                     T.C. Summary Opinion 2011-47



                       UNITED STATES TAX COURT



             MARC ROBERT GITTENS, SR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 28121-09S.               Filed April 7, 2011.



     Marc Robert Gittens, Sr., pro se.

     Steven N. Balahtsis, for respondent.



     SWIFT, 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    Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 2006, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
                               - 2 -

this opinion shall not be treated as precedent for any other

case.

     Respondent determined an $8,594 deficiency in petitioner’s

2006 Federal income tax.   After settlement of a number of

adjustments, we must decide whether petitioner can deduct $19,304

in claimed business expenses under section 162 and $2,552 in

claimed tuition expenses under section 222.

                            Background

     At the time his petition was filed, petitioner resided in

New York.

     During 2006 petitioner was employed full time for Tanenbaum

Harber Co., Inc. (Tanenbaum), as a building facility manager and

part time for Pan American Investigation Services (Pan American)

as a security guard.   Petitioner earned from Tanenbaum total

wages of $41,498 and from Pan American total wages of $3,497.

     Also during 2006 petitioner had a part-time side activity

as a handyman which he conducted from his home.   During this time

petitioner was enrolled as a part-time student at Herbert H.

Lehman College in the Bronx, New York.

     In 2006 petitioner owned one vehicle and used that vehicle

both for his handyman activity and for personal travel.

Petitioner maintained one bank account for his personal use and

also for his handyman activity.
                                 - 3 -

     On a Schedule C, Profit or Loss From Business, attached to

his 2006 Federal income tax return, petitioner reported total

income from his handyman activity of $1,000 and no income from

what petitioner refers to as a real estate activity.

     On the Schedule C petitioner also claimed the following

business expense deductions relating to his handyman and real

estate activities:

                  Advertising                $120
                  Car & truck               9,988
                  Depreciation              1,991
                  Legal & professional        120
                  Rental                      210
                  Supplies                    342
                  Meals & entertainment     1,000
                  Miscellaneous other:
                    Bank fees               2,700
                    Bus. cards                 60
                    Education                 225
                    Internet                  618
                    Domain                    140
                    Dues                      350
                    Cell phone              1,440
                      Total                19,304

     On audit respondent disallowed for lack of substantiation

the above $19,304 in business expenses and $4,000 in tuition

expenses that were deducted on petitioner’s 2006 Federal income

tax return.   Respondent now concedes that petitioner is entitled

to deduct $1,448 of the claimed $4,000 tuition expenses, subject

to the adjusted gross income limitation of section 222.

     At the December 2, 2010, trial herein petitioner admitted

and we so find:    (1) That in 2006 petitioner did not engage in a

real estate business; and (2) that the tools with respect to
                                  - 4 -

which petitioner claimed depreciation were acquired for personal

use.

                           Discussion

       Petitioner bears the burden of establishing his entitlement

to deduct the claimed business expenses and tuition expenses in

dispute.    See Rule 142(a).

       Section 162 permits deductions for ordinary and necessary

business expenses, but taxpayers are required to maintain books,

records, and other substantiating documentation relating to the

claimed expenses.    Sec. 6001.

       For courts to allow business expenses or make estimates of

allowable expenses under Cohan v. Commissioner, 39 F.2d 540, 543-

544 (2d Cir. 1930),2 there must be some basis for reasonable

estimates to be made.    Williams v. United States, 245 F.2d 559,

560 (5th Cir. 1957) (“there [must] be sufficient evidence * * *

that at least the amount allowed in the estimate was in fact

spent or incurred for the stated purpose.”); see also Vanicek v.

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




       2
      We note that many of the expenses petitioner deducted are
not susceptible of estimation under Cohan v. Commissioner, 39
F.2d 540 (2d Cir. 1930), but rather must be substantiated
pursuant to sec. 274(d). Such expenses include petitioner’s car
and truck, meals and entertainment, and cell phone expenses. For
the reasons discussed infra--namely that petitioner has failed to
produce any reasonable substantiation for his claimed deductions
--this distinction is immaterial.
                              - 5 -

     Petitioner has not produced any books, records, receipts,

client invoices, canceled checks, or other documentation to

substantiate credibly any aspect of the expenses in dispute--

their actual cost, their estimated cost, or their purpose.3

Further, petitioner did not call any witnesses to corroborate the

claimed expenses.

                           Conclusion

     We conclude that petitioner is not entitled to any of the

claimed business expense deductions in dispute and that

petitioner is entitled to deduct only $1,448 of the claimed

tuition expenses subject to the adjusted gross income limitation

of section 222(b)(2)(B).


                                        Decision will be entered

                                   under Rule 155.




     3
      For example, petitioner did not identify the clubs or
organizations to which he allegedly paid membership fees. For
the cell phone he and his children used, petitioner provided some
monthly AT&T billing statements for periods in later years, but
petitioner provided no statements for 2006.
