                  T.C. Summary Opinion 2008-134



                       UNITED STATES TAX COURT



          JOSE A. AND SYLVIA M. GARCIA, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 26361-06S.              Filed October 28, 2008.



     Jose A. and Sylvia M. Garcia, pro sese.

     Vicki L. Miller, for respondent.



     VASQUEZ, 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



     1
        Unless otherwise indicated, all subsequent 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 -

this opinion shall not be treated as precedent for any other

case.

     Respondent determined a deficiency of $2,815 in petitioners’

2003 Federal income tax.   The issue for decision is whether

petitioners’ unreimbursed employee business expenses claimed on

Schedule A, Itemized Deductions, of their 2003 return are

deductible pursuant to section 162.

                            Background

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   At the time they filed

the petition, petitioners resided in New Mexico.

     During 2003 Jose A. Garcia (petitioner) worked for two

different employers in the construction industry.   Petitioner

worked for Wolf Corp. (Wolf) from January 1 through May 5, 2003.

Wolf had a reimbursement policy in effect for employee business

expenses and miles driven in the course of employment.   Wolf

would have reimbursed petitioner for the mileage incurred in the

course of his employment during 2003 if he had submitted a

request for reimbursement; petitioner did not submit a request.

     From June 26 through December 29, 2003, petitioner worked

for Lockwood Construction Co. (Lockwood).   Lockwood did not have

an employee expense reimbursement policy in effect during the

time of petitioner’s employment.
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     Petitioner owned a 1988 Ford Ranger truck and drove it for

business purposes in 2003.

     Petitioners filed a joint return in 2003, claiming

deductions of $24,986.32 for unreimbursed employee expenses of

vehicle expenses, parking, and overnight travel.    Petitioner

claimed to have driven 65,212 miles for work during 2003.    In

applying the standard mileage rate of $0.36 to this figure,

petitioner calculated a vehicle expense deduction of $23,476.32.

Petitioner also claimed $160 in parking fees and $1,350 in

overnight travel expenses during 2003.

     Petitioner submitted copies of the first and last pages of a

mileage log to document the miles driven.    Petitioner had lost

the actual mileage log and did not attempt to reconstruct the

mileage log.    Petitioner made entries in the mileage log at the

end of every day.    The first page logged trips from January 6 to

February 6 and listed a starting odometer reading of 230,156.

The last page logged trips from the last 3 weeks in November

through the end of the year and listed an ending odometer reading

of 295,368.    The first page of the mileage log reports 4,635

miles driven and the last page of the mileage log reports 6,553

miles driven.    The log provides the day of the week, the date,

the destination(s), the mileage driven during the day, and the

starting and ending mileage for 2003.
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Petitioner was not able to produce any oil change receipts or

similar receipts which would have listed the mileage.

                            Discussion

     Petitioners have neither claimed nor shown that they

satisfied the requirements of section 7491(a) to shift the burden

of proof to respondent with regard to any factual issue.

Accordingly, petitioners bear the burden of proof.   See Rule

142(a).   Deductions are a matter of legislative grace, and the

taxpayer has the burden of showing that he is entitled to any

deduction claimed.   Rule 142(a); New Colonial Ice Co. v.

Helvering, 292 U.S. 435, 440 (1934).

     Section 162(a) allows a taxpayer to deduct all ordinary and

necessary expenses paid or incurred during the taxable year in

carrying on a trade or business, including a trade or business as

an employee.   Lucas v. Commissioner, 79 T.C. 1, 6 (1982).   An

employee cannot deduct trade or business expenses to the extent

that the employee is entitled to reimbursement from his or her

employer for expenditures related to his or her status as an

employee.   Id. at 7; Kennelly v. Commissioner, 56 T.C. 936, 943

(1971), affd. without published opinion 456 F.2d 1335 (2d Cir.

1972); Stolk v. Commissioner, 40 T.C. 345, 356 (1963), affd. 326

F.2d 760 (2d Cir. 1964).

     Daily mileage automobile expenses otherwise deductible as a

business expense under section 162(a) will be disallowed in full
                                - 5 -

unless the taxpayer satisfies the strict substantiation

requirements of section 274(d) as automobiles are “listed

property”.   Secs. 274(d)(4), 280F(d)(4)(A)(i).   If an expense is

subject to section 274(d), no deduction is allowable on the basis

of any approximation or the taxpayer’s unsupported testimony.

Sanford v. Commissioner, 50 T.C. 823, 826-827 (1968), affd. per

curiam 412 F.2d 201 (2nd Cir. 1969); Sec. 1.274-5T(a), Temporary

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

taxpayer must substantiate each element of use with “adequate

records” or present “sufficient evidence” corroborating his or

her statement.    Sec. 1.274-5T(c)(1), Temporary Income Tax Regs.,

50 Fed. Reg. 46016, 46017 (Nov. 6, 1985).   The elements of use

required to be substantiated are as follows:    (1) The amount of

each use (i.e., mileage) and the total use of the listed property

for the taxable period, (2) the date of each use, and    (3) the

business or investment purpose of each use.    Sec. 1.274-

5T(b)(6)(i) through (iii), Temporary Income Tax Regs., 50 Fed.

Reg. 46016 (Nov. 6, 1985).

     Adequate records require the taxpayer to maintain a log or

similar record and documentary evidence, which when the two are

combined are sufficient to establish each element of use.     Sec.

1.274-5T(c)(2)(i), Temporary Income Tax Regs., 50 Fed. Reg. 46017

(Nov. 6, 1985).   The log or similar record is to be prepared or

maintained in such manner that each recording of use is made near
                               - 6 -

the time of use.   Sec. 1.274-5T(c)(2)(ii), Temporary Income Tax

Regs., 50 Fed. Reg. 46017 (Nov. 6, 1985).    The level of detail in

such log or similar record is permitted to vary depending upon

the facts and circumstances when a taxpayer is attempting to

establish adequate records for business use of an automobile.

Sec. 1.274-5T(c)(2)(ii)(C)(1), Temporary Income Tax Regs., 50

Fed. Reg. 46018 (Nov. 6, 1985).   Specifically, the regulations

list the example of a mixed business and personal use vehicle

driven on an established route and permit the taxpayer to list

the beginning and ending mileage and subtract the trips taken to

establish the total number of miles driven during the taxable

year.   Documentary evidence that substantiates such expense

includes items such as receipts, paid bills, or similar evidence

that establishes the amount, date, place, and essential character

of the expenditure.   Sec. 1.274-5(c)(2)(iii), Temporary Income

Tax Regs., 50 Fed. Reg. 46019 (Nov. 6, 1985).

     Sufficient evidence to corroborate a taxpayer’s detailed

statement of business use must be sufficient to establish each

element of use before the taxpayer will be permitted to deduct

such claimed business use.   Sec 1.274-5T(c)(3)(i), Temporary

Income Tax Regs., 50 Fed. Reg. 46020 (Nov. 6, 1985).   Only direct

evidence will be sufficient evidence to establish the elements of

amount, time, place, or date of use.   Id.   Direct evidence is a

statement in writing, oral testimony of other witnesses setting
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forth detailed information about such element, or an account

book, diary, log, etc.   Id.

Miles Driven From January 1 to May 5, 2003

     During this time petitioner was employed by Wolf and was

entitled to seek reimbursement for his claimed unreimbursed

employee expenses pursuant to Wolf’s policy.   Accordingly,

petitioner is not entitled to deduct any expenses incurred while

an employee of Wolf.   See Lucas v. Commissioner, supra; Kennelly

v. Commissioner, supra; Stolk v. Commissioner, supra.   Petitioner

may not deduct any mileage he drove for work on or before

May 5, 2003.

Miles Driven From June 26 to December 31, 2003

     During this time petitioner was employed by Lockwood and

was not entitled to reimbursement for his claimed unreimbursed

employee expenses.   Accordingly, if petitioner has satisfied the

substantiation requirements of section 274(d), then petitioner is

entitled to deduct mileage incurred during his employment with

Lockwood.

     The last page of the mileage log submitted by petitioner

logs the last 3 weeks in November and December.   It lists the

date, the places driven to and from, the miles driven, and the

day of the week.   It does not list the purpose of the trip, but

petitioner testified credibly as to the general purpose of the

logged trips.
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     The last page of the log submitted by petitioner

substantiates the mileage listed as driven during the last 3

weeks in November through December.    This page is sufficient

evidence to corroborate petitioner’s credible testimony that he

drove these miles for business.   It contains the mileage driven,

the total use for the year, and the date of each use, and

petitioner credibly testified as to the general purpose of each

trip.   Accordingly, petitioner is entitled to deduct unreimbursed

mileage expenses incurred as an employee in the amount of

$2,359.08 for the 6,553 miles driven for business in 2003.

Overnight Travel, Parking, and Toll Expenses

     Petitioner has failed to provide any documentary evidence of

the claimed overnight travel, parking, and toll expenses.    The

$1,350 in overnight expenses and $160 in parking and tolls have

not been substantiated.   Additionally, petitioner has not

provided any dates on which the claimed overnight travel,

parking, and toll expenses were incurred.    To the extent they

were incurred during petitioner’s employment with Wolf, he would

not be entitled to deduct such expenses incurred because he was

entitled to reimbursement.   See Lucas v. Commissioner, 79 T.C. 1

(1982); Kennelly v. Commissioner, 56 T.C. 936 (1971); Stolk v.

Commissioner, 40 T.C. 345 (1963).     Accordingly, petitioner may

not deduct these amounts.
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     In reaching all of our holdings herein, we have considered

all arguments made by the parties, and to the extent not

mentioned above, we conclude they are irrelevant or without

merit.

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.
