                  T.C. Summary Opinion 2008-80



                      UNITED STATES TAX COURT



                  ROGER A. GREEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2253-07S.               Filed July 10, 2008.



     Roger A. Green, pro se.

     Michael Sargent, for respondent.



     GOLDBERG, Special Trial Judge:     This case was heard pursuant

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

effect at the time 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
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the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

     Respondent determined a $2,950 deficiency in petitioner’s

Federal income tax for 2004.   The issues for decision are:   (1)

Whether petitioner is entitled to deduct unreimbursed employee

business expenses for use of his personal vehicle, and (2)

whether petitioner is entitled to deduct unreimbursed employee

business expenses for tools, boots, and clothes for the year in

issue.

                            Background

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   Petitioner resided in

West Virginia when the petition was filed.

     Petitioner was employed by W. Harley Miller Contractors

(Harley Miller) of Martinsburg, West Virginia, as a general

construction worker during 2004.   Petitioner began working for

Harley Miller in 2003 when he saw an advertisement for

construction workers posted on one of their trucks.    Petitioner

applied for a job with the company and traveled to Martinsburg

for his interview.   At that time he was unable to find a similar

construction job in Keyser, West Virginia.

     Harley Miller assigned petitioner to work on several of its

many job sites within the vicinity of Martinsburg.    During the
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year in issue petitioner worked at job sites in Martinsburg and

Spring Mills, and along Interstate Route 81.    The Spring Mills

and Interstate Route 81 job sites were near Martinsburg.      These

sites were 110 miles, 126 miles, and 136 miles, respectively,

away from petitioner’s home in West Virginia.    These jobs

involved the construction and remodeling of middle and high

schools, refurbishment of a State police barracks, and the

construction of an Interstate rest stop area.

     Petitioner drove back and forth between his residence and

the work site each day.   Petitioner worked long days, often

leaving his home very early in the morning and returning home in

the evenings.   He worked every day in 2004 except holidays and

weekends.   Petitioner did not stay overnight near the work site

but instead returned to his home each evening to care for his

ailing mother with whom he resided.    Petitioner decided not to

relocate his residence to Martinsburg because of his mother’s

declining health.

     Harley Miller required petitioner to provide his own work

boots, gloves, bib overalls, and outdoor gear.    Petitioner was

also required to bring his own tools to the job site.    These

tools consisted of drill sets, hammers, saws, and trowels.

Harley Miller did not reimburse petitioner for any of the

aforementioned items.

     Because he often left his home early in the morning,
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petitioner would usually stop for breakfast on his way to work.

Since most of the job sites were in remote areas, petitioner

would usually order out for lunch with the rest of the

construction crew.   Harley Miller did not pay for or reimburse

the cost of lunch.   Although petitioner kept receipts for his

meals for 2004, he subsequently lost all of these receipts when

he moved from his ex-girlfriend’s residence back to his parents’

home.

     Petitioner maintained a mileage log using a pocket calendar

that he kept in his vehicle.    At the end of each day, petitioner

would record the total miles that he drove that day.    Petitioner

drove an average of 4,742 miles each month in 2004 to and from

his home to the job sites.

     Petitioner was employed by Harley Miller until November of

2005 when he was no longer assigned to work on any of the

company’s construction jobs.    Petitioner was unemployed at the

time of trial.

     For 2004 petitioner deducted $18,756 in vehicle expenses

using the standard mileage rate of 37.5 cents per mile and $1,275

for meals, totaling $20,031.1   He also deducted $190 for boots

and clothes.   Petitioner did not claim entitlement to any


     1
       The $1,275 for the meals expense was the amount after
reduction for the sec. 274(n) 50-percent limitation, and the
$20,031 is the total before the application of the 2-percent
floor provided by sec. 67(a). The $190 is also before the
application of the 2-percent floor.
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deduction for unreimbursed employee business expenses related to

tools on his 2004 return.    In the notice of deficiency respondent

disallowed all of the aforementioned deductions.

                             Discussion

     Taxpayers generally bear the burden of proving that the

Commissioner’s determinations are incorrect.    Rule 142(a).

However, section 7491(a) may in specific circumstances place the

burden on the Commissioner with regard to any factual issue

relating to the taxpayer’s liability for tax if the taxpayer

produces credible evidence with respect to that issue and meets

the requirements found in section 7491(a)(2).    The taxpayer bears

the burden of proving that he has met the requirements of section

7491(a)(2)(A) and (B) by substantiating items, maintaining

required records, and fully cooperating with the Secretary’s

reasonable requests.   Miner v. Commissioner, T.C. Memo. 2003-39;

Nichols v. Commissioner, T.C. Memo. 2003-24, affd. 79 Fed. Appx.

282 (9th Cir. 2003).

     Neither party raised section 7491 as an issue.    Although we

find that petitioner did substantiate some of his claimed vehicle

expenses, he did not comply fully with respondent’s requests for

that documentation before trial.   Since petitioner has not met

the requirements of section 7491(a)(2), we find that the burden

of proof remains with him.

     The foremost issue--the determination of petitioner’s tax
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home--is a legal one, and our decision with respect to that issue

is unaffected by section 7491.    See Estate of Bongard v.

Commissioner, 124 T.C. 95, 111 (2005).

     Petitioner deducted the vehicle expenses at issue,

contending that they were ordinary and necessary business

expenses incurred when Harley Miller assigned him to work at one

of its job sites.    Respondent contends that petitioner’s work

outside the area of his residence was a permanent situation and

that he made a personal (nonbusiness) choice to drive to and from

work rather than to move closer to his employer’s headquarters

and/or its job sites.    In effect, respondent’s argument is that

petitioner’s tax home was where he normally worked and that his

trips constituted commuting.

     In general, a taxpayer may deduct ordinary and necessary

expenses paid or incurred in connection with the operation of a

trade or business.    Sec. 162(a); Boyd v. Commissioner, 122 T.C.

305, 313 (2004).    A trade or business includes the trade or

business of being an employee.     O’Malley v. Commissioner, 91 T.C.

352, 363-364 (1988).    For such expenses to be deductible, the

taxpayer must not have the right to obtain reimbursement from his

employer.   See Orvis v. Commissioner, 788 F.2d 1406, 1408 (9th

Cir. 1986), affg. T.C. Memo. 1984-533.

Vehicle Expenses

     Section 262 disallows any deduction for personal, living, or
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family expenses.   Transportation expenses ordinarily incurred

between one’s residence and one’s principal place of business (a

job site) are typically referred to as “commuting expenses” and

are nondeductible personal expenses under section 262.     Fausner

v. Commissioner, 413 U.S. 838 (1973); Commissioner v. Flowers,

326 U.S. 465 (1946).

     A taxpayer whose principal place of business is at a

distance from his residence cannot deduct the cost of the travel

to and from the business or the costs of meals and lodging at the

place of business.   Such expenses are regarded as personal

commuting expenses and are not deductible under section 262.

Fausner v. Commissioner, supra; Commissioner v. Flowers, supra.

Under an exception to this rule, a taxpayer may deduct travel

expenses associated with employment that is temporary (as opposed

to indefinite) in duration when the taxpayer is away from home.

Sec. 162(a)(2); Peurifoy v. Commissioner, 358 U.S. 59 (1958).

Travel away from home generally requires that the taxpayer remain

away either overnight or for a period requiring sleep or rest.

United States v. Correll, 389 U.S. 299 (1967).     Temporary

employment has been defined as that which is forseeably

terminable or lasting for a relatively short, fixed duration.

Boone v. United States, 482 F.2d 417, 419 (5th Cir. 1973).

Whether a taxpayer’s job is temporary or indefinite is determined

by the facts and circumstances of each case.     Peurifoy v.
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Commissioner, supra at 61.

     A judicially and administratively recognized exception to

the prohibition of deducting commuting expenses applies when the

taxpayer’s job is temporary as opposed to indefinite.   See

McCallister v. Commissioner, 70 T.C. 505 (1978); Rev. Rul. 99-7,

1999-1 C.B. 361.    As relevant here, because petitioner’s vehicle

expenses were for daily transportation, they are deductible if

his employment was temporary.   Under this exception these

expenses must be substantiated under section 274(d)(4) rather

than section 274(d)(1).

     We are convinced that petitioner accepted his position with

Harley Miller knowing that the company was headquartered in

Martinsburg (110 miles from Keyser) and that most, if not all, of

the possible job sites to which he could be assigned would be

near Martinsburg.   Moreover, while we appreciate that all of the

jobs that petitioner worked on in 2004 were by themselves

temporary, we are convinced that petitioner’s employment with

Harley Miller was indefinite and that petitioner was aware that

Harley Miller would assign him to job sites predominantly in the

vicinity of Martinsburg and more than 100 miles from Keyser.

     On the basis of the entire record, we agree with respondent

that petitioner made a personal decision to accept employment

with Harley Miller knowing that the location of the company and

its job sites were a considerable distance away from Keyser.
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While we are sympathetic as to the exact nature of petitioner’s

personal reason for commuting to and from the job site each day,

we cannot ignore that it was for this personal reason that

petitioner chose not to move his residence to be near the

principal place of his employment.      Accordingly, petitioner is

not entitled to deduct the vehicle expenses at issue for 2004.

Unreimbursed Employee Business Expenses

     As previously stated, a taxpayer generally cannot deduct

personal, living, or family expenses.      Sec. 262(a).   Costs of

articles of clothing, including boots, are deductible only if the

clothing is required in the taxpayer’s employment, is not

suitable for general or personal wear, and is not worn for

general or personal purposes.    Yeomans v. Commissioner, 30 T.C.

757, 767-768 (1958); Nicely v. Commissioner, T.C. Memo. 2006-172.

     Petitioner contends that he spent a total of $190 for

clothing and boots and $400 for tools in 2004.      Petitioner’s

testimony as to the boots was vague, although he did provide the

Court with a photograph of the boots that he wore for 2004.        He

did not establish whether or how the boots at issue were not

suitable for general or personal wear.      Petitioner did not

provide photographs of the clothing that he was required to wear

at work, and he did not explain whether or how the clothing at

issue differed from clothing suitable for general or personal

wear.   Therefore, we are not convinced that either the work boots
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or the clothing petitioner wore were unsuitable for general or

personal wear.   Accordingly, petitioner is not entitled any

deduction for 2004 with respect to boots and clothing.

     As previously stated, petitioner did not claim entitlement

to any deduction for unreimbursed employee business expenses

related to tools on his 2004 return.     Petitioner raised these

expenses at trial, and respondent (who may have incorrectly

assumed such expenses had, in fact, been claimed on the return)

argued that petitioner was not entitled to any amount for tools

for lack of substantiation.   Petitioner acknowledged that he had

no receipts for any of the tools purchased during 2004.     Although

petitioner did provide photographs of his tools to the Court, he

acknowledged that the photographs were merely representative of

the tools that Harley Miller required him to purchase and not the

tools that he actually purchased in 2004.     Petitioner testified

that he did purchase a drill set, hammers, trowels, and a Hilti

gun in 2004.   As to the hammers purchased, he testified that they

were manufactured by Estwing and cost him $30 apiece.     Although

petitioner did not testify as to exactly how many Estwing hammers

he purchased in 2004, we are satisfied that he purchased at least

two hammers during that year.

     We are likewise satisfied that petitioner was required to

purchase other tools for his job and that he did purchase some of

these tools in 2004.   We are not convinced, however, that
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petitioner incurred a $400 expense for such tools for 2004.

     If a taxpayer establishes that he paid or incurred a

deductible business expense but does not establish the amount of

the deduction, we may approximate the amount of the allowable

deduction, bearing heavily against the taxpayer whose

inexactitude is of his own making.       Cohan v. Commissioner, 39

F.2d 540, 543-544 (2d Cir. 1930).    For the Cohan rule to apply,

however, a basis must exist on which this Court can make an

approximation.     Vanicek v. Commissioner, 85 T.C. 731, 742-743

(1985).   Without such a basis any allowance would amount to

unguided largesse.     Williams v. United States, 245 F.2d 559, 560

(5th Cir. 1957).

     We are satisfied that petitioner incurred deductible

expenses during 2004 for the purchase of two Estwing hammers.

Although we are permitted to estimate the amount of tool expenses

under the Cohan rule, we lack any evidence of basis as to the

other tools purchased.    Accordingly, we find that petitioner is

entitled to deduct $60 of expenses for tools.      However, since the

standard deduction is greater than petitioner’s deductions

allowable on Schedule A, Itemized Deductions, respondent’s

determination that petitioner is entitled to the standard

deduction is sustained.
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To reflect the foregoing,


                                     Decision will be entered

                                 for respondent.
