                       T.C. Memo. 1997-151



                     UNITED STATES TAX COURT



                  MARVIN ZIPORYN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12515-95.                    Filed March 24, 1997.



     Marvin Ziporyn, pro se.

     Edith E. Siler, for respondent.



                       MEMORANDUM OPINION


     GOLDBERG, Special Trial Judge:    The case was heard pursuant

to section 7443A(b)(3) of the Code and Rules 180, 181, and 182.1

Respondent determined a deficiency in petitioner's Federal income

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

tax for 1990 in the amount of $7,035.      The issues for decision

are:    (1) Whether petitioner is entitled to a Schedule C

deduction for business expenses in excess of the amounts allowed

by respondent; and (2) whether petitioner is entitled to a

deduction for travel expenses in excess of the amount allowed by

respondent.2

       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 Chicago,

Illinois, at the time his petition was filed.

       Petitioner is a psychiatrist specializing in forensic

psychiatry.    Petitioner had acted as a court psychiatrist for the

county of Los Angeles, California, and thus had become well known

in Southern California.    In 1988, petitioner began working as a

forensic psychiatrist for a group based in Santa Monica,

California.    This work lasted approximately 14 months.    In 1990,

petitioner was hired by the Department of Mental Health for the

county of Riverside, California, to perform psychiatric services

in the county jails.    Petitioner's contract with the county of

Riverside, California, was not for a fixed period of time, but

his employment actually lasted for 11 months in 1990.      Petitioner


2
     In a stipulation of settled issue filed with the Court,
petitioner conceded that he is not entitled to a Schedule A
deduction for unreimbursed employee expenses in the amount of
$10,877 claimed on his return.
                                 3

was hired to set up a forensic unit at the jail.   Petitioner was

originally assigned to a jail in Indio, California, and later was

relocated to the main jail in Riverside, California.

Petitioner's psychiatric work required his presence at the jail

on Wednesday, Thursday, and Friday of each week.

     Petitioner was also engaged in business as a musician.    On

Friday nights, petitioner played the violin at Ajetis Balkan

Cafe, which is located in Hermosa Beach, California.

     Each Saturday morning for 11 months during the year in

issue, petitioner flew from Los Angeles, California, to Chicago,

Illinois.   Petitioner's personal residence was located in

Chicago, Illinois, and petitioner's family resided in the area.

Petitioner returned to Los Angeles, California, on Monday nights

or Tuesday mornings each week.   Petitioner did not maintain a log

or records of travel expenses.

     During 1990, petitioner rented an office suite in a building

known as the Fine Arts Building, located at 410 South Michigan

Avenue in Chicago, Illinois.   Petitioner maintained a private

psychiatry practice there with office hours from 3:00 p.m. to

7:00 p.m. on Mondays.   Petitioner had several patients, some of

whom he had been seeing for a number of years.

     After working for the county of Riverside, California,

during the year in issue, petitioner continued to work as a

forensic psychiatrist in California, working for approximately 6

months consecutively for two other organizations in Southern
                                 4

California.   After that time, petitioner returned to Chicago,

Illinois.

     For tax year 1990, petitioner reported on line 7 of his Form

1040 $37,945 in wages, comprising of $37,834.89 from the county

of Riverside, California, and $110 from TALCO Enterprises.    The

expenses incurred with respect to his California wage income were

claimed on line 20 of Schedule A as "unreimbursed employee

expenses" in the amount of $11,660, before the 2-percent floor.

According to Form 2106, Employee Business Expenses, this total

consisted of $10,340 for travel expenses while away from home

overnight including lodging, airplane, car rental and other

expenses, and $1,650 less 20 percent for meals and entertainment.

     Petitioner reported income and expenses related to his

Chicago, Illinois, practice on Schedule C.   Petitioner reported

gross receipts of $12,700 from his psychiatric practice.   This

figure was based upon petitioner's estimate of the number of

hours that he saw patients and the rate that petitioner charged

per hour.   Petitioner claimed the following expenses on Schedule

C:

                                             Amount
     Expense                                 Claimed
     Car and truck expense                   $2,420
     Legal and professional services            240
     Rent
       Other business property               5,600
     Taxes and licenses                        600
     Travel                                  7,920
     Meals and entertainment
       $1,650 less 20 percent                1,320
     Parking                                   250
                                 5

     Dues and subscriptions                    500
     Telephone                               4,043
        Total                              $22,893

Petitioner did not maintain any books or records with respect to

his practice.

     Petitioner reported income and expenses related to being a

musician on a separate Schedule C which is not at issue.

     In the notice of deficiency, respondent determined that

petitioner was not entitled to claim the following Schedule C

expense deductions totaling $11,172 for lack of substantiation:

                                       Amount
     Expense                          Disallowed
     Car and truck expense             $1,523
     Rent
       Other business property           831
     Travel                            5,651
     Meals and entertainment           1,011
     Telephone                         2,156

Respondent completely disallowed petitioner's claimed Schedule A

deductions for unreimbursed employee expenses for lack of

substantiation.   Respondent further determined that petitioner's

home for tax purposes was California and that the disallowed

expenses represented nondeductible personal and commuting

expenses.   Respondent also determined a computational increase in

petitioner's self-employment taxes as a result of the above

adjustments.

     At the end of trial, the Court requested that the parties

file a supplemental stipulation of facts setting forth the

expenses which petitioner claimed to have incurred, to be
                                   6

segregated between his psychiatric practice in Chicago, Illinois,

and his employment in California.      The Court requested that the

parties also stipulate to the amounts for which petitioner had

provided substantiation.

     Petitioner's substantiation of rent and telephone expenses,

claimed on his Schedule C for 1990, consisted of canceled checks

as follows:



Payee                      Amount       Date      Memo
 Fine Arts Building        $770.16       1/16/90   #210
 Fine Arts Building         813.66       3/24/90   March 1990 - #210
 Fine Arts Building         799.45       11/30/90 November #210
 Fine Arts Building         798.68       12/26/90 #210 - December
 Illinois Bell              229.02       1/29/90   312-922-3880
 Illinois Bell              209.53       3/28/90   312-922-3880
 Illinois Bell              222.28       5/25/90   312-922-3880
 Illinois Bell              381.03       12/31/90 312-922-3880
 General Tele-Communication 29.15        1/10/90   312-922-3880
 General Tele-Communication 84.55        12/15/90       --

Petitioner approximated his rent expense for 1990 as $9,552 based

upon an estimated expense of $796 per month.     Petitioner

estimated his telephone expense as an average monthly amount of

$260.47 based on the four checks paid to Illinois Bell.

     Petitioner provided account statements from credit and

charge card companies to substantiate the amounts of his travel

expenses.     These amounts are summarized as follows:

                                 Estimated          Substantiated
     Expense                     Expense            Expense
     Airfare                      $7,240                $640.00
     Lodging in California         4,680                 765.35
     Rental cars                   5,720               1,130.79
                                 $17,640              $2,536.14
                                 7

Petitioner estimated his meals expense as an average weekly

amount of $100.   Petitioner provided no substantiation for this

amount.

     Respondent's determinations are presumed correct, and

petitioner bears the burden of proving them erroneous.   Rule

142(a); Welch v. Helvering, 290 U.S. 111 (1933). Deductions are a

matter of legislative grace.   New Colonial Ice Co. v. Helvering,

292 U.S. 435, 440 (1934).   Taxpayers must maintain adequate

records to substantiate the amount of any deductions.    Sec. 6001;

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

     Section 162 allows a deduction for ordinary and necessary

expenses paid or incurred in carrying on a trade or business.

Generally, except as provided by section 274(d), when evidence

shows that taxpayers incurred a deductible expense, but the exact

amount cannot be determined, the Court may approximate the

amount.   Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930).

However, the Court must have some basis upon which an estimate

may be made.   Vanicek v. Commissioner, 85 T.C. 731, 742-743

(1985).

Car and Truck Expense

     Petitioner claimed a deduction for car and truck expense in

the amount of $2,240.   Respondent disallowed $1,523 of this

deduction for lack of substantiation.
                                 8

     Petitioner has offered no evidence to prove that

respondent's determination is incorrect.    Therefore, we deem

petitioner to have conceded this issue.    Rule 149(b).

Rent Expense

     Petitioner claimed rent expense of $5,600.    Respondent

disallowed $831 of this amount due to lack of substantiation.

Petitioner now claims that he incurred rent expense of $9,552 for

the year.

     Petitioner testified that he signed a lease and rented the

office in Chicago, Illinois, throughout the year, but at trial he

did not produce any written documentation of this.    Three of

petitioner's patients testified that they saw petitioner

regularly throughout the year in issue, and at least one of his

patients testified that petitioner held sessions with him at this

particular location.   The problem we have is with petitioner's

proof as to the amount of this expense.    His evidence is

inadequate to overcome the fact that he claimed rent expense of

only $5,600 on his return.   There is no explanation for this

discrepancy.   On this record, we find that petitioner is entitled

to deduct rent expense of $5,600 as claimed.

Telephone Expense

     Petitioner claimed telephone expense of $4,043.      Respondent

disallowed $2,156 of this amount.

     Petitioner has not established that he incurred telephone

expense in excess of the amount allowed by respondent.
                                   9

Petitioner's estimated expense is based on an average of the

amounts of the four checks which were paid to Illinois Bell.

However, petitioner has not introduced any evidence to show that

these payments were each for a single month or that the charges

were representative of his typical usage.    There is nothing in

the record enabling us to determine that petitioner incurred

telephone expenses in excess of $1,887.    Respondent is sustained

on this issue.

Travel, Meals, and Entertainment Expenses

     Section 162(a)(2) allows a deduction for travel expenses,

including meals and lodging.    An exception to the Cohan rule is

section 274(d), which prohibits the estimation of expenses for

travel.   Section 274(d) requires substantiation of travel

expenses either "by adequate records or by sufficient evidence

corroborating the taxpayer's own statement".    Sec. 274(d).    The

records must show the amount, date, place, and business purpose

of each travel expense.     Id.; sec. 1.274-5T(b)(2), Temporary

Income Tax Regs., 50 Fed. Reg. 46014 (Nov. 6, 1985).

     In order to be deductible as an expense incurred while "away

from home", a travel expense must be reasonable and necessary,

and incurred in pursuit of business.     Commissioner v. Flowers,

326 U.S. 465, 470 (1946).    For purposes of section 162(a)(2),

generally a taxpayer's home is his principal place of business.

Michaels v. Commissioner, 53 T.C. 269, 273 (1969).     When a

taxpayer has two places of business or employment located a
                                10

considerable distance from each other, generally, he is entitled

to deduct expenses incurred in traveling between such locations

and for meals and lodging incurred while away from his principal

place of business under section 162.     Puckett v. Commissioner, 56

T.C. 1092, 1097 (1971).   In determining which of two locations is

a taxpayer's principal place of business, the courts have

considered:   the amount of time spent at each place; the

proportion of the taxpayer's income earned in each position; the

degree of activity engaged in by the taxpayer in each location;

where the taxpayer maintains his permanent residence; and whether

employment at one location is temporary.     Puckett v.

Commissioner, supra at 1097; Sherman v. Commissioner, 16 T.C. 332

(1951); Hoeppner v. Commissioner, T.C. Memo. 1992-703.

     Petitioner conceded the amount claimed on Schedule A of his

return for unreimbursed employee expenses.    Respondent stated

that the concession was based on the fact that petitioner's

accountant had claimed identical travel expenses on Schedules A

and C of petitioner's return; thus the deductions were

duplicated.   It is clear that petitioner's meals and

entertainment expenses were claimed both on Schedule A and

Schedule C in identical amounts.     However, it is not clear from

the amounts claimed that the same is true for petitioner's travel

expenses consisting of amounts paid for airfare, lodging, and car

rentals.   Petitioner could not explain how his accountant came up

with the total expenses as reported on his tax return.    It
                                  11

appears from the evidence that petitioner's airfare expense was

reported on Schedule C while his lodging and rental car expenses

incurred in California were reported on Schedule A as

unreimbursed employee expenses.    This is consistent with

petitioner's employment status in California.    In addition, the

total expenses claimed on Schedules A and C for travel in the

amount of $18,260 more closely approximate petitioner's total

estimated expenses of $17,640 as set forth in the supplemental

stipulation of facts.   Petitioner's concession would appear to

render moot the issue of the character of his employment in

California as his major or minor post of duty, or as temporary or

indefinite.   However, it is clear from the record, including the

testimony and arguments presented at trial, that neither

petitioner nor respondent believed that petitioner conceded his

claimed lodging and car rental expenses but instead believed that

such expenses had been reported on petitioner's Schedule C.

Therefore, we shall address the issue as framed by the parties.

     Based on the record, we find that petitioner's principal

place of business, and therefore his home for purposes of section

162, was located in California for the year in issue.    For the 11

months during which petitioner worked for the county of

Riverside, exclusive of travel, petitioner spent approximately

the same number of days in California and Illinois.    However,

petitioner was present in California on business for 3 days each

week while his practice in Chicago, Illinois, required that he be
                                 12

present on only one afternoon each week.   Petitioner earned

significantly more of his income from his employment in

California than he earned from his private practice in Chicago,

Illinois.    In addition, petitioner's employment in California was

not temporary.   Petitioner's actual employment in the State

lasted over 3 years.   See Rev. Rul. 83-82, 1983-1 C.B. 45 (actual

stay of over 2 years will be considered indefinite regardless of

facts and circumstances).   Petitioner was hired by the county of

Riverside to set up the forensic unit at its jails, and he

testified that he expected the job to be of short duration based

on his experience with a similar job in Santa Monica which lasted

14 months.   However, by his own admission petitioner was well

respected in Southern California, and his prospects for

employment within that area were of an indefinite, not temporary,

nature.   See Ellwein v. United States, 778 F.2d 506 (8th Cir.

1985).    Although petitioner maintained his residence in Chicago,

Illinois, we find that petitioner's principal place of business

during the year in issue was California.   Therefore, petitioner

is not entitled to deduct the costs of lodging, meals, or other

expenses incurred in California, because these expenses were not

incurred while petitioner was away from home.   Petitioner is

entitled to deduct the expense of traveling between California

and Chicago, Illinois.

     Petitioner has substantiated airline expense of $640 by his

records and testimony.   Petitioner has not established that he is
                                 13

entitled to a deduction for travel, meals, or entertainment

expenses in excess of the amounts allowed by respondent.

     To reflect the foregoing,


                                           Decision will be entered

                                      under Rule 155.
