                  T.C. Summary Opinion 2002-127



                     UNITED STATES TAX COURT



            ROBERT AND MARTHA EMANUEL, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 10609-00S, 13639-01S.   Filed October 3, 2002.



     Larry C. Fedro and Cara Pavalock (specially recognized), for

petitioners.

     Timothy Maher, for respondent.


     PANUTHOS, Chief Special Trial Judge:   These cases were heard

pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect at the time the petitions were filed.    The

decisions to be entered are not reviewable by any other court,

and this opinion should not be cited as authority.   Unless

otherwise indicated, subsequent section references are to the

Internal Revenue Code in effect for the years in issue, and all
                              - 2 -

Rule references are to the Tax Court Rules of Practice and

Procedure.

     Respondent determined that petitioners are liable for

deficiencies in Federal income taxes as follows:

                 Year         Deficiency

                 1996          $2,891
                 1997           3,851
                 1998           3,238

     After concessions,1 the issues for decision are:   (1)

Whether petitioners are entitled to deductions for medical

expenses, and (2) whether petitioners are entitled to a deduction

for a charitable contribution for miles driven in their van.




     1
        Petitioners conceded respondent’s determination that the
payments Mrs. Emanuel received in 1996, 1997, and 1998 for
attendant care services provided to Mr. Emanuel are includable in
gross income. Respondent conceded that petitioners are entitled
to deduct as medical expenses $1,265 in 1998 for a modification
to their van to accommodate a wheelchair and scooter lift and
$300 in 1998 for maintenance of Mr. Emanuel’s scooter, and $1,094
in 1997 as a charitable contribution. As a result of the mutual
concessions all adjustments in the notices of deficiency either
have been resolved or are computational.

     Petitioners asserted entitlement to a deduction for expenses
for “WC Young”, “Quest”, “After YMCA”, investment fees paid of
$223, income tax preparation fees of $240, and income tax
planning fees of $900, which were not claimed on the 1998 return.
Petitioners did not present any evidence concerning these issues.
Accordingly, we deem these issues conceded.
                                   - 3 -

     Petitioners assert they are entitled to deduct the following

medical expenses that were not claimed on the returns for the

years in issue:

     Expense                           1996     1997      1998
                                   1
     Attendant care services        $15,834   $17,616   $15,474
     Van cost                         -0-        -0-     13,214
     Gasoline                          865        835       750
     Child attendant care            1,324      1,366     1,399
     Back-up generator                -0-        -0-        840
     Pool maintenance                1,200      1,200     1,200
     YMCA tuition                    1,569      1,558     1,234
            1
                 All amounts have been rounded to a whole dollar
     figure.
     Petitioners resided in Hollywood, Florida, at the time they

filed their petitions.       Some of the facts have been stipulated

and are so found.       These two cases were consolidated pursuant to

the Court’s order of January 15, 2002.        For convenience we

combine our findings of fact and conclusions.

     In the petitions and at trial, petitioners raised the

matters at issue here; accordingly, petitioners bear the burden

of proof.       Rule 142(a)(1).2

1.   Medical expenses

     Petitioners allege they are entitled to various medical

expense deductions.       We first discuss the requirements of section



     2
        Sec. 7491 does not apply to shift the burden of proof to
respondent because petitioners have neither alleged that sec.
7491 is applicable nor established that they complied with the
requirements of sec. 7491(a)(2)(A) and (B) to substantiate items,
maintain required records, and cooperate fully with respondent’s
reasonable requests.
                                 - 4 -

213 and then consider the particular claims made by petitioners.

     Certain expenses paid during the taxable year, not

compensated for by insurance or otherwise, for the medical care

of the taxpayer or a dependent (as defined in section 152) may be

allowed as a deduction to the extent that the expenses exceed 7.5

percent of the taxpayer’s adjusted gross income.    Sec. 213(a).    A

dependent includes a son more than half of whose support was

received from the taxpayer.   Sec. 152(a)(1).

      “Medical care” includes amounts paid for the diagnosis,

cure, mitigation, treatment, or prevention of disease or for the

purpose of affecting any structure or function of the body, under

section 213(d)(1)(A), and for transportation primarily for and

essential to medical care referred to in subparagraph (A), under

section 213(d)(1)(B).   Medical care also includes amounts paid

for qualified long-term care services, as defined in section

7702B(c).   Sec. 213(d)(1)(C).   “Qualified long-term care

services” means necessary diagnostic, preventative, therapeutic,

curing, treating, mitigating, and rehabilitative services, and

maintenance or personal care services, which are required by a

chronically ill individual and are provided pursuant to a plan of

care prescribed by a licensed health care practitioner.      Sec.

7702B(c)(1).   A “chronically ill individual” means any individual

who has been certified by a licensed health care practitioner as

being unable to perform at least two activities of daily living
                                - 5 -

(eating, toileting, transferring, bathing, dressing, and

continence) for a period of at least 90 days due to a loss of

functional capacity, or requires substantial supervision to

protect himself from threats to health and safety due to severe

cognitive impairment.    Sec. 7702B(c)(2).   An amount paid for

qualified long-term care services that are provided by the spouse

or a relative of the individual is treated as not paid for

medical care for tax years beginning after December 31, 1996.3

Sec. 213(d)(11)(A).

      Certain amounts paid for lodging that is not lavish or

extravagant while away from home and that is primarily for and

essential to medical care referred to in paragraph (1)(A) shall

be treated as amounts paid for medical care if the medical care

is provided by a physician in a licensed hospital or a related or

equivalent medical care facility and if there is no significant

element of personal pleasure, recreation, or vacation in the

travel away from home.    Sec. 213(d)(2).    The amounts taken into

account shall not exceed $50 for each night for each individual.

Id.   An expenditure which is merely beneficial to the general

health of an individual, such as an expenditure for a vacation,

is not an expenditure for medical care.      Sec. 1.213-1(e)(1)(ii),


      3
        Congress added sec. 213(d)(11) to the Health Insurance
Portability Act of 1996, Pub. L. 104-191, sec. 322(b)(2)(C), 110
Stat. 2061-2062, effective for tax years beginning after Dec. 31,
1996.
                                - 6 -

Income Tax Regs.    Expenses paid for transportation primarily for

and essential to the rendition of the medical care are expenses

paid for medical care, but the deductible amount does not include

the cost of meals and lodging while away from home receiving

medical treatment.    Sec. 1.213-1(e)(1)(iv), Income Tax Regs.

     Deductions for expenditures for medical care allowable under

section 213 will be confined strictly to expenses incurred

primarily for the prevention or alleviation of a physical or

mental defect or illness.    Sec. 1.213-1(e)(1)(ii), Income Tax

Regs.

     Capital expenditures are generally not deductible.    Sec.

263; sec. 1.213-1(e)(1)(iii), Income Tax Regs.    However, a

capital expenditure may qualify as a deductible medical expense

if it has as its primary purpose the medical care of the taxpayer

or his dependent.    Sec. 1.213-1(e)(1)(iii), Income Tax Regs.

Expenditures made for the operation or maintenance of a capital

asset may be deductible as medical expenses if they have as their

primary purpose the medical care, as defined in section 1.213-

1(e)(1)(i) and (ii), Income Tax Regs., of the taxpayer or his

dependent.   Sec. 1.213-1(e)(1)(iii), Income Tax Regs.

     A taxpayer is generally required to keep sufficient records

to enable the Secretary to determine the taxpayer’s correct

income tax liability.    Sec. 6001; sec. 1.6001-1(a), Income Tax

Regs.   In addition, the taxpayer shall furnish the name and
                               - 7 -

address of each person to whom payment for medical expenses was

made and the amount and date of the payment thereof in each case

in connection with claims for deductions under section 213.     Sec.

1.213-1(h), Income Tax Regs.

     The cost of educational services rendered to the mentally

handicapped can qualify as a medical expense.   Fay v.

Commissioner, 76 T.C. 408, 412 (1981) (citing Fischer v.

Commissioner, 50 T.C. 164 (1968)); sec. 1.213-1(e)(1)(v), Income

Tax Regs.   Medical care includes the entire cost of institutional

care for a person who is mentally ill and unsafe when left alone.

Sec. 1.213-1(e)(1)(v), Income Tax Regs.   Whether a service

constitutes medical care will depend upon its therapeutic nature

to the individual, and not upon the title of the person rendering

the service or the general nature of the institution in which the

services are rendered.   Fay v. Commissioner, supra.     The services

provided must be directly or proximately related to the

mitigation, alleviation, or treatment of the individual’s disease

or disability.   Fay v. Commissioner, supra, (citing Jacobs v.

Commissioner, 62 T.C. 813 (1974)).

          If a mentally disturbed individual with learning
     disabilities is sent to an educational institution
     which also has resources for treating the mental
     handicap, and if the principal reason for his
     attendance at the institution is for the use of those
     resources to alleviate or mitigate the mental handicap,
     and if the institution’s educational program is only
     incidental to its medical care function, the school
     will be considered a “special school” [under section
     1.213-1(e)(1)(v)(a), Income Tax Regs] * * * [Fay v.
                               - 8 -

     Commissioner, supra at 412.]

The expenditures for the educational services will be deductible.

Greisdorf v. Commissioner, 54 T.C. 1684 (1970).   If a school or

institution does not qualify as a “special school”, the costs of

medical services rendered are nevertheless deductible.    Fay v.

Commissioner, supra; sec. 1.213-1(e)(1)(v)(b), Income Tax Regs.

     Section 262 prohibits deductions for personal, living, or

family expenses.

     a.   Attendant care provider expense

     Mr. Emanuel was injured in 1989 while employed by Eastern

Airlines and at the time of the trial was still unable to work.

Because of the injuries, Mr. Emanuel was awarded worker’s

compensation benefits.   Mr. Emanuel is unable to walk a distance

greater than a hundred feet or to stand for more than a few

minutes consecutively and relies on a scooter for mobility.   He

has also been unable to fully care for himself and has relied on

the assistance of Mrs. Emanuel to help him shower, dress, eat,

and exercise.   In 1993, the Worker’s Compensation Court in Miami,

Florida, determined that Mr. Emanuel was to receive the

additional benefit of attendant care services and selected Mrs.

Emanuel as his attendant care provider.

     Mrs. Emanuel was paid minimum wage for 10 hours of services

provided to Mr. Emanuel each day.   The following amounts were
                                - 9 -

paid to Mrs. Emanuel by Eastern Airline’s disability insurance

carrier, American International Domestic Brokerage Group (AIG):

                      Year       Amount

                      1996      $15,834
                      1997       17,616
                      1998       15,474

Petitioners maintain that they are entitled to deduct the amounts

paid to Mrs. Emanuel as medical expenses.4

     Section 213 allows the taxpayer to deduct amounts paid for

medical expenses.    A taxpayer may deduct amounts that the

taxpayer has paid for himself (or his dependent), but not amounts

that a third party has paid on the taxpayer’s behalf.    See

McDermid v. Commissioner, 54 T.C. 1727 (1970).    Because AIG paid

Mrs. Emanuel, petitioners cannot deduct as a medical expense the

payments received.

     Petitioners argue that the funds paid to Mrs. Emanuel belong

to Mr. Emanuel and are his to “direct as he sees fit”, and that

he could have received the funds directly from AIG and paid Mrs.

Emanuel himself.5    Assuming, arguendo, that we were to accept



     4
        As previously indicated, petitioners now agree that the
amounts should have been reported as gross income in their
respective income tax returns.
     5
        Petitioners also cited a private letter ruling which
bears no factual resemblance to this case. In any event, private
letter rulings may be helpful but have no precedential force.
Rowan Cos., Inc. v. United States, 452 U.S. 247, 261 n.17 (1981);
Phi Delta Theta Fraternity v. Commissioner, 887 F.2d 1302, 1308
(6th Cir. 1989), affg. 90 T.C. 1033 (1988).
                                - 10 -

petitioners’ argument, the deduction would nevertheless be

disallowed because the payments received for worker’s

compensation would be considered as compensated for by insurance

or otherwise.    Sec. 213(a).   The deduction would also be

disallowed with respect to petitioners’ 1997 and 1998 tax years

because the amounts paid for the services provided to Mr.

Emanuel, which are qualified long-term care services as defined

under section 7702B(c), are treated as not paid for medical care

because the services were provided by Mr. Emanuel’s spouse.     Sec.

213(d)(11)(A).    Respondent is sustained on this issue.

     b.   New van

     Petitioners replaced their old van with the purchase of a

new Chevrolet van in 1998 for $32,000.     Petitioners purchased a

van, rather than another vehicle, such as an automobile, in order

to accommodate Mr. Emanuel’s scooter.     Petitioners claim that

they are entitled to deduct $12,225 as a medical expense which

represents approximately the difference between the cost of the

new van, at $32,000, and the cost of a new car, such as a

Chevrolet Lumina, at $19,775.6



     6
        Petitioners argue that their position is supported by a
private letter ruling and two revenue rulings. None of these
rulings supports petitioners’ position. Revenue rulings do not
have the force of law. Lucky Stores, Inc. v. Commissioner, 153
F.3d 964, 966 n.4 (9th Cir. 1998), affg. 107 T.C. 1 (1996),
supplemented by T.C. Memo. 1997-70. As indicated, a taxpayer may
not rely on a private letter ruling issued to another taxpayer.
See supra note 5.
                               - 11 -

       The difference between the cost of petitioners’ new van and

the cost of a new car is not deductible as an expense because

this expense was not incurred for the diagnosis, cure,

mitigation, treatment, prevention of disease, or to affect any

structure or function of the body, or for transportation

primarily for and essential to such medical care of Mr. Emanuel.

Sec. 213(a), (d)(1)(A) and (B).    We conclude that petitioners are

not entitled to deduct the excess cost of the new van as a

medical expense.

       c.   Gasoline

       Petitioners also claim a medical expense deduction for the

cost of the gasoline consumed by both their old van and their new

van.    The amount claimed represents the difference between the

cost of the gasoline used by the vans and the cost of the

gasoline that would otherwise have been consumed by a standard

size automobile.

       Petitioners estimated the amount of gasoline the new van

consumed and the amount which petitioners now claim as a medical

expense because they did not keep records of the actual gasoline

consumption.    Petitioners estimated that they drove 10,000 miles

annually.    They also estimated that the fuel consumption of a car

would be 20 miles to a gallon, and the fuel consumption of the

vans was 10 miles to the gallon.    Mr. Emanuel explained that he

averaged the cost of a premium and regular gasoline to estimate
                                - 12 -

the cost of the gasoline used.    He testified that he priced the

gasoline for 1996, 1997, and 1998 using prices available on a

website.   Petitioners provided a written summary of their

gasoline expenses but did not provide supporting documentary

evidence for the summary.   In addition, the amounts of expenses

in the summary are different from the amounts to which Mr.

Emanuel testified.

     Petitioners did not provide any evidence that they incurred

these expenses for the cost of the gasoline in the course of

transportation primarily for and essential to medical care.      Sec.

213(d)(1)(B).   In addition, petitioners have not substantiated

the amounts claimed under section 1.213-1(h), Income Tax Regs.

We conclude that petitioners are not entitled to deduct the cost

of gasoline as a medical expense.

     d.    Attendant care

     Petitioners’ son Christopher, who was 20 years old in 1996,

is microcephalic and suffers from severe mental retardation and

physical problems.   He is unable to wash himself, dress himself,

take medication, and perform other basic functions, and he

requires constant assistance.    Although petitioners received

Social Security payments, “SSI”, Medicare, and Mediwaiver on

behalf of Christopher, he qualifies as their dependent under

section 152(a)(1).
                                - 13 -

     Petitioners took numerous trips to entertainment parks.

Petitioners traveled to Walt Disney World and the Universal

Studios Florida a total of four times during 1996, 1997, and

1998.   Petitioners assert that the trips were therapeutic for

Christopher, and also for family vacations.    An attendant care

provider traveled with petitioners to assist with the care of

Christopher.   The care provider performed many services including

dressing Christopher, pushing his wheelchair, and accompanying

him on amusement rides.

     Petitioners argue that they are entitled to deduct as

medical expenses for their dependent certain costs incurred on

behalf of the attendant care provider when traveling, such as the

airplane fare, lodging, and food.    Petitioners provided to the

Court summaries listing the travel expenses incurred on behalf of

the care provider, such as food, hotel, gas and tolls, and

tickets, but they did not provide supporting documentary evidence

to substantiate the expenses.    Because petitioners did not keep

receipts of expenses, they estimated the amounts that they now

claim as expenses.   Mr. Emanuel explained that he was able to

provide a summary of expenses because he was in the habit of

contemporaneously maintaining a log of vacation expenses which he

subsequently entered onto his computer.    Mr. Emanuel prepared the

summaries when they were first audited, which was sometime

between 1999 and 2001.
                               - 14 -

     We are not satisfied that there was no significant element

of personal pleasure, recreation, or vacation in their trips to

Walt Disney World and Universal Studios Florida.    Sec. 213(d)(2).

Moreover, petitioners have not substantiated the claimed travel

expenses.   Sec. 1.213-1(h), Income Tax Regs.   We conclude that

petitioners are not entitled to deduct the travel expenses for

the attendant care provider as a medical expense.

     e.     Backup generator

     Christopher would scratch and bite himself in great distress

when the radio, television, and air conditioning in the home

could not operate due to a loss of power.   Power outages would

occur in petitioners’ home three or four times a year.

Petitioners purchased a backup electrical generator for $840 in

1998 to avoid the distress to Christopher when the radio,

television, and air condition were not operating.    The generator

was not used to provide electricity to medical equipment for

Christopher.

     The electrical generator is a capital expenditure.    Secs.

263, 213(d)(1)(A); sec. 1.213-1(e)(1)(iii), Income Tax Regs.

Petitioners’ explanation for the electrical generator is that

they purchased it to ease Christopher’s distress, but this does

not indicate a medical exigency.   See Haines v. Commissioner, 71

T.C. 644 (1979).    Although the electrical generator may have been

beneficial to Christopher because it operated the radio,
                                  - 15 -

television, and air conditioner during power outages, it does not

have as its primary purpose medical care, that is, the cure,

mitigation, or treatment of Christopher’s condition.        Sec. 1.213-

1(e)(1)(iii), Income Tax Regs.      Petitioners have not alleged, nor

are there facts in the record that would suggest, that they are

entitled to deductions for the radio, television, and air

conditioner as medical expenses.       Id.; see Gerard v.

Commissioner, 37 T.C. 826 (1962).       We conclude that petitioners

are not entitled to deduct the cost of the backup generator as a

medical expense.

     f.      Pool maintenance

     Petitioners claim that they are entitled to deduct as a

medical expense amounts paid to maintain the quality of the

swimming pool (i.e., chemicals, equipment, electricity) at their

home.     Petitioners installed the swimming pool in their home in

1979 after Christopher’s pediatrician recommended that he swim to

develop his motor skills.       He uses the pool about once a day with

Mrs. Emanuel’s assistance.      The pool depth ranges from 3 to 5-1/2

feet.     It has wide steps and a grab rail in the shallow end, but

it has no diving board or slide.

     Mr. Emanuel’s doctors also recommended that he engage in

aquatic therapy in a swimming pool.        Mr. Emanuel testified that

he used the pool at his house three or four times a day in good
                               - 16 -

weather.    Mr. Emanuel testified that his other son almost never

used the swimming pool.

     Both Christopher and Mr. Emanuel used the pool daily for

therapy related to their physical disabilities upon the advice of

doctors.    The pool is tailored for use by both Christopher and

Mr. Emanuel, it is usable throughout the year, and Christopher

and Mr. Emanuel used the pool daily.    See Haines v. Commissioner,

supra at 648.    Other family members do not use the swimming pool

for recreation.    Upon these facts, we conclude that the swimming

pool has as its primary purpose and is directly related to the

medical care of both Christopher and Mr. Emanuel.    Sec. 1.213-

1(e), Income Tax Regs.

     Petitioners did not maintain receipts of the expenses

incurred with respect to the maintenance of the pool; therefore,

they produced an estimate from the swimming pool supply store,

Pinch-A-Penny, from which they purchased supplies.    The estimate

provided that the annual cost of maintaining a swimming pool such

as the one owned by petitioners was approximately $1,200.

Moreover, Mr. Emanuel provided testimony as to the items needed

to maintain the pool and their general cost.    We find the

estimate from Pinch-A-Penny and Mr. Emanuel’s testimony to be

credible.

     Although generally a taxpayer is required to keep records to

establish the amount of his deductions under section 6001, in
                              - 17 -

some situations, the Court may estimate the amount of medical

expenses and allow a deduction to that extent, notwithstanding

substantiating documentary evidence in the record.     Cohan v.

Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930); Meyers v.

Commissioner, T.C. Memo. 1996-219.     The Court is satisfied that

petitioners incurred $1,200 in pool maintenance expenses for each

of the years at issue, and petitioners are entitled to deduct the

expenses for 1996, 1997, and 1998 as medical expenses to the

extent allowable under section 213(a).

     g.   YMCA day camp

     Christopher was enrolled in a YMCA program during the tax

years at issue the cost of which petitioners allege they are

entitled to deduct for each of the years at issue as dependent

medical expenses.   The brochure for the YMCA program reflects

that it is structured to enhance physical and social growth in

the areas of recreation and leisure activities for special

populations.

     The YMCA program was designed to assist a student like

Christopher with severe physical and mental disabilities with

physical growth and to treat his problems.    Christopher’s

participation in the program was prompted by his mental and

physical disabilities, and the program had principally a

therapeutic value for him.   See Greisdorf v. Commissioner, 54

T.C. 1684, 1690 (1970).   We conclude that the YMCA program was
                               - 18 -

directly or proximately related to the mitigation or treatment of

Christopher’s disabilities and the principal reason for

Christopher’s attendance was to treat his disability.      Therefore,

petitioners are entitled to deduct $1,569 in 1996, $1,558 in

1997, and $1,234 in 1998 as medical expenses to the extent

allowable under section 213(a).

2.   Charitable contribution

     Any charitable contribution which is made within the taxable

year may be allowed as a deduction.     Sec. 170(a)(1).   Any

contribution of $250 or more shall not be allowed unless the

taxpayer substantiates the contribution by a contemporaneous

written acknowledgment of the contribution by the donee

organization.   Sec. 170(f)(8)(A).   The written acknowledgment

must contain the following information:

      SEC. 170(f)(8)(B) Content of Acknowledgement.– * * *

          (i) The amount of cash and a description (but not
     a value) of any property other than cash contributed;

          (ii) Whether the donee organization provided any
     goods or services in consideration, in whole or in
     part, for any property described in clause (i);

          (iii) A description and good faith estimate of the
     value of any goods or services referred to in clause
     (ii) or, if such goods or services consist solely of
     intangible religious benefits, a statement to that
     effect.

     Although no deduction is allowed for a contribution of

services, unreimbursed out-of-pocket transportation expenses

incurred, such as mileage driven, while performing donated
                              - 19 -

services are deductible.   Sec. 1.170A-1(g), Income Tax Regs.    The

deductible standard mileage rate for computing the deduction for

the use of a passenger automobile driven in connection with

rendering services to a charitable organization is 12 cents per

mile for years beginning on or before December 31, 1997, and 14

cents per mile for years beginning after December 31, 1997.     Sec.

170(i); Churukian v. Commissioner, T.C. Memo. 1980-205; see also

Rev. Proc. 95-54, 1995-2 C.B. 450; Rev. Proc. 96-63, 1996-2 C.B.

420; Rev. Proc. 97-58, 1997-2 C.B. 587.

     Petitioners assert they are entitled to deduct as a

charitable contribution $425 relating to use of their van for

charitable purposes.   Petitioners have not provided any facts

indicating that the use of the van was for the benefit of a

charity and not for the benefit of one of the family members.

See Seed v. Commissioner, 57 T.C. 265 (1971).   In addition,

petitioners allege that Exhibit 16-P substantiates the mileage

driven; however, this exhibit does not indicate what the donee

charitable organization was or describe the charitable services

provided by petitioners.   We conclude that petitioners are not

entitled to a charitable deduction for mileage driven.
                            - 20 -

    Reviewed and adopted as the report of the Small Tax Case

Division.

    To reflect the foregoing,

                                     Decisions will be entered

                                under Rule 155.
