                          T.C. Memo. 2000-2



                       UNITED STATES TAX COURT


           ERNEST A. AND BERNIECE C. HUNTER, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 17909-98.                     Filed January 5, 2000.


     Ernest A. and Berniece C. Hunter, pro se.

     Shawna Early, for respondent.


                         MEMORANDUM OPINION

     POWELL, Special Trial Judge:    Respondent determined a

deficiency in petitioners' 1997 Federal income tax in the amount

of $360.    Unless otherwise indicated, section references are to

the Internal Revenue Code in effect for the year in issue.

     The issue is whether petitioners are entitled to deduct

$3,700 for expenses incurred by petitioner Ernest A. Hunter

(petitioner) in going to the New York City Municipal Reference

and Research Center and The New York Public Library.
                               - 2 -

Petitioners resided in New York, New York, at the time the

petition was filed.

     The facts may be summarized as follows.          During 1997, the

year before the Court, petitioner was not an employee and was not

engaged in any trade or business.   Petitioner testified that his

wife “contributes” $100 every 2 weeks for his “library

attendance”.   Petitioners deducted $3,700 on their 1997 tax

return,1 which represents the cost of petitioner’s transportation

to and from the libraries and his meals.       As far as we can

determine, since at least 1980 to 1997, petitioner has had an

ongoing employment or wrongful discharge dispute with the State

of New York.   The following excerpt from the transcript explains

petitioner’s position:

          THE COURT: But you are not engaged in a trade or
     business, are you?

          THE WITNESS: * * * I am not. But what happens is in
     the civil service law, in order to get paid, you have to
     maintain a posture of ready, willing and able to be restored
     from the preferred list, or whatever. And what happens is
     that has been my method or means of keeping myself ready,
     willing and able to be employed.

                *     *   *    *       *   *      *

     I am not receiving a penny [of income]. See, what happens
     is, when the State of New York refused to restore me from
     the preferred list, they refused to provide me with any
     interpretation of whatever it was that they -– reasons they


     1
         The record does not explain the difference between $100
every 2 weeks ($2,400) and the $3,700 deduction petitioners
claimed on their return.
                                 - 3 -

     used for doing so, so I might confront it. * * * Therefore,
     my pay is still going on as a technical matter.

          THE COURT: I am not sure that the State of New York
     would agree with you.

            THE WITNESS:   They certainly haven’t.

     As the Supreme Court has noted, “the ‘familiar rule’ [is]

that ‘an income tax deduction is a matter of legislative grace

and that the burden of clearly showing the right to the claimed

deduction is on the taxpayer.’”     INDOPCO, Inc. v. Commissioner,

503 U.S. 79, 84 (1992).     Section 162(a) allows deductions for

“ordinary and necessary expenses * * * in carrying on any trade

or business.”    An employee is in a trade or business of being an

employee.    See Fogg v. Commissioner, 89 T.C. 310 (1987).   Section

212(a) further allows deductions for “ordinary and necessary

expenses * * * for the production or collection of income [or]

for the management, conservation, or maintenance of property held

for the production of income”.

     The expenses claimed do not fall within either section

162(a) or section 212(a).     Even if we consider these expenses to

be bona fide educational expenses, petitioner admittedly was not

engaged in a trade or business or other income-producing activity

during the time that the expenses were incurred or paid.     See

Reisinger v. Commissioner, 71 T.C. 568, 572 (1979) (“Mere

membership in good standing in a profession does not constitute
                              - 4 -

carrying on a trade or business.”).    Respondent’s determination

is sustained.

                                           Decision will be entered

                                      for respondent.
