                         T.C. Summary Opinion 2013-22



                        UNITED STATES TAX COURT



              CAROLYN SMITH-HENDRICKS, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 8213-12S.                         Filed March 19, 2013.



      Carolyn Smith-Hendricks, pro se.

      Steven Wendell LaBounty, for respondent.



                             SUMMARY OPINION


      GUY, Special Trial Judge: This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect when the
                                         -2-

petition was filed.1 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.

      In a notice of deficiency dated January 6, 2012, respondent determined

deficiencies in petitioner’s Federal income tax and accuracy-related penalties as

follows:

                                                          Penalty
                   Year              Deficiency         sec. 6662(a)
                   2009              $2,321                 $464
                   2010               2,076                  415

Petitioner filed a timely petition for redetermination with the Court pursuant to

section 6213(a).

      The issues remaining for decision are whether petitioner: (1) is entitled to

deductions for unreimbursed employee business expenses for the taxable years

2009 and 2010 in excess of those respondent conceded; (2) is entitled to

deductions for mortgage interest not reported on Forms 1098, Mortgage Interest

Statement, for the taxable years 2009 and 2010; (3) is entitled to deductions for



      1
      Section references are to the Internal Revenue Code (Code), as amended,
and Rule references are to the Tax Court Rules of Practice and Procedure.
Monetary amounts are rounded to the nearest dollar.
                                         -3-

charitable contributions of $995 and $875 for the taxable years 2009 and 2010,

respectively; (4) is entitled to deductions for car and truck expenses of $4,312 and

$3,215 reported on Schedules C, Profit or Loss From Business, for the taxable

years 2009 and 2010, respectively; and (5) is liable for accuracy-related penalties

under section 6662(a) for the taxable years 2009 and 2010.

                                     Background

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

facts and the accompanying exhibits are incorporated herein by this reference.

Petitioner resided in Missouri when the petition was filed.

      During 2009 and 2010 petitioner worked as a reporter for the Belleville

News-Democrat (News-Democrat), a newspaper published in Belleville, Illinois,

and as a freelance reporter for the St. Louis Argus (Argus). Petitioner used her

personal vehicle for work-related transportation for News-Democrat and Argus.

      During the period in question News-Democrat maintained an accountable

plan providing mileage-based reimbursement to employees who used their

personal vehicles for work-related business.2 News-Democrat reimbursed


      2
       Amounts paid to an employee as reimbursement under an accountable plan
are excluded from the employee’s gross income, are not reported as wages or other
compensation on Form W-2, Wage and Tax Statement, and are exempt from
withholding and payment of employment taxes. Biehl v. Commissioner, 118 T.C.
                                                                     (continued...)
                                        -4-

employees at the rate of 32 cents per mile from January 1 through September 13,

2009, and at the rate of 29 cents per mile from September 14, 2009, through

December 31, 2010. News-Democrat reimbursed petitioner for 7,426 miles in 2009

and 8,299 miles in 2010, computed at the rates mentioned above. News-Democrat

reported the amounts reimbursed as nontaxable employee business expense

reimbursements on Forms W-2 issued to petitioner for 2009 and 2010.3

      Argus did not reimburse petitioner for any portion of the use of her vehicle

during the years in issue.

I. Schedules A

      A. Unreimbursed Employees Business Expenses

      Petitioner claimed deductions for unreimbursed employee business expenses

related to her employment at News-Democrat on Schedules A, Itemized


      2
       (...continued)
467, 476 (2002), aff’d, 351 F.3d 982 (9th Cir. 2003); sec. 1.62-2(c)(4), Income Tax
Regs.
      3
        Respondent acknowledges that News-Democrat’s mileage reimbursement
rates were less than the standard mileage reimbursement rates of 55 cents and 50
cents per mile in effect during 2009 and 2010, respectively. See sec. 1.274-5(j)(2),
Income Tax Regs.; I.R.S. News Release IR-2008-131 (Nov. 24, 2008); I.R.S. News
Release IR-2009-111 (Dec. 3, 2009). Respondent concedes that petitioner is
entitled to deductions for unreimbursed employee business expenses for 2009 and
2010 to account for the difference. The parties will address respondent’s
concession in their Rule 155 computations to be submitted in accordance with this
report.
                                          -5-

Deductions, and Forms 2106-EZ, Unreimbursed Employee Business Expenses, for

the years in issue as follows:

                          Item                  2009        2010
             Car and truck                      $7,079     $10,845
             Parking fees                         126          219
             Supplies                             292          307
             Publications/subscriptions           251          960
             Cell phone                          1,121       1,236
             Informants                           571          469
             Meals/entertainment                  482          436

      The record includes copies of petitioner’s monthly cellular phone billing

records for 2009. Although petitioner used her cellular phone primarily for business

purposes, she also used the phone when she was working or otherwise away from

home to communicate with her daughter regarding personal matters. Petitioner did

not maintain a written log or other record during the years in issue distinguishing

between business and personal cellular phone calls.

      B. Residential Mortgage Interest

      Petitioner claimed deductions for residential mortgage interest not reported

on Forms 1098 of $2,870 and $2,760 for the taxable years 2009 and 2010,

respectively.
                                        -6-

      C. Charitable Contributions

      Petitioner claimed a deduction for charitable contributions of $995 on her tax

return for 2009. She reported contributions of $500 by cash or check and

contributions of $495 other than by cash or check.

      Petitioner claimed a deduction for charitable contributions of $875 on her tax

return for 2010. She reported contributions of $500 by cash or check and

contributions of $375 other than by cash or check.

II. Schedules C

      Petitioner reported gross receipts on Schedules C of $1,804 and $1,328 for

2009 and 2010, respectively, in connection with her work as a freelance reporter for

Argus. She claimed deductions for car and truck expenses on these Schedules C of

$4,312 and $3,215 for 2009 and 2010, respectively.

III. Tax Return Preparation

      On the recommendation of a friend, petitioner hired Bill Naes, a local tax

return preparer, to prepare her tax returns for the taxable years 2009 and 2010.

She provided Mr. Naes with the documentation needed to prepare her returns.

After Mr. Naes prepared the returns, petitioner picked them up from his office,

signed them, and mailed them to the Internal Revenue Service without reviewing
                                             -7-

them for accuracy. Petitioner made several attempts to contact Mr. Naes before

trial, but he never returned her calls.

IV. Notice of Deficiency

       In the notice of deficiency respondent disallowed various deductions that

petitioner claimed for the taxable years 2009 and 2010, described herein, and

determined that she is liable for accuracy-related penalties.

V. Tax Records

       Petitioner testified at trial that her tax records for 2009 and 2010 were

destroyed when her basement was flooded. Although petitioner provided some

documents at trial, she generally did not reconstruct the various records needed to

substantiate expenses for the deductions in issue.

                                          Discussion

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

in a notice of deficiency is presumed correct, and the taxpayer bears the burden of

proving that the determination is incorrect. Rule 142(a); Welch v. Helvering, 290

U.S. 111, 115 (1933).

       Petitioner has not complied with the Code’s substantiation requirements and

has not maintained or otherwise reconstructed all required records. Therefore, the

burden of proof as to any relevant factual issue does not shift to respondent under
                                        -8-

section 7491(a). See sec. 7491(a)(1) and (2); Higbee v. Commissioner, 116 T.C.

438, 442-443 (2001).

      Deductions and credits are a matter of legislative grace, and the taxpayer

generally bears the burden of proving entitlement to any deduction or credit claimed.

Rule 142(a); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992); New

Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). A taxpayer must

substantiate deductions claimed by keeping and producing adequate records that

enable the Commissioner to determine the taxpayer’s correct tax liability. Sec.

6001; Hradesky v. Commissioner, 65 T.C. 87, 89-90 (1975), aff’d per curiam, 540

F.2d 821 (5th Cir. 1976); Meneguzzo v. Commissioner, 43 T.C. 824, 831-832

(1965). A taxpayer claiming a deduction on a Federal income tax return must

demonstrate that the deduction is allowable pursuant to a statutory provision and

must further substantiate that the expense to which the deduction relates has been

paid or incurred. Sec. 6001; Hradesky v. Commissioner, 65 T.C. at 89-90.

      When a taxpayer establishes that he or she paid or incurred a deductible

expense but fails to establish the amount of the deduction, the Court normally may

estimate the amount allowable as a deduction. Cohan v. Commissioner, 39 F.2d

540, 543-544 (2d Cir. 1930); Vanicek v. Commissioner, 85 T.C. 731, 742-743

(1985). There must be sufficient evidence in the record, however, to permit the
                                        -9-

Court to conclude that a deductible expense was paid or incurred in at least the

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

      Section 274(d) prescribes more stringent substantiation requirements before a

taxpayer may deduct certain categories of expenses, including travel expenses,

meals and entertainment expenditures, and expenses related to the use of listed

property as defined in section 280F(d)(A)(4). See Sanford v. Commissioner, 50

T.C. 823, 827 (1968), aff’d, 412 F.2d 201 (2d Cir. 1969). As relevant here, for the

taxable year 2009 the term “listed property” included, inter alia, passenger

automobiles and cellular phones. Sec. 280F(d)(4)(A)(i), (v). However, section

280F(d)(4) was amended by the Small Business Jobs Act of 2010, Pub. L. No. 111-

240, sec. 2043(a), 124 Stat. at 2560, which removed cellular phones (and similar

telecommunications equipment) from the definition of listed property. The

amendment is effective for taxable years beginning after December 31, 2009. Id.

sec. 2043(b).

      To satisfy the requirements of section 274(d), a taxpayer generally must

maintain records and documentary evidence which, in combination, are sufficient to

establish the amount of each separate expenditure or business use of listed property,

the date of the expenditure or business use, and the business purpose for an

expenditure or business use. Sec. 1.274-5T(b)(6), Temporary Income Tax Regs., 50
                                         - 10 -

Fed. Reg. 46016 (Nov. 6, 1985). Taxpayers lacking a contemporaneous log are

expected to maintain a record created as near in time as possible to the particular

expenditure or business use (including the elements outlined above), supported by

corroborative documentary evidence that carries with it a high degree of probative

value. Sec. 1.274-5T(c)(1), Temporary Income Tax Regs., 50 Fed. Reg. 46016

(Nov. 6, 1985). The Court may not use the Cohan rule to estimate expenses

covered by section 274(d). Sanford v. Commissioner, 50 T.C. at 827; sec. 1.274-

5T(a), Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov. 6, 1985).

      If a taxpayer’s records have been destroyed or lost due to circumstances

beyond his or her control, the taxpayer may substantiate expenses subject to section

274(d) by making a reasonable reconstruction of the expenditures through other

credible evidence. Boyd v. Commissioner, 122 T.C. 305, 320 (2004); sec. 1.274-

5T(c)(5), Temporary Income Tax Regs., 50 Fed. Reg. 46022 (Nov. 6, 1985). A

taxpayer is required to reconstruct pertinent records to the fullest extent possible.

See, e.g., Chong v. Commissioner, T.C. Memo. 2007-12. If no other documentation

is available, the Court may, but is not obliged to do so, accept credible testimony of

a taxpayer to substantiate a deduction. See Boyd v. Commissioner, 122 T.C. at 320
                                         - 11 -

(citing Watson v. Commissioner, T.C. Memo. 1988-29); Freeman v. Commissioner,

T.C. Memo. 2009-213.

      With the preceding discussion as a backdrop, we turn to the various

deductions in dispute.

I. Schedules A

      A. Unreimbursed Employee Business Expenses

             1. Parking Fees, Supplies, Publications and Subscriptions,
                Informants

      Under section 162(a), a deduction is allowed for ordinary and necessary

expenses paid or incurred during the taxable year in carrying on any trade or

business. A business expense is ordinary for purposes of section 162 if it is normal

or customary within a particular trade, business, or industry and is necessary if it is

appropriate and helpful for the development of the business. See Commissioner v.

Heininger, 320 U.S. 467, 471 (1943); Deputy v. du Pont, 308 U.S. 488, 495 (1940).

The determination of whether an expenditure satisfies the requirements for

deductibility under section 162 is a question of fact. See Commissioner v.

Heininger, 320 U.S. at 475.

      The term “trade or business” includes performing services as an employee.

Primuth v. Commissioner, 54 T.C. 374, 377-378 (1970). However, expenses for
                                        - 12 -

which an employee could claim reimbursement from his or her employer, but does

not, are not ordinary and necessary expenses. See Podems v. Commissioner, 24

T.C. 21, 22-23 (1955).

      Petitioner claimed deductions for expenditures for parking fees, supplies,

publications and subscriptions, and informants for 2009 and 2010.4 Respondent

disallowed the deductions for lack of substantiation. Petitioner did not present any

records to substantiate the expenses, nor did she make a reasonable reconstruction

of the expenses, and there is no evidence in the record that would allow us to

estimate the amount of an allowable deduction. See Vanicek v. Commissioner, 85

T.C. at 743. Consequently, respondent’s determination disallowing these

deductions is sustained.

             2. Cellular Phone Expenses

      During the taxable year 2009 cellular phones were listed property under

section 280F(d)(4)(v) and, therefore, subject to the strict substantiation requirements

of section 274(d). For the taxable year 2010, however, cellular phones were

removed from the definition of listed property.



      4
      There is no evidence in the record that News-Democrat maintained an
accountable plan providing reimbursement to employees for these types of
expenses.
                                         - 13 -

      Petitioner claimed deductions on her Schedules A for 2009 and 2010 for

unreimbursed employee expenses related to her use of a cellular phone.5 The record

includes copies of petitioner’s monthly billing statements for her cellular phone

service covering the period December 6, 2008, through December 5, 2009.

However, she did not provide a written log or other record distinguishing business

calls from personal calls. Although petitioner testified credibly at trial that she used

her cellular phone primarily for business purposes, she also acknowledged that she

used the phone to communicate with her daughter while she was working or

otherwise away from home. In the absence of a written log, a reasonable

reconstruction of the same, or other secondary evidence corroborating her

testimony, petitioner has failed to satisfy the strict substantiation requirements of

section 274(d) as they apply to her cellular phone expenses for 2009.

      Petitioner, somewhat inexplicably, did not provide any records, such as

monthly billing statements, related to her cellular phone service for 2010,

eliminating any opportunity for the Court to estimate her expenditures under the

Cohan doctrine for that year.



      5
      There is no evidence in the record that News-Democrat maintained an
accountable plan providing reimbursement to employees for cellular phone
expenses.
                                        - 14 -

      Consistent with the foregoing, we sustain respondent’s determination

disallowing the deductions that petitioner claimed for cellular phone expenses on

Schedules A for the years in issue.

             3. Car and Truck Expenses

      Car and truck expenses also are subject to the strict substantiation

requirements of section 274(d). Petitioner reported on Forms 2106-EZ that she

drove 12,870 and 21,690 miles during 2009 and 2010, respectively, related to her

work for News-Democrat. News-Democrat reimbursed petitioner $2,281 for 7,426

miles driven in 2009 and $2,322 for 8,299 miles driven in 2010. Petitioner did not

offer a mileage log, a reasonable reconstruction of the expenses, or other secondary

evidence corroborating her testimony that she incurred car and truck expenses for

miles driven in excess of those recognized and reimbursed by News- Democrat. It

follows that respondent’s determination disallowing the deductions for car and truck

expenses reported on petitioner’s Schedules A for the years in issue is sustained.

             4. Mortgage Interest Deductions

      A taxpayer generally is entitled to a deduction for qualified residence interest.

Sec. 163(h)(2)(D). In general, a qualified residence is defined as a taxpayer’s

principal residence and one other home that is used as a residence by the taxpayer.
                                        - 15 -

Sec. 163(h)(4)(A)(i). Qualified residence interest means any interest paid or

accrued during a taxable year on acquisition indebtedness or home equity

indebtedness with respect to the taxpayer’s qualified residence. Sec. 163(h)(3)(A).

      Petitioner claimed deductions for residential mortgage interest in excess of

amounts reported on Forms 1098 issued to her for 2009 and 2010. Respondent

disallowed the deductions for lack of substantiation. Petitioner did not present any

records to substantiate the additional amounts, nor did she offer secondary evidence

corroborating her testimony. Consequently, respondent’s determination disallowing

these deductions is sustained.

             5. Charitable Contributions

      Section 170(a)(1) provides the general rule that there shall be allowable as a

deduction any charitable contribution which is made within the taxable year and

verified under regulations prescribed by the Secretary. Section 1.170A-13(a)(1),

Income Tax Regs., provides that a taxpayer shall maintain a record of a contribution

of money in the form of a canceled check, a receipt from the donee organization,

or other reliable written records showing the name of the donee, the date of the

contribution, and the amount of the contribution. Section 1.170A-13(b), Income

Tax Regs., provides that a taxpayer shall maintain a record of a contribution of

property other than money in the form of a receipt (or letter) from the donee
                                         - 16 -

organization showing the name of the donee, the date and location of the

contribution, and a detailed description of the property. If it is impractical to obtain

a receipt under the circumstances, the taxpayer must maintain reliable written

records with respect to each item of donated property. Id. Pursuant to section

170(f)(8), no deduction is allowed for a charitable contribution of $250 or more

unless the taxpayer substantiates the contribution by a contemporaneous written

acknowledgment from the donee organization that includes (1) the amount of cash

and a description (but not the value) of any property other than cash contributed, (2)

a statement whether the donee organization provided any goods or services in

consideration, in whole or in part, for the contribution, and (3) a description and

good-faith estimate of the value of any goods or services provided in consideration

for the contribution.

      Petitioner claimed deductions for charitable contributions of $995 and $875

on her tax returns for 2009 and 2010, respectively. Respondent disallowed the

deductions for lack of substantiation. Petitioner did not present any records to

substantiate the contributions, such as canceled checks or receipts from the donee

charitable organizations, nor did she offer secondary evidence corroborating her

testimony. As a result, respondent’s determination disallowing these deductions is

sustained.
                                          - 17 -

II. Schedules C: Car and Truck Expenses

      Petitioner claimed deductions for car and truck expenses of $4,312 and

$3,215 on Schedules C for 2009 and 2010, respectively, in connection with her

work as a freelance reporter for Argus.

      As previously discussed, expenses related to the use of a car are subject to

the strict substantiation requirements of section 274(d). Petitioner did not offer a

mileage log, a reasonable reconstruction of these expenses, or other secondary

evidence corroborating her testimony that she incurred car expenses related to her

work for Argus. Although it is quite likely that petitioner incurred some

transportation expenses in connection with her work for Argus, we are obliged to

sustain respondent’s determination disallowing the car expenses she reported on

Schedules C for the years in issue.

III. Accuracy-Related Penalties

      Section 6662(a) and (b)(1) imposes a penalty equal to 20% of the amount of

any underpayment attributable to negligence or disregard of rules or regulations.

The term “negligence” includes any failure to make a reasonable attempt to comply

with tax laws, and “disregard” includes any careless, reckless, or intentional

disregard of rules or regulations. Sec. 6662(c). Negligence also includes any failure

to keep adequate books and records or to substantiate items properly. Sec. 1.6662-
                                        - 18 -

3(b)(1), Income Tax Regs.; see Olive v. Commissioner, 139 T.C. ____, ____ (slip

op. at 40) (Aug. 2, 2012).

      Section 6664(c)(1) provides an exception to the imposition of the accuracy-

related penalty if the taxpayer establishes that there was reasonable cause for, and

the taxpayer acted in good faith with respect to, the underpayment. Sec. 1.6664-

4(a), Income Tax Regs. The determination of whether the taxpayer acted with

reasonable cause and in good faith is made on a case-by-case basis, taking into

account the pertinent facts and circumstances. Sec. 1.6664-4(b)(1), Income Tax

Regs. Reliance on a tax professional may demonstrate that the taxpayer had

reasonable cause and acted in good faith where the taxpayer establishes that: (1) the

adviser was a competent professional with sufficient expertise to justify the

taxpayer’s reliance, (2) the taxpayer provided the adviser with necessary and

accurate information, and (3) the taxpayer actually relied in good faith on the

adviser’s judgment. 3K Inv. Partners v. Commissioner, 133 T.C. 112, 117 (2009);

DeCleene v. Commissioner, 115 T.C. 457, 477 (2000).

      With respect to a taxpayer’s liability for any penalty, section 7491(c) places

on the Commissioner the burden of production, thereby requiring the

Commissioner to come forward with sufficient evidence indicating that it is

appropriate to impose the penalty. Higbee v. Commissioner, 116 T.C. at 446-447.
                                        - 19 -

Once the Commissioner meets his burden of production, the taxpayer must come

forward with persuasive evidence that the Commissioner’s determination is

incorrect. Id. at 447; see Rule 142(a); Welch v. Helvering, 290 U.S. at 115.

      Respondent has discharged his burden of production under section 7491(c) by

showing that petitioner failed to keep adequate records and properly substantiate her

claimed expenses. See sec. 1.6662-3(b)(1), Income Tax Regs.

      Although petitioner relied on a paid tax preparer and trusted him to properly

prepare her tax returns for 2009 and 2010, there is no evidence in the record

regarding Mr. Naes’ experience or qualifications that would support the conclusion

that she reasonably relied on him. Petitioner hired Mr. Naes on the recommendation

of a friend without investigating his qualifications or background. Mr. Naes did not

take the time to review the returns with petitioner, and she did not undertake to

review the returns on her own.

      Taxpayers have a duty to review their tax returns before signing and filing

them, and the duty of filing accurate returns cannot be avoided by placing

responsibility on a tax return preparer. Metra Chem Corp. v. Commissioner, 88

T.C. 654, 662 (1987); Magill v. Commissioner, 70 T.C. 465, 479-480 (1978), aff’d,

651 F.2d 1233 (6th Cir. 1981).
                                        - 20 -

      Petitioner failed to establish that her reliance on her return preparer was

reasonable or in good faith. Thus, on the record presented, we are unable to

conclude that petitioner acted with reasonable cause and in good faith within the

meaning of section 6664(c)(1). Accordingly, petitioner is liable for the accuracy-

related penalty under section 6662(a) on the amounts of the underpayments of tax to

be computed as part of the Rule 155 process.

      To reflect the foregoing,


                                                 Decision will be entered

                                        under Rule 155.
