                  T.C. Summary Opinion 2001-59



                     UNITED STATES TAX COURT



         FREDRICK J. & KIM T. MARQUARDT, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 727-00S.                      Filed April 17, 2001.



     Fredrick J. and Kim T. Marquardt, pro sese.

     Frederic J. Fernandez, for respondent.



     DINAN, Special Trial 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.    The decision to be

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

should not be cited as authority.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the years in issue.
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     Respondent determined deficiencies in petitioners’ Federal

income taxes of $6,004.02, $8,561.18, and $7,701 for the taxable

years 1995, 1996, and 1997.

     The sole issue for decision is whether petitioners have met

the strict substantiation requirements of section 274(d) with

respect to certain automobile expenses.

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

The stipulations of fact and the attached exhibits are

incorporated herein by this reference.        Petitioners resided in

Oconto Falls, Wisconsin, on the date the petition was filed in

this case.

     Fredrick J. Marquardt (petitioner) is in the business of

selling health and life insurance policies door-to-door in rural

areas of Wisconsin.   With respect to this business, during 1995,

1996, and 1997, petitioner did not record on a daily basis either

his mileage or the names of customers he visited, nor did he

record the specific business purpose for each of his trips.

Petitioners reported the following amounts of mileage on

Schedules C, Profit or Loss From Business, in each respective

year:

                           1995            1996     1997

          Business        54,238          78,985   64,638
          Commuting        3,790           8,128    7,960
          Other            3,214           1,104    1,708
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Using the standard mileage rates, petitioners claimed deductions

for car and truck expenses on the Schedules C in the amounts of

$16,271 in 1995, $24,485.35 in 1996, and $20,361 in 1997.

Respondent disallowed these deductions in their entirety with the

exception of $304 allowed for 1997.

     Taxpayers generally must keep records sufficient to

establish the amount of a claimed deduction.   See sec. 6001; sec.

1.6001-1(a) and (e), Income Tax Regs.   In the event that a

taxpayer establishes that a deductible expense has been paid but

is unable to substantiate the precise amount, we generally may

estimate the amount of the deductible expense bearing heavily

against the taxpayer whose inexactitude in substantiating the

amount of the expense is of his own making.    See Cohan v.

Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930).   We cannot

estimate a deductible expense, however, unless the taxpayer

presents evidence sufficient to provide some basis upon which an

estimate may be made.   See Vanicek v. Commissioner, 85 T.C. 731,

743 (1985).

     Section 274(d) imposes stricter requirements and supersedes

the Cohan doctrine.   See Sanford v. Commissioner, 50 T.C. 823,

827 (1968), affd. 412 F.2d 201 (2d Cir. 1969).   Section 274(d)

provides that, unless the taxpayer complies with certain strict

substantiation rules, no deduction is allowable to the taxpayer

(1) for traveling expenses, (2) for entertainment expenses, (3)
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for expenses for gifts, or (4) with respect to listed property.

Listed property is defined under section 280F(d)(4) to include

passenger automobiles and any other property used as a means of

transportation.   To meet the strict substantiation requirements,

the taxpayer must substantiate the amount, time, place, and

business purpose of the expenses.   See sec. 274(d).   With respect

to the use of automobiles, in order to establish the amount of an

expense the taxpayer must establish the amount of business

mileage and the amount of total mileage for which the automobile

was used.   See sec. 1.274-5T(b)(6)(i)(B), Temporary Income Tax

Regs., 50 Fed. Reg. 46016 (Nov. 6, 1985).   The taxpayer may

substantiate the amount of mileage by adequate records or by

sufficient evidence corroborating his own statement.   See sec.

274(d).   A record of the mileage made at or near the time the

automobile was used, supported by documentary evidence, has a

high degree of credibility not present with a subsequently

prepared statement.   See sec. 1.274-5T(c)(1), (2), and (3),

Temporary Income Tax Regs., 50 Fed. Reg. 46016 (Nov. 6, 1985)

     Each taxable year stands alone, and respondent may challenge

in a succeeding year what was condoned or agreed to in a former

year.   See Boatner v. Commissioner, T.C. Memo. 1997-379, affd.

164 F.3d 629 (9th Cir. 1998) (citing Automobile Club v.

Commissioner, 353 U.S. 180 (1957)).    Thus, taxpayers must meet

the requirements of section 274(d) and the regulations
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promulgated thereunder in each taxable year; a taxpayer’s method

of substantiation which does not meet the statutory and

regulatory requirements does not entitle a taxpayer to a

deduction, even if respondent previously accepted similar

substantiation.   See id.; Rose v. Commissioner, 55 T.C. 28, 32

(1970).

     Petitioner provided appointment calendars for each of the

years in issue as purported substantiation of the mileage

expenses.   The 1997 calendar contains names of cities written at

the beginning of most weekdays which are meant to record the

cities visited by petitioner in connection with his business.

The calendar also contains names of individuals whom he

purportedly visited while on some of these trips.   However, these

names were added by petitioner during the audit of petitioners’

return.   Weekly totals of business miles were recorded in the

calendar, but we do not accept these figures as credible evidence

of the mileage petitioner actually incurred.   How petitioner

derived these numbers was not explained at trial; there is no

evidence that a log was maintained allocating business and

personal mileage on the vehicle.   Most importantly, the amounts

are not credible.   In 1997, petitioners reported 64,638 business

miles.    The calendar reflects that petitioner worked 247 days in

1997, which would imply that petitioner drove the automobile an

average of 262 miles each business day.   Furthermore, taking as
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an example the week of March 10, 1997, the calendar reflects

visits to Crivitz, Wisconsin, every day from Monday through

Friday, and that his business mileage for that week was 1,469

miles.   However, Crivitz is approximately 32 miles from

petitioner’s home in Oconto Falls.       We find it highly unlikely,

at best, that petitioner was able to accumulate such a large

number of miles within and around Crivitz--the round-trip mileage

for the week would be approximately 320 miles, leaving 1,149

miles unexplained.

     The 1995 and 1996 calendars contain mileage information

similar to that in the 1997 calendar.       Petitioner testified that,

unlike 1997, he kept a daily record of the names of his contacts

in 1995 and 1996.    Even if we were to accept this testimony,

however, for reasons similar to those discussed above, we do not

find the weekly business mileage amounts to be credible.

     Because petitioners have failed to provide any credible

substantiation to meet the requirements of section 274(d), we

uphold respondent’s disallowance of the claimed car and truck

expenses in each of the years in issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
