                     T.C. Summary Opinion 2007-120



                        UNITED STATES TAX COURT



             MICHAEL AND CALVINETA BYARD, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 7042-06S.               Filed July 17, 2007.



        Michael and Calvineta Byard, pro se.

        Ashley F. Giles, for respondent.



     COHEN, Judge:     This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.     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.
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       Respondent determined deficiencies in petitioners’ Federal

income taxes and penalties for 2003 and 2004 as follows:

Year                   Deficiency            Penalty, Sec. 6662(a)

2003                     $7,684                   $1,536.80
2004                      4,451                      890.20

After concessions by petitioners, the sole remaining issue for

decision is whether petitioners are entitled to a deduction under

section 179 of $24,000 for 2003.       Unless otherwise indicated, all

section references are to the Internal Revenue Code in effect for

the years in issue.

                              Background

       Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

Petitioners resided in Atlanta, Georgia, at the time that they

filed this petition.

       During 2003, petitioner husband was employed as a computer

analyst, and petitioner wife was employed as a school nurse.

Petitioners also had a janitorial cleaning business during that

year.    Petitioners’ Federal income tax returns for 2003 and 2004

were prepared by Joseph L. Wilson (Wilson).

       Respondent disallowed various deductions claimed by

petitioners on their 2003 and 2004 Federal income tax returns.

The only adjustment that petitioners contested was the

disallowance of a $24,000 expense deduction claimed on Form 2106,

Employee Business Expenses, for 2003.       Petitioners’ Form 2106 for
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2003 lists the employee’s name as “Michael Byard” and the

occupation in which the expenses were incurred as “Comp Progra”.

The $24,000 expense deduction at issue was recorded on the 2003

Form 2106 on line 2 entitled “Parking fees, tolls, and

transportation, including train, bus, etc., that did not involve

overnight travel or commuting to and from work”.

     On Schedule C, Profit or Loss From Business, of their Form

1040, U.S. Individual Income Tax Return, petitioners listed both

their names under business proprietor and stated their principal

business as a “Janitorial Cleaning Service”.       Petitioners

reported $9,864 in gross receipts on their Schedule C and $20,344

in total expenses, resulting in a net loss of $10,480.       Line 13,

entitled “Depreciation and section 179 expense deduction”, of

their Schedule C has no entry.    On line 9, entitled “Car and

truck expenses”, of that same form, petitioners claimed a

deduction of $5,054.

                           Discussion

     The issue in this case is whether petitioners made a valid

section 179 election to deduct $24,000 of the cost of a sport-

utility vehicle (SUV) purchased in 2003 and used in their part-

time janitorial cleaning business.       Petitioners argue that the

$24,000 expense deduction claimed on Form 2106 was placed on the

wrong form, was related to the purchase of the SUV allegedly used

100 percent in the cleaning business, and that their intent was
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to claim a depreciation deduction for the cost of the SUV in the

maximum amount allowed under section 179.   Respondent maintains

that petitioners failed to make a valid election as required

under section 179 to depreciate the SUV and that the $24,000

expense deduction claimed on the 2003 return should be disallowed

because petitioners have not substantiated that expense as an

employee business expense.

     Under section 179, a taxpayer may elect to treat the cost of

certain property used in an active trade or business as a current

expense in the year such property is placed in service.    Sec.

179(a).   The aggregate cost that a taxpayer can deduct under

section 179 for 2003 is $25,000.   Sec. 179(b).   Section 179(c)(1)

provides that an election must:

          (A) specify the items of section 179 property to
     which the election applies and the portion of the cost
     of each of such items which is to be taken into account
     under subsection (a), and

          (B) be made on the taxpayer’s return of the tax
     imposed by this chapter for the taxable year.

The benefits of section 179 require an affirmative election to be

made on a taxpayer’s original return or a timely filed amended

return.   See Starr v. Commissioner, T.C. Memo. 1995-190, affd.

without published opinion 99 F.3d 1146 (9th Cir. 1996).

     Petitioners failed to elect explicitly to deduct the cost of

their SUV as a section 179 expense on their 2003 return.

Although they attached a Schedule C to their return listing their
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claimed receipts and expenses from their janitorial cleaning

business, petitioners left blank line 13 of that form, entitled

“Depreciation and section 179 expense deduction”.   They did not

file with their 2003 return Form 4562, Depreciation and

Amortization (Including Information on Listed Property), which

the Commissioner has designed for taxpayers wishing to expense,

rather than depreciate, qualifying section 179 property.    See

Visin v. Commissioner, T.C. Memo. 2003-246, affd. 122 Fed. Appx.

363 (9th Cir. 2005).

     At trial, petitioners presented a reproduced document that

they allege was attached to their original 2003 return.

Respondent has no record of receiving the document, and it was

not attached to the 2003 return that respondent received from

petitioners.   The typewritten document bears Wilson’s name and

contact information and states:

     2003 Supporting Schedule Form 2106 -

     Line 2 $24,000 represents section 179 expense deduction
     for use of 2003 Yukon in janitorial business. This
     vehicle replaced truck previously used 100% in
     business. [Reproduced in its entirety.]

The document does not include petitioners’ names, Social Security

numbers, or any other form of taxpayer identification.    The

document does not include the vehicle’s original cost.    The

document appears to be something prepared in response to an audit

inquiry, and we are not persuaded that it was a part of the filed

return.   There was no disclosure regarding the SUV or section 179
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on petitioners’ Schedule C, and the $24,000 amount was clearly

mislabeled on their return.   Petitioners did not make a valid

election to expense currently their SUV under section 179.

     Petitioners offered no evidence supporting the use of the

SUV as an employee business expense of petitioner husband in his

computer analyst position.    Rather, they argue that the SUV was

not used in his job as computer analyst, but instead was used in

petitioners’ janitorial business.   Because petitioners have not

substantiated the deduction for unreimbursed transportation costs

claimed on their return as an employee business expense, the

$24,000 deduction claimed cannot be allowed.

     We sustain respondent’s determination to disallow the

$24,000 deduction claimed by petitioners.      To reflect the

foregoing,


                                             Decision will be entered

                                        for respondent.
