                   T.C. Summary Opinion 2004-74



                      UNITED STATES TAX COURT



         JAMES ALBERT AND BEVERLY ALDERMAN, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18818-02S.              Filed May 26, 2004.


     James Albert and Beverly Alderman, pro sese.

     Linda J. Wise, for respondent.



     WHERRY, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.1   The decision to be entered

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

be cited as authority.


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

     Respondent determined a Federal income tax deficiency for

petitioners’ 2000 taxable year in the amount of $1,642.    After

concessions, the issue for decision is whether petitioners are

entitled to deduct a portion of their transportation costs as a

medical expense under section 213.

                             Background

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

The stipulations of the parties, with accompanying exhibits, are

incorporated herein by this reference.    During the year 2000 and

through the time the petition was filed in this case, petitioners

resided in Excel, Alabama.

     Petitioner James Albert Alderman (Mr. Alderman) was employed

during 2000 as a mathematics teacher at Escambia County Middle

School.    Escambia County Middle School is located in Atmore,

Alabama.    Petitioner Beverly Alderman (Mrs. Alderman) was

employed in 2000 as a nurse at the Motorola Medical Clinic in

Monroeville, Alabama.

     Mr. Alderman is sight disabled and does not drive.    Due to

this disability, Mrs. Alderman drove Mr. Alderman both to and

from his job each workday.    Atmore is located to the south of

Excel, and the distance from petitioners’ residence to Mr.

Alderman’s place of work was approximately 40 to 45 miles.

Monroeville is located to the north of Excel, and the distance

from petitioners’ residence to the clinic where Mrs. Alderman
                               - 3 -

worked was approximately 7 miles.   Thus, on days both spouses

worked, Mrs. Alderman made roughly two round trips to Atmore and

one to Monroeville.

     Petitioners timely filed a joint Form 1040, U.S. Individual

Income Tax Return, for the 2000 taxable year.    They reported

wages of $53,854 and a State and/or local income tax refund of

$393, for total income and adjusted gross income of $54,247.

Petitioners chose to itemize their deductions and attached a

corresponding Schedule A, Itemized Deductions.    The Schedule A

reflected total itemized deductions of $18,844, which amount

included a deduction for medical and dental expenses of $5,796

(computed by applying the 7.5 percent of adjusted gross income

limitation to total reported medical and dental expenses of

$9,865).   The return then showed taxable income, after

subtracting itemized deductions ($18,844) and two exemptions

($5,600), of $29,803; tax of $4,474; withholding of $6,201; and a

refund amount due of $1,727.

     On September 9, 2002, respondent issued to petitioners a

statutory notice of deficiency for the year 2000.    Respondent

determined therein that petitioners failed to report the taxable

portion of Social Security income received by Mr. Alderman.      The

notice also made correlative adjustments to petitioners’ itemized

deductions based on the increased adjusted gross income.
                                - 4 -

      Petitioners filed a timely petition challenging the notice

of deficiency.   They included an explanation of their

disagreement referencing Mr. Alderman’s “inability to drive due

to a sight disability” and stating:     “I claimed that a normal

commute was not deductible but that amount I payed [sic] above a

normal commute should be.”

      Prior to trial, petitioners conceded the adjustment made in

the notice of deficiency to include the taxable portion of

Mr. Alderman’s Social Security income.     Also, although

petitioners during trial preparation raised an issue of

petitioners’ entitlement to additional employee business expense

deductions for professional dues and educational expenses, they

ultimately elected to litigate only the deductibility of costs

related to Mr. Alderman’s transportation to work.

                             Discussion

I.   Burden of Proof

      As a general rule, determinations by the Commissioner are

presumed correct, and the taxpayer bears the burden of proving

otherwise.   Rule 142(a).   Section 7491 may operate, however, in

specified circumstances to place the burden on the Commissioner.

Section 7491 is applicable to court proceedings that arise in

connection with examinations commencing after July 22, 1998, and

reads in pertinent part:
                                 - 5 -

     SEC. 7491.    BURDEN OF PROOF.

          (a) Burden Shifts Where Taxpayer Produces Credible
     Evidence.--

               (1) General rule.--If, in any court
          proceeding, a taxpayer introduces credible
          evidence with respect to any factual issue
          relevant to ascertaining the liability of the
          taxpayer for any tax imposed by subtitle A or B,
          the Secretary shall have the burden of proof with
          respect to such issue.

               (2) Limitations.--Paragraph (1) shall apply
          with respect to an issue only if--

                       (A) the taxpayer has complied with the
                  requirements under this title to substantiate
                  any item;

                       (B) the taxpayer has maintained all
                  records required under this title and has
                  cooperated with reasonable requests by the
                  Secretary for witnesses, information,
                  documents, meetings, and interviews; * * *

See also Internal Revenue Service Restructuring and Reform Act of

1998, Pub. L. 105-206, sec. 3001(c), 112 Stat. 727, regarding

effective date.

     Section 7491 applies here in that the examination of a 2000

tax return began after the statute’s effective date.    However,

legislative history makes clear that the burden will be shifted

to the Commissioner under the statute only in cases where the

taxpayer establishes that he or she meets the prerequisites set

forth in section 7491(a)(2).    H. Conf. Rept. 105-599, at 239-242

(1998), 1998-3 C.B. 747, 993-996.
                                - 6 -

      With respect to the instant matter, petitioners have neither

raised any argument with respect to a shift of burden under

section 7491 nor shown that they complied with the threshold

elements therefor.    Notably, in this proceeding they have offered

no or negligible documentary evidence pertaining to the specifics

of Mr. Alderman’s transportation to and from work (e.g., mileage,

days of attendance, etc.).   In addition, petitioners have

represented in communications submitted to the Court that records

related to petitioners’ 2000 return were lost or misplaced in

conjunction with a mortgage refinancing.   The Court concludes on

this record that the burden of proof remains on petitioners.

II.   Deduction Under Section 213

      A.   General Rules

      As a general rule, section 262(a) precludes any deduction

“for personal, living, or family expenses.”   Historically, the

cost of commuting to and from a taxpayer’s place of employment

has long been recognized as a nondeductible personal expense.

Commissioner v. Flowers, 326 U.S. 465, 472-473 (1946); Donnelly

v. Commissioner, 262 F.2d 411, 412-413 (2d Cir. 1959), affg. 28

T.C. 1278 (1957); Buck v. Commissioner, 47 T.C. 113, 119 (1966);

see also sec. 1.262-1(b)(5), Income Tax Regs. (“taxpayer’s costs

of commuting to his place of business or employment are personal

expenses and do not qualify as deductible expenses”).
                                - 7 -

     Section 213 carves out of the rule of section 262 a limited

exception for medical expenses, providing as follows in relevant

part:

     SEC. 213.   MEDICAL, DENTAL, ETC., EXPENSES.

          (a) Allowance of Deduction.--There shall be
     allowed as a deduction the expenses paid during the
     taxable year, not compensated for by insurance or
     otherwise, for medical care of the taxpayer, his
     spouse, or a dependent (as defined in section 152), to
     the extent that such expenses exceed 7.5 percent of
     adjusted gross income.

                 *    *    *    *       *   *   *

          (d) Definitions.--For purposes of this section--

               (1) The term “medical care” means amounts
          paid--

                      (A) for the diagnosis, cure, mitigation,
                 treatment, or prevention of disease, or for
                 the purpose of affecting any structure or
                 function of the body,

                      (B) for transportation primarily for and
                 essential to medical care referred to in
                 subparagraph (A),

                      (C) for qualified long-term care
                 services (as defined in section 7702B(c)), or

                       (D) for insurance (including amounts
                 paid as premiums under part B of title XVIII
                 of the Social Security Act, relating to
                 supplementary medical insurance for the aged)
                 covering medical care referred to in
                 subparagraphs (A) and (B) or for any
                 qualified long-term care insurance contract *
                 * * [2]

     2
       The definitions presently codified in sec. 213(d) were
formerly contained in sec. 213(e), which was redesignated for
                                                   (continued...)
                               - 8 -

     Regulations promulgated under section 213 caution that

medical expense deductions should be “confined strictly to

expenses incurred primarily for the prevention or alleviation of

a physical or mental defect or illness.”    Sec. 1.213-1(e)(1)(ii),

Income Tax Regs.   Caselaw interprets this stricture with the

similar pronouncement that the expenses for which a deduction is

sought “must be for goods or services directly or proximately

related to the diagnosis, cure, mitigation, treatment, or

prevention of the disease or illness.”     Jacobs v. Commissioner,

62 T.C. 813, 818 (1974); see also Gerstacker v. Commissioner, 414

F.2d 448, 450 (6th Cir. 1969), revg. and remanding 49 T.C. 522

(1968); Havey v. Commissioner, 12 T.C. 409, 412 (1949).     An

incidental relationship to health, bodily condition, or medical

care is insufficient.   Havey v. Commissioner, supra at 413.

     This Court has established a two-pronged, “but for” test in

determining whether expenses were directly or proximately related

to treatment of a medical condition:   The taxpayer must prove

that (1) the expenditures were an essential element of the

treatment for the condition, and (2) the expenditures would not

have otherwise been incurred for nonmedical reasons.     Jacobs v.


     2
      (...continued)
years beginning after Dec. 31, 1983. Tax Equity and Fiscal
Responsibility Act of 1982, Pub. L. 97-248, sec. 202(b)(3)(B),
(c)(2), 96 Stat. 421. Where appropriate based on the context in
which used, we shall treat references by petitioners to sec.
213(e) as references to current sec. 213(d).
                               - 9 -

Commissioner, supra at 819.   Relevant factors in evaluating these

elements include the motive or purpose of the taxpayer in making

the expenditure, the effect of the purchased goods or services on

the condition, and the origin of the expense.   Id.; Havey v.

Commissioner, supra at 412.

     B.   Contentions of the Parties

     Respondent interprets the above authorities to preclude

deduction of any portion of the costs incurred in transporting

Mr. Alderman to and from work as personal commuting expenses

under section 262.   Petitioners, in contrast, maintain that at

least some part of the costs associated with the intermediate

round trip made by Mrs. Alderman between the workplaces of the

two spouses constitutes a deductible medical expense under

section 213.3   They seek a deduction computed in accordance with

the standard mileage rate established by the Commissioner.

Petitioners’ argument is summarized on brief as follows:


     3
       Sec. 213 is the sole statutory basis argued by petitioners
on brief in support of the deductibility of the transportation
costs in dispute. To the extent that previous statements made or
documents submitted by petitioners raised an issue of
deductibility as a business expense under sec. 162, this issue is
deemed to have been abandoned or conceded. See, e.g., Rule
151(e)(4) and (5); Bradley v. Commissioner, 100 T.C. 367, 370
(1993); Petzoldt v. Commissioner, 92 T.C. 661, 683 (1989); Rybak
v. Commissioner, 91 T.C. 524, 566 n.19 (1988). In any event, the
shortcomings in substantiation discussed infra in text would
preclude deduction as sec. 162 expenses under the pertinent
strict substantiation rules of sec. 274 and accompanying
regulations. We further note that petitioners never raised any
argument pertaining to sec. 67(b)(6) and (d).
                                - 10 -

     when any cost exceeds that of a normal counterpart, and
     that cost is solely for the mitigation or alleviation
     of a disability and one that provides functionality to
     the disabled, this above normal cost is deductible as a
     medical expense confined to the limitation that its
     primary function is not that of normal and ordinary to
     and from work travel when the principles of this type
     of deductibility cost are applied in this area. * * *

Based on this and similar statements, it appears to be

petitioners’ position that the “above normal” costs incurred by

disabled individuals to obtain a commensurate level of

functionality with those taxpayers unaffected by such a

disability should be characterized as directly and proximately

related to medical treatment within the meaning of section 213.

     C.   Analysis

           1.   Standard for Deduction

     While the Court is sympathetic to petitioners’ cause, there

exist multiple difficulties with respect to the deductibility of

petitioners’ transportation expenses.    As an initial matter, the

standard they suggest premised on “above normal” costs would

appear not to comport with existing precedent under section 213.

     Courts have on several occasions considered the

deductibility under section 213 of costs incurred in getting to

and from work by taxpayers suffering from disabling medical

conditions.     For instance, in the early case Donnelly v.

Commissioner, 262 F.2d at 412, the taxpayer, a victim of

infantile paralysis and abdominal cancer, could not use public

transportation and drove a specially designed automobile to work.
                                - 11 -

The Court of Appeals for the Second Circuit concluded that “the

costs of operating an automobile to and from work cannot be

contained in the statutory definition of ‘medical care’”.       Id. at

413.    As explained by the Court of Appeals, an indirect medical

benefit did not make a personal expense deductible because the

statute was limited to those expenses “primarily incurred for

medical care.”    Id.   This Court’s decision below had likewise

reasoned that the taxpayer’s costs were, “in essence, nothing

more than commuter’s expenses which are personal in nature” and

thus failed to qualify under the statute, as follows:

       [The taxpayer] argues that braces and crutches are
       deductible as medical expenses and therefore the costs
       of his special automobile should also be deductible
       because he uses the latter as a substitute for the
       former. The petitioner’s argument, however, ignores
       the fact that his automobile expenses, unlike the
       expense of braces and crutches, do not represent
       expenses incurred primarily for the alleviation of a
       physical defect or illness, which is a requirement for
       deductibility * * * [Donnelly v. Commissioner, 28 T.C.
       at 1279-1280.]

       This Court applied similar logic in Buck v. Commissioner, 47

T.C. 113 (1966), and Goldaper v. Commissioner, T.C. Memo. 1977-

343.    The taxpayer in Buck v. Commissioner, supra at 116, was

subject to epileptic seizures and advised by his physician not to

drive.    He hired a chauffeur to transport him to work.   Id.     The

Court held that the employment of the chauffeur “to drive

petitioner to and from his places of business was a matter of

petitioner’s own personal choice, comfort, and convenience and
                                - 12 -

was not ‘primarily for or essential to’ medical care”; rather,

the salary paid to the chauffeur was “in the nature of commuting

expenses” and was not deductible.     Id. at 119.   The analogous

scenario in Goldaper v. Commissioner, supra, involved a taxpayer

with vision problems, similar to Mr. Alderman, who could not

obtain a driver’s license and was advised by his doctor not to

use public transportation.     We again held that the cost of hiring

a professional driver for transportation to and from work was

nondeductible under section 213 in that “the primary reason for

petitioner’s use of a professional driver was the personal reason

of commuting to and from work.”     Id.

     One further example is afforded by Ginsberg v. United

States, 237 F. Supp. 968, 969 (S.D.N.Y. 1964), where the taxpayer

suffered from chronic osteomyelitis of the leg.     His physician

advised against prolonged walking or standing and in favor of

using an automobile to prevent future attacks or aggravation of

the condition.    Id.   On these facts, the court concluded that

“use of the vehicle will probably mitigate aggravation of the

taxpayer’s condition.    Nevertheless, the expense of using an

automobile for commutation to work and pleasure is not primarily

incurred for medical care where the employment is not prescribed

as therapy.”     Id. at 970.

     In contrast, the only cases in which deduction under section

213 has been permitted for costs incurred for transportation to
                              - 13 -

and from work are those where the employment itself is explicitly

prescribed as therapy to treat a medical condition.   Weinzimer v.

Commissioner, T.C. Memo. 1958-137; Misfeldt v. Kelm, 44 AFTR

1033, 52-2 USTC par. 9495 (D. Minn. 1951).

     Notably, the taxpayers in the majority of the above cases

involving denial of deductions likely could have argued that they

incurred costs in getting to work above those that would have

been required absent their disabling condition.   They further

would probably have been in a position to assert that the effect

of the additional expenditures was to enable them to obtain a

level of functionality on par with that of unimpeded individuals.

Petitioners attempt to distinguish such cases with the statement

that “no specific facts [sic?] costs were incurred that either

were not an elected option by the taxpayer or costs that would

occur normally within the course of an ordinary commute.”    Hence,

petitioners apparently argue that these taxpayers, unlike

themselves, incurred no legitimate “above normal” costs.    We,

however, perceive no meaningful distinction.

     Petitioners elected to convey Mr. Alderman to work by having

Mrs. Alderman drive him.   This option was selected in lieu of

other potential options, such as having Mr. Alderman call a

taxicab, hire a driver, use public transportation, join a

carpool, etc.   Many of these options would clearly have generated

costs nondeductible under the above judicial precedent.    Some of
                              - 14 -

the options would probably have resulted in greater expense to

petitioners, while some might have reduced petitioners’ outlay.

Merely because petitioners’ chosen arrangement enables them to

specifically identify an “extra” commute made to accommodate

Mr. Alderman’s disability should not render their alleged “above

normal” costs any more legitimate for section 213 purposes than

those necessitated by other alternatives.

     Regardless of the transportation method selected, the

primary and fundamental underlying purpose for the costs incurred

in petitioners’ situation was to get Mr. Alderman to and from

work, not to treat his medical condition.   The cases are

unanimous in holding that such costs are personal, nondeductible,

commuting expenses.   Stated otherwise, the costs of

transportation to and from work are not directly and proximately

related to medical care where employment is not prescribed as

therapy and thus do not satisfy the “but for” test applied under

section 213.

      Petitioners’ circumstances illustrate this shortcoming.    As

previously indicated, the “but for” test requires that (1) the

expenditures were an essential element of the treatment for the

condition, and (2) the expenditures would not have otherwise been

incurred for nonmedical reasons.   Jacobs v. Commissioner, 62

T.C. at 819.   Working, though admirable, was not an essential

part of Mr. Alderman’s prescribed treatment, and there has been
                              - 15 -

no showing that equivalent costs would not have been incurred for

nonmedical reasons.   Even absent Mr. Alderman’s sight disability,

an identical scenario could have ensued if the spouses owned only

one car.   Moreover, two cars might not have reduced overall

expenses in light of the outlays for the second automobile,

insurance, taxes, tags, licenses, maintenance, and repairs.

Thus, while the Court sympathizes with the hardships experienced

by petitioners in enabling Mr. Alderman to engage in his

important work as a math teacher, allowing a medical expense

deduction in these circumstances would be contrary to the

applicable section 213 rules.4


     4
       Having obviously expended significant time and effort
researching the issue, petitioners on brief cite a number of
revenue rulings, e.g., Rev. Rul. 83-33, 1983-1 C.B. 70; Rev. Rul.
71-48, 1971-1 C.B. 99; Rev. Rul. 70-606, 1970-2 C.B. 66; Rev.
Rul. 67-76, 1967-1 C.B. 70; and Rev. Rul. 66-80, 1966-1 C.B. 57,
as well as others. However, all of these rulings appear to be
consistent with the above-discussed standards, most deal with
issues involving the deductibility of various capital
expenditures, and none hold or suggest that the costs of
commuting to and from an individual’s place of business should
qualify under sec. 213. For instance, Rev. Rul. 66-80, supra,
1966-1 C.B. 57, sanctioned deduction of costs for equipment to
adapt an automobile for handicapped use but warned:

          However, irrespective of the physical condition of
     the individual, the costs of operating the automobile,
     as a means of transportation that is not primarily for
     and essential to medical care, are not allowable
     medical expense deductions within the limitations of
     section 213 of the Code. For example, costs of
     commuting to or from the individual’s place of business
     or employment are nondeductible personal expenses. * *
     *

                                                    (continued...)
                              - 16 -

          2.   Substantiation of Deduction

     A second difficulty with petitioners’ position here is that

the record before us falls short of providing any adequate

substantiation for petitioners’ costs in this case.   Deductions

are a matter of “legislative grace”, and “a taxpayer seeking a

deduction must be able to point to an applicable statute and show

that he comes within its terms.”   New Colonial Ice Co. v.

Helvering, 292 U.S. 435, 440 (1934); see also Rule 142(a).

     Any amount claimed as a deductible expense must be

substantiated, and taxpayers are clearly required to maintain

adequate records sufficient to meet this requirement.   Sec. 6001;

Hradesky v. Commissioner, 65 T.C. 87, 89-90 (1975), affd. 540

F.2d 821 (5th Cir. 1976); sec. 1.6001-1(a), Income Tax Regs.

When a taxpayer adequately establishes that he or she paid or

incurred a deductible expense but does not establish the precise

amount, we may in some circumstances estimate the allowable

deduction, bearing heavily against the taxpayer whose

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

39 F.2d 540, 543-544 (2d Cir. 1930).   There must, however, be

sufficient evidence in the record to provide a basis upon which


     4
      (...continued)
Likewise, Rev. Rul. 67-76, supra, 1967-1 C.B. 70, allowed a
medical expense deduction for the purchase of a three-wheeled
“autoette”, stating that the taxpayer “uses it primarily for the
alleviation of his sickness or disability and not merely to
provide transportation between his residence and place of
employment”.
                             - 17 -

an estimate may be made and to permit us to conclude that a

deductible expense, rather than a nondeductible personal expense,

was incurred in at least the amount allowed.   Williams v. United

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

Commissioner, 85 T.C. 731, 742-743 (1985).5

     The record before us is rife with inconsistencies as to

nearly every element that would be germane to our ability to

determine or estimate the amount of any deductible expenses for

Mr. Alderman’s transportation.   We first consider mileage.   At

trial, Mr. Alderman testified that the distance between

petitioners’ residence and his place of work was 45 miles,

between his work and Mrs. Alderman’s work was 55 miles, and

between Mrs. Alderman’s work and their residence was 7 miles.      He


     5
       In written communications with the Court, petitioners
indicate some disagreement between the parties regarding our
authority to estimate deductible expenses. Petitioners imply
that the extent of this authority may have been misrepresented by
respondent, thereby influencing petitioners’ choice to forgo
particular arguments. Petitioners cite Maher v. Commissioner,
T.C. Memo. 2003-85, for the proposition that “the court estimated
an expense not documented monetarily but was physically proven to
have been incurred.” While we regret any misunderstanding that
may have ensued between the parties, we clarify that petitioners’
reading of Maher v. Commissioner, supra, would appear to be
overly broad. Specifically, the evidence in that case
established a specific total amount paid by Mr. Maher for
automobile insurance. Id. Based on the record presented, this
Court was then able to estimate the percentage of that insurance
attributable to Mrs. Maher’s use of the automobile(s) and
consequently deductible as alimony. Id. Maher v. Commissioner,
supra, however, does not permit the Court to estimate the
deductible portion of an expense when there is no documentary or
other credible evidence in the record establishing the total
expense incurred.
                              - 18 -

further indicated that 90 miles per day was the portion for which

petitioners sought a deduction.

     On brief, petitioners open by stating that all mileage

discussed therein is subject to an additional 5 miles depending

upon the route available and that the quoted figures are “the

lesser mileage.”   They then proceed to describe the distance

between petitioners’ residence and Mr. Alderman’s employment in

Atmore as “some 40 miles” and between Mr. Alderman’s work and

that of Mrs. Alderman in Monroeville as “some 50 miles”.    They

ask that 100 miles per day for the intermediate commute be

treated as a deductible expense.6

     Difficulties inherent in this state of affairs include the

following.   Statements made on brief are not evidence and cannot

form the basis for this Court’s determination.    Rule 143(b);

Niedringhaus v. Commissioner, 99 T.C. 202, 214 n.7 (1992).

Furthermore, the “some” language used by petitioners on brief,

not to mention the round numbers, indicates that these figures

are themselves only estimates.    More importantly, the numbers

used in petitioners’ brief do not take into account or compensate

for the two 7-mile portions, discussed at trial, that would be

necessitated by Mrs. Alderman’s own commute.     At the same time,


     6
       We note that petitioners failed to use a consistent
numbering scheme in identifying and discussing the various
segments of their commute within their opening brief and between
their opening and reply briefs. Where appropriate, we have used
context to take into account any resultant discrepancies.
                               - 19 -

the 40- and 50-mile figures given on brief imply either that this

leg of the journey required 10 rather than 7 miles or that

petitioners’ statement that quoted figures use “the lesser

mileage” in the case of alternate routes is in fact inaccurate.

     The situation with respect to the number of days of

pertinent travel is similar.   At trial Mr. Alderman testified

that he “did not miss a day during the year 2000” and was seeking

a deduction for the “182-day school year”.   However, exhibits

introduced by petitioners include a copy of a leave request

granting Mr. Alderman professional leave for March 16 and 17,

2000, and a copy of a certificate of attendance and participation

at a teaching conference held in Mobile, Alabama, during March 16

through 18, 2000.   On brief petitioners then calculate their

alleged deductible expenditures based on 94 days, apparently

computed as the total of one-half of a 180-day school year plus

one-half of 8 parent conference or Parent Teacher Organization

meeting days.   There is no explanation whatsoever for the

dramatic reduction in alleged workdays.   There also has been no

showing that Mrs. Alderman worked every day that Mr. Alderman did

and that their schedules and hours invariably coincided in the

manner generally described at trial and on brief.7


     7
       The Court has considered a variety of possible factual
scenarios in an attempt to reconcile petitioners’ statements on
brief, including their acknowledgment that a portion of their
travel constitutes a nondeductible “normal commute”, with the
                                                   (continued...)
                              - 20 -

     Consequently, while we cannot rely on petitioners’

statements on brief as evidence in this proceeding, the

inconsistencies between and among the remarks therein and the

testimony and exhibits offered at trial, which are evidence, call

into question the accuracy and reliability of the pertinent

evidentiary material.   No documentary evidence supporting either

the mileage figures or the workdays has ever been submitted.    On

this record of apparent estimates, unexplained inconsistencies,

and silence on relevant facts, any further estimate by the Court

would lack a reasonable foundation.    Hence, we are unable to form

a rational basis upon which to apply even the applicable standard

mileage rate.8

     A further difficulty with permitting petitioners to claim a

medical expense deduction for the costs of transporting

Mr. Alderman to work is that the record fails to establish that


     7
      (...continued)
testimony and exhibits introduced at trial. We nonetheless have
been unable rationally to explain the discrepancies. For
instance, even considering the difference between a calendar year
and a typical school year does not appear to account for the 94-
day period cited by petitioners. The exhibits introduced by
petitioners showing Mr. Alderman’s attendance at professional
development events date from August of 1999 through February of
2001, and thus would seem to indicate employment during both the
1999-2000 and the 2000-2001 school years.
     8
       We note that, pursuant to Rev. Proc. 99-38, 1999-2 C.B.
525, the standard mileage rate for computing deductible medical
expenses for the year 2000 was 10 cents per mile. Petitioners,
inconsistent with their substantive argument, use 32.5 cents per
mile, the rate specified in the revenue procedure for business
expense deductions, in certain calculations.
                             - 21 -

no part of these costs was incorporated into the $9,865 in

medical expenses reflected on petitioners’ Schedule A for 2000.

The evidence is devoid of any information as to the source of the

reported figure.

     In conclusion, we hold that petitioners are not entitled to

any additional deduction for costs incurred in transporting

Mr. Alderman to and from his place of employment.    To reflect the

foregoing and concessions made,


                                        Decision will be entered

                                   for respondent.
