                    T.C. Summary Opinion 2007-142



                        UNITED STATES TAX COURT



              BAMIDELE ARIKE KOLAPO, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8217-06S.               Filed August 15, 2007.



     Bamidele Arike Kolapo, pro se.

     Carrie L. Kleinjan, for respondent.



     RUWE, Judge:     This case was heard pursuant to the provisions

of section 74631 of the Internal Revenue Code in effect when the

petition was filed.    Pursuant to section 7463(b), the decision to




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

be entered is not reviewable by any other court, and this opinion

shall not be treated as precedent for any other case.

     Respondent determined deficiencies in petitioner’s Federal

income tax of $2,189 for 2003 and $2,441 for 2004.   After

concessions,2 we must decide whether petitioner is entitled to

claim the remaining miscellaneous deductions in dispute.

                             Background

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

The stipulation of facts and the attached exhibits are

incorporated by this reference.   When the petition was filed,

petitioner resided in Irvington, New Jersey.

     Petitioner was employed as a system administrator for Medco

Health, L.L.C. (Medco), in 2003 and 2004.   Petitioner worked

primarily in Medco’s Parsippany, New Jersey, office but sometimes

worked in Medco’s Franklin Lake, New Jersey, office in 2003 and

2004.    She worked in Franklin Lake in April, June, and September


     2
       Petitioner claimed deductions on Schedules A, Itemized
Deductions, for charitable contributions of $1,717 in 2003 and
$1,705 in 2004. Respondent disallowed the $245 noncash portions
of these claimed charitable contributions for both 2003 and 2004.
Petitioner subsequently substantiated greater charitable
contributions than she had originally claimed on her returns, and
respondent conceded that petitioner was entitled to deductions of
$3,380 for 2003 and $3,900 for 2004 unless the standard deduction
is more advantageous. Petitioner also provided documentation to
substantiate that she paid union dues of $315.20 in 2003 and
$391.80 in 2004 and tax preparation fees of $150 in both 2003 and
2004. Respondent concedes that the union dues expenses and the
tax preparation fees are deductible, but only to the extent they
exceed 2 percent of petitioner’s adjusted gross income. See
infra note 3.
                                - 3 -

of 2003 and July, August, and September of 2004.    Petitioner

worked in Parsippany during the remaining 9 months of each year.

     Petitioner timely filed Federal income tax returns in which

she reported adjusted gross income of $24,719 for 2003 and

$29,207 for 2004.   On March 20, 2006, respondent issued two

separate notices of deficiency for 2003 and 2004, respectively.

Petitioner timely filed a petition with this Court regarding both

2003 and 2004.   The following miscellaneous deductions remain in

dispute:3

            Miscellaneous Expense       2003     2004

            Vehicle expense         $9,040      $9,519
            Parking fees, tolls,           98      320
              transportation
            Business expenses           4,800   4,580
            Work materials, work        5,800   5,644
              clothes, and
              cleaning expenses

     Petitioner provided no receipts or contemporaneous records

to substantiate any of her claimed miscellaneous expenses.     In

January 2005, after the IRS informed petitioner her returns were

being audited, and on the recommendation of her accountant,

petitioner prepared logs from memory relating to her


     3
       Sec. 67(a) allows miscellaneous itemized deductions only
to the extent that the aggregate of such deductions exceeds 2
percent of adjusted gross income. Whether the miscellaneous
deductions are allowed will affect whether it would be more
beneficial for petitioner to itemize or claim the standard
deduction in either 2003 or 2004.
                                - 4 -

miscellaneous expenses.   Petitioner’s logs indicate that she

drove her vehicle 420 miles each week for work, paid $40 each

week to clean her work clothes and lab coat, and paid $65 each

month for a cell phone used in conjunction with her work during

2003 and 2004.   Petitioner’s logs of her mileage did not

distinguish between the days she worked in Parsippany and the

days she worked in Franklin Lake, nor did the logs provide the

route she took to get to Franklin Lake when she worked there.

Parsippany and Franklin Lake are in the same metropolitan area,

both less than 35 miles from petitioner’s home.   Petitioner used

her cell phone for personal use as well as to communicate with

her employer.

                             Discussion

     As a general rule, the Commissioner’s determinations set

forth in a notice of deficiency are presumed correct, and the

taxpayer bears the burden of proving that these determinations

are in error.    Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115

(1933).4

     Deductions are strictly a matter of legislative grace and

the taxpayer bears the burden of proving entitlement to the


     4
       Pursuant to sec. 7491(a), the burden of proof as to
factual issues may shift to the Commissioner where the taxpayer
introduces credible evidence and complies with substantiation
requirements, maintains records, and cooperates fully with
reasonable requests for witnesses, documents, and other
information. Petitioner has not met the requirements of sec.
7491(a).
                                - 5 -

claimed deduction.   Rule 142(a); INDOPCO, Inc. v. Commissioner,

503 U.S. 79, 84 (1992); New Colonial Ice Co. v. Helvering, 292

U.S. 435, 440 (1934).    Taxpayers are required to maintain records

that are sufficient to enable the Commissioner to determine their

correct tax liability.   See sec. 6001; sec. 1.6001-1(a), Income

Tax Regs.   Additionally, taxpayers bear the burden of

substantiating the amount and purpose of each item they claimed

as a deduction.   See Hradesky v. Commissioner, 65 T.C. 87, 89

(1975), affd. per curiam 540 F.2d 821 (5th Cir. 1976).

     Section 162 generally allows a deduction for all the

ordinary and necessary expenses paid or incurred during the

taxable year in carrying on any trade or business.   Such expenses

must be directly connected with or pertain to the taxpayer’s

trade or business.   Sec. 1.162-1(a), Income Tax Regs.   A trade or

business includes the trade or business of being an employee.

O’Malley v. Commissioner, 91 T.C. 352, 363-364 (1988); sec.

1.162-17(a), Income Tax Regs.   Whether an expenditure satisfies

the requirements of section 162 is a question of fact.

Commissioner v. Heininger, 320 U.S. 467, 475 (1943).

     Respondent argues that petitioner has failed to substantiate

the claimed miscellaneous expenses remaining in dispute.    The

only records petitioner produced at trial were logs of her

estimated mileage, cell phone expenses, and cleaning expenses,
                                - 6 -

which she wrote from memory after she found out her returns were

going to be audited.

       First, we will address petitioner’s vehicle expenses.

Expenses for transportation between a taxpayer’s residence and

his or her place of business or employment are generally

considered personal expenses, the deduction of which is

prohibited by section 262.    See Fausner v. Commissioner, 413 U.S.

838 (1973); Commissioner v. Flowers, 326 U.S. 465 (1946); secs.

1.162-2(e), 1.262-1(b)(5), Income Tax Regs.    However, the costs

of going from one business location to another generally are

deductible under section 162(a).    Rev. Rul. 55-109, 1955-1 C.B.

261.

       Petitioner worked in Franklin Lake during only 3 months per

year in 2003 and 2004 and testified that, even then, she worked

there only two or three times a week.    Yet petitioner’s logs

indicate that she drove 420 miles between her home and Franklin

Lake during every week of 2003 and 2004.    At trial, petitioner

acknowledged her mileage logs were incorrect but failed to

elaborate on that acknowledgment.    She argued that when she

worked in Franklin Lake, she drove from her home to Parsippany

and then from Parsippany to Franklin Lake but never directly from

her home to Franklin Lake.    However, petitioner was unsure of

herself and unclear when she tried to explain the mileage
                               - 7 -

traveled for purposes of her claimed deduction.   Given the

contradictory nature and general unreliability of petitioner’s

testimony and the evidence produced, we find that petitioner has

failed to substantiate her 2003 and 2004 vehicle expenses.

     Next, we must address petitioner’s cleaning expenses.

Petitioner provided no receipts to substantiate her cleaning

expenses.   As we have already established, petitioner’s logs are

unreliable and insufficient to substantiate those expenses.

Additionally, petitioner failed to show that she was required to

wear a uniform to work, thus failing to prove that her cleaning

expenses met the ordinary and necessary business requirement

under section 162.   Accordingly, we sustain respondent’s

determination to disallow petitioner’s deduction for her cleaning

expenses.

     We must next address petitioner’s cell phone expenses.    As a

general rule, section 262 prohibits a deduction for expenses that

are personal in nature.   The prohibition of section 262 regarding

the deductibility of personal expenses takes precedence over the

allowance provision of section 162, Sharon v. Commissioner, 66

T.C. 515, 522-525 (1976), affd. 591 F.2d 1273 (9th Cir. 1978),

and a taxpayer must demonstrate that the expenses at issue were

different from or greater than what he would have spent for

personal purposes, Sutter v. Commissioner, 21 T.C. 170, 173-174

(1953).
                               - 8 -

     Petitioner used her cell phone in 2003 and 2004 for

personal, as well as business, purposes.     The $65 she paid each

month for cell phone usage during the years in issue was a

standard monthly charge.   While petitioner may have used her cell

phone for business, as well as personal, purposes, there is no

indication that she paid any more than she would have had she not

used it for work.   Accordingly, we find that section 262

prohibits petitioner from claiming her cell phone expense

deductions.

     Finally, with regard to the remaining expense deductions in

dispute, petitioner produced no contemporaneous books, records,

or receipts to substantiate them.5     Petitioner having failed to

substantiate the deductions for those expenses, we find that

petitioner is not entitled to them.

     We hold that petitioner is not entitled to any of the

disallowed miscellaneous deductions in dispute.     As a result, we

note that the standard deduction for the years in issue might be

more advantageous to petitioner than the allowed itemized




     5
       At trial, petitioner submitted a document indicating that
total union dues of $728.45 were paid on her behalf in 2004.
Petitioner argued at trial that this was the proper amount of
union dues she paid in 2004. However, without more evidence that
petitioner actually paid this amount, and given the unreliability
of petitioner’s other testimony and evidence, we find that
petitioner is entitled to only the amount stipulated with
respondent. See supra note 2.
                                 - 9 -

deductions.   Therefore, that determination will be based on the

calculations of the parties.

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.
