                      T.C. Summary Opinion 2009-66



                        UNITED STATES TAX COURT



                   NORMAN VILLANUEVA, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 18415-07S.            Filed May 7, 2009.



        Norman Villanueva, pro se.

        Brian A. Pfeifer, for respondent.



     DEAN, Special Trial Judge:      This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.     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.     Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code in effect for the year in issue,
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and all Rule references are to the Tax Court Rules of Practice

and Procedure.

     Respondent determined a $4,150 deficiency in petitioner’s

2005 Federal income tax.   The issue remaining1 for decision is

whether petitioner is entitled to itemized deductions in an

amount in excess of the standard deduction.

                            Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.    When the petition was

filed, petitioner resided in Florida.

     During 2005 petitioner worked in customer service as a

handyman, making various repairs for tenants.    He did not reside

at the same location as the tenants; thus, he was required to

travel to the tenants’ homes.   He also was not reimbursed by his

employer, Quantum Development, for his expenditures.    Instead, he

claimed $9,282 in unreimbursed employee expenses on his Schedule

A, Itemized Deductions (before application of the 2-percent floor

of section 67(a)).   Petitioner’s unreimbursed employee expenses

consist of:   (1) $330 for tolls; (2) $2,640 for fuel; (3) $920




     1
      Petitioner presented neither evidence nor argument that he
is entitled to his claimed $11,000 deduction for a “GAMING LOSS”.
Petitioner is therefore deemed to have conceded the issue. See
Nielsen v. Commissioner, 61 T.C. 311, 312 (1973); Mikalonis v.
Commissioner, T.C. Memo. 2000-281.
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for clothes; (4) $850 for “REPAIR”; (5) $560 for tires;

(6) $2,350 for “COMPUTER”; and (7) $1,632 for auto insurance.

                                Discussion

I.    Burden of Proof

       The Commissioner’s determinations in a notice of deficiency

are presumed correct, and the taxpayer bears the burden to prove

that the determinations are in error.        Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).         But the burden of proof on

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

shifted to the Commissioner where the taxpayer introduces

credible evidence with respect to the issue and the taxpayer has

satisfied certain conditions.       Sec. 7491(a)(1).   Petitioner has

not alleged that section 7491(a) applies, and he has neither

complied with the substantiation requirements nor maintained all

required records.       See sec. 7491(a)(2)(A) and (B).   Accordingly,

the burden of proof remains on him.

II.    Unreimbursed Employee Expenses

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

and necessary expenses paid or incurred during the taxable year

in carrying on any trade or business.        But as a general rule,

deductions are allowed only to the extent that they are

substantiated.    Secs. 274(d) (no deductions are allowed for
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gifts, listed property,2 or traveling, entertainment, amusement,

or recreation unless substantiated),3 6001 (taxpayers must keep

records sufficient to establish the amounts of the items required

to be shown on their Federal income tax returns).

     Petitioner testified that he did not have any records or

receipts to substantiate his deductions because he has moved to

different homes, “he misplaced the box [containing his receipts

and records], and he cannot find it right now.”4

     Because petitioner has provided no evidence that meets the

substantiation requirements of section 274(d) or 6001 and the

regulations thereunder, he is not entitled to his claimed




     2
      The term “listed property” is defined to include passenger
automobiles and computers or peripheral equipment. Sec.
280F(d)(4)(A)(i), (iv).
     3
      Specifically, sec. 274(d) requires taxpayers to
substantiate their deductions by adequate records or sufficient
evidence to corroborate the taxpayer’s own testimony as to:
(1) The amount of the expenditure or use; (2) the time of the
expenditure or use; (3) the place of the expenditure or use; (3)
the business purpose of the expenditure or use; and (4) the
business relationship to the taxpayer of the persons entertained
or receiving the gift. See sec. 1.274-5T(a) and (b), Temporary
Income Tax Regs., 50 Fed. Reg. 46014 (Nov. 6, 1985).
     4
      Petitioner did not attempt to reconstruct his expenditures.
See Boyd v. Commissioner, 122 T.C. 305, 319-322 (2004); Sanderlin
v. Commissioner, T.C. Memo. 2008-209; sec. 1.274-5T(c)(5),
Temporary Income Tax Regs., 50 Fed. Reg. 46022 (Nov. 6, 1985),
(if a taxpayer can establish that the taxpayer’s failure to
produce an adequate record is due to the loss of the record
through circumstances beyond the taxpayer’s control, the taxpayer
may substantiate a deduction by reasonable reconstruction of the
expenditures).
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deduction for unreimbursed employee expenses.      Respondent’s

determination is sustained.

III.    Itemized Deductions

       Taking into account the Court’s determination and

petitioner’s concession, see supra note 1, his remaining itemized

deduction is $2,548 for State sales taxes.      The $2,548 is less

than the $5,000 standard deduction for 2005.      See Rev. Proc.

2004-71, sec. 3.10, 2004-2 C.B. 970, 973.      The Court assumes that

petitioner would want the larger amount and therefore sustains

respondent’s use of the standard deduction.      See sec. 63; George

v. Commissioner, T.C. Memo. 2006-121 (taxpayers may either elect

the standard deduction or elect to itemize deductions).

       To reflect the foregoing,


                                             Decision will be entered

                                        for respondent.
