                        T.C. Memo. 2001-301



                      UNITED STATES TAX COURT



                   GARY WILSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16382-99.                 Filed November 14, 2001.


     Alan D. Irwin, for petitioner.

     Angelique M. Neal, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     BEGHE, Judge:   Respondent determined the following

deficiencies, late-filing addition, and accuracy-related

penalties with respect to petitioner’s Federal income tax:
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                                              Accuracy-related
                          Addition to Tax         Penalty
     Year    Deficiency   Sec. 6651(a)(1)       Sec. 6662(a)

     1992      $5,642           --                  $1,128
     1993       5,146          $519                  1,029

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years at issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.   Respondent’s determination in the notice of

deficiency is presumed correct, and petitioner bears the burden

of proving that it is incorrect.   Rule 142(a).1   The issues for

decision2 are whether petitioner (1) properly claimed deductions

for travel expenses, (2) properly claimed deductions for

miscellaneous business expenses, and (3) is liable for accuracy-

related penalties and an addition to tax under sections 6662(a)

and 6651(a), respectively.   We sustain respondent’s

determinations, except that we allow some deductions in amounts

less than claimed by petitioner for miscellaneous business

expenses, resulting in reductions to the deficiencies, to be

given effect in the Rule 155 computation.




     1
      Sec. 7491 does not apply because respondent’s examination
was commenced before July 23, 1998.
     2
       Petitioner presented no evidence to rebut respondent’s
determinations that petitioner failed to report unemployment
compensation and interest income in 1993. Respondent’s
determinations are sustained.
                                - 3 -

                          FINDINGS OF FACT

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

The stipulation of facts and the attached exhibits are

incorporated by this reference.

     Petitioner resided in Cascade, Idaho, at the time of filing

the petition.

     Petitioner has been employed in the construction industry

for 20 years.    In 1987 petitioner began working for Kiewit

Pacific Co. (Kiewit).    Kiewit employed petitioner for most of

1990, all of 1991, all of 1992, most of 1993, and part of 1994.

During 1992 and 1993, the years in issue, petitioner was employed

by Kiewit as a demolition foreman, drilling crew foreman, part-

time mechanic, and master mechanic.     Petitioner’s employment

relationship with Kiewit has continued off and on through the

time of trial.

     In 1992 petitioner was employed by Kiewit at the following

times and construction projects in southern California:     January

1 to 23, 1992, Pasadena, California; January 27 to March 12,

1992, El Segundo, California; and March 19 to December 31, 1992,

UCLA/Westwood, California.    In 1992 petitioner filed a State

income tax return only for the State of California.     Petitioner

did not earn any income in the State of Idaho or seek employment

in Idaho in 1992.
                               - 4 -

     In 1992 petitioner lived in his recreational vehicle, which

he kept parked in San Dimas, California.   Petitioner paid a

campground operator approximately $500 per month to rent a space

for his recreational vehicle in San Dimas.

     In 1993 petitioner had employers other than Kiewit and

worked in Idaho toward the end of the year.   Petitioner’s

employment in California in 1993 was as follows:   For the period

January 1 to April 22, 1993, petitioner was employed by Kiewit in

UCLA/Westwood, California; for the period April 27 to May 28,

1993, petitioner was employed by Contri Construction in Perris,

California; for the period May 31 to September 16, 1993,

petitioner was employed by Kiewit in Moreno Valley, California.

     After completing work in Moreno Valley, California, on

September 16, 1993, petitioner worked in Idaho for the remainder

of the year.   For the period October 25 to November 26, 1993,

petitioner was employed by Kelly Cole in Bear, Idaho.    For the

period November 29 to December 31, 1993, petitioner was employed

by Shorts Bar Logging in Riggins, Idaho.

     During the part of 1993 that petitioner worked in

California, he continued to live in the recreational vehicle in

San Dimas until approximately May 21, 1993; then he moved to an

apartment in Hemet, California.   Petitioner lived in Hemet until

at least September 16, 1993.   Petitioner lived with his parents
                               - 5 -

at their home in Pollack, Idaho, while he was employed in Idaho

in 1993.   Petitioner did not have a lease or rental agreement

with his parents.

     Petitioner usually commuted daily from his respective

California living quarters to the various California jobsites; he

would occasionally stay overnight in a motel near one of the

jobsites in California if he was too tired to drive.    Petitioner

also commuted from his parents’ home in Pollack, Idaho, to the

Idaho jobsites.

     Petitioner held an Idaho driver’s licence in both 1992 and

1993.   In 1993 petitioner held an Idaho resident combination

hunting and fishing license, an Idaho resident regular deer tag,

and an Idaho resident regular elk tag.   An individual must

establish that he has been an Idaho resident for 6 months in

order to obtain an Idaho resident combination hunting and fishing

license.   Petitioner presented his Idaho driver’s license and was

granted a resident hunting and fishing license.    The State of

Idaho made no further inquiries to verify that petitioner was a

resident of Idaho.

     On September 22, 1993, petitioner opened two bank accounts

with Key Bank of Idaho:   A savings account with a $4,000 deposit

and a checking account with a $314.81 deposit.    Thereafter, in

1993 petitioner made three checks payable to his mother totaling
                                 - 6 -

$417.   Petitioner filed 1993 State income tax returns for

California and Idaho.    In 1993 petitioner purchased a parcel of

vacant land in Valley County, Idaho.

     On August 21, 1995, petitioner filed his 1992 Form 1040,

U.S. Individual Income Tax Return.       On this return, petitioner

showed his address as 3800 W. Devonshire, Hemet, California 92545

(the Hemet address).    Petitioner designated his filing status as

single and claimed only his personal exemption.       Petitioner

attached to his return a Form 2106, Employee Business Expenses,

on which he claimed the following deductions for unreimbursed

employee business expenses:

                       Expense                  Amount

           1.   Vehicle                       $5,443.20
           2.   Parking fee                      867.00
           3.   Travel                         8,211.00
           4.   Business not on lines 1-3      5,290.00
           5.   Meals                          1,492.80
                Total claimed deductions      21,304.00

     On August 21, 1995, petitioner filed his 1993 Form 1040.

Petitioner again showed the Hemet address as his address.

Petitioner designated his filing status as single and claimed

only his personal exemption.     Petitioner attached a Form 2106 to

his return and claimed the following deductions for unreimbursed

employee business expenses:
                                 - 7 -

                      Expense                Amount

           1.   Vehicle                     $6,454
           2.   Parking fees                   855
           3.   Travel                       9,442
           4.   Business not on lines 1-3    4,988
           5.   Meals                        1,874
                Total claimed deductions    23,613

The travel expenses claimed were for the cost of traveling

between Idaho and California and the cost of occasionally staying

in motels near petitioner’s various jobsites.   Because of the

nature of his trade, petitioner incurred expenses for safety

boots, coveralls, tools, and union dues, which he claimed as

miscellaneous business deductions on his 1992 and 1993 returns.

At trial, petitioner offered two “employee [statements]” showing

amounts contributed as “Supplemental Union Dues” in 1992 of

$714.65.

                                OPINION

     Petitioner claimed business expense deductions for travel

expenses incurred for trips between California and Idaho, and

between his living quarters and various places of employment, and

various miscellaneous expense deductions related to his

employment in the construction industry.    Respondent disallowed

the deductions petitioner claimed for unreimbursed travel

expenses on the grounds that petitioner was not “away from home”

within the meaning of section 162(a)(2) when the expenses were

paid, and for lack of substantiation as required by section

274(d).    Respondent disallowed the miscellaneous business expense
                              - 8 -

deductions on the grounds that petitioner did not prove that he

incurred the expenses pursuant to section 162(a), and that he did

not maintain adequate records to establish the specific amounts

of the deductions as required by section 6001.

1. Travel Expenses

     Section 162 allows taxpayers to deduct the “ordinary and

necessary expenses paid or incurred during the taxable year in

carrying on any trade or business, including * * * traveling

expenses * * * while away from home”.   Sec. 162(a)(2).   Section

274(d) and its implementing regulations impose stringent

substantiation requirements for the deduction of travel expenses

under section 162(a).

     a.   “Away From Home”

     Petitioner must meet three requirements in order to deduct

travel expenses under section 162(a)(2):   The expenses must be

(1) reasonable and necessary; (2) incurred while away from home;

and (3) incurred in pursuit of a trade or business.    Flowers v.

Commissioner, 326 U.S. 465, 470 (1946).    Respondent contends that

the travel expenses petitioner claimed do not satisfy the second

Flowers requirement, that petitioner be “away from home.”    We

agree with respondent.

     Section 162(a)(2) “reflects congressional concern both for

the unavoidable duplication of expenses and for the fact that

meals and lodging are more costly for a person who must travel
                               - 9 -

than they are for a person who can maintain a year-round home.”

Rambo v. Commissioner, 69 T.C. 920, 924 (1978).   “The purpose of

the ‘away from home’ provision is to mitigate the burden of the

taxpayer who, because of the exigencies of his trade or business,

must maintain two places of abode”.    Kroll v. Commissioner, 49

T.C. 557, 562 (1968).

     As a general rule, a taxpayer’s “home” for purposes of

section 162(a)(2) is the vicinity of his principal place of

employment, irrespective of where his personal residence is

located.   Mitchell v. Commissioner, 74 T.C. 578, 581 (1980);

Sanderson v. Commissioner, T.C. Memo. 1998-358.   Petitioner was

employed at construction sites in California for all of 1992 and

most of 1993.   Thus, under the general rule, petitioner’s tax

home was the vicinity of those sites in California.   However,

petitioner relies on an exception to the general rule to argue

that his tax home was Idaho, where his parents resided and where

he lodged when he was physically present in that State.

     Under the exception, if the principal place of business is

temporary, and not indefinite, the taxpayer’s personal residence

may be considered the tax home.   Peurifoy v. Commissioner, 358

U.S. 59, 60 (1958); Kroll v. Commissioner, supra at 562.      If the

taxpayer incurs substantial and continuous living expenses at the

personal residence, he or she may deduct the expenses associated

with traveling to, and living at, the jobsite.    Barone v.
                                - 10 -

Commissioner, 85 T.C. 462, 465 (1985), affd. without published

opinion 807 F.2d 177 (9th Cir. 1986); Kroll v. Commissioner,

supra at 562.

     A place of business is temporary if the employment is such

that termination within a short period could be reasonably

foreseen.   Albert v. Commissioner, 13 T.C. 129, 131 (1949).

Conversely, employment is indefinite if termination cannot be

foreseen within a “reasonably short period”.     Stricker v.

Commissioner, 54 T.C. 355, 361 (1970), affd. 438 F.2d 1216 (6th

Cir. 1971).     Whether employment is temporary or indefinite is a

question of fact.     Peurifoy v. Commissioner, supra at 60-61.

     The Court of Appeals for the Ninth Circuit, to which any

appeal in this case would ordinarily lie, has expressed the

temporary versus indefinite distinction as follows:

          An employee might be said to change his tax home
     if there is a reasonable probability known to him that
     he may be employed for a long period of time at his new
     station. What constitutes a ‘long period of time’
     varies with circumstances surrounding each case. If
     such be the case, it is reasonable to expect him to
     move his permanent abode to his new station, and thus
     avoid the double burden that the Congress intended to
     mitigate. * * * [Harvey v. Commissioner, 283 F.2d 491,
     495 (9th Cir. 1960), revg. 32 T.C. 1368 (1959).]

     Subsequent opinions by the Court of Appeals for the Ninth

Circuit reveal that its approach to the exception to the general

“tax home” rule does not differ materially from the view of this

Court.   Both courts focus on whether a taxpayer could reasonably

expect his employment outside the area of his residence to
                              - 11 -

continue beyond a “short” period of time.     Wills v. Commissioner,

411 F.2d 537, 541 (9th Cir. 1969), affg. 48 T.C. 308 (1967); see

also Coombs v. Commissioner, 608 F.2d 1269, 1274-1276 (9th Cir.

1979), affg. in part and revg. in part 67 T.C. 476 (1976).

     Petitioner asserts that his employment was temporary because

each job he took had a definite end that he could estimate

beforehand.   According to petitioner, the ability to predict the

duration of a particular job necessarily means that the job

cannot be indefinite, and therefore must be temporary.

     Petitioner’s employment in California was not temporary.

Construction projects are typically, if not always, of limited

duration.   Weichlein v. Commissioner, T.C. Memo. 1995-553.

However, this does not end the inquiry.   This Court has

recognized that when the taxpayer has a series of jobs with one

employer, the actual duration of the employment relationship

between the taxpayer and employer should be considered when

determining whether the employment was indefinite.       Norwood v.

Commissioner, 66 T.C. 467, 471 (1976).    This is true

notwithstanding that the employment relationship consists of a

series of shorter assignments.   Id.   Where the employee is highly

regarded by the employer, as appears to be the case here, the

relationship between the two parties is a continuing one, subject

only to the availability of projects requiring the employee’s

skills.   Weichlein v. Commissioner, supra.   When a taxpayer has
                              - 12 -

an ongoing relationship with an employer because he or she works

on a succession of shorter projects, the taxpayer’s employment

status is not characterized as temporary for Federal income tax

purposes.   See id.; see also Yeates v. Commissioner, T.C. Memo.

1988-259, affd. 873 F.2d 1159-1161 (8th Cir. 1989).

     Petitioner’s relationship with Kiewit began in 1987 and

continued through the time of trial.   Kiewit employed petitioner

for most of 1990, all of 1991, all of 1992, most of 1993, and

part of 1994.   All of the construction projects petitioner worked

on while employed by Kiewit in the years at issue were in

Southern California.   The relationship between petitioner and

Kiewit, his primary employer, was clearly a continuing one

because of the substantial length of petitioner’s continuing

employment.   Thus, it cannot be said that termination of

petitioner’s employment with Kiewit could be foreseen within a

reasonably short period of time.   Albert v. Commissioner, supra

at 131.

     Petitioner has not established that he maintained a personal

residence in Idaho and incurred duplicate living expenses because

of the exigencies of his work.   Petitioner lodged at his parents’

house when he worked in Idaho but did not have a rental agreement

or lease with his parents.   According to petitioner, he

sporadically contributed money to his parents’ household for

bills and groceries, but did not have an arrangement with them to
                                - 13 -

make regular rental payments.    Petitioner offered as evidence of

his contributions three checks totaling $417 drawn on his newly

created checking account, payable to his mother.    Petitioner was

physically present in Idaho when he delivered the checks to his

mother.   These infrequent and nominal amounts are neither

substantial nor continuous.   They are not strong indications that

petitioner was burdened by duplicate living expenses; indeed,

they indicate to the contrary.    We accordingly conclude that

petitioner is not entitled to relief on the theory that his

employment in southern California was temporary.    Kroll v.

Commissioner, 49 T.C. at 562.

     b. Substantiation

     For the sake of completeness, we summarily address whether

petitioner substantiated the expenses he claimed as travel

expense deductions.   Even if petitioner had persuaded us that the

travel expenses he claimed as deductions were incurred while he

was “away from home”, the deductions would be disallowed because

petitioner has failed to meet the substantiation requirements of

section 274(d).   Generally, when evidence shows that a taxpayer

incurred a deductible expense, but the exact amount cannot be

determined, the Court may estimate the amount allowable as a

deduction.   Cohan v. Commissioner, 39 F.2d 540, 543-544 (2d Cir.

1930).    However, section 274(d) precludes the estimation of

travel expense deductions otherwise allowable under section 162.
                               - 14 -

Under section 274(d), all travel expense deductions must meet

stringent substantiation requirements.    Petitioner did not

satisfy the substantiation requirements of section 274(d).

     Under section 274(d), no deduction is allowed under section

162 for any travel expense:

     unless the taxpayer substantiates by adequate records
     or by sufficient evidence corroborating the taxpayer’s
     own statement (A) the amount of such expense or other
     item, (B) the time and place of the travel,
     entertainment, amusement, recreation, or use of the
     facility or property, or the date and description of
     the gift, (C) the business purpose of the expense of
     other item. * * *

To substantiate a deduction by adequate records, a taxpayer must

maintain an account book, diary, log, statement of expense, trip

sheets, and/or other documentary evidence, which, in combination,

are sufficient to establish each element of expenditure or use.

Sec. 1.274-5T(c)(2)(i), Temporary Income Tax Regs., 50 Fed. Reg.

46017 (Nov. 6, 1985).

     Petitioner did not produce any records for travel taken

during 1992 and 1993.    He did not maintain a log for mileage

deductions claimed, nor did he offer any statement of expense or

receipts for his trips between California and Idaho.    Petitioner

offered only his uncorroborated testimony as evidence of the

claimed travel expenses.    Section 274(d) expressly requires

corroboration of any statement by the taxpayer as to amounts

expended for travel.    Petitioner has failed to meet the strict

substantiation requirements of section 274(d).
                               - 15 -

     The regulations provide a limited exception to the

substantiation requirements of section 274(d).   Under section

1.274-5(c)(5), Income Tax Regs.:

     Where the taxpayer establishes that the failure to
     produce adequate records is due to the loss of such
     records through circumstances beyond the taxpayer’s
     control, such as destruction by fire, flood,
     earthquake, or other casualty, the taxpayer shall have
     a right to substantiate a deduction by reasonable
     reconstruction of his expenditures.

Petitioner testified that he kept records of his flights between

California and Idaho, but that those records have been lost.

Petitioner did not present any evidence as to how the loss of the

records occurred, or that the loss was due to “circumstances

beyond * * * [his] control”.   The limited exception does not

apply to the loss of petitioner’s records.

2. Miscellaneous Business Expense Deductions

     Petitioner also claimed miscellaneous business deductions of

$5,290 and $4,988 on his 1992 and 1993 returns, respectively.

According to petitioner’s testimony, the business expenditures

were for union dues, tools, work clothing, and boots.     Respondent

denied the miscellaneous business deductions on the grounds that

petitioner failed to establish that he incurred the expenses

claimed as deductions, and that he failed to maintain adequate

records to establish the specific amounts of the deductions as

required by section 6001.
                                - 16 -

     A taxpayer is entitled to deduct the ordinary and necessary

expenses he incurs during the taxable year in carrying on a trade

or business.    Sec. 162(a).   To avail himself of the deduction, a

taxpayer is required to maintain adequate records sufficient to

establish the amounts of the deductions.    Sec. 6001; Meneguzzo v.

Commissioner, 43 T.C. 824, 831-832 (1965).    The burden of

substantiation rests with the taxpayer.     Hradesky v.

Commissioner, 65 T.C. 87, 89-90 (1975), affd. 540 F.2d 821 (5th

Cir. 1976).

     Beyond two statements reflecting amounts contributed as

supplemental union dues, petitioner did not proffer any records

to substantiate his entitlement to the deductions claimed.

Petitioner did not meet the record-keeping requirements of

section 6001.    Petitioner did, however, offer his own testimony

regarding the nature and amounts of the expenses.

     When there are no records to substantiate deductions, the

Court can estimate the amounts of allowable deductions if (1)

there is evidence that the expenses were in fact incurred, and

(2) there is a basis upon which an estimate may be made.      Cohan

v. Commissioner, supra at 543-544; Vanicek v. Commissioner, 85

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

     Petitioner’s testimony as to the amount of each expense

claimed was as follows:    Approximately $200 for work boots at
                                - 17 -

least twice per year; $50-$60 for coveralls each year; $2,400 per

year for tools; and $30 per month for union dues.

       With respect to the deductions for work boots and coveralls,

work clothing may be deductible under section 162 if the taxpayer

can establish that:     (1) The clothing was required or essential

in the taxpayer’s employment; (2) the clothing was not suitable

for general or personal wear; and (3) the clothing was not so

worn.    Yeomans v. Commissioner, 30 T.C. 757, 767-769 (1958);

Kozera v. Commissioner, T.C. Memo. 1986-604.

        The Court is satisfied that petitioner incurred expenses for

work boots and coveralls.     Petitioner’s credible testimony to

that effect, and the nature of his jobs, which included working

as a demolition foreman, a drilling crew foreman, and a master

mechanic, are satisfactory evidence to support the deductions.

        Because petitioner’s trade was labor intensive, work boots

and coveralls were essential to his employment in the

construction industry.     We also find that the type of boots and

coveralls this sort of work requires, for safety reasons, may not

be suitable for general or personal wear.     Accordingly, “bearing

heavily” on petitioner, whose “inexactitude is of his own

making”, we allow a deduction of $100 for each of the tax years

for the cost of work boots.     Cohan v. Commissioner, 39 F.2d at

544.     Similarly, while petitioner testified that he spent up to

$60 per pair of coveralls, he had no records to substantiate that
                               - 18 -

amount.    The Court will again bear heavily on petitioner and

allow him a $30 deduction for coveralls for each of the 1992 and

1993 years.

     Petitioner also claimed as a deduction amounts contributed

as dues to the labor union of which he is a member.    At trial,

petitioner testified that he spent up to $30 per month on union

dues.   This Court found petitioner to be a credible witness, and

we are satisfied that some amount was contributed to petitioner’s

labor union.   Consistent with our treatment of the work boots and

coveralls, a deduction of $15 per month for union dues is allowed

for 1992 and 1993.   Petitioner is entitled to an additional

deduction for supplemental union dues paid in 1992 of $714.65,

which was substantiated by two “employee [statements]”.

     The foregoing miscellaneous business expense deductions to

which petitioner is entitled are all deductible on petitioner’s

Schedule A, Itemized Deductions.    As itemized deductions, they

are subject to the 2-percent limitation.    Sec. 67(a).

     Petitioner’s outlay for tools poses a more difficult

problem. Petitioner did not make an election under section 179

that would permit him to deduct currently up to $10,000 of the

cost of depreciable property in the year it was placed in

service.   Having made no section 179 election, petitioner is

within the general rules regarding depreciation.    See Alisobhani

v. Commissioner, T.C. Memo. 1994-629.
                                - 19 -

      While small tools with a useful life of less than 1 year

are currently deductible, Clemons v. Commissioner, T.C. Memo.

1979-273, the cost of tools with a useful life that exceeds 1

year are recovered by depreciation, secs. 167(a) and 168(b);

Clemons v. Commissioner, supra.

     At trial, petitioner testified that he spent, on average,

$2,400 per year on tools.   He failed, however, to describe the

type, number, expected useful life, and cost of each tool

purchased.   Some of the tools he used may have required at least

annual replacement, which would be a currently deductible

expense.   Others could have been expected to survive well beyond

the year in which they were purchased, and their costs would be

recoverable through depreciation deductions over a number of

years.   Without evidence of these matters, we have no basis for

an appropriate estimate.

     Petitioner has specified neither the amount of the deduction

that should be allowed for each tool he purchased in 1992 and

1993 nor the amounts spent for tools in these and prior years for

which depreciation should be allowed.    With no guidance in the

record beyond petitioner’s own testimony of the total amounts

spent on tools, we will not speculate on the amount that

petitioner should be allowed to deduct.    To allow any deduction

would be “unguided largesse.”    Williams v. United States, 245

F.2d 559, 560 (5th Cir. 1957).    We sustain respondent’s position
                              - 20 -

disallowing any deduction for the cost of tools.

3. Accuracy-Related Penalties and Addition to Tax

     Respondent also determined accuracy-related penalties under

section 6662(a) for 1992 and 1993.     Section 6662(a) imposes a 20-

percent penalty on underpayments attributable to negligence or

disregard of rules or regulations.     Sec. 6662(b)(1).

“Negligence” is the failure to make a reasonable attempt to

comply with the provisions of the Internal Revenue Code, or the

“failure to do what a reasonable and ordinarily prudent person

would do under the circumstances.”     Neely v. Commissioner, 85

T.C. 934, 947 (1985).   No accuracy-related penalty may be imposed

on any portion of an underpayment if it is shown that there was a

“reasonable cause” for such portion and that the taxpayer acted

in “good faith” with respect to such portion.     Sec. 6664(c)(1).

The determination of whether a taxpayer acted in good faith is

made case by case, taking into account all pertinent facts and

circumstances.   Sec. 1.6664-4(b), Income Tax Regs.    The most

important factor is the extent of the taxpayer’s efforts to

determine the proper tax liability.     Id.

     On brief, petitioner argues that for 1992 and 1993 he

calculated his business expense deductions the same way he had

done for several prior years, and that he did not receive any

deficiency notices for those years.     Petitioner argues that his

reliance on respondent’s failure to take exception to his
                               - 21 -

deduction claims for prior years amounts to “reasonable cause”

for his underpayments in the years at issue.    In support of this

assertion, petitioner cites Estate of Phillips v. Commissioner,

T.C. Memo. 1955-139, revd. on other grounds 246 F.2d 209 (5th

Cir. 1957).    In Estate of Phillips, the Commissioner had examined

the taxpayer’s records in prior years and had not assessed or

asserted deficiencies.    We held that the taxpayer may use the

Commissioner’s tacit approval to rebut the presumption of

correctness of the Commissioner’s determination of the negligence

penalties for the years at issue.

       Petitioner’s reliance on Estate of Phillips is misplaced.

In Estate of Phillips the Commissioner had examined prior years

and had taken no exception to the prior years’ returns.     However,

the Commissioner’s approval of a prior year did not purge the

negligence of a later year.    We simply held that the

Commissioner’s tacit approval of the prior years’ returns shifted

to the Commissioner the burden of coming forward with evidence of

the taxpayer’s negligence, a “burden he has not sustained.”

       Petitioner did not offer any evidence to show that

respondent examined any tax year prior to 1992.    Therefore, there

is no evidence in the record that respondent ever tacitly

approved petitioner’s method of calculating his Federal income

tax.    Even if it can be said--and we do not agree-–that by

failing to audit petitioner’s prior returns respondent somehow
                               - 22 -

tacitly approved petitioner’s methodology, respondent has come

forward with sufficient evidence to prove petitioner’s

negligence.   Petitioner did not maintain a contemporaneous

mileage log for the claimed mileage deductions.    Petitioner

claimed deductions for the occasional motel he stayed in when he

did not feel like driving back to his recreational vehicle or

apartment.    However, petitioner failed to offer any receipts or

explain how he calculated these expenses.    Petitioner claimed

deductions for flights between Idaho and California, and the

associated parking expenses, but failed to proffer this Court any

records, receipts, or reconstruction for submission into

evidence.

     The most important factor in deciding whether a taxpayer was

negligent is the extent of the taxpayer’s efforts to determine

the proper tax liability.    Sec. 1.6664-4(b), Income Tax Regs.   In

light of the many deductions petitioner claimed, his failure to

maintain adequate records was not a reasonable attempt to comply

with the Internal Revenue Code.    We therefore sustain

respondent’s position.

     In addition to the accuracy-related penalties for 1992 and

1993, respondent determined an addition to tax pursuant to

section 6651(a) for late filing for 1993.    The addition is 5

percent of the amount required to be shown as tax on the

delinquent return for each month the return is late (not to
                              - 23 -

exceed 25 percent).   Sec. 6651(a)(1).   A taxpayer is excused from

the late-filing addition to tax if he shows that the late filing

was due to reasonable cause and not due to willful neglect.    Id.

However, the taxpayer bears the burden of proof on this issue.

Rule 142(a).   Petitioner offered no evidence to rebut

respondent’s determination.   We sustain respondent’s

determination.

     To give effect to our partial allowance of some deductions

petitioner claimed,

                                          Decision will be entered

                                    under Rule 155.
