                   T.C. Summary Opinion 2008-5


                     UNITED STATES TAX COURT



                   AKIN FALODUN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16424-05S.             Filed January 7, 2008.


     Akin Falodun, pro se.

     William J. Gregg, for respondent.


     ARMEN, Special Trial Judge:1   This case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in




     1
        Special Trial Judge Carleton D. Powell, to whom this case
was submitted, died on Aug. 23, 2007, while in office. By Order
dated Aug. 30, 2007, the parties were directed to file, on or
before Oct. 2, 2007, either a response consenting to the
reassignment of this case or a notice objecting to the
reassignment, together with a motion for a new trial or a motion
to supplement the record, stating reasons in support of either
motion. On Sept. 11, 2007, counsel for respondent filed a
response consenting to the reassignment of this case. To date,
and despite several followup Orders, the Court has received no
response from petitioner. After allowing ample time for a
response from petitioner, the Chief Judge reassigned this case to
Special Trial Judge Robert N. Armen, Jr., for disposition on the
existing record.
                                - 2 -

effect when the petition was filed.2      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.

     Respondent determined a deficiency in petitioner’s Federal

income tax for 2003 of $3,330.00.

     This is purely a substantiation case.      The issues for

decision are as follows:

     (1) Whether petitioner is entitled to the deduction claimed

by him on his return for charitable contributions in the amount

of $12,921.   We hold that he is to the extent provided herein.

     (2) Whether petitioner is entitled to the deduction claimed

by him on his return for unreimbursed employee expenses in the

amount of $10,348.    We hold that he is not.

                             Background

     Some of the facts have been stipulated, and they are so

found.

Petitioner

     Petitioner resided in Laurel, Maryland, at the time that the

petition was filed.




     2
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
taxable year in issue, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                                 - 3 -

        In 2003, the taxable year in issue, petitioner was employed

by Hughes Network Systems, Inc. (Hughes), of Germantown,

Maryland, on a full-time basis, working Monday through Friday

from 9 a.m. to 5 p.m.     In addition, petitioner “did some private

tutoring as well”, working some evenings and weekends.

        At year’s end, petitioner received a Form W-2, Wage and Tax

Statement, from Hughes reporting wages paid of $43,563 and a Form

1099-MISC, Miscellaneous Income, from Consolidated Education

Resources, LLC of Manassas, Virginia, reporting nonemployee

income of $6,215.

Petitioner’s Return

     Petitioner timely filed a Federal income tax return for

2003.     On his return, petitioner reported adjusted gross income

of $52,587, consisting principally of wages of $43,563 and

business income of $6,215.    On his return, petitioner listed his

occupation as “engineer”.

     Petitioner itemized his deductions, attaching to his return

a Schedule A, Itemized Deductions, in support thereof.

Petitioner claimed total itemized deductions of $35,822, which

included charitable contributions of $12,921 and unreimbursed

employee expenses of $10,348.

Charitable Contributions

     On his return, petitioner subdivided total charitable

contributions as follows:
                                                 - 4 -

                  Gifts by cash or check                          $ 4,356
                  Other than by cash or check                       8,565
                                                                  $12,921

      In support of his claimed deduction of the latter category,

petitioner attached to his return a Form 8283, Noncash Charitable

Contributions, reporting therein the following three categories

of donated property, which we reproduce literally, and the

associated donee organizations:

“A”        GOLD CLOTHES APPLI TOYATV                   Nat’l Children’s Center, Adelphi, MD
“B”        SHOE RACK TV VCR BOGSCLOT                   Salvation Army, Gaithersburg, MD
“C”        5LEATHERCASE 1000CUPS DTS                   Salvation Army, Hyattsville, MD

Petitioner then provided the following information regarding each

of these three categories of donated property:

      Category      Date of the     Date acquired   How aquired   Donor’s cost   Fair market Method used
                    contribution    by donor        by donor      or adjusted      value     to determine
                                                                     basis                       fmv

           “A”       8/8/2003         5/1/2000      Purchased       $4,512       $3,488           MPV
           “B”       8/12/2003        5/1/2001      Purchased        4,511        2,500           MPV
           “C”       8/12/2002[1]    5/1/2001         MPV[2]         2,577        2,577        Purchased
          Total                                                                  $8,565
      1
          Presumably, a typographical error made on the form.
      2
          Not further explained on the form.


Unreimbursed Employee Expenses

      As previously indicated, petitioner also claimed on Schedule

A a deduction for unreimbursed employee expenses consisting of a

vehicle expense of $10,348 (prior to diminution by the 2-percent

floor prescribed by section 67).                       In support of this deduction,

petitioner attached to his return a Form 2106, Employee Business
                               - 5 -

Expenses, and reported the following:

          Business miles driven during 2003   28,744 miles
          Other miles driven                  17,036 miles
          Total miles driven                  45,780 miles

          Percentage of business use          62.790 %

          Standard mileage rate               $0.36/business
          x Business miles                  x 28,744 miles
          Deduction                           $10,348


     Somewhat inconsistent with the foregoing, petitioner also

attached to his return a Schedule C-EZ, Net Profit From Business.

On this schedule, petitioner reported nonemployee compensation

from Consolidated Education Resources, LLC, of $6,215, but

reported no expenses, claiming them instead on Schedule A as

unreimbursed employee expenses, as discussed in the preceding

paragraph.   However, petitioner did report, and pay, self-

employment tax on the basis of nonemployee compensation of $6,215

without reduction for any expense.3

Notice of Deficiency and Petition

     In the notice of deficiency, respondent determined that

petitioner had failed to substantiate the deductions claimed for

charitable contributions and employee business expenses.

Accordingly, respondent disallowed those two deductions in their




     3
        Petitioner also claimed a so-called above-the-line
deduction for one-half of the self-employment tax reported.    See
sec. 164(f).
                               - 6 -

entirety.   Respondent did not disturb the other itemized

deductions claimed by petitioner on Schedule A.4

      Petitioner disputed respondent’s deficiency determination by

timely filing a petition for redetermination.

                            Discussion

A.   General Principles

      Deductions are a matter of legislative grace, and the

taxpayer bears the burden of proving that he or she is entitled

to any deduction claimed.   Rule 142(a); Deputy v. du Pont, 308

U.S. 488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U.S.

435, 440 (1934); see INDOPCO, Inc. v. Commissioner, 503 U.S. 79,

84 (1992); Welch v. Helvering, 290 U.S. 111, 115 (1933).      This

includes the burden of substantiation.   Hradesky v. Commissioner,

65 T.C. 87, 90 (1975), affd. per curiam 540 F.2d 821 (5th Cir.

1976); cf. sec. 7491(a) (which section does not serve to effect

any burden-shifting in the instant case given petitioner’s

failure (1) to raise the matter and (2) to comply with all of the

requirements of section 7491(a)(2)).

     We also observe that section 6001 and the regulations

promulgated thereunder require taxpayers to maintain records




      4
        The allowed deductions exceeded the amount of the
standard deduction to which petitioner would otherwise have been
entitled.
                                - 7 -

sufficient to permit verification of income and expenses.     See

sec. 1.6001-1(a), Income Tax Regs.

     As a general rule, if, in the absence of such records, a

taxpayer provides sufficient evidence that the taxpayer has

incurred a deductible expense, but the taxpayer is unable to

adequately substantiate the amount of the deduction to which he

or she is otherwise entitled, the Court may estimate the amount

of such expense and allow the deduction to that extent.     Cohan v.

Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930).    However, in

order for the Court to estimate the amount of an expense, we must

have some basis upon which an estimate may be made.    Vanicek v.

Commissioner, 85 T.C. 731, 743 (1985).   Without such a basis, any

allowance would amount to unguided largesse.   Williams v. United

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

     In the case of certain expenses, section 274(d) overrides

the so-called Cohan doctrine.   Sanford v. Commissioner, 50 T.C.

823, 827 (1968), affd. per curiam 412 F.2d 201 (2d Cir. 1969);

sec. 1.274-5T(a), Temporary Income Tax Regs., 50 Fed. Reg. 46014

(Nov. 6, 1985).   Specifically, and as relevant herein, section

274(d) provides that no deduction is allowable with respect to

listed property as defined in section 280F(d)(4) unless the

deduction is substantiated in accordance with the strict

substantiation requirements of section 274(d) and the regulations

promulgated thereunder.   Included in the definition of listed
                                - 8 -

property in section 280F(d)(4) is any passenger automobile.      Sec.

280F(d)(4)(A)(i).

      Thus, under section 274(d), no deduction is allowable for

expenses incurred in respect of listed property such as a

passenger automobile on the basis of any approximation or the

unsupported testimony of the taxpayer.      E.g., Golden v.

Commissioner, T.C. Memo. 1993-602.      In other words, in the

absence of adequate records or sufficient evidence corroborating

the taxpayer’s own statement, any deduction that is subject to

the stringent substantiation requirements of section 274(d) is

proscribed.    These stringent substantiation requirements are

designed to encourage taxpayers to maintain records, together

with documentary evidence substantiating each element of the

expense to be deducted.    Sec. 1.274-5T(c)(1), Temporary Income

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

B.   Charitable Contributions

      1.   Gifts by Cash or Check

      At trial, petitioner offered only one document that was

admitted into evidence, viz, a receipt dated January 4, 2004,

acknowledging a $50 contribution for 2003 to Feed The Hungry

International of Alexandria, Virginia.     We allow this deduction.

      Notably, although petitioner claimed to have (1) tithed to

his church and (2) made yet additional contributions to other

churches, and although he claimed to have made at least some of
                               - 9 -

his contributions by check, he made no effort to introduce any

canceled checks, bank statements, check registers, or similar

bank-related evidence in support of his claims, offering only

unpersuasive excuses for his failure to do so.   The sole church-

related document that petitioner sought to introduce was not

admitted into evidence because it was not found by the Court to

be trustworthy.5

     On the other hand, we are satisfied that petitioner made

some church contributions.   Accordingly, exercising our

discretion, but bearing heavily against petitioner who bears sole

responsibility for any inexactitude, see Cohan v. Commissioner,

supra, we hold that petitioner is entitled to a deduction for

church contributions in the amount of $250.

     2.   Other Than by Cash or Check

     At trial, petitioner introduced several “receipts”

acknowledging gifts of property.   However, petitioner admitted

that, for the most part, he was the person who had filled out the

receipts, describing the condition of the property donated

generally as either “new” or “excellent”, and that he was, in

each instance, the person who had ascribed the monetary value


     5
        At calendar call, petitioner was expressly advised by the
Court of the importance of calling the church treasurer, business
manager, or similar church individual as a witness to corroborate
his claims if he lacked sound documentary evidence, such as
canceled checks or bank statements. At trial, later that week,
petitioner produced the aforementioned document but called no
witness to support his claimed church donations.
                              - 10 -

reflected on the receipts.   The Court admitted these receipts

into evidence solely for the purpose of showing that some gifts

of property had been made.

      Petitioner’s testimony regarding value leaves much to be

desired, as does his testimony regarding the even more

fundamental issue of deciding exactly what was donated.   For

example, petitioner claims to have donated to the Salvation Army

a brand-new surround-sound radio with 12 speakers having a value

of “about maybe $400”.   However, petitioner was unable to produce

a receipt for his purchase because “it was cash, actually” given

to “some guys, you know, in the parking lot” “who approached me

at Cosco” as “I was driving one day”.   According to petitioner:

      The speakers, you know--they were very expensive
      speakers, and they gave me them at a discount price.
      So I paid for the speakers, but when I go home, the
      power wasn’t sufficient. It wasn’t worth what the guy
      told me, so I couldn’t use it.

      We accept petitioner’s testimony that he made some gifts of

property, but his proof pales in comparison to what was claimed.

As before, we exercise our discretion, but bear heavily against

petitioner, see id., and we hold that he is entitled to a

deduction for gifts of property in the amount of $250.

C.   Employee Business Expenses

      As an initial matter, we note that petitioner’s vehicle

expense, to the extent allowable, is a business expense

deductible under section 162(a) as a so-called above-the-line
                                - 11 -

trade or business expense incident to petitioner’s tutoring

activity.6    That said, we are left to decide whether petitioner’s

vehicle expense (or any portion thereof), the sole deduction

claimed by petitioner in respect of that activity, is allowable

under sections 162(a) and 274(d) and the pertinent regulations

thereunder.

     At trial, petitioner introduced into evidence a “log”.    This

document does not satisfy the strict substantiation requirements

imposed by law, as the following colloquy from trial clearly

demonstrates:

          THE COURT:    * * * What is the total of this
     mileage?

          PETITIONER: It’s not for the whole year. I
     didn’t complete it. When I did my taxes, I just
     estimated, okay, you know, the car was–

          THE COURT: So you really just guessed what your
     total mileage was?

          PETITIONER: I didn’t finish it, sir. Like I
     said, I didn’t do it for the whole year. As the year
     went by, I got lazy. It was a lot of work writing,
     writing that, and then I kind of, you know--as the year
     went by, I think I wrote that for like maybe two
     months.




     6
        Respondent has not sought to characterize petitioner’s
tutoring activity as an activity other than one entered into for
profit. Cf. sec. 183. Nor has respondent sought to characterize
petitioner’s status, vis-a-vis the tutoring activity, as other
than that of a sole proprietor.
                              - 12 -

     Later, on cross-examination, the following colloquy took

place between respondent’s counsel and petitioner, which further

illuminates the inadequacies of the log:

          COUNSEL: Turning your attention to the mileage
     for the automobile, how was the total mileage
     calculated?

          PETITIONER: It was an estimate. It was an
     estimate. Actually, when I go to the place where I
     was--okay, I try to remember the mileage at the
     beginning because I didn’t complete this here, so I
     didn’t have an accurate--so it was an estimate.

          COUNSEL: And the mileage did not pertain to your
     work at Hughes Television Network?

          PETITIONER: No. I mean some of those would have
     been part of it. You know, what I did was I just
     looked at the--try to remember my mileage at the
     beginning of the year and the end of the year. So some
     of it probably, you know, I might not have taken into
     account my drive to work.

     As previously discussed, no deduction under section 274(d)

is allowable for expenses incurred in respect of a passenger

automobile on the basis of any approximation or the unsupported

testimony of the taxpayer.   E.g., Golden v. Commissioner, T.C.

Memo. 1993-602.   In addition, it is clear that, as a matter of

law, a taxpayer’s cost of commuting between the taxpayer’s

personal residence and place of employment is a nondeductible

personal expense.   Commissioner v. Flowers, 326 U.S. 465, 473-474

(1946); secs. 1.162-2(e), 1.262-1(b)(5), Income Tax Regs.

     In contrast to commuting expenses, expenses incurred in

traveling between two places of business are deductible, Heuer v.
                              - 13 -

Commissioner, 32 T.C. 947, 953 (1959), affd. per curiam 283 F.2d

865 (5th Cir. 1960), and we acknowledge that petitioner may very

well have, and probably did on occasion, leave work and drive

directly to a tutoring client’s home for a lesson.   But the crux

of the matter is that petitioner’s log does not permit us to make

the requisite evaluation without supposition, conjecture, and

surmise, for the log (among its other infirmities) does not

identify a single client but merely lists towns (e.g., Silver

Spring) in the Maryland suburbs of metropolitan Washington, D.C.7

      Because commuting is nondeductible as a matter of law, and

further because petitioner’s so-called log does not satisfy the

strict substantiation requirements of section 274(d) and section

1.274-5T(a), Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov.

6, 1985), we are constrained to sustain respondent’s disallowance

of petitioner’s deduction for vehicle expense.

D.   Conclusion

      In order to reflect our disposition of the disputed issues,



                                    Decision will be entered

                               under Rule 155.


      7
        Further by way of example, the very first entry in
petitioner’s log is shown simply as “Laurel 6 Germantown 6 Silver
Spring”. Laurel, Md. is petitioner’s home; Germantown, Md. is
the business address of Hughes Network Systems, Inc.
(petitioner’s employer), and Silver Spring is a community along
petitioner’s Beltway commute. Petitioner ascribes 90 miles to
this entry, all of which is presumably business-related in his
mind.
