                  T.C. Summary Opinion 2002-139



                     UNITED STATES TAX COURT



                 LUCY M. WIGGINS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7142-01S.             Filed October 23, 2002.



     Lucy M. Wiggins, pro se.

     Nancy Carver, for respondent.



     PANUTHOS, Chief 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
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Revenue Code in effect for the year in issue, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

     Respondent determined a deficiency in petitioner’s 1999

Federal income tax of $6,551.   The issues for decision are:   (1)

Whether petitioner is entitled to dependency exemption

deductions; (2) whether petitioner is entitled to head-of-

household filing status; (3) whether petitioner is entitled to a

deduction for charitable contributions; (4) whether petitioner is

entitled to deductions for unreimbursed employee expenses; and

(5) whether petitioner is entitled to a deduction for tax

preparation fees.

     Petitioner resided in Temple Hills, Maryland, at the time

she filed the petition.   The stipulation of facts and the

attached exhibits are incorporated herein by this reference.

Background

     Petitioner claimed the following five individuals as

dependents on Form 1040, U.S. Individual Income Tax Return, for

1999:   Shirley Payne (Ms. Payne), a sister; Ushaka Darby

(Ushaka), a nephew; James Coffield (Mr. Coffield), a nephew;

Donald Wiggins (Donald), a grandson; and Dontae Wiggins (Dontae),

a grandson.   Respondent disallowed all of petitioner’s claimed

dependency exemption deductions and correspondingly disallowed

petitioner’s claimed head-of-household filing status.    Because

the standard deduction amount was greater than the deductions
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claimed on Schedule A that respondent allowed (i.e., a deduction

for State and local taxes), respondent determined the deficiency

using the standard deduction.

     Petitioner alleges that Donald, who was 10 years old,

Dontae, who was 9 years old, and Mr. Coffield, who was 38 years

old, lived with her in her apartment in Suitland, Maryland,

during 1999.   Petitioner’s granddaughter, LaDonna Wiggins, lived

in petitioner’s apartment during 1999, and petitioner’s adult

son, Victor, also lived in petitioner’s apartment for 1 month

during 1999, but petitioner did not claim a deduction for either

as a dependent.   Petitioner paid $800 a month in rent.

     Although petitioner purchased most of the food for the

household, Victor purchased groceries for the members of the

household during the one month that he lived there.    Mr. Coffield

neither worked nor received public assistance during 1999.    The

parents of Donald and Dontae, Donald P. Wiggins, Sr. (Mr.

Wiggins) and Lisa Walls (Ms. Walls), provided minimal support for

Donald and Dontae during 1999.    Mr. Wiggins was employed as a

mechanic during 1999 and also as a member of the District of

Columbia Army National Guard.

     Although petitioner indicated on her Federal income tax

return that Ms. Payne is her sister, at trial petitioner

indicated that Ms. Payne is not a relative.    Ms. Payne did not

live in petitioner’s apartment during 1999.    Ushaka Darby lived
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in petitioner’s apartment for approximately 6 months during 1999.

Petitioner did not provide more than half of the support of

either Ms. Payne or Ushaka during 1999.

     Donald and Dontae’s school ended at 2:30 p.m.    Every

afternoon petitioner prepared dinner for Donald and Dontae to eat

upon their return home.    After dinner petitioner left for work,

which began at 4:00 p.m.    While petitioner was at work, Mr.

Coffield would care for Donald and Dontae.

     An undated “Letter of Instruction to Guardians” signed by

Mr. Wiggins and petitioner provides that petitioner is designated

as the long-term guardian of Donald and Dontae.

     A durable power of attorney for Mr. Wiggins, as a member of

the U.S. Armed Forces, designates petitioner to follow up on his

financial obligations to ensure payment to creditors and debtors

in the event that he is determined to be missing, missing in

action, or a prisoner of war.    Mr. Wiggins signed the power of

attorney in December 1999.

     A handwritten letter signed by Mr. Wiggins dated April 24,

2002, indicates that he “gave my mother Lucy M. Wiggins power of

attorney over my * * * children * * * Donald P. Wiggins Jr.,

[and] Dontae R. Wiggins”.

     Dontae’s elementary school Student Registration Form dated

March 15, 2000, reflects his address as 3312 Curtis Drive,

Suitland, Maryland.   This is the address of petitioner’s
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apartment during 1999 and also the address listed for Mr.

Wiggins, Dontae’s father.   This form indicates that Dontae lived

with both “Natural Parents” and “Legal Guardians”.     Petitioner is

indicated as the female head of household.

     Petitioner worked as a corrections officer for which she

received $51,078 as wages in 1999.     She wore a uniform to work

that she purchased instead of wearing the uniform provided at no

cost to her by her employer, the District of Columbia Department

of Corrections.   Petitioner drove to and from work each day, and

paid about $10 per week for parking.     Petitioner did not drive

her automobile as part of her job duties.     The claimed deductions

for unreimbursed employee expenses include parking tickets

petitioner received while at work and transportation expenses.

     Petitioner claimed the following deductions on Schedule A of

her Federal income tax return for 1999:

           Gifts to charity (cash or check)   $3,640
           Gifts to charity (other than in       500
             cash or by check)
           Unreimbursed employee expenses      2,400
           Tax preparation fees                  250
           Other expenses (care of work wear) 2,500

Respondent denied the deductions in full for failure to

substantiate the amounts claimed.

Discussion

     1.   Dependency Exemption Deductions

     A taxpayer is allowed a deduction for a dependent over half

of whose support is provided by the taxpayer.     Secs. 151(c)(1),
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152(a).    A dependent includes a son or daughter of the taxpayer

or a descendant of either, a son or daughter of a brother or

sister of the taxpayer, and an individual (other than a spouse of

the taxpayer) who, for the taxable year, has as his principal

place of abode the home of the taxpayer and is a member of the

taxpayer’s household.    Sec. 152(a)(1), (6), (9); sec. 1.152-

1(a)(1) and (b), Income Tax Regs.

     The term “support” includes food, shelter, clothing, medical

and dental care, education, and the like.    Sec. 1.152-1(a)(2)(i),

Income Tax Regs.    The total amount of support for each of the

claimed dependents furnished by all sources during the year in

issue must be established by competent evidence.      Blanco v.

Commissioner, 56 T.C. 512, 514 (1971).    The amount of support

that the claimed dependent received from the taxpayer is compared

to the entire amount of support the individual received from all

sources.    Sec. 1.152-1(a)(2)(i), Income Tax Regs.

     Petitioner bears the burden of proof.    Rule 142(a)(1).1

Petitioner conceded that Ms. Payne did not live in her apartment

during 1999 and also that she did not provide more than half of

Ms. Payne’s support.    We conclude that Ms. Payne did not have



     1
        Sec. 7491 does not apply to shift the burden of proof to
respondent because petitioner has neither alleged that sec. 7491
is applicable nor established that she complied with the
requirements of sec. 7491(a)(2)(A) and (B) and substantiated
items, maintained required records, and fully cooperated with
respondent’s reasonable requests.
                               - 7 -

petitioner’s apartment as her principal place of abode under

section 152(a)(9), and the claimed dependency exemption deduction

with respect to Ms. Payne is denied.

     Petitioner conceded that she did not provide more than half

of the support for Ushaka during 1999.   We conclude that Ushaka

does not qualify as a dependent under section 152(a)(6), and the

claimed dependency exemption deduction with respect to Ushaka is

denied.

     Mr. Coffield’s name does not appear on the lease for the

apartment in which petitioner lived during 1999.   Petitioner did

not provide any facts to support her claim that Mr. Coffield

lived in her apartment during 1999 and that she provided more

than half of his support.   Therefore, the claimed dependency

exemption deduction with respect to Mr. Coffield is denied.

     A school registration form for Dontae dated March 15, 2000,

reflects the apartment address where petitioner lived.    Donald

and Dontae are reflected as residents of petitioner’s apartment

on the lease for the apartment where she lived in 1999.    We

conclude that Donald and Dontae had as their principal places of

abode during 1999 petitioner’s apartment for which petitioner

paid rent.   Although Mr. Wiggins and Ms. Walls may have provided

minimal support for Donald and Dontae, and petitioner’s son,

Victor, bought groceries during the month that he lived in

petitioner’s apartment, we conclude that petitioner provided more
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than half of the support of Donald and Dontae.   See sec.

152(a)(1).   Accordingly, petitioner is entitled to deductions for

Donald and Dontae as dependents for the 1999 tax year.

     2.    Head-of-household Filing Status

     To qualify as a head of household, a taxpayer must satisfy

the requirements of section 2(b).   Under section 2(b), a taxpayer

shall be considered a head of household if she is not married at

the close of the taxable year, is not a surviving spouse, and,

among other choices, maintains as her home a household which

constitutes for more than half of such taxable year the principal

place of abode, as a member of such household, of either an

unmarried descendant of a son or daughter of the taxpayer, or any

other person who is a dependent of the taxpayer if the taxpayer

is entitled to a deduction for the taxable year for such person

under section 151.   Sec. 2(b)(1)(A); sec. 1.2-2(b)(ii), (c)(1),

Income Tax Regs.   A taxpayer shall be considered as maintaining a

household only if she pays more than one-half of the cost thereof

for the taxable year.   Sec. 1.2-2(d), Income Tax Regs.

     Since petitioner maintained as her home a household which

constituted the principal place of abode of Donald and Dontae

during 1999, petitioner is entitled to head-of-household filing

status.   Sec. 2(b)(1)(A)(i).
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     3.     Charitable Contributions

     Section 170(a) allows as a deduction a charitable

contribution which is made within the taxable year.    As relevant

here, a charitable contribution means a contribution or gift to

or for the use of an organization organized and operated

exclusively for religious, charitable, scientific, literary, or

educational purposes.    Sec. 170(c)(2)(B).   If a taxpayer makes a

charitable contribution of money the taxpayer shall maintain for

each contribution either a cancelled check, a receipt or letter

from the donee charitable organization, or other reliable written

records showing the name of the donee, the date of the

contribution, and the amount of the contribution.     Cavalaris v.

Commissioner, T.C. Memo. 1996-308; sec. 1.170A-13(a)(1), Income

Tax Regs.    The reliability of a written record is to be

determined on the basis of all the facts and circumstances of a

particular case.    Sec. 1.170A-13(a)(2)(i), Income Tax Regs.

Factors indicating that a written record is reliable include the

contemporaneous nature of the writing and the regularity of the

taxpayer’s recordkeeping procedure.     Sec. 1.170A-13(a)(2)(i)(A)

and (B), Income Tax Regs.

     If the contribution is made in property other than money,

the amount of the contribution is generally the fair market value

of the property at the time of the contribution.    Sec. 1.170A-

1(c)(1), Income Tax Regs.    The taxpayer must also maintain a
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receipt or letter from the donee showing the name of the donee,

the date and location of the contribution, and a description of

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

     A deduction for a contribution of $250 or more will not be

allowed unless the taxpayer substantiates the contribution with a

contemporaneous written acknowledgment from the donee

organization.   Sec. 1.170A-13(f)(1), Income Tax Regs.   The

acknowledgment must provide, among other things, the amount of

any cash paid and a description of any property other than cash

the taxpayer transferred to the donee organization.    Sec. 1.170A-

13(f)(2)(i), Income Tax Regs.

     Petitioner claimed deductions of $3,640 for charitable

contributions made in cash or by check.    Petitioner testified

that she contributed $10 to $15 to her church every week that she

attended a service, she tithed, and that she would “give my 10

percent, and I usually * * * get a form, a tax form for that”.

Petitioner testified that she stopped attending church services

at some time and did not attend church every week during 1999.

Petitioner did not produce any receipt, letter, or other written

acknowledgment of her contributions to a church.    We conclude

that petitioner is not entitled to a deduction for the claimed

charitable contributions made in cash or by check, and

respondent’s determination is sustained.
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     Although petitioner alleged that she contributed a number of

items, such as clothes, a microwave, a TV, and a VCR to people

she knew who were “in need”, she admitted at trial that the

claimed deduction for the charitable contribution of $500 made

other than in cash or by check was an amount she paid for a

television that she gave to Ms. Payne.     It is not clear that

petitioner contributed any gift to a charity as defined under

section 170(c).    Moreover, she did not provide a receipt or

letter to support the deduction claimed for the charitable

contribution made other than in cash or by check, as required by

section 1.170A-13(b)(1), Income Tax Regs.     Accordingly, we

conclude that petitioner is not entitled to a deduction for the

claimed charitable contribution made other than in cash or by

check, and respondent’s determination is sustained.

     4.     Unreimbursed Employee Expenses

     A taxpayer is generally required to substantiate deductions

by keeping books and records sufficient to establish the amount

of the deductions.     Sec. 6001; sec. 1.6001-1(a), Income Tax Regs.

Actual allowable expenses such as gasoline, tolls, and operating

expenses of automobiles are deductible if they are ordinary and

necessary expenses paid or incurred in a trade or business and if

they are not personal commuting expenses.     Sec. 162(a); Green v.

Commissioner, 59 T.C. 456 (1972); sec. 1.162-1(a), Income Tax

Regs.     Commuters’ fares are not deductible.   Sec. 1.162-2(e),
                               - 12 -

Income Tax Regs.   Performance of services as an employee

constitutes a trade or business.   O’Malley v. Commissioner, 91

T.C. 352, 363-364 (1988).

     Section 274 provides more stringent substantiation

requirements for deductions with respect to any passenger

automobile under section 280F(d)(4)(A)(i).   Sec. 274(d)(4).

     The cost of clothing may be deductible if:   (1) The clothing

is of a type specifically required as a condition of employment;

(2) it is not adaptable to general usage as ordinary clothing;

and (3) it is not so worn.    Yeomans v. Commissioner, 30 T.C. 757,

767 (1958).

     Petitioner claimed a deduction for unreimbursed employee

expenses of $2,400.   Petitioner explained at trial that the

unreimbursed employee expenses include parking tickets and

transportation expenses, but she did not specify what expenses

she incurred, how the expenses relate to her employment, why she

is entitled to a deduction for the expenses, or the amount of

each expense.   In addition, petitioner did not substantiate the

claimed deduction for the unreimbursed employee expenses.    We

conclude that petitioner is not entitled to a deduction for the

claimed unreimbursed employee expenses, and respondent’s

determination is sustained.

     Petitioner claimed a deduction for $2,500 as an expense for

care of work clothing, but she testified that she paid about $975
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to purchase and clean uniforms, shoes, hats, and a raincoat for

work.       Petitioner did not provide any evidence concerning either

the cost of each item of clothing she purchased or the cost to

clean the items.      Further, the purchase of the uniform was not a

necessary expense under section 162(a) because petitioner

voluntarily purchased the uniform instead of wearing the uniform

provided by her employer.       We conclude that petitioner is not

entitled to a deduction for the claimed expenses for work

clothing or for the care of the work clothes, and respondent’s

determination is sustained.

       5.      Tax Preparation Fees

        A taxpayer may be allowed a deduction for ordinary and

necessary expenses paid or incurred during the taxable year in

connection with the determination, collection, or refund of any

tax.     Sec. 212(3).

        Petitioner presented no evidence to support the claimed

deduction for tax preparation fees.         We conclude that petitioner

is not entitled to the claimed deduction for tax preparation

fees, and respondent’s determination is sustained.

        Reviewed and adopted as the report of the Small Tax Case

Division.

        To reflect the foregoing,

                                           Decision will be entered

                                      under Rule 155.
