                  T.C. Summary Opinion 2006-183



                       UNITED STATES TAX COURT



         KEVIN J. & CRYSTAL A. SHOEMAKER, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21275-04S.               Filed November 22, 2006.



     Kevin J. Shoemaker and Crystal A. Shoemaker, pro sese.

     James H. Harris, Jr., for respondent.



     CHIECHI, Judge:    This case was heard pursuant to the provi-

sions of section 7463 of the Internal Revenue Code in effect at

the time the petition was filed.1   The decision to be entered is

not reviewable by any other court, and this opinion should not be

cited as authority.


     1
      Hereinafter, all section references are to the Internal
Revenue Code in effect for the year at issue. All Rule refer-
ences are to the Tax Court Rules of Practice and Procedure.
                                - 2 -

       Respondent determined a deficiency of $3,076 in petitioners’

Federal income tax (tax) for their taxable year 2002.

       The issues remaining for decision are:

       (1) Are petitioners entitled to deduct certain claimed

expenses relating to their automobile?    We hold that they are

not.

       (2) Are petitioners entitled to deduct certain claimed meal

expenses?    We hold that they are not.

       (3) Are petitioners entitled to deduct certain claimed

cellular telephone expenses?    We hold that they are not.

       (4) Are petitioners entitled to deduct certain claimed pager

expenses?    We hold that they are not.

       (5) Are petitioners entitled to deduct certain claimed

clothing expenses?    We hold that they are not.

       (6) Are petitioners entitled to deduct certain claimed union

dues in excess of the amount allowed by respondent?    We hold that

they are not.

       (7) Are petitioners entitled to deduct certain claimed tool

expenses in excess of the amount allowed by respondent?      We hold

that they are not.

                                Background

       Some of the facts have been stipulated and are so found

except as stated herein.
                               - 3 -

     At all relevant times, including throughout 2002 and at the

time they filed the petition in this case, petitioners resided in

Keyser, West Virginia (Keyser).   Mr. Shoemaker lived in Keyser,

where he grew up, for personal reasons; he liked living in

Keyser, and he wanted to raise his family there.

     During 2002, Mr. Shoemaker, an electrician, was employed as

a subforeman by Freestate Electrical Construction Company

(Freestate) located in Beltsville, Maryland.   On each day Mr.

Shoemaker worked for Freestate during 2002, he drove in the

morning from petitioners’ residence in Keyser to a job site (job

site location) and returned in the evening to petitioners’

residence.

     Petitioners filed a tax return for their taxable year 2002

(petitioners’ 2002 return).   In Schedule A-Itemized Deductions

included as part of that return (2002 Schedule A), petitioners

claimed, inter alia, certain unidentified “Job Expenses and Most

Other Miscellaneous Deductions” (job expenses) totaling $35,558

prior to the application of the two-percent floor imposed by

section 67(a).

     As required by section 67(a), petitioners reduced the

$35,558 of total job expenses claimed in the 2002 Schedule A by

two percent of their adjusted gross income (i.e., by $1,946).     In

determining the taxable income reported in petitioners’ 2002

return, petitioners deducted the balance (i.e., $33,612), as well
                              - 4 -

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 petitioners a notice of deficiency

(notice) for their taxable year 2002.    In that notice, respon-

dent, inter alia, disallowed $33,415.432 and allowed $2,142.57 of

the total $35,558 of job expenses that petitioners claimed in the

2002 Schedule A prior to the reduction required by section 67(a).

Of the $2,142.57 allowed in the notice, $1,865.39 was for union

dues and $277.18 was for tool expenses.    In the notice, respon-

dent reduced the $2,142.57 that respondent allowed by two percent

of petitioners’ adjusted gross income (i.e., by $1,946) and

permitted petitioners to deduct the balance (i.e., $196.57) as

job expenses.

                           Discussion

     Petitioners bear the burden of proving that the determina-

tions in the notice are erroneous.3    Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).    Moreover, deductions are a

matter of legislative grace, and petitioners bear the burden of



     2
      In the notice, respondent rounded to the nearest dollar the
dollar amount of the disallowed job expense deduction.
     3
      Petitioners do not claim that the burden of proof shifts to
respondent under sec. 7491(a). In any event, petitioners have
failed to establish that they satisfy 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 -

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

Commissioner, 503 U.S. 79, 84 (1992).   Petitioners were required

to maintain records sufficient to establish the amount of any

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

     As we understand their position, petitioners contend that,

prior to the application of the two-percent floor imposed by

section 67(a), they are entitled to deduct $27,752.75 for the use

of their automobile (which includes $1,186.75 for parking fees

and tolls), $8,576 for meals, $498.34 for two cellular telephones

(cell phones), $175.76 for a pager, $444.42 for certain items of

clothing, an unspecified amount in excess of the amount allowed

by respondent for union dues, and an unspecified amount in excess

of the amount allowed by respondent for tools.4    Respondent

counters that petitioners have failed to carry their burden of

establishing their entitlement to any of the deductions that they

are claiming.

     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, sec. 162(a), including “travel-



     4
      We note that, prior to the application of the two-percent
floor imposed by sec. 67(a), the total (i.e., $39,589.84) of
(1) the respective total amounts of the different categories of
expenses that petitioners claim here (i.e., $37,447.27) and
(2) the amount of job expenses allowed by respondent in the
notice (i.e., $2,142.57) is greater than the total amount of job
expenses (i.e., $35,558) that petitioners claimed in the 2002
Schedule A prior to the reduction required by sec. 67(a).
                                - 6 -

ing expenses (including amounts expended for meals and lodging

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)(2).   For a taxpayer to be considered “away

from home” within the meaning of section 162(a)(2), the taxpayer

must be on a trip that requires the taxpayer to stop for sleep or

a substantial period of rest.   See United States v. Correll, 389

U.S. 299 (1967); Strohmaier v. Commissioner, 113 T.C. 106, 115

(1999).   A taxpayer generally is not allowed a deduction “for

personal, living, or family expenses.”   Sec. 262(a).   In general,

expenses relating to the use of an automobile that a taxpayer

pays or incurs while commuting between the taxpayer’s residence

and the taxpayer’s place of business or employment are not

deductible because such expenses are personal, and not business,

expenses.   See, e.g., Commissioner v. Flowers, 326 U.S. 465, 472-

473 (1946); see also secs. 1.162-2(e), 1.262-1(b)(5), Income Tax

Regs.

     For certain kinds of expenses otherwise deductible under

section 162(a), such as business expenses while traveling away

from home and business expenses relating to “listed property”, as

defined in section 280F(d)(4),5 a taxpayer must satisfy certain


     5
      As pertinent here, the term “listed property” is defined in
sec. 280F(d)(4) to include any passenger automobile used as a
means of transportation, unless excepted by sec. 280F(d)(4)(C)
or(5)(B), and any cellular telephone (or other similar telecommu-
                                                   (continued...)
                              - 7 -

substantiation requirements set forth in section 274(d) before

such expenses will be allowed as deductions.

     In order for petitioners’ claimed respective expenses

relating to the use of their automobile, cell phones, and pager

and for meals to be deductible, such expenses must satisfy the

requirements of not only section 162(a) but also section 274(d).

To the extent that petitioners carry their burden of showing that

the respective expenses relating to the use of their automobile,

cell phones, and pager and for meals satisfy the requirements of

section 162(a) but fail to satisfy their burden of showing that

such expenses satisfy the recordkeeping requirements of section

274(d), petitioners will have failed to carry their burden of

establishing that they are 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 petitioners from deducting expenditures otherwise

allowable under section 162(a) relating to the use of their


     5
      (...continued)
nications equipment). Sec. 280F(d)(4)(A)(i), (v). Petitioners
contend that during 2002 Mr. Shoemaker drove a passenger automo-
bile when he traveled to and from the job site locations to which
he was assigned by his employer Freestate. On the record before
us, we find that petitioners’ automobile, which is not subject to
any of the exceptions in sec. 280F(d)(4)(C) or (5)(B), petition-
ers’ cell phones, and petitioners’ pager are listed property
within the meaning of sec. 280F(d)(4).
                                - 8 -

automobile, cell phones, and pager and for meals unless they

substantiate the requisite elements of each such expenditure or

use.    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
       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 any

listed property are:   (1)(a) The amount of each separate expendi-

ture with respect to such property and (b) the amount of each
                               - 9 -

business use based on the appropriate measure, e.g., mileage for

automobiles and time for cellular phones, of such property;

(2) the time, i.e., the date of the expenditure or use with

respect to any such property; and (3) the business purpose for an

expenditure or use with respect to such property.   Sec. 1.274-

5T(b)(6), Temporary Income Tax Regs., 50 Fed. Reg. 46016 (Nov. 6,

1985).

     The elements that a taxpayer must prove with respect to an

expenditure for traveling away from home on business, including

meals, are:   (1) The amount of each such expenditure for travel-

ing 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-

5T(b)(2), Temporary Income Tax Regs., 50 Fed. Reg. 46014-46015

(Nov. 6, 1985).

     In lieu of substantiating the actual amount of any expendi-

ture relating to the business use of a passenger automobile, a
                              - 10 -

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 standard mileage rate

for 2002 was 36.5 cents per mile.    Id. sec. 2.01(1), 2001-2 C.B.

at 530.   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 establish 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

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-
                                  - 11 -

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.

     In support of their position that they are entitled for

their taxable year 2002 to deduct job expenses in excess of the

amount allowed by respondent, petitioners rely on, inter alia,

two documents.      The first document (document one) is a 12-page

calendar for 2002, with one page for each month of that year.

For each month in document one, Mr. Shoemaker made entries6 on

certain days of the respective job site locations at which peti-

tioners claim he worked, the respective miles that petitioners

claim he drove between petitioners’ residence and such job site

locations, and the respective parking fees and tolls that peti-

tioners claim he paid.7      For each month in document one, Mr.

Shoemaker made entries that he claims were the respective totals

of the daily entries of the number of days worked, the miles that

petitioners claim he drove between petitioners’ residence and the

job site locations at which petitioners claim he worked, and the



        6
      Mr. Shoemaker initially testified that during 2002 he made
entries on a daily basis in document one. He changed his testi-
mony on cross-examination. During cross-examination, Mr. Shoe-
maker testified that during 2002 he made entries on a weekly
basis in document one.
        7
      Mr. Shoemaker labeled the daily entries for parking fees
and tolls “Toll” or “T”.
                              - 12 -

parking fees and tolls that petitioners claim he paid.8

     The total amount of miles for 2002 of 72,746 that petition-

ers claim Mr. Shoemaker drove for business, as reflected in

document one,9 is inconsistent with and contradicted by the total

amount of miles for 2002 of 43,001 that petitioners claim Mr.

Shoemaker drove for business, as reflected in certain other

evidence.   Such other evidence consists of two receipts for

service (automobile service receipts) that petitioners introduced

into the record as evidence of such total amount of miles.     The

automobile service receipts are for service during 2002 on a

black 2001 Dodge Dakota truck (Dodge truck) that petitioners

claim Mr. Shoemaker drove during 2002 between petitioners’ resi-

dence and his job site locations.   The first automobile service




     8
      Certain of the claimed monthly totals that Mr. Shoemaker
entered in document one are not accurate. For example, for
February 2002, Mr. Shoemaker made entries showing the total
number of days worked, the total miles that petitioners claim he
drove between petitioners’ residence and the job site locations
at which petitioners claim he worked, and the total parking fees
and tolls that petitioners claim he paid as 27 days, 6,156 miles,
and $85.90. However, the actual respective monthly totals of the
daily amounts that Mr. Shoemaker entered in document one for
February 2002 for such items are 24 days, 5,472 miles, and $76.
     9
      We have used as the total miles for 2002 that petitioners
claim Mr. Shoemaker drove for business, as reflected in document
one (i.e., 72,746), the total of the daily entries that Mr.
Shoemaker made in document one for the respective miles that
petitioners claim Mr. Shoemaker drove each month during 2002
between petitioners’ residence and the respective job site
locations at which petitioners claim Mr. Shoemaker worked. See
supra note 8.
                              - 13 -

receipt, dated January 30, 2002,10 is from Jiffy Lube and showed

an odometer reading as of that date of 65,189 miles.   The second

automobile service receipt, dated December 27, 2002, is from Wal-

Mart Tire & Lube Express and showed an odometer reading as of

that date of 108,190 miles.   Thus, the automobile service re-

ceipts showed that the total miles that the Dodge truck was

driven during the period January 30 through December 27, 2002,

was 43,001.   In contrast, document one showed that Mr. Shoemaker

claims he drove a total of 72,746 miles for business during 2002,

a difference of almost 30,000 miles.11   We question the accuracy

of document one.   We shall not rely on it to establish petition-

ers’ position with respect to any of the expenses for which they

claim deductions for 2002.

     The second document (document two) on which petitioners rely

to support their position that they are entitled for their tax-

able year 2002 to deduct job expenses in excess of the amount

allowed by respondent is nothing more than a listing of the total


     10
      The parties stipulated that the first automobile service
receipt is dated June 30, 2002. That stipulation is clearly
contrary to the facts that we have found are established by the
record, and we shall disregard it. See Cal-Maine Foods, Inc. v.
Commissioner, 93 T.C. 181, 195 (1989). The record establishes,
and we have found, that the first automobile service receipt is
dated Jan. 30, 2002.
     11
      The automobile service records cover only Jan. 30 through
Dec. 27, 2002. Assuming arguendo that we were to accept as
reliable the entries for miles that Mr. Shoemaker made in docu-
ment one on days in 2002 not covered by the automobile service
records, such entries total only 6,764 miles.
                              - 14 -

amount of expenses that petitioners are claiming for each cate-

gory of expense at issue.   Mr. Shoemaker testified that petition-

ers’ accountant prepared document two after the Internal Revenue

Service contacted petitioners to request documentation regarding

petitioners’ 2002 return.   We shall not rely on document two to

establish petitioners’ position with respect to any of the ex-

penses for which they claim deductions for 2002.12

Claimed Automobile Expenses

     In general, expenses relating to the use of an automobile

that a taxpayer pays or incurs while commuting between the tax-

payer’s residence and the taxpayer’s place of business or employ-

ment are not deductible under section 162(a).   See, e.g., Commis-

sioner v. Flowers, 326 U.S. at 472-473; see also secs. 1.162-

2(e), 1.262-1(b)(5), Income Tax Regs.   Nonetheless, such expenses

may be deductible under section 162(a) where paid or incurred

“away from home”, sec. 162(a)(2), or, even if not paid or in-

curred away from home within the meaning of section 162(a)(2),

where paid or incurred for business, and not personal, reasons.13

     Petitioners concede, and we have found, that during 2002 Mr.

Shoemaker did not stay overnight at his claimed job site loca-



     12
      To the extent that other evidence corroborates the respec-
tive listings shown in document two for each category of expense
at issue, we shall address below such corroborative evidence.
     13
      See, e.g., Daiz v. Commissioner, T.C. Memo. 2002-192;
Epperson v. Commissioner, T.C. Memo. 1985-382.
                              - 15 -

tions but instead returned in the evenings to petitioners’ resi-

dence in Keyser.   Petitioners do not contend, and the record does

not establish, that during 2002 Mr. Shoemaker’s daily roundtrips

between petitioners’ residence and his claimed job site locations

required him to stop for sleep or a substantial period of rest.

See United States v. Correll, 389 U.S. 299 (1967); Strohmaier v.

Commissioner, 113 T.C. at 115.

     On the instant record, we find that petitioners have failed

to carry their burden of establishing that during 2002 the ex-

penses relating to Mr. Shoemaker’s use of petitioners’ automobile

that petitioners claim he incurred while traveling from petition-

ers’ residence to his claimed job site locations were incurred

while he was away from home within the meaning of section

162(a)(2).

     Although petitioners have failed to establish that the

expenses at issue relating to Mr. Shoemaker’s use of petitioners’

automobile were incurred while he was away from home within the

meaning of section 162(a)(2), as discussed above, petitioners may

nonetheless be entitled to deduct such expenses under section

162(a) if they were incurred for business, and not personal,

reasons.   Petitioners concede that during 2002, and at all other

relevant times, they resided in Keyser solely for personal, and

not business, reasons.   Petitioners do not contend, and the

record does not establish, that during 2002 Mr. Shoemaker worked
                              - 16 -

in or around Keyser where petitioners resided.    Mr. Shoemaker’s

decision to drive from petitioners’ residence in Keyser to his

claimed job site locations arose solely from petitioners’ per-

sonal choice to live in Keyser.   Petitioners could have chosen to

reduce their automobile expenses by living closer to Mr. Shoe-

maker’s claimed job site locations.    They did not do so for

personal reasons.

      On the instant record, we find that petitioners have failed

to carry their burden of establishing that during 2002 the ex-

penses relating to Mr. Shoemaker’s use of petitioners’ automobile

that petitioners claim he incurred while traveling from petition-

ers’ residence to his claimed job site locations were incurred

for business, and not personal, reasons.14

     On the record before us, we find that petitioners have

failed to carry their burden of establishing that they are enti-

tled for their taxable year 2002 to the deduction under section

162(a) that they claim for expenses relating to Mr. Shoemaker’s

use of their automobile.15


     14
      See, e.g., Daiz v. Commissioner, supra; Epperson v. Com-
missioner, supra.
     15
      Assuming arguendo that petitioners had established the
deductibility under sec. 162(a) of the claimed expenses relating
to Mr. Shoemaker’s use of their automobile, they would still have
to satisfy the requirements of sec. 274(d). We concluded above
that we shall not rely on document one or document two to estab-
lish petitioners’ position with respect to any of the claimed
expenses, including the expenses relating to Mr. Shoemaker’s use
                                                   (continued...)
                              - 17 -

Claimed Meal Expenses

     In general, expenses paid or incurred for a taxpayer’s daily

meals while the taxpayer is not away from home within the meaning

of section 162(a)(2) are not deductible.   See United States v.

Correll, supra; Barry v. Commissioner, 54 T.C. 1210, 1214 (1970),

affd. per curiam 435 F.2d 1290 (1st Cir. 1970).

     Petitioners concede, and we have found, that during 2002 Mr.

Shoemaker did not stay overnight at his claimed job site loca-

tions but instead returned in the evenings to petitioners’ resi-

dence in Keyser.   Petitioners do not contend, and the record does

not establish, that during 2002 Mr. Shoemaker’s daily roundtrips

between petitioners’ residence and his claimed job site locations

required him to stop for sleep or a substantial period of rest.

See United States v. Correll, supra; Strohmaier v. Commissioner,

113 T.C. at 115.

     On the instant record, we find that petitioners have failed

to carry their burden of establishing that during 2002 the meal

expenses that petitioners claim Mr. Shoemaker incurred while

traveling from petitioners’ residence to his claimed job site


     15
      (...continued)
of petitioners’ automobile for which they claim a deduction for
2002. On the record before us, we find that petitioners have
failed to carry their burden of establishing all of the elements
that they must prove in order to satisfy the requirements under
sec. 274(d) applicable to the claimed expenses relating to Mr.
Shoemaker’s use of petitioners’ automobile. See sec. 1.274-
5T(b)(6), Temporary Income Tax Regs., 50 Fed. Reg. 46016 (Nov. 6,
1985).
                                - 18 -

locations were incurred while he was away from home within the

meaning of section 162(a)(2).

     On the record before us, we find that petitioners have

failed to carry their burden of establishing that they are enti-

tled for their taxable year 2002 to the deduction under section

162(a)(2) that they claim for meal expenses.16

Claimed Cell Phone Expenses

     A taxpayer is entitled to deduct expenses for the use of a

cell phone if such expenses constitute ordinary and necessary

expenses paid or incurred during the taxable year in carrying on

a trade or business.   Sec. 162(a).

     Petitioners are claiming a deduction for the expenses relat-

ing to two cell phones used during 2002, one of which Mr.

Shoemaker used (Mr. Shoemaker’s cell phone) and the other of

which Ms. Shoemaker used (Ms. Shoemaker’s cell phone).   Mr.



     16
      Assuming arguendo that petitioners had established the
deductibility under sec. 162(a)(2) of the claimed meal expenses,
they would still have to satisfy the requirements of sec. 274(d).
We concluded above that we shall not rely on document one or
document two to establish petitioners’ position with respect to
any of the claimed expenses, including the meal expenses for
which they claim a deduction for 2002. Petitioners did not offer
any other evidence in support of their position with respect to
such meal expenses. The record does not even establish whether
petitioners used the applicable M&IE rate for 2002. On the
record before us, we find that petitioners have failed to carry
their burden of establishing all of the elements that they must
prove in order to satisfy the requirements under sec. 274(d)
applicable to the claimed meal expenses. See sec. 1.274-
5T(b)(2), Temporary Income Tax Regs., 50 Fed. Reg. 46014-46015
(Nov. 6, 1985).
                              - 19 -

Shoemaker testified that during 2002 he used Mr. Shoemaker’s cell

phone to call his union hall to obtain job referrals and to

determine the location of his claimed job site locations.     Mr.

Shoemaker also admitted at trial that during 2002 he used Mr.

Shoemaker’s cell phone for personal reasons.   We found Mr.

Shoemaker’s testimony regarding the extent of his claimed busi-

ness use of Mr. Shoemaker’s cell phone to be vague, general, and

conclusory.   Petitioners do not contend, and the record does not

establish, that Ms. Shoemaker used Ms. Shoemaker’s cell phone for

anything other than personal reasons.

     On the record before us, we find that petitioners have

failed to carry their burden of establishing that they are enti-

tled for their taxable year 2002 to the deduction under section

162(a) that they claim for cell phone expenses.17


     17
      Assuming arguendo that petitioners had established the
deductibility under sec. 162(a) of the claimed cell phone ex-
penses, they would still have to satisfy the requirements of sec.
274(d). We concluded above that we shall not rely upon document
one or document two to establish petitioners’ position with
respect to any of the claimed expenses, including the cell phone
expenses for which they claim a deduction for 2002. In addition
to document one, document two, and Mr. Shoemaker’s testimony,
petitioners rely on ten invoices (cell phone invoices) totaling
$375.16 from U.S. Cellular for cell phone service charges during
2002. The cell phone invoices do not establish all of the
elements that petitioners must prove in order to satisfy the
requirements under sec. 274(d)(4). See sec. 1.274-5T(b)(6),
Temporary Income Tax Regs., 50 Fed. Reg. 46016 (Nov. 6, 1985).
On the record before us, we find that petitioners have failed to
carry their burden of establishing all of the elements that they
must prove in order to satisfy the requirements under sec. 274(d)
applicable to the claimed expenses deduction for 2002. See sec.
                                                   (continued...)
                              - 20 -

Claimed Pager Expenses

     A taxpayer is entitled to deduct expenses for the use of a

pager if such expenses constitute ordinary and necessary expenses

paid or incurred during the taxable year in carrying on a trade

or business.   Sec. 162(a).

     Mr. Shoemaker admitted at trial that during 2002 he used the

pager in question solely to allow Ms. Shoemaker to contact him in

the event of personal emergencies.

     On the record before us, we find that petitioners have

failed to carry their burden of establishing that they are enti-

tled for their taxable year 2002 to the deduction under section

162(a) that they claim for pager expenses.18


     17
      (...continued)
1.274-5T(b)(6), Temporary Income Tax Regs., 50 Fed. Reg. 46016
(Nov. 6, 1985).
      18
      Assuming arguendo that petitioners had established the
deductibility under sec. 162(a) of the claimed pager expenses,
they would still have to satisfy the requirements of sec. 274(d).
We concluded above that we shall not rely upon document one or
document two to establish petitioners’ position with respect to
any of the claimed expenses, including the pager expenses for
which they claim a deduction for 2002. In addition to document
one and document two, petitioners rely on two invoices (pager
invoices) totaling $175.76 from All-Ways Communications, LLC, for
pager service charges during 2002. The pager invoices do not
establish all of the elements that petitioners must prove in
order to satisfy the requirements under sec. 274(d)(4). See sec.
1.274-5T(b)(6), Temporary Income Tax Regs., 50 Fed. Reg. 46016
(Nov. 6, 1985). On the record before us, we find that petition-
ers have failed to carry their burden of establishing all of the
elements that they must prove in order to satisfy the require-
ments under sec. 274(d) applicable to the claimed pager expenses.
See sec. 1.274-5T(b)(6), Temporary Income Tax Regs., 50 Fed. Reg.
                                                   (continued...)
                              - 21 -

Claimed Clothing Expenses

     Articles of clothing, including shoes or boots, are deduct-

ible under section 162(a) only if the clothing is required in the

taxpayer’s employment, 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 establishes that the items of clothing for which

petitioners claim a deduction for their taxable year 2002 consist

of jeans, shirts, gloves, hats, and Wolverine boots.

     On the instant record, we find that petitioners have failed

to carry their burden of establishing that the jeans, shirts,

gloves, hats, and Wolverine boots in question were required in

Mr. Shoemaker’s employment, were not suitable for general or

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

poses.

     On the record before us, we find that petitioners have

failed to carry their burden of establishing that they are enti-

tled for their taxable year 2002 to the deduction under section

162(a) that they claim for certain clothing.19


     18
      (...continued)
46016 (Nov. 6, 1985).
      19
      Assuming arguendo that petitioners had established that
the expenditures for the clothing in question were otherwise
deductible under sec. 162(a), on the record before us, we find
that petitioners have failed to carry their burden of establish-
ing that they spent $444.42, the clothing expense deduction that
                                                   (continued...)
                                    - 22 -

Claimed Union Dues

       A taxpayer is entitled to deduct expenses for union dues if

such expenses constitute ordinary and necessary expenses paid or

incurred during the taxable year in carrying on a trade or busi-

ness.20      Sec. 162(a).

       The only evidence that petitioners introduced into the

record relating to petitioners’ claimed union dues is document

two.    We concluded above that we shall not rely upon document two

to establish petitioners’ position with respect to any of the

claimed expenses, including the union dues for which they claim a

deduction for 2002.         In any event, the total amount of union dues

that petitioners claimed in document two is $1,865.39, the amount

that respondent allowed.

       On the record before us, we find that petitioners have

failed to carry their burden of establishing that they are enti-

tled for their taxable year 2002 to the deduction that they claim


       19
      (...continued)
they are claiming for 2002 for such clothing. The receipts that
petitioners introduced into the record relating to the items of
clothing in question total only $385.48.
        20
      It is not altogether clear whether petitioners are claim-
ing that they are entitled to deduct an amount for union dues in
excess of $1,865.39, the amount allowed by respondent. The
record does not disclose the amount that petitioners claimed as a
deduction for union dues in petitioners’ 2002 return. On brief,
respondent does not indicate that there is any amount of union
dues at issue. However, we shall proceed on the assumption that
petitioners are claiming a deduction for their taxable year 2002
for an unspecified amount of union dues in excess of the amount
allowed by respondent.
                              - 23 -

for an unspecified amount of union dues in excess of the amount

allowed by respondent.

Claimed Tool Expenses

     A taxpayer is entitled to deduct expenses for tools if such

expenses constitute ordinary and necessary expenses paid or

incurred during the taxable year in carrying on a trade or busi-

ness.21    Sec. 162(a).

     The evidence that petitioners introduced into the record

relating to petitioners’ claimed tool expenses consists of docu-

ment one, document two, nine receipts that appear to total

$278.54 that petitioners claim Mr. Shoemaker spent for tools

purchased during 2002,22 and the testimony of Mr. Shoemaker.    We



      21
      It is not altogether clear whether petitioners are claim-
ing that they are entitled to deduct an amount for tool expenses
in excess of $277.18, the amount allowed by respondent in the
notice. The record does not disclose the amount that petitioners
claimed as a deduction for tool expenses in petitioners’ 2002
return. On brief, respondent does not indicate that there is any
amount of tool expenses at issue. However, at trial, petitioners
presented receipts that appear to total $278.54 (claimed tool
receipts) that petitioners claim Mr. Shoemaker spent for tools
purchased during 2002, which is greater than the amount allowed
by respondent. Two of the claimed tool receipts that petitioner
introduced into the record are illegible in certain material
respects, and one of those illegible receipts includes the
purchase of dog food. Another claimed tool receipt is for a
“camp chair”. We shall proceed on the assumption that petition-
ers are claiming a deduction for their taxable year 2002 for an
unspecified amount of tool expenses in excess of the amount
allowed by respondent.
      22
      The parties stipulated that the receipts were from Sears,
Tractor Supply Company, Rite Aid, Total Image, and Quality Farm
and Country. However, one of the receipts also is from Lowe’s.
                              - 24 -

concluded above that we shall not rely upon document one or

document two to establish petitioners’ position with respect to

any of the claimed expenses, including the tool expenses for

which they claim a deduction for 2002.    In any event, the total

amount of tool expenses that petitioners claimed in document two

is $277.18, the amount that respondent allowed.23

     On the record before us, we find that petitioners have

failed to carry their burden of establishing that they are enti-

tled for their taxable year 2002 to the deduction that they claim

for tool expenses in excess of the amount allowed by respondent.

     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 and the concession of respondent,


                                   Decision will be entered under

                              Rule 155.




     23
      Although the total amount of tool expenses that petition-
ers claim in document two is $277.18, the amount that respondent
allowed, the claimed tool receipts appear to total $278.54, which
is $1.36 more than the tool expense amount that respondent
allowed. Had respondent not allowed petitioners tool expenses of
$277.18, on the record before us, we would not have been able to
find that petitioners’ tool expenses during 2002 totaled that
amount. See supra note 21.
