                  T.C. Summary Opinion 2006-69



                     UNITED STATES TAX COURT



               GREGORY S. ROBINETTE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16875-04S.             Filed April 26, 2006.


     Gregory S. Robinette, pro se.

     William J. Gregg, 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.    The decision to be

entered is 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 year in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.
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     Respondent determined a deficiency in petitioner’s Federal

income tax of $4,964 for the taxable year 2002.

     The issues for decision are:    (1) Whether petitioner is

entitled to a charitable contribution deduction in 2002; and (2)

whether petitioner is entitled to miscellaneous itemized

deductions for the 2002 taxable year.

                            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

Fort Ashby, West Virginia, on the date the petition was filed in

this case.

     During the year in issue, petitioner was employed by Sprint

as an installation technician.    Petitioner began working for

Sprint early in 2001.   From that time through the year in issue

petitioner worked out of Sprint’s office in Pennausken, New

Jersey.   Also during this time, petitioner maintained his

residence in Cumberland, Maryland, because of its proximity to

his friends’ and to his family’s residences.    Petitioner, when

working, traveled approximately 480 miles round trip from

Cumberland to Pennausken.   Additionally, while working at Sprint

during 2001 and 2002, petitioner’s “territory” was Pennsylvania,

New Jersey, and New York.   Petitioner would travel to different

job locations within these States during his employment with
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Sprint.     Sprint considered Pennausken, New Jersey, petitioner’s

home office, and, therefore, only reimbursed petitioner for all

employment-related travel expenses incurred while away from

Pennausken.

     Petitioner electronically filed his Federal income tax

return for 2002 in a timely manner on December 10, 2003.

Petitioner attached to his 2002 Federal income tax return a

Schedule A.      On his 2002 Schedule A, petitioner claimed as

follows, in pertinent part:

     Itemized Deductions                                     Amount

     Line    5     State and local income taxes              $1,860
     Line    9     Total taxes                                1,860
     Line   15     Gifts to charity by cash or check          2,600
     Line   16     Other than by cash or check                  460
     Line   18     Total contributions to charity             3,060
     Line   20     Unreimbursed employee business exp.       27,689
     Line   23     Total limited misc. expenses              27,689
     Line   26     Net limited misc. deduction               26,489
     Line   28     Total itemized deductions                 31,409

     In the notice of deficiency, respondent denied petitioner

the claimed charitable contribution deduction and the claimed

miscellaneous itemized deductions.        Because the remaining

itemized deductions were less than the standard deduction for

taxable year 2002, respondent calculated petitioner’s deficiency

using the 2002 standard deduction of $4,700.

                               Discussion

     In general, the Commissioner’s determination set forth in a

notice of deficiency is presumed correct.        Welch v. Helvering,
                                 - 4 -

290 U.S. 111, 115 (1933).    In pertinent part, Rule 142(a)(1)

provides the general rule that “The burden of proof shall be upon

the petitioner”.    In certain circumstances, however, if the

taxpayer introduces credible evidence with respect to any factual

issue relevant to ascertaining the proper tax liability, section

7491 places the burden of proof on the Commissioner.     Sec.

7491(a)(1); Rule 142(a)(2).    Credible evidence is “‘the quality

of evidence which, after critical analysis, * * * [a] court would

find sufficient * * * to base a decision on the issue if no

contrary evidence were submitted’”.1     Baker v. Commissioner, 122

T.C. 143, 168 (2004) (quoting Higbee v. Commissioner, 116 T.C.

438, 442 (2001)).    Section 7491(a)(1) applies only if the

taxpayer complies with substantiation requirements, maintains all

required records, and cooperates with reasonable requests by the

Commissioner for witnesses, information, documents, meetings, and

interviews.   Sec. 7491(a)(2).   Although neither party alleges the

applicability of section 7491(a), we conclude that the burden of

proof has not shifted to respondent with respect to any of the

issues in the present case.

     Moreover, deductions are a matter of legislative grace and

are allowed only as specifically provided by statute.     INDOPCO,


     1
      We interpret the quoted language as requiring the
taxpayer’s evidence pertaining to any factual issue to be
evidence the Court would find sufficient upon which to base a
decision on the issue in favor of the taxpayer. See Bernardo v.
Commissioner, T.C. Memo. 2004-199.
                                 - 5 -

Inc. v. Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice

Co. v. Helvering, 292 U.S. 435, 440 (1934).

     Section 6001 and the regulations promulgated thereunder

require taxpayers to maintain records sufficient to permit

verification of income and expenses.     As a general rule, if the

trial record provides sufficient evidence that the taxpayer has

incurred a deductible expense, but the taxpayer is unable to

adequately substantiate the precise amount of the deduction to

which he or she is otherwise entitled, the Court may estimate the

amount of the deductible expense, bearing heavily against the

taxpayer whose inexactitude in substantiating the amount of the

expense is of his own making, and allow the deduction to that

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

However, in order for the Court to estimate the amount of an

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

may be made.   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-

561 (5th Cir. 1957).    With these well-established propositions in

mind, we must determine whether petitioner has satisfied his

burden of proving that he is entitled to the claimed deductions

mentioned above.
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1.   Gifts to Charity

     As previously stated, on petitioner’s Schedule A filed with

his Federal income tax return for taxable year 2002, he reported

the following gifts to charity:

     Itemized Deductions                      Amount

     Gifts by cash or check                   $2,600
     Gifts other than by cash or check           460
          Total gifts                         $3,060

     Respondent determined that petitioner did not adequately

substantiate that any of the claimed gifts to charity were made.

Accordingly, respondent disallowed the total amount of

petitioner’s claimed gifts to charity.

     Deductions for charitable contributions are allowable only

if verified under regulations prescribed by the Secretary.    Sec.

170(a).   Section 1.170A-13, Income Tax Regs., in turn, sets forth

the types of substantiation necessary to support deductions for

charitable contributions.

     The applicable regulations require a taxpayer to maintain

for each contribution of money a canceled check, a receipt from

the donee organization showing the date and amount of the

contribution, or other reliable written records showing the name

of the donee and the date and amount of the contribution.    See

sec. 1.170A-13(a)(1), Income Tax Regs.   For charitable

contributions of property other than money, taxpayers generally

must maintain for each contribution a receipt from the donee
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showing the following information:       (1) The name of the donee;

(2) the date and location of the contribution; and (3) a

description of the property in detail reasonably sufficient under

the circumstances.    Sec. 1.170A-13(b)(1), Income Tax Regs.     The

amount of the contribution is the fair market value of the

property at the time of the contribution.       Sec. 1.170A-1(c)(1),

Income Tax Regs.

     Petitioner has not maintained any of the records required to

substantiate his claimed charitable contributions.       Petitioner

testified, at trial, that during 2002 he made weekly cash

contributions of between $40 and $50 at the Sunday services of

the Methodist Church in Shortgap, West Virginia.       Petitioner

further testified that he contributed clothing to the Salvation

Army during the year in issue.    Petitioner has not offered into

evidence any documentary substantiation in support of his claimed

charitable contributions.

     On the basis of the record, we find petitioner’s testimony

credible as to the portion of charitable gifts made to the

Methodist Church.    Although petitioner has no records, we

conclude that petitioner is entitled to a deduction for cash

charitable gifts for the taxable year 2002 of $1,000.       However,

he is not entitled to a deduction for gifts other than by check

or cash.
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2.   Miscellaneous Itemized Deductions

     On his 2002 Schedule A, petitioner deducted unreimbursed

employee business expenses of $27,689.     Respondent determined

that petitioner did not adequately substantiate any of the

claimed unreimbursed employee business expenses.     In the

alternative, respondent argued that if petitioner did

substantiate the unreimbursed employee business expenses,

petitioner is not entitled to deduct such expenses pursuant to

section 162(a)(2) because the expenses were not incurred away

from home.

     Before we determine whether petitioner has substantiated his

claimed unreimbursed employee business expenses, we first decide

whether petitioner incurred these expenses away from home.

     A taxpayer generally may not deduct personal, living, and

family expenses.   Sec. 262(a).    However, section 162(a) allows a

taxpayer to deduct all ordinary and necessary business expenses

paid or incurred during the taxable year in carrying on any trade

or business.   To be “necessary” an expense must be “appropriate

and helpful” to the taxpayer’s business.      Welch v. Helvering, 290

U.S. at 113-114.   To be “ordinary” the transaction which gives

rise to the expense must be of a common or frequent occurrence in

the type of business involved.      Deputy v. Du Pont, 308 U.S. 488,

495 (1940).
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     The performance of services as an employee constitutes a

trade or business.   See sec. 1.162-17(a), Income Tax Regs.   The

employee must show the relationship between the expenditures and

the employment.   See Evans v. Commissioner, T.C. Memo. 1974-267,

affd. in part, revd. in part 557 F.2d 1095 (5th Cir. 1977).    The

taxpayer bears the burden of substantiation.   Hradesky v.

Commissioner, 65 T.C. 87, 90 (1975), affd. per curiam 540 F.2d

821 (5th Cir. 1976).

     Further, section 162(a)(2) generally permits a deduction for

traveling expenses incurred while away from home in the pursuit

of a trade or business.   Bochner v. Commissioner, 67 T.C. 824,

827 (1977).

     This Court has generally defined the word “home” as used in

section 162(a)(2) to refer to the vicinity of a taxpayer’s

principal place of employment and not to the place where the

taxpayer’s personal residence is located, if that personal

residence is different from the principal place of employment.

Daly v. Commissioner, 72 T.C. 190, 195 (1979), affd. 662 F.2d 253

(4th Cir. 1981); Kroll v. Commissioner, 49 T.C. 557, 561-562

(1968).   An exception is made if the taxpayer’s place of

employment in another area is temporary as opposed to indefinite;

in that case the taxpayer’s personal residence may be his tax

home.   Peurifoy v. Commissioner, 358 U.S. 59, 60 (1958); Mitchell

v. Commissioner, T.C. Memo. 1999-283.   Additionally, if a
                              - 10 -

taxpayer does not have a principal place of employment, his

permanent residence is his tax home for purposes of section

162(a)(2).   Johnson v. Commissioner, 115 T.C. 210, 221 (2000).

     A place of business is temporary if the employment is such

that termination within a short period could be foreseen.

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

v. Commissioner, 53 T.C. 269 (1969).   Conversely, employment is

indefinite if termination could not 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.

     In the present case, petitioner’s expenses were incurred in

traveling from Cumberland, Maryland, to Pennausken, New Jersey,

and in staying overnight in Pennausken.   Petitioner began working

out of Sprint’s Pennausken office in 2001.   Sprint considered

Pennausken petitioner’s home office and only reimbursed

petitioner for expenses while away from Pennausken.   Petitioner

testified that his choice to live in Cumberland, Maryland, and to

make the approximate 480 mile round trip to Pennausken was a

personal choice.

     It is clear from the record that Pennausken, New Jersey, was

not a temporary place of business for petitioner.   Therefore, we

conclude that Pennausken, New Jersey, was petitioner’s “tax home”
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for taxable year 2002.    Because petitioner was not away from home

when he incurred his claimed unreimbursed employee business

expenses, he is unable to deduct these expenses under section

162(a)(2).    Therefore, we need not and do not decide whether

petitioner has substantiated his claimed miscellaneous itemized

deductions.    Accordingly, respondent’s determination on this

issue is sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                     Decision will be entered

                                for respondent.2




     2
      Because the remaining itemized deductions were less than
the standard deduction for 2002, respondent’s calculation of
petitioner’s deficiency using the 2002 standard deduction is
correct.
