
        (...continued)
income derived from the home office reduced by the interest deductions is less
than zero, she is precluded by sec. 280A(c)(5) from deducting any home office
expenses with respect to the Internet business for 2007. See McClellan v.
Commissioner, T.C. Memo. 2014-257, at *33-*34.
      13
         The record contains copies of checks made out to an individual simply
identified as “Steve”. Petitioner did not produce credible evidence proving that
these checks were in payment for Mr. Sirman’s services, and she is not entitled to
deduct reported expenses for Mr. Sirman’s services in an amount greater than the
                                                                      (continued...)
                                        - 17 -

bank account statements that included copies of checks written to two other

individuals who she claimed provided consulting services to Mr. Richardson in

connection with the Internet business activity totaling $380. On the basis of the

bank account statements and petitioner’s testimony at trial, which on this point we

find credible, we find that she has substantiated that she paid additional

professional expenses of $380 with respect to the Internet business activity and is

entitled to an additional deduction in that amount.

      D.     Office Expenses

      Petitioner contends that she is entitled to a deduction of $1,261 for office

expenses for 2007 with respect to the Internet business activity. Respondent

conceded that petitioner is entitled to an office expense deduction of only $400.

We agree with respondent because petitioner failed to substantiate that she paid

office expenses for the Internet business activity in excess of the amount that

respondent allowed.

      Petitioner contends that certain entries in her checking account statements

prove that she paid more than $400 of office expenses for the Internet business

activity. Petitioner testified that the entries from the point of sale “396 West


      13
        (...continued)
$1,460 that respondent allowed.
                                        - 18 -

Ashlan Ave.” were related to the Internet business activity because that was the

address for the Office Depot that Mr. Richardson frequented to make purchases

for the business. She further testified that certain other items on the statements

were payments to alleged vendors for their products. Petitioner, however, did not

retain any invoices or any other documents to prove the items purchased or their

connection to the business activity, nor did she introduce sufficient evidence to

provide a basis for making an estimate in excess of the amount that respondent

already allowed. See Cohan v. Commissioner, 39 F.2d at 543-544. We find that

petitioner is not entitled to an office expense deduction in excess of that conceded

by respondent.

V.    Accuracy-Related Penalty

      Section 6662(a) and (b)(1) authorizes the Commissioner to impose a 20%

penalty on an underpayment of tax that is attributable to negligence or disregard of

rules or regulations. The term “negligence” includes any failure to make a

reasonable attempt to comply with the provisions of the internal revenue laws, and

the term “disregard” includes any careless, reckless, or intentional disregard. See

sec. 6662(c); sec. 1.6662-3(b)(1) and (2), Income Tax Regs. “‘Negligence’ also

includes any failure by the taxpayer to keep adequate books and records or to

substantiate items properly.” Sec. 1.6662-3(b)(1), Income Tax Regs.
                                        - 19 -

      The accuracy-related penalty does not apply with respect to any portion of

the underpayment for which the taxpayer shows that there was reasonable cause

and that he or she acted in good faith. See sec. 6664(c)(1). The decision as to

whether a taxpayer acted with reasonable cause and in good faith is made on a

case-by-case basis, taking into account all of the pertinent facts and circumstances.

See sec. 1.6664-4(b)(1), Income Tax Regs. “Circumstances that may indicate

reasonable cause and good faith include an honest misunderstanding of fact or law

that is reasonable in light of all of the facts and circumstances, including the

experience, knowledge, and education of the taxpayer.” Id. Reliance on a tax

professional demonstrates reasonable cause when a taxpayer (1) selects a

competent tax adviser, (2) supplies the adviser with all relevant information, and

(3) relies in good faith on the adviser’s professional judgment. See Neonatology

Assocs., P.A. v. Commissioner, 115 T.C. 43, 99 (2000), aff’d, 299 F.3d 221 (3d

Cir. 2002).

      The Commissioner bears the burden of production with respect to the

taxpayer’s liability for the section 6662(a) penalty and must produce sufficient

evidence indicating that it is appropriate to impose the penalty. See sec. 7491(c);

Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001). Once the Commissioner

meets his burden of production, the taxpayer must come forward with persuasive
                                         - 20 -

evidence that the Commissioner’s determination is incorrect or that the taxpayer

had reasonable cause or substantial authority for the position. See Higbee v.

Commissioner, 116 T.C. at 446-447.

      Respondent met his burden of production by establishing, among other

facts, that petitioner did not maintain sufficient records to substantiate the

deductions that she claimed on her 2007 return and that the reconstructed log she

introduced into evidence to substantiate her Schedule A employee business

expense deduction for vehicle expenses was demonstrably false. Petitioner failed

to introduce persuasive evidence to the contrary. The disallowed deductions in

this case are directly attributable to petitioner’s failure to maintain adequate

records to substantiate her claimed Schedule A unreimbursed business expense

deduction and the Schedule C business expense deductions claimed for her and

Mr. Richardson’s Internet business activity and to comply with applicable

regulations. Petitioner has not proven that she had reasonable cause for her failure

to maintain adequate business records to substantiate her claimed deductions.

Although petitioner used a professional tax return preparer to prepare her 2007

return, the record shows that the tax return preparer relied on petitioner’s

unsubstantiated summary of her Internet business activity expenses and her

unsubstantiated claim regarding her employee vehicle expenses. See Neonatology
                                       - 21 -

Assocs., P.A. v. Commissioner, 115 T.C. at 99. We sustain respondent’s

imposition of the accuracy-related penalty under section 6662(a) and (b)(1).

      We have considered the parties’ remaining arguments, and to the extent not

discussed above, conclude those arguments are irrelevant, moot, or without merit.

      To reflect the foregoing and the parties’ concessions,


                                                     Decision will be entered

                                                under Rule 155.
