                         T.C. Memo. 2006-172



                       UNITED STATES TAX COURT



                    BRIAN F. NICELY, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14979-04.               Filed August 17, 2006.



     Brian F. Nicely, pro se.

     Karen Lynne Baker, for respondent.



                          MEMORANDUM OPINION


     CHIECHI, Judge:    Respondent determined a deficiency of

$3,321 in petitioner’s Federal income tax (tax) for his taxable

year 2002.

     The issues remaining for decision are:

     (1) Is petitioner entitled to deduct certain claimed automo-

bile expenses?    We hold that he is not.
                               - 2 -

     (2) Is petitioner entitled to deduct certain claimed meal

expenses?   We hold that he is not.

     (3) Is petitioner entitled to deduct certain claimed cloth-

ing expenses?   We hold that he is not.

                            Background

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

     At all relevant times, including throughout 2002 and at the

time he filed the petition in this case, petitioner resided in

Ridgeley, West Virginia (Ridgeley).

     During 2002, petitioner, a welder, was employed by Mendon

Pipeline, Inc. (Mendon Pipeline), located in Ghent, West Vir-

ginia.   At all relevant times, Mendon Pipeline’s policy was

(1) to pay directly to the lodging provider lodging expenses

incurred by an employee because the employee resided so far from

the location of the job site (job site location) as to preclude

such employee from safely making a daily round-trip drive from

such employee’s residence to the job site location and (2) not to

pay any other expenses incurred by an employee, such as expenses

for meals and automobile usage.

     Petitioner timely filed electronically a tax return for his

taxable year 2002 (petitioner’s 2002 return).   In Schedule A-

Itemized Deductions included as part of that return (2002 Sched-

ule A), petitioner claimed “Job Expenses and Most Other Miscella-

neous Deductions” totaling $13,384 prior to the application of
                               - 3 -

the two-percent floor imposed by section 67(a).1     Of that total,

petitioner claimed $12,734 as “Unreimbursed employee expenses”,

$50 as “Tax preparation fees”, and $600 as “Other expenses” for

clothes, boots, and gloves.   With respect to the $12,734 of

claimed “Unreimbursed employee expenses”, petitioner, as re-

quired, completed Form 2106-EZ, Unreimbursed Employee Business

Expenses, and included that form as part of petitioner’s 2002

return (2002 Form 2106-EZ).   In the 2002 Form 2106-EZ, petitioner

claimed the following “Unreimbursed employee expenses”:

               Expense                    Amount
                                         1
               Vehicle                    $8,782
                                           2
               Meals                         3,952
     1
       Petitioner calculated the $8,782 of claimed vehicle ex-
penses by using the standard mileage rate for 2002 of 36.5 cents
per mile and multiplying that rate by 24,060, the number of miles
that petitioner claims he drove his automobile for business
(business miles) during 2002. At trial, petitioner conceded that
the total amount of business miles claimed for 2002 in the 2002
Form 2106-EZ was overstated by approximately 3,000 miles.
     2
       In calculating the $3,952 of claimed meal expenses, peti-
tioner claimed in the 2002 Form 2106-EZ total meal expenses of
$7,904 and reduced that total by 50 percent, as required by sec.
274(n).

     As required by section 67(a), petitioner reduced the $13,384

of total “Job Expenses and Most Other Miscellaneous Deductions”

claimed in the 2002 Schedule A by two percent of his adjusted

gross income (i.e., by $1,091).   In determining the taxable



     1
      All section references are to the Internal Revenue Code in
effect for the year at issue. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                               - 4 -

income reported in petitioner’s 2002 return, petitioner deducted

the balance (i.e., $12,293), as well as the other itemized

deductions claimed in the 2002 Schedule A that were not subject

to the two-percent floor imposed by section 67(a).

     Respondent issued to petitioner a notice of deficiency

(notice) for his taxable year 2002.    In that notice, respondent

disallowed the total $12,293 of “Job Expenses and Most Other

Miscellaneous Deductions” that petitioner claimed in the 2002

Schedule A after the reduction required by section 67(a).

                            Discussion

     Petitioner bears the burden of proving that the determina-

tions in the notice are erroneous.2    Rule 142(a); Welch v.

Helvering, 290 U.S. 111 (1933).   Moreover, deductions are a

matter of legislative grace, and the taxpayer bears the burden of

proving entitlement to any deduction claimed.    INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992).    A taxpayer is required to

maintain records sufficient to establish the amount of any

deduction claimed.   Sec. 6001; sec. 1.6001-1(a), Income Tax Regs.

     Petitioner claims that, prior to the application of the two-

percent floor imposed by section 67(a), he is entitled to deduc-

tions for $8,782 of automobile expenses, $3,952 of meal

     2
      Petitioner does not claim that the burden of proof shifts
to respondent under sec. 7491(a). In any event, petitioner has
failed to establish that he satisfies the requirements of sec.
7491(a)(2). On the record before us, we find that the burden of
proof does not shift to respondent under sec. 7491(a).
                               - 5 -

expenses,3 a $50 tax preparation fee, and $600 of expenses for

certain unidentified clothes and gloves and Rocky Wolverine

boots.4   Respondent counters that petitioner has failed to carry

his burden of establishing his entitlement to deduct any of those

claimed expenses.5

     A taxpayer is entitled to deduct all the ordinary and

necessary expenses paid or incurred during the taxable year in

carrying on a trade or business, “including * * * traveling

expenses (including amounts expended for meals * * * other than

amounts which are lavish or extravagant under the circumstances)

while away from home in the pursuit of a trade or business”.

Sec. 162(a).   For certain kinds of expenses otherwise deductible

under section 162(a), a taxpayer must satisfy certain substantia-

tion requirements set forth in section 274(d) before such ex-

penses will be allowed as deductions.

     In order for petitioner’s claimed expenses for the use of

his automobile and for meals to be deductible, such expenses must

     3
      In the 2002 Form 2106-EZ, petitioner claimed total meal
expenses of $7,904, which he reduced by 50 percent, as required
by sec. 274(n).
     4
      Although the Court ordered petitioner to file a posttrial
brief, he failed to do so.
     5
      Respondent conceded at trial that petitioner incurred a tax
preparation fee of $50. Respondent’s concession will not affect
the deficiency determined in the notice unless we were to sustain
petitioner’s position with respect to his claimed expenses for
the use of his automobile and/or meals. That is because of the
two-percent floor imposed by sec. 67(a).
                               - 6 -

satisfy the requirements of not only section 162(a) but also

section 274(d).   To the extent that petitioner carries his burden

of showing that the expenses at issue for the use of his automo-

bile and for meals satisfy the requirements of section 162(a) but

fails to satisfy his burden of showing that such expenses satisfy

the recordkeeping requirements of section 274(d), petitioner will

have failed to carry his burden of establishing that he is

entitled to deduct such expenses, regardless of any equities

involved.   See sec. 274(d); sec. 1.274-5T(a), Temporary Income

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

     The recordkeeping requirements of section 274(d) will

preclude petitioner from deducting amounts otherwise allowable

under section 162(a) with respect to the use of his automobile or

expenditures for meals while traveling away from home on business

unless he substantiates the requisite elements of each such use

or expenditure.   See sec. 274(d); sec. 1.274-5T(b)(1), Temporary

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

is required to

     substantiate each element of an expenditure or use
     * * * by adequate records or by sufficient evidence
     corroborating his own statement. Section 274(d) con-
     templates that a taxpayer will maintain and produce
     such substantiation as will constitute proof of each
     expenditure or use referred to in section 274. Written
     evidence has considerably more probative value than
     oral evidence alone. In addition, the probative value
     of written evidence is greater the closer in time it
     relates to the expenditure or use. A contemporaneous
     log is not required, but a record of the elements of an
     expenditure or of a business use of listed property
                               - 7 -

     made at or near the time of the expenditure or use,
     supported by sufficient documentary evidence, has a
     high degree of credibility not present with respect to
     a statement prepared subsequent thereto when generally
     there is a lack of accurate recall. Thus, the corrobo-
     rative evidence required to support a statement not
     made at or near the time of the expenditure or use must
     have a high degree of probative value to elevate such
     statement and evidence to the level of credibility
     reflected by a record made at or near the time of the
     expenditure or use supported by sufficient documentary
     evidence. The substantiation requirements of section
     274(d) are designed to encourage taxpayers to maintain
     the records, together with documentary evidence, as
     provided in paragraph (c)(2) of this section [1.274-5T,
     Temporary Income Tax Regs.].

Sec. 1.274-5T(c)(1), Temporary Income Tax Regs., 50 Fed. Reg.

46016-46017 (Nov. 6, 1985).

     The elements that a taxpayer must prove with respect to an

expenditure for traveling away from home on business, including a

meal, are:   (1) The amount of each such expenditure for traveling

away from home, except that the daily cost of the traveler’s own

breakfast, lunch, and dinner may be aggregated; (2) the time of

each such expenditure, i.e., the dates of departure and return

for each trip away from home and the number of days away from

home spent on business; (3) the place of each such expenditure,

i.e., the destinations or locality of travel, described by name

of city or town or other similar designation; and (4) the busi-

ness purpose of each such expenditure, i.e., the business reason

for the travel or the nature of the business benefit derived or

expected to be derived as a result of travel.   Sec. 1.274-
                               - 8 -

5T(b)(2), Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov. 6,

1985).

     In lieu of substantiating the actual amount of any expendi-

ture relating to the business use of a passenger automobile, a

taxpayer may use a standard mileage rate established by the

Internal Revenue Service (standard mileage rate).     See sec.

1.274-5(j)(2), Income Tax Regs.; Rev. Proc. 2001-54, sec. 5.02,

2001-2 C.B. 530, 532.   The standard mileage rate is to be multi-

plied by the number of business miles traveled.    Rev. Proc. 2001-

54, sec. 5.02, 2001-2 C.B. at 532.     The use of the standard

mileage rate establishes only the amount deemed expended with

respect to the business use of a passenger automobile.     Sec.

1.274-5(j)(2), Income Tax Regs.   The taxpayer must still estab-

lish the amount (i.e., the business mileage), the time, and the

business purpose of each such use.     Id.

     In lieu of substantiating the actual amount spent for a meal

while traveling away from home on business, a taxpayer may use an

amount computed at the Federal meal and incidental expense (M&IE)

rate set forth in appendix A of 41 C.F.R. chapter 301 (appendix

A) for the locality of travel for each calendar day that the

taxpayer is traveling away from home on business.     See sec.

1.274-5(j)(1), Income Tax Regs.; Rev. Proc. 2001-47, secs.

3.02(1)(a), 4.03, 2001-2 C.B. 332, 333-334 (applicable to, inter
                               - 9 -

alia, Jan. 1 through Sept. 30, 2002); Rev. Proc. 2002-63, secs.

3.02(1)(a), 4.03, 2002-2 C.B. 691, 693-694 (applicable to, inter

alia, Oct. 1 through Dec. 31, 2002).   The use of the M&IE estab-

lishes only the daily amount deemed spent for meals while travel-

ing away from home on business.   Sec. 1.274-5(j)(1), Income Tax

Regs.   The taxpayer must still establish the time, the place, and

the business purpose of the daily expenditures for meals.     Id.

     With respect to the deductions that petitioner claims for

2002 with respect to the use of his automobile and for meals,

petitioner testified that during that year he worked in Rocky

Mount, Virginia, Wiley Ford, West Virginia, Hamilton,

Pennsylvania, Warren, Pennsylvania, and Elk Garden, West

Virginia.   In support of that testimony, petitioner relies on a

document (document one) that he prepared sometime shortly before

the trial in this case in January 2006.   Document one purports to

show all the job site locations at which petitioner claims he

worked during 2002, the respective time periods during which he

claims he worked at such locations, and the respective round-trip

mileages from his home in Ridgeley to such locations.   Petitioner

testified that in preparing document one he relied on his recol-

lection and a telephone call to “the main office” of Mendon

Pipeline, his employer during 2002.

     In addition to document one, petitioner relies on two other

documents to support his position with respect to the deductions

that he is claiming for the use of his automobile and for meals.

It is not clear from the record when one (document two) of those
                                  - 10 -

two other documents was prepared.       Moreover, document two does

not list all of the job site locations at which petitioner

testified he worked during 2002 and which are shown on document

one.       Instead, document two lists only the following three job

site locations:       Warren, Pennsylvania, Morris Run, Pennsylvania,

and Elk Garden, West Virginia.       The Morris Run, Pennsylvania, job

site location at which petitioner claims he worked for three

months during 2002 is not even listed on document one, which is

the document that purports to show all of the job site locations

where petitioner worked during that year.

       The other document (document three) on which petitioner

relies contains handwritten notations on a letter dated May 6,

2004, from Mendon Pipeline, petitioner’s employer during 2002.6

As was true of document two, it is not clear when those handwrit-

ten notations were made on that letter.       Moreover, as was also

true of document two, such handwritten notations do not list all

of the job site locations at which petitioner testified he worked

during 2002 and which are shown on document one.       Instead, like

document two, such handwritten notations list only the following

three job site locations:       Warren, Pennsylvania, Morris Run,

Pennsylvania, and Elk Garden, West Virginia.       As was true of



       6
      The May 6, 2004 Mendon Pipeline letter describes that
company’s policy regarding the payment of the lodging expenses of
its employees in certain circumstances and the nonpayment of any
other expenses of its employees.
                             - 11 -

document two, the Morris Run, Pennsylvania, job site location at

which petitioner claims he worked for three months during 2002 is

not even listed on document one, which is the document that

purports to show all of the job site locations where petitioner

worked during that year.

     Petitioner concedes that he did not prepare document one at

or near the time in 2002 of the use of his automobile or the

expenditures for meals that are at issue in this case.   Peti-

tioner failed to establish when document two was prepared and

when the handwritten notations on document three were made.

Moreover, we found the three documents on which petitioner relies

to be inconsistent and not credible in certain material respects.

By way of illustration, in addition to the inconsistencies in

such documents discussed above regarding the job site locations

at which petitioner claims he worked during 2002, in document two

and document three petitioner indicated that during 2002 he

worked in Elk Garden, West Virginia, for four months, whereas in

document one petitioner indicated that during 2002 he worked in

Elk Garden, West Virginia, for six weeks.   By way of further

illustration, in document two and document three petitioner

indicated that the one-way mileage between his home in Ridgeley

and Warren, Pennsylvania, is 178 miles, whereas in document one
                              - 12 -

petitioner indicated that such one-way mileage is 245 miles.7       We

are unwilling to rely on document one, document two, or document

three.   Petitioner admitted at trial that he has no other docu-

ments or records establishing (1) that during 2002 he worked at

each of the different job site locations at which he claims he

worked for the period of time during that year that he claims he

spent at each such location and (2) that during 2002 he drove the

respective round-trip mileages that he claims he drove from his

home in Ridgeley to such locations.

     On the record before us, we find that petitioner has failed

to carry his burden of showing the amount of each business use of

his automobile based on mileage and the time of each such use

(i.e., the date of each such use).8    On that record, we further


     7
      We note that in document three petitioner indicated that he
did not stay overnight in Elk Garden, W.Va., at which he claims
he worked during 2002. Nor did petitioner stay overnight in
Wiley Ford, W.Va., a job site location listed on document one at
which petitioner claims he worked during 2002 and which is,
according to document one, only five miles from petitioner’s home
in Ridgeley. At least with respect to his claimed job site
locations in Elk Garden, W.Va., and Wiley Ford, W.Va., we find
that petitioner has failed to show that any travel expenses that
he is claiming as deductions for the use of his automobile and
for meals with respect to his purported working at such locations
were paid or incurred while petitioner was away from home within
the meaning of sec. 162(a)(2).
     8
      On the record before us, we find that petitioner has failed
to carry his burden of establishing the respective round-trip
mileages between his home in Ridgeley and the job site locations
at which he claims he worked during 2002. In this regard, we
note that petitioner claimed at trial that he calculated the
respective round-trip mileages between his home in Ridgeley and
                                                   (continued...)
                                - 13 -

find that petitioner has failed to carry his burden of establish-

ing that he is entitled for his taxable year 2002 to the deduc-

tion that he claims for the use of his automobile.9

     On the record before us, we also find that petitioner has

failed to carry his burden of establishing that he is entitled

for his taxable year 2002 to the deduction that he claims for

meals.    The record is devoid of reliable evidence relating to the

amount, the time, and the place of the meal expenses that peti-

tioner contends he is entitled to deduct.   Petitioner acknowl-

edged at trial that he has no receipts for any of the meal

expenses at issue because “I was told that meals * * * that was

the one thing you could claim without receipt.”   Moreover, it is

not clear whether petitioner used the M&IE rate set forth in

appendix A of 41 C.F.R. chapter 301 in claiming such meal ex-

penses.   If he did use such a rate, he did not use the correct

rate set forth in appendix A.    In document two, which is the only

document in the record detailing petitioner’s claimed total meal

expenses of $7,904 shown in his 2002 Form 2106-EZ, petitioner


     8
      (...continued)
those claimed job site locations by looking at the mileage
readings reflected in his automobile during that year. However,
petitioner admitted at trial that document one which purports to
show all his claimed job site locations during 2002 was not
prepared until shortly before the trial in this case and that he
has no records showing the mileage readings reflected in his
automobile during that year.
     9
      At trial, petitioner conceded that he “overclaimed 3,000
some odd miles”.
                               - 14 -

indicated that he incurred a daily meal expense of $42 for the

period January through May 2002, $38 for the period June through

August 2002, and $34 for the period September through December

2002.10   The applicable M&IE for all of the job site locations to

which petitioner claims he traveled during 2002 is $30 a day.

41 C.F.R. ch. 301, app. A (2002).

     With respect to the deduction that petitioner claims for

2002 for certain unidentified clothes and gloves and Rocky

Wolverine boots, petitioner admitted at trial that he does not

have any receipts for those items.      Moreover, articles of cloth-

ing, including shoes or boots, are deductible under section

162(a) only if the clothing is required in the taxpayer’s employ-

ment, is not suitable for general or personal wear, and is not

worn for general or personal purposes.      Yeomans v. Commissioner,

30 T.C. 757, 767-768 (1958).   The record is devoid of evidence

that the unidentified clothes and gloves and the Rocky Wolverine

boots were required in petitioner’s employment, were not suitable

for general or personal wear, and were not worn for general or


     10
      In calculating the claimed total meal expenses of $7,904,
petitioner used a 52-week period, which resulted in total meal
expenses of $7,952. Petitioner then reduced that total amount by
$48 in order to arrive at the claimed total meal expenses of
$7,904 shown in his 2002 Form 2106-EZ. In document one that he
prepared shortly before the trial in this case, petitioner
indicated that he worked only 48 weeks during 2002. Moreover, as
discussed supra note 7, petitioner acknowledges that he did not
stay overnight on the respective days on which he claims he
traveled from his home in Ridgeley to Elk Garden, W.Va., and to
Wiley Ford, W.Va.
                              - 15 -

personal purposes.   In fact, petitioner acknowledged at trial

that he was wearing Rocky Wolverine boots.

     On the record before us, we find that petitioner has failed

to carry his burden of establishing that he is entitled for his

taxable year 2002 to the deduction that he claims for clothes,

boots, and gloves.

     We have considered all of the parties’ contentions and

arguments that are not discussed herein, and we find them to be

without merit, irrelevant, and/or moot.

     To reflect the foregoing,


                                      Decision will be entered for

                                 respondent.
