                         T.C. Memo. 2000-136



                       UNITED STATES TAX COURT



                     DANIELA ALDEA, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19523-98.                      Filed April 12, 2000.



     Daniela Aldea, pro se.

     Jeremy McPherson, for respondent.



                          MEMORANDUM OPINION


     DEAN, Special Trial Judge:    Respondent determined a

deficiency of $1,230 in petitioner’s 1995 Federal income taxes.

Unless otherwise indicated, section references are to the

Internal Revenue Code in effect for the year in issue, and all

Rule references are to the Tax Court Rules of Practice and

Procedure.
                               - 2 -

     After concessions, the issues for decision are:   (1) Whether

petitioner is entitled to a deduction for charitable

contributions; (2) whether petitioner is entitled to deduct

unreimbursed employee automobile expenses; and (3) whether

petitioner is entitled to deduct automobile expenses from her

Amway business.

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

The stipulation of facts and the attached exhibits are

incorporated herein by reference.   Petitioner resided in

Fairfield, California, at the time her petition was filed.

                            Background

     In 1995 petitioner resided in Yuba City, California, and

worked as an apprentice ironworker.    She received job assignments

through a union hall located in Sacramento, California, and

worked in various locations in California during 1995, including

63 days in Salinas, 49 days in Santa Cruz, 22 days in Sacramento,

16 days in Modesto, 13 days in Stockton, and 11 days in San

Francisco.   Between jobs petitioner reported to the union hall in

the morning, and if there was work available, she would then

drive from the union hall to the job site.   After obtaining work,

petitioner reported directly to the job site until the job was

completed.

     On Schedule A, Itemized Deductions, of her Form 1040, U.S.

Individual Income Tax Return, petitioner claimed itemized
                               - 3 -

deductions of $10,503.   In addition to claiming deductions for

taxes paid, petitioner claimed deductions for $1,160 in

charitable gifts made to her churches and $9,297 in unreimbursed

employee expenses related to her job as an ironworker.

Petitioner included in the unreimbursed employee expenses a

deduction for $6,758 in automobile expenses based on 22,5251

miles driven from her home in Yuba City to the union hall in

Sacramento and from her home to each of the various job sites.

Petitioner used the standard rate of 30 cents per mile to compute

the deduction.

     During 1995, petitioner also was engaged in marketing Amway

products.   She reported gross income of $365 and expenses of

$3,712 from her Amway activity on Schedule C, Profit or Loss From

Business.   The expenses included $1,801 for vehicle expenses,

$708 for utilities, and $1,203 for seminars, tapes, and books.

     In the notice of deficiency, respondent disallowed $8,094 of

petitioner’s Schedule A itemized deductions and $1,582 of

petitioner’s Schedule C deductions.    Respondent’s determinations

reduced petitioner’s itemized deductions to an amount less than

the allowable standard deduction.   Petitioner’s tax liability,

therefore, was determined using the standard deduction for 1995.



     1
        Although the parties stipulated that petitioner claimed
automobile mileage deductions for 25,525 miles, petitioner’s Form
2106-EZ, Unreimbursed Employee Expenses, indicates that she
deducted the standard mileage rate for 22,525 miles.
                                - 4 -

     Respondent concedes that petitioner is entitled to a

deduction of $2,465 for job-seeking expense based on the 8,216

miles driven by petitioner between her home in Yuba City and the

union hall in Sacramento during periods when petitioner was

engaged in job hunting.    The parties agree that petitioner is

entitled to additional itemized deductions of $130 for education

expenses, $281 for safety equipment, $1,171.13 for union dues,

and $166 for work tools.    Petitioner concedes that she is not

entitled to a deduction for uniforms and cleaning.    Thus, the

only remaining issues regarding petitioner’s itemized deductions

are whether she is entitled to a deduction of $1,160 for

charitable contributions and whether she is entitled to a

deduction of $4,293 for miles she claims she drove to and from

temporary work assignments.

     With regard to petitioner’s loss from Amway activity

reported on Schedule C, petitioner has conceded that she is not

entitled to deductions for seminar expenses beyond the $20

allowed by respondent.    The only remaining issue concerning

petitioner’s Schedule C deductions is whether petitioner is

entitled to $809 of the vehicle expenses she claimed.

                              Discussion

     Deductions are strictly a matter of legislative grace, and

taxpayers must satisfy the specific requirements for any

deduction claimed.   See INDOPCO, Inc. v. Commissioner, 503 U.S.
                                 - 5 -

79, 84 (1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435,

440 (1934).     Taxpayers are required to maintain records

sufficient to substantiate their claimed deductions.    See sec.

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

Charitable Contributions

     Section 170(a) allows a deduction for charitable

contributions paid during the taxable year subject to certain

limitations.    Deductions for charitable contributions are

allowable only to the extent verified under Treasury regulations.

See sec. 170(a)(1).    The applicable regulations require a

taxpayer to maintain for each contribution of money a canceled

check, a receipt from the donee organization showing the date and

amount of the contribution, or other reliable written records

showing the name of the donee and the date and amount of the

contribution.    See sec. 1.170A-13(a)(1), Income Tax Regs.

     Petitioner has not maintained any of the records required to

substantiate her charitable contributions.    She testified at

trial that she made cash contributions to Romanian churches:     $80

to the New Assembly Church and $1,080 to the First Romanian

Pentecostal Church.

     The only other evidence of petitioner’s contributions

consists of a 1995 calendar marked with the notation “church” and

a dollar amount (usually $20) on each Sunday and two handwritten

letters from two different individuals stating that petitioner
                               - 6 -

attends their churches regularly.    The notations on the calendar

do not indicate the churches to which contributions were made.

Moreover, we are not convinced the notations were made

contemporaneously on the calendar.     The letters do nothing to

support petitioner’s claims as they do not identify a church or

indicate that petitioner made any contributions.     We are not

convinced from the record that petitioner made charitable

contributions in 1995.

     We thus uphold respondent’s determination that petitioner is

not entitled to deductions for charitable contributions.

Unreimbursed Employee Automobile Expenses

     Petitioner contends that she is entitled to deduct the

standard mileage rate for the miles she drove between her

residence and her various temporary work sites because of the

temporary nature of her employment.     Respondent does not dispute

that petitioner’s employment was temporary and concedes that a

taxpayer may deduct daily transportation expenses incurred in

going between the taxpayer’s residence and a temporary work

location outside the metropolitan area where the taxpayer lives

and normally works.   Respondent, however, contends petitioner is

not entitled to deduct transportation expenses because she did

not have a single metropolitan area where she normally worked,

and therefore, all of her transportation costs for traveling

between her home and the temporary work locations are
                               - 7 -

nondeductible personal commuting expenses.

     Section 162(a) allows a deduction for all the ordinary and

necessary expenses paid or incurred during the taxable year in

carrying on a trade or business.   Section 262, however, provides

that no deduction is allowed for personal, living, or family

expenses.   In general, the cost of daily commuting to and from

work is a nondeductible personal expense.    See Commissioner v.

Flowers, 326 U.S. 465, 473-474 (1946); sec. 1.162-2(e), Income

Tax Regs.

     Respondent’s position in the case at hand is consistent with

the two-prong test of Rev. Rul. 94-47, 1994-2 C.B. 18.2   In order

for expenses for transportation between the taxpayer’s residence

and her job site to be deductible under this test, the taxpayer

must establish that her employment at a job site is temporary and

the job site is outside the metropolitan area where the taxpayer

lives and normally works.   See id.

     In previous cases respondent has challenged the

deductibility of transportation costs on the basis that the

employment at issue was not temporary.   Therefore, our inquiry

generally has not focused on the second prong of the test.    The

Court, however, in Harris v. Commissioner, T.C. Memo. 1980-56,


     2
        The two-prong test was first announced in Rev. Rul. 190,
1953-2 C.B. 303, and later amplified and clarified by Rev. Ruls.
90-23, 1990-1 C.B. 28, and 94-47, 1994-2 C.B. 18. Respondent’s
position also is consistent with Rev. Rul. 99-7, 1999-5 I.R.B. 4,
released after the year in issue. Rev. Rul. 99-7 obsoletes Rev.
Rul. 190 and modifies Rev. Ruls. 90-23 and 94-47.
                               - 8 -

affd. in part and remanded in part without published opinion 679

F.2d 898 (9th Cir. 1982), found that the taxpayer, who relied on

Rev. Rul. 190, supra, to support the deductibility of his

transportation expenses was not entitled to such deductions

because he had not established that the work sites at issue were

outside the general area of his principal or regular place of

employment.3   We thus found, without determining whether the jobs

were temporary, that the taxpayer was not entitled to deduct

transportation expenses.   See Harris v. Commissioner, supra.

     In the present case, petitioner points to our finding in

Norwood v. Commissioner, 66 T.C. 467 (1976), as support for her

position that the temporary nature of her employment is

sufficient in and of itself to entitle her to deductions for

commuting expenses.   Our disposition of Norwood, however, was

based on the parties’ framing of the issues; thus the sole focus

of our inquiry was whether the employment was temporary.    See id.

at 469.   Petitioner also relies on respondent’s position in Rev.

Rul. 60-189, 1960-1 C.B. 60.   Rev. Rul. 60-189 is irrelevant to

petitioner’s case as it concerns expenses incurred while




     3
        Dahood v. United States, 747 F.2d 46, 48-49 & n.4 (1st
Cir. 1984), indicates that the Court of Appeals for the Ninth
Circuit remanded Harris v. Commissioner, T.C. Memo. 1980-56,
affd. in part and remanded in part without published opinion 679
F.2d 898 (9th Cir. 1982), because it questioned whether the
evidence supported our findings of fact and not because the Court
of Appeals for the Ninth Circuit disagreed with the two-prong
test as a matter of law.
                                - 9 -

traveling away from home4 and is factually distinguishable from

petitioner’s situation.    Finally, petitioner points to Rev. Rul.

94-47, 1994-2 C.B. at 19, as support for her position, but the

relevant portion of the revenue ruling supports respondent’s

position:    “A taxpayer may deduct daily transportation expenses

incurred in going between the taxpayer’s residence and a

temporary work location outside the metropolitan area where the

taxpayer lives and normally works.”

     Respondent denied petitioner’s deduction for transportation

expenses from her residence to her temporary work locations

because petitioner does not ordinarily work in the metropolitan

area in which she lives.   Respondent’s denial is consistent with

his position in relevant revenue rulings.   Respondent has not

conceded that the temporary nature of a job in and of itself is a

sufficient basis for transportation expenses to be deductible.

     Petitioner has not established any business reason for

living in Yuba City; her decision to live there was entirely

personal.    Cf. Tucker v. Commissioner, 55 T.C. 783, 785-788

(1971).   The record does not indicate that petitioner ever worked

in, had the prospect of work in, or had any other business tie to

Yuba City.   The union hall where petitioner received her job

assignments was in Sacramento, which is south of Yuba City, and


     4
        Travel away from home under sec. 162(a)(2) requires that
the taxpayer either remain away overnight or for a period
requiring sleep or rest. See United States v. Correll, 389 U.S.
299 (1967).
                               - 10 -

all of petitioner’s work sites were south of Sacramento.

     Accordingly, we uphold respondent’s determination that

petitioner is not entitled to deduct automobile expenses for

transportation to her temporary jobsites.

Schedule C Automobile Expenses

     Respondent contends petitioner is not entitled to a

deduction for $809 of the $1,801 in car and truck expenses she

claimed on her 1995 Schedule C because she has not substantiated

the mileage she drove for her Amway activities, nor has she

presented evidence of the total miles she drove during 1995.

Petitioner maintains that she has substantiated mileage from her

Amway activity, and thus is entitled to a deduction for the full

$1,801 she claimed on her return.

     Section 274(d) imposes stringent substantiation requirements

for claimed deductions relating to the use of “listed property”,

which is defined under section 280F(d)(4)(A)(i) to include

passenger automobiles.    Under this provision, any deduction

claimed with respect to the use of a passenger automobile will be

disallowed unless the taxpayer substantiates specified elements

of the use by adequate records or by sufficient evidence

corroborating the taxpayer’s own statement.    See sec. 274(d);

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

46018 (Nov. 6, 1985).    These substantiation requirements

supersede the doctrine found in Cohan v. Commissioner, 39 F.2d
                               - 11 -

540 (2d Cir. 1930), under which we may approximate expenses in

certain cases where the exact amount of expense cannot be

determined.   See sec. 1.274-5T(a), Temporary Income Tax Regs., 50

Fed. Reg. 46015 (Nov. 6, 1985).

     The elements that must be substantiated to deduct business

use of an automobile are:    (1) The amount of the expenditure; (2)

the mileage for each business use of the automobile and the total

mileage for all use of the automobile during the taxable period;

(3) the date of the business use; and (4) the business purpose of

the use of the automobile.   See sec. 1.274-5T(b)(6), Temporary

Income Tax Regs., 50 Fed. Reg. 46016 (Nov. 6, 1985).

     To meet the adequate records requirements of section 274(d),

a taxpayer must maintain some form of records and documentary

evidence that in combination are sufficient to establish each

element of an expenditure or use.   See sec. 1.274-5T(c)(2),

Temporary Income Tax Regs., 50 Fed. Reg. 46016 (Nov. 6, 1985).    A

contemporaneous log is not required, but corroborative evidence

to support a taxpayer's reconstruction of the elements of

expenditure or use must have "a high degree of probative value to

elevate such statement" to the level of credibility of a

contemporaneous record.   Sec. 1.274-5T(c)(1), Temporary Income

Tax Regs., 50 Fed. Reg. 46016 (Nov. 6, 1985).

     Petitioner testified that she carried a calendar with her in

her car and filled it out each day, recording any Amway business
                               - 12 -

activity she conducted.   She further testified that she carried a

“1995 business miles log” to all of her Amway activities during

1995 and made contemporaneous notes of the activities in the log.

The entries in the log and the notations on the calendar

generally indicate the miles driven “to show marketing plan” or

to attend “seminar/rally”.   The mileage entries in the log are

preceded by the notation “RT”, which petitioner testified stands

for round trip but further explained really denotes the one-way

mileage to her destinations.   When questioned about the pristine

condition of the log and the fact that all entries in the log

appear to have been made with the same pen, petitioner explained

that she carried the log in a case with a pen.

     On the basis of the record as a whole, we find that

petitioner has not substantiated all the required elements of her

automobile use, her records are not reliable, and her testimony

lacks credibility.

     Although petitioner’s records purport to provide the dates

of business use of her automobile, miles driven for each business

use, and evidence of business purpose, petitioner has not

provided the total mileage for all use of her automobile during

1995.   See sec. 1.274-5T(b)(6), Temporary Income Tax Regs., 50

Fed. Reg. 46014, 46016 (Nov. 6, 1985).   Thus, she has not

substantiated all the elements required by the temporary
                               - 13 -

regulations promulgated under section 274(d).

       We also question the reliability of the information recorded

in petitioner’s records.    Despite petitioner’s testimony, we find

it unlikely that the records were made contemporaneously with the

activities recorded given the condition of the mileage log, the

appearance of the entries in the log, and the mistakes in the

log.    When asked at trial how she was able to contribute $40 to a

church in Yuba City on March 19, 1995, as indicated by her

calendar and by her testimony, when her log indicates she was in

Long Beach on March 18 and 19, 1995, petitioner testified that

she was actually in Long Beach on March 17 and 18, 1995.

       There are other reasons to question the reliability of

petitioner’s records.    According to petitioner’s testimony and

her mileage logs, on June 9, 1995, she drove a total of 384 miles

to and from a job site in Santa Cruz, California, put in hours of

work, and after returning home, drove 542 miles round trip to and

from Bakersfield, California, to attend a “seminar/rally” for

Amway.    Petitioner further testified that on days when she had to

travel that far, she would usually work a half day or less.     It,

nonetheless, is difficult to believe that petitioner was able to

drive 926 miles in 1 day, perform her duties as an ironworker,

even if only for a half day, and attend an Amway seminar.

Similarly, petitioner’s records indicate that on February 17,

1995, she drove a total of 906 miles and on August 11, 1995, a
                               - 14 -

total of 740 miles while performing her job duties and attending

Amway seminars on both days.     Petitioner’s records and her

explanation of the records indicate that she drove well over 500

miles a day on many of the days she worked at temporary job sites

as an ironworker and conducted Amway activities.     We find it

unlikely petitioner was able to sustain such activity on a

regular basis.

      Accordingly, we find petitioner is not entitled to mileage

deductions beyond those allowed by respondent.

     To reflect the foregoing,

                                      Decision will be entered

                                 under Rule 155.
