                       T.C. Summary Opinion 2009-74



                         UNITED STATES TAX COURT



                     KEVIN STOCKTON, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 20912-07S.              Filed May 12, 2009.



        Kevin Stockton, pro se.

        Kim-Khanh Thi Nguyen, for respondent.



        LARO, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1      Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and

this opinion shall not be treated as precedent for any other

case.


        1
      Unless otherwise indicated, section references are to the
applicable versions of the Internal Revenue Code (Code), and Rule
references are to the Tax Court Rules of Practice and Procedure.
                                  - 2 -

       Petitioner petitioned the Court to redetermine respondent’s

determination of a $12,173 deficiency in petitioner’s 2004

Federal income tax and a $2,434.60 accuracy-related penalty under

section 6662(a) and (b)(1).      Following concessions, we decide the

following issues:

       1.   Whether petitioner may deduct $24,885 as an itemized

deduction for unreimbursed employee business expenses.     We hold

he may not.

       2.   Whether petitioner may deduct $2,250 as an itemized

deduction for charitable contributions.     We hold he may not.

       3.   Whether petitioner is liable for the accuracy-related

penalty.     We hold he is.

                              Background

I.    Preliminaries

       The parties have submitted to the Court a stipulation of

facts with accompanying exhibits.     The stipulated facts and

accompanying exhibits are incorporated herein by this reference.

Petitioner resided in California when his petition to this Court

was filed.

II.    Petitioner’s Employment
       Petitioner is employed as a consultant on the automobile

industry.     In that capacity, he traveled from his home in

California to various Ford dealerships in the western United

States.     His employer reimbursed him up to $170 a day for his

traveling expenses.
                                  - 3 -

       Petitioner used his personal vehicle on 100 days during 2004

to drive to some of the Ford dealerships in his region (local

dealerships).     Petitioner’s employer reimbursed him for all of

those automobile expenses.     Petitioner traveled on 133 days

during 2004 to Ford dealerships that were not local dealerships.

Petitioner’s employer reimbursed him for all of his business

expenses related to that travel.

III.    2004 Tax Return

       Petitioner filed a Form 1040, U.S. Individual Income Tax

Return, for 2004 using the filing status of “Single”.       Petitioner

claimed on his return a $24,885 itemized deduction for

unreimbursed employee business expenses.       Petitioner also claimed

a $3,250 itemized deduction for charitable contributions.

Respondent disallowed both deductions in full but has since

conceded that petitioner may deduct $1,000 in charitable

contributions.

                               Discussion

I.   Deductions

       A.   Burden of Proof
       Petitioner bears the burden of proving that respondent’s

determinations set forth in the notice of deficiency are

incorrect.     See Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111,

115 (1933).     Deductions are strictly a matter of legislative

grace, and petitioner must show that his claimed deductions are

allowed by the Code.      See Rule 142(a)(1); New Colonial Ice Co. v.

Helvering, 292 U.S. 435, 440 (1934).        Petitioner also must keep
                                - 4 -

sufficient records to substantiate any deduction that would

otherwise be allowed by the Code.    See sec. 6001; sec. 1.6001-

1(a), Income Tax Regs.   While section 7491(a) sometimes shifts

the burden of proof to the Commissioner, that section is not

applicable where, as here, petitioner has failed to meet the

recordkeeping and substantiation requirements of the Code.    See

sec. 7491(a)(2)(A) and (B).

     B.   Unreimbursed Employee Business Expenses

     Section 162(a) allows a taxpayer to deduct the unreimbursed

ordinary and necessary expenses incurred during the taxable year

in carrying on any trade or business, including expenses incurred

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

Lucas v. Commissioner, 79 T.C. 1, 6 (1982); see also Commissioner

v. Flowers, 326 U.S. 465, 470 (1946).    During 2004, petitioner’s

employer reimbursed him for all of the business expenses that he

paid as to his employment.    We hold he is not entitled to any

additional deduction related to his employment, and we sustain

respondent’s disallowance of petitioner’s claim to a deduction of

$24,885 in unreimbursed employee business expenses.

     C.   Charitable Contributions
     Petitioner seeks to deduct $2,250 as a charitable

contribution for 2004 in addition to the $1,000 allowed by

respondent.   In support of that deduction, petitioner testified

that he contributed $1,200 to his church, $600 to various other

charities, and 24 bags of clothing which he valued at $450.
                                 - 5 -

Petitioner provided no independent evidence to substantiate his

claim to any part of the $2,250 deduction.

      Section 1.170A-13(a)(1), Income Tax Regs., requires that

monetary charitable contributions of less than $250 be

substantiated by a canceled check; a receipt from the recipient

organization that lists the recipient’s name, the date of the

contribution, and the amount thereof; or “other reliable written

records” that show the recipient’s name, the date of the

contribution, and the amount thereof.    See also sec.

170(f)(8)(A).   Section 1.170A-13(b)(1), Income Tax Regs.,

generally requires as to noncash contributions that taxpayers

maintain documentation for each contribution showing information

such as the recipient’s name, the contribution’s date and

location, and the contributed property’s description.

      Petitioner has failed to maintain the requisite

documentation for any part of his claimed total of $2,250 in

charitable contributions.   We decline to accept his

uncorroborated, self-serving testimony as to this matter.    See

Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).    We sustain

respondent’s determination that petitioner is not entitled to

deduct any of the claimed $2,250.

II.   Accuracy-Related Penalty
      Respondent determined that petitioner is liable for an

accuracy-related penalty under section 6662(a) and (b)(1).

Section 6662(a) and (b)(1) imposes a penalty equal to 20 percent

of the portion of an underpayment of tax attributable to a
                                 - 6 -

taxpayer’s negligence or disregard of rules or regulations.

Negligence connotes a lack of due care or failure to do what a

reasonable and prudent person would do under the circumstances.

See Allen v. Commissioner, 92 T.C. 1, 12 (1989), affd. 925 F.2d

348 (9th Cir. 1991).   An accuracy-related penalty is not

applicable to any portion of an underpayment to the extent that

the taxpayer had reasonable cause for that portion and acted in

good faith with respect thereto.    See sec. 6664(c)(1).

     Respondent bears the burden of production with respect to

the applicability of the accuracy-related penalty.      See sec.

7491(c).   That burden requires that respondent produce sufficient

evidence that it is appropriate to impose the accuracy-related

penalty.   See Higbee v. Commissioner, 116 T.C. 438, 446 (2001).

Once respondent meets this burden, the burden of proof falls upon

petitioner.    See id. at 447.   Petitioner may carry his burden by

proving that he was not negligent; i.e., he made a reasonable

attempt to comply with the provisions of the Code and was not

careless, reckless, or in intentional disregard of rules or

regulations.   See sec. 6662(c).   Alternatively, petitioner may

establish that his underpayment was attributable to reasonable

cause and his acting in good faith.      See sec. 6664(c)(1).

     We conclude that respondent has met his burden of production

and that petitioner has failed to carry his burden of proof.       The

record establishes that petitioner claimed substantial deductions

to which he neither was entitled nor had a reasonable claim.       The

record does not establish that petitioner made a reasonable
                                   - 7 -

attempt to comply with the provisions of the Code, that

petitioner’s underpayment was attributable to reasonable cause,

or that petitioner acted in good faith as to the underpayment.

We sustain respondent’s determination with respect to the

accuracy-related penalty.

III.    Conclusion

       We have considered all of petitioner’s contentions and

allegations, and we conclude that those contentions and

allegations not discussed herein are without merit or irrelevant.

       To reflect the foregoing,


                                                Decision will be entered

                                           under Rule 155.
