                                      JAN ELIZABETH VAN DUSEN, PETITIONER v. COMMISSIONER                                                OF
                                                  INTERNAL REVENUE, RESPONDENT
                                                        Docket No. 20767–08.                           Filed June 2, 2011.

                                                 P incurred unreimbursed volunteer expenses while caring
                                               for foster cats in her private residence. P’s expenses consisted
                                               primarily of payments for veterinary services, pet supplies,
                                               cleaning supplies, and household utilities. P claimed a
                                               $12,068 charitable-contribution deduction for the expenses on
                                               her 2004 tax return. R issued a notice of deficiency denying
                                               the deduction. R claims that P did not render services to a
                                               qualifying charitable organization under sec. 170(c), I.R.C.,
                                               and that P failed to substantiate her expenses under sec.
                                               170(f)(8), I.R.C., and sec. 1.170A–13, Income Tax Regs. R also
                                               asserts that P’s expenses have an indistinguishable personal
                                               component. Held: P’s foster-cat expenses qualify as unreim-
                                               bursed expenditures incident to the rendition of services to a
                                               charitable organization. See sec. 1.170A–1(g), Income Tax
                                               Regs. P’s services were directed by a charitable organization.
                                               P thus rendered services to a sec. 170(c), I.R.C., organization
                                               when she cared for foster cats in her home. Some of P’s
                                               expenses are disallowed because they are insufficiently
                                               related to foster-cat care or cannot be determined with preci-
                                               sion. Held, further, the recordkeeping requirements of sec.
                                               1.170A–13(a), Income Tax Regs. (for contributions of money),
                                               govern unreimbursed volunteer expenses of less than $250.
                                               Held, further, P’s records meet the requirements of sec.
                                               1.170A–13(a), Income Tax Regs., because they are acceptable
                                               substitutes for canceled checks under the substantial compli-
                                               ance doctrine. See Bond v. Commissioner, 100 T.C. 32 (1993).
                                               P can deduct foster-cat expenses of less than $250. Held, fur-
                                               ther, P cannot deduct foster-cat expenses of $250 or more. P
                                               did not obtain the contemporaneous written acknowledgment
                                               from the charitable organization required under sec. 1.170A–
                                               13(f)(10), Income Tax Regs. Held, further, P can deduct a $100
                                               check donation made to a separate charitable organization.

                                        Jan Elizabeth Van Dusen, pro se.
                                        Christina E. Ciu and Rebecca Duewer-Grenville, for
                                      respondent.
                                                                                                                                     515




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                                      516                136 UNITED STATES TAX COURT REPORTS                                      (515)


                                         MORRISON, Judge: The Commissioner of Internal Revenue
                                      (the IRS) issued a notice of deficiency for the tax year 2004
                                      to petitioner, Jan Elizabeth Van Dusen, determining an
                                      income-tax deficiency of $4,838. The parties settled all issues
                                      except those relating to a $12,068 charitable-contribution
                                      deduction for Ms. Van Dusen’s expenses of taking care of
                                      foster cats. 1
                                         We find that taking care of foster cats was a service per-
                                      formed for Fix Our Ferals, a section 501(c)(3) 2 organization
                                      that specializes in the neutering of wild cats. See infra part
                                      I. Some of Van Dusen’s expenses are categorically not related
                                      to taking care of foster cats and are therefore not deductible.
                                      These expenses are the cost of cremating a pet cat, bar
                                      association dues, and DMV fees. See infra part II. Some of
                                      Van Dusen’s other expenses are not solely attributable to
                                      foster-cat care and are not deductible. These expenses are
                                      the cost of repairing her wet/dry vacuum and her member-
                                      ship dues at a store. See infra part III. Other expenses are
                                      attributable to the services Van Dusen provided to Fix Our
                                      Ferals. These expenses are 90 percent of her veterinary
                                      expenses and pet supplies and 50 percent of her cleaning
                                      supplies and utility bills. See infra part IV.B. Some pay-
                                      ments to Orchard Supply Hardware and Lowe’s for pet sup-
                                      plies, however, are disallowed because the amounts spent on
                                      pet supplies cannot be determined with precision. See infra
                                      part IV.A. In deciding whether Van Dusen kept adequate
                                      records of the expenses attributable to her volunteer services,
                                      we hold that the regulatory requirements for money con-
                                      tributions govern Van Dusen’s expenses of less than $250.
                                      See infra part IV.C.1.a. Van Dusen has met the requirements
                                      for these less-than-$250 expenses. Her records are acceptable
                                      substitutes for canceled checks under the substantial compli-
                                      ance doctrine. See infra part IV.C.1.b. For expenses of $250
                                      or more, however, Van Dusen does not have contempora-
                                      neous written acknowledgment from Fix Our Ferals. See
                                        1 The charitable-contribution deduction for foster-cat expenses was the only item the parties

                                      presented for decision. The record, however, includes documentation of four expenses that are
                                      unrelated to foster-cat care. These expenses are: the cost of cremating a pet cat, bar association
                                      dues, DMV fees, and a $100 check to Island Cat Resources and Adoption. Van Dusen testified
                                      about the pet cat cremation and the $100 check to Island Cat Resources and Adoption, but not
                                      the bar association dues or DMV fees. We address all of these expenses for the sake of complete-
                                      ness.
                                        2 Unless otherwise indicated, all section references are to the Internal Revenue Code in effect

                                      for the year at issue. All Rule references are to the Tax Court Rules of Practice and Procedure.




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                                      (515)                        VAN DUSEN v. COMMISSIONER                                         517


                                      infra part IV.C.2. Therefore, these expenses are not deduct-
                                      ible.
                                         We also hold that Van Dusen is entitled to a $100 deduc-
                                      tion for a check donation to Island Cat Resources and Adop-
                                      tion, a section 170(c) organization. See infra part VI.

                                                                          FINDINGS OF FACT

                                        We adopt the stipulation of facts and its attached exhibits.
                                      Van Dusen, a resident of Oakland, California, is an attorney
                                      who cared for cats in her private residence in 2004. Van
                                      Dusen volunteered for an organization called Fix Our Ferals
                                      and argues that her out-of-pocket expenses for caring for cats
                                      qualify as charitable contributions to that organization. The
                                      parties stipulate that Fix Our Ferals is a section 501(c)(3)
                                      organization. We find that Fix Our Ferals is eligible to
                                      receive tax-deductible contributions under section 170(c). 3
                                      Fix Our Ferals and Trap-Neuter-Return
                                        Fix Our Ferals’ mission is to engage in ‘‘trap-neuter-
                                      return’’ activities, which consist of trapping feral cats, 4
                                      neutering 5 them, obtaining necessary medical treatments
                                      and vaccinations, and releasing them back into the wild. 6
                                      Fix Our Ferals enlists volunteers to perform these tasks. The
                                      volunteers usually return cats to their original neighbor-
                                      hoods, but sometimes cats are moved to safer neighborhoods.
                                        The purpose of trap-neuter-return is to humanely control
                                      feral cat populations and ensure that the cats live in an
                                      environment where people are not hostile to them. Fix Our
                                      Ferals periodically organizes spay/neuter clinics and educates
                                      the public about trap-neuter-return as a solution to neighbor-
                                      hood cat issues.
                                        3 We take judicial notice of IRS Publication 78, Cumulative List of Organizations described

                                      in Section 170(c) of the Internal Revenue Code of 1986, as effective for 2004. See Viralam v.
                                      Commissioner, 136 T.C. 151, 154, 176–177 (2011) (citing IRS Publication 78 as evidence of orga-
                                      nization’s sec. 170(c) status); Jennings v. Commissioner, T.C. Memo. 2000–366 (same), affd. 19
                                      Fed. Appx. 351 (6th Cir. 2001). Fix Our Ferals was listed in IRS Publication 78 in 2004.
                                        4 A feral cat is a nondomesticated cat.

                                        5 ‘‘Neutering’’ refers to the sterilization of animals of both sexes. We use the term interchange-

                                      ably with ‘‘spay/neuter’’.
                                        6 In the context of trap-neuter-return, returning feral cats to the ‘‘wild’’ means returning them

                                      to an outdoor living environment that is generally urban or suburban. The intent is for the cats
                                      to continue to live in human-populated neighborhoods, rather than move to animal-only habi-
                                      tats.




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                                      518                  136 UNITED STATES TAX COURT REPORTS                                      (515)


                                        After being neutered, the cats must be temporarily housed
                                      in volunteers’ private residences while they recover. After the
                                      cats recover and have received all necessary medical treat-
                                      ments, they are usually returned to the wild.
                                        Some cats cannot be safely returned to the wild. Typically
                                      those cats are young, sick, injured, elderly, or tame. 7 Those
                                      cats must be cared for domestically. We refer to all care for
                                      trapped cats, including temporary housing while cats are
                                      recuperating from neutering, as ‘‘foster care’’. We refer to
                                      cats under foster care as ‘‘foster cats’’.
                                        Some of the cats are not returned to the wild because they
                                      are already tame. Volunteers try to tame the other cats that
                                      cannot be returned to the wild to make them suitable for
                                      adoption. The volunteers then attempt to place the tame cats
                                      in no-kill shelters or adoptive homes. The success of placing
                                      the tame cats depends on shelter availability and people’s
                                      willingness to adopt.
                                        Although some of the cats that cannot be returned to the
                                      wild are adopted or given to shelters, others remain in foster
                                      care indefinitely. More often these cats are sick, elderly, or
                                      have other problems requiring long-term care. Fix Our Ferals
                                      encourages volunteers to provide long-term care for these
                                      cats in their homes. Foster care, both short and long term,
                                      forms an important part of the organization’s mission.
                                      Fix Our Ferals’ Administrative Structure
                                        Fix Our Ferals is a decentralized organization. It has no
                                      formal administrative office. Instead, it uses a post office box,
                                      a telephone hotline, a website, and other internet- and
                                      phone-based methods of communication.
                                        Fix Our Ferals’ official staff, as far as we can surmise, con-
                                      sists of a board of directors and a team of veterinarians. The
                                      organization relies on a base of volunteers who trap cats,
                                      transport cats, foster cats, staff spay/neuter clinics, educate
                                      the public, screen phone calls, raise funds, and recruit volun-
                                      teers. Some Fix Our Ferals volunteers are members of an
                                      informal internet message group through which they coordi-
                                      nate logistics and assist each other with cat-related issues.
                                      Volunteers also collaborate informally with other cat rescue
                                      groups and individuals. Fix Our Ferals does not commonly
                                           7 Sometimes   volunteers capture tame stray cats when they attempt to trap feral cats.




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                                      (515)                        VAN DUSEN v. COMMISSIONER                                       519


                                      reimburse volunteers for expenses. It does, however, some-
                                      times provide vouchers for free neutering services. It also
                                      reimburses volunteers for emergency care if complications
                                      arise after a cat has been neutered at a Fix Our Ferals clinic.
                                      Van Dusen’s Role With Fix Our Ferals
                                        Van Dusen was a Fix Our Ferals volunteer in 2004. She
                                      trapped feral cats, had them neutered, obtained vaccinations
                                      and necessary medical treatments, housed them while they
                                      recuperated, and released them back into the wild. She also
                                      provided long-term foster care to cats in her home. She
                                      attempted to place long-term foster cats in one of two no-kill
                                      shelters, Berkeley East Bay Humane Society or East Bay
                                      Society for the Prevention of Cruelty to Animals, 8 or other-
                                      wise find them adoptive homes. Some foster cats, however,
                                      stayed with her indefinitely.
                                        In 2004, Van Dusen had between 70 and 80 cats total, of
                                      which approximately 7 were pets. The pet cats had names,
                                      but the foster cats generally did not. Most cats roamed freely
                                      around Van Dusen’s home (except for bathrooms) and resided
                                      in common areas. Less domesticated cats stayed in a sepa-
                                      rate room called the ‘‘feral room’’. Some cats lived in cages
                                      for taming. Others lived in cages because of illness.
                                        Van Dusen devoted essentially her entire life outside of
                                      work to caring for the cats. Each day she fed, cleaned, and
                                      looked after the cats. She laundered the cats’ bedding and
                                      sanitized the floors, household surfaces, and cages. Van
                                      Dusen even purchased a house ‘‘with the idea of fostering in
                                      mind’’. Her house was so extensively used for cat care that
                                      she never had guests over for dinner.
                                        Van Dusen obtained foster cats primarily through the trap-
                                      neuter-return work that she personally performed. She cap-
                                      tured homeless cats, had them neutered, cared for them
                                      during recovery, and if possible, returned them to the wild.
                                      She housed the cats that could not be returned to the wild
                                      until an adoption opportunity arose. She obtained the rest of
                                      her cats through a loose network of contacts. Some came
                                      from Fix Our Ferals affiliates or from the Fix Our Ferals hot-
                                        8 Van Dusen and other witnesses sometimes referred to this organization as Oakland Society

                                      for the Prevention of Cruelty to Animals.




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                                      520                136 UNITED STATES TAX COURT REPORTS                                           (515)


                                      line or internet message group. Others came from individual
                                      volunteers or other cat rescue organizations.
                                         Van Dusen’s foster care arrangements arose informally,
                                      usually by her personal decision or through a series of phone
                                      calls, emails, internet postings, or in-person conversations.
                                      Some cats that she cared for in 2004 had been under her
                                      care in previous years, during which she belonged to
                                      organizations other than Fix Our Ferals. Van Dusen’s
                                      inability to recall precisely how she acquired each of her cats
                                      makes it difficult to ascertain how many cats are attributable
                                      to a particular organization or contact person. Although Fix
                                      Our Ferals was her primary volunteer affiliation in 2004, she
                                      admits that she did sometimes assist other groups that year.
                                      Van Dusen therefore cannot trace all her foster cats in 2004
                                      to Fix Our Ferals.
                                      Van Dusen’s Cat-Care Expenses
                                        Van Dusen paid out-of-pocket for most of her cat-care
                                      expenses. Vouchers covered some of the neuterings, but Van
                                      Dusen paid all other veterinary expenses including tests,
                                      treatment, vaccines, and surgery.
                                        Van Dusen expended significant amounts on in-home care
                                      as well. She purchased large quantities of pet supplies 9 and
                                      cleaning supplies. 10 She renewed her Costco membership so
                                      she could buy cat food and cleaning supplies at lower prices.
                                      She repaired her wet/dry vacuum so she could easily clean
                                      the floors. Van Dusen incurred higher electricity and gas
                                      bills because she laundered many loads of cat bedding and
                                      ran a special ventilation system to ensure fresh air. The fre-
                                      quent laundering also increased her water bills. Her garbage
                                      bills increased because of the high volume of cat-related
                                      waste. We refer to Van Dusen’s veterinary, pet supply,
                                      cleaning supply, utility, Costco membership renewal, and
                                      wet/dry vacuum repair expenses collectively as her ‘‘cat-care
                                      expenses’’.
                                        A portion of Van Dusen’s cat-care expenses was attrib-
                                      utable to personal use, and the rest was attributable to foster
                                      cats. We refer to the portion of cat-care expenses attributable
                                        9 ‘‘Pet supplies’’ refers to pet food, pet medicine, woodstove pellets (for cat litter), litter boxes,

                                      pet dishes, and other miscellaneous cat-specific supplies.
                                        10 ‘‘Cleaning supplies’’ refers to garbage bags, paper towels, laundry detergent, dish detergent,

                                      and other cat-related supplies that were not exclusively used for cats.




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                                      (515)                         VAN DUSEN v. COMMISSIONER                                         521


                                      to foster cats as ‘‘foster-cat expenses’’. The precise amount of
                                      Van Dusen’s foster-cat expenses is unclear because her
                                      records do not distinguish personal expenses from foster-cat
                                      expenses. 11
                                      Van Dusen’s Recordkeeping and Reporting
                                         Van Dusen introduced the following evidence as proof of
                                      her foster-cat expenses: check copies, 12 bank account state-
                                      ments, credit card statements, a Thornhill Pet Hospital client
                                      account history, a Costco purchase history, Pacific Gas &
                                      Electric invoices, a Waste Management payment history (for
                                      garbage removal), and an East Bay Municipal Utility District
                                      billing history (for water). All the data in the documents was
                                      recorded contemporaneously in 2004. Van Dusen states that
                                      she initially had more substantial records of her foster-cat
                                      expenses, namely itemized receipts, but that her tax pre-
                                      parer, Cary Cheng, told her they were unnecessary for pre-
                                      paring her original return. Those records have since dis-
                                      appeared. Van Dusen compiled the documents she introduced
                                      at trial by searching through other records and requesting
                                      records from third parties.
                                         On her 2004 tax return, Van Dusen deducted $12,068 on
                                      Schedule A, Itemized Deductions, for noncash charitable con-
                                      tributions attributable to a ‘‘cat rescue operation’’. The return
                                      stated that the $12,068 comprised $1,381 of supplies, 13
                                      $9,607 of veterinary bills, and $1,080 of utilities. It is unclear
                                      precisely how Van Dusen arrived at these numbers. An
                                      unnamed friend had totaled the ‘‘cat rescue operation’’
                                      expenses using now-missing receipts, but we have no evi-
                                      dence of what method, if any, her friend used to separate
                                      deductible expenses from nondeductible expenses. The friend
                                      prepared a worksheet summarizing the calculations, but this
                                      document is not in evidence. The IRS disallowed the entire
                                      deduction. Van Dusen’s petition asserts that she is entitled
                                      to a deduction of at least $12,068 for foster-cat expenses. On
                                           11 Weaddress the calculation of foster-cat expenses infra pts. III and IV.
                                           12 Werefer to the documents as ‘‘check copies’’ because they are photocopies of carbon copies
                                      of the original checks. After writing the checks, Van Dusen presumably kept the carbon copies
                                      for her records.
                                        13 It is unclear whether ‘‘supplies’’ referred to just pet supplies and cleaning supplies or wheth-

                                      er it also included the cost of renewing Van Dusen’s Costco membership and the cost of repair-
                                      ing her wet/dry vacuum. At trial Van Dusen made clear that she seeks a deduction for all of
                                      these expenses—pet supplies, cleaning supplies, Costco membership renewal, and wet/dry vacu-
                                      um repair.




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                                      522                136 UNITED STATES TAX COURT REPORTS                                      (515)


                                      the basis of her testimony, we believe Van Dusen now seeks
                                      a deduction for the expenses using the following percentage
                                      estimates: 90 percent of veterinary expenses, pet supplies,
                                      paper towels, and garbage bags; and 50 percent of laundry
                                      detergent, dish detergent, utilities, and Costco membership
                                      renewal. See infra part IV.B. Van Dusen also seeks to deduct
                                      the cost of her wet/dry vacuum repair, but her percentage
                                      estimate for this expense is unclear.

                                                                                  OPINION

                                         A taxpayer has the burden of proving the IRS’s determina-
                                      tion of deficiencies incorrect. See Rule 142(a)(1); Welch v.
                                      Helvering, 290 U.S. 111, 115 (1933). The burden shifts to the
                                      IRS if the taxpayer introduces credible evidence with respect
                                      to a factual issue, the taxpayer has complied with the
                                      substantiation requirements of the Internal Revenue Code,
                                      the taxpayer has maintained all required records, and the
                                      taxpayer has cooperated with reasonable IRS requests for
                                      information. Sec. 7491(a). Our conclusions here, however, are
                                      based on the preponderance of the evidence, and thus the
                                      allocation of the burden of proof is immaterial. See Martin
                                      Ice Cream Co. v. Commissioner, 110 T.C. 189, 210 n.16
                                      (1998).
                                      I. Caring for Foster Cats Was a Service to Fix Our Ferals.
                                         Section 170(a) allows a deduction for any ‘‘charitable con-
                                      tribution’’ made by the taxpayer. A ‘‘charitable contribution’’
                                      is defined as ‘‘a contribution or gift to or for the use of ’’ a
                                      charitable organization. Sec. 170(c). A typical charitable con-
                                      tribution is donating money or property directly to a chari-
                                      table organization. A second type of charitable contribution is
                                      placing money or property in trust for a charitable organiza-
                                      tion. Such a transfer is, in the words of section 170(c), a con-
                                      tribution ‘‘for the use of ’’ a charitable organization. See Davis
                                      v. United States, 495 U.S. 472, 485 (1990). A third type of
                                      charitable contribution occurs when a taxpayer performing
                                      services for a charitable organization incurs unreimbursed
                                      expenses. As section 1.170A–1(g), Income Tax Regs., states:
                                      ‘‘No deduction is allowable under section 170 for a contribu-
                                      tion of services. However, unreimbursed expenditures made
                                      incident to the rendition of services to an organization con-




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                                      (515)                        VAN DUSEN v. COMMISSIONER                                         523


                                      tributions to which are deductible may constitute a deduct-
                                      ible contribution.’’ 14
                                         Van Dusen did not contribute money or property directly
                                      to Fix Our Ferals. Van Dusen did not place property in trust
                                      for Fix Our Ferals or enter into a formal arrangement giving
                                      the organization legal rights to her property. Instead she
                                      paid third parties for veterinary services, pet supplies,
                                      cleaning supplies, utilities, Costco membership renewal, and
                                      wet/dry vacuum repair. Thus Van Dusen is entitled to a
                                      charitable-contribution deduction only if these expenses
                                      were, in the words of section 1.170A–1(g), Income Tax Regs.,
                                      ‘‘expenditures made incident to the rendition of services’’ to
                                      Fix Our Ferals.
                                         The IRS contends that Van Dusen was an independent cat
                                      rescue worker whose services were unrelated to Fix Our
                                      Ferals and did not benefit the organization. We reject this
                                      assertion, finding that Van Dusen’s care for foster cats con-
                                      stituted services to Fix Our Ferals.
                                         In determining whether a taxpayer has provided services
                                      to a particular organization, courts consider the strength of
                                      the taxpayer’s affiliation with the organization, the organiza-
                                      tion’s ability to initiate or request services from the taxpayer,
                                      the organization’s supervision over the taxpayer’s work, and
                                      the taxpayer’s accountability to the organization. See, e.g.,
                                      Smith v. Commissioner, 60 T.C. 988 (1973); Saltzman v.
                                      Commissioner, 54 T.C. 722 (1970). For example, Smith v.
                                      Commissioner, supra at 993–995, held that church members
                                      could deduct evangelism travel expenses even though their
                                      church never initiated, controlled, supervised, or assisted
                                      with the trips. The church encouraged missionary work in
                                      general; and before the taxpayers embarked on a trip, the
                                      church gave them letters of commendation, which evidenced
                                      the church’s approval and served as introductions to
                                      intrafaith groups during the trip. Id. at 993. Additionally,
                                      after each trip the church members reported back to the
                                        14 The expenses of rendering services are deductible because they constitute contributions ‘‘to’’

                                      the charitable organization. Rockefeller v. Commissioner, 676 F.2d 35, 42 (2d Cir. 1982) (in de-
                                      termining whether unreimbursed volunteer expenses were governed by a statutory provision of
                                      the 1954 Code that treated favorably contributions ‘‘to’’ a charitable organization, court held that
                                      unreimbursed volunteer expenses were contributions ‘‘to’’—not ‘‘for the use of ’’—a charitable or-
                                      ganization), affg. 76 T.C. 178 (1981); see also Davis v. United States, 495 U.S. 472, 486–488
                                      (1990) (in holding that no deduction is available when a taxpayer pays a service provider’s ex-
                                      penses, Court stated that unreimbursed expenses of rendering services are contributions ‘‘to’’ a
                                      charitable organization within the meaning of section 170(c)).




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                                      524                136 UNITED STATES TAX COURT REPORTS                                      (515)


                                      church, which then publicized their efforts and accomplish-
                                      ments to other congregations. Id. By contrast, in Saltzman v.
                                      Commissioner, supra, the taxpayer’s activities had much
                                      looser ties to the charitable organization. The taxpayer was
                                      the leader of the Harvard-Radcliffe Hillel Folk Dance Group.
                                      Id. at 722. Without the organization’s asking him, he trav-
                                      eled alone to Europe and Pittsburgh to attend folk dance fes-
                                      tivals that were not sponsored by the organization. Id. at
                                      723. We held that the taxpayer had not provided services to
                                      the organization, partly because the organization had not
                                      directed or encouraged him to attend the festivals. Id. at 724.
                                         Van Dusen has demonstrated a strong connection with Fix
                                      Our Ferals. She was a regular Fix Our Ferals volunteer who
                                      performed substantial services for the organization in 2004.
                                      She engaged in both trapping and foster care and worked
                                      closely with other Fix Our Ferals volunteers. Fix Our Ferals
                                      could initiate or request services from Van Dusen through
                                      individual volunteers, who would contact her by phone or by
                                      internet. 15 Like the church in Smith, Fix Our Ferals encour-
                                      aged and indirectly oversaw Van Dusen’s work. See Smith v.
                                      Commissioner, supra at 994 (‘‘Nothing in section 170 or in
                                      section 1.170–2(a)(2) of the regulations * * * suggests that,
                                      as a condition to the deductibility of unreimbursed, service-
                                      related expenses, the services must be performed under the
                                      control or supervision of the charitable organization.’’). 16
                                         Van Dusen’s inability to trace her cat rescue work exclu-
                                      sively to Fix Our Ferals does not pose an insurmountable bar
                                      to deductibility. We find that she performed most of her work
                                      in 2004 for Fix Our Ferals. Moreover, all of the other
                                      organizations with which she was affiliated, and therefore to
                                      which she may have provided services, qualify as section
                                      170(c) organizations. 17
                                        15 Fix Our Ferals volunteers regularly received requests for assistance and would solicit help

                                      from other volunteers on behalf of third parties. If volunteers encountered problems during their
                                      work, they would also contact other volunteers for assistance.
                                        16 Sec. 1.170–2(a)(2), Income Tax Regs., was the predecessor to sec. 1.170A–1(g), Income Tax

                                      Regs., the provision that currently allows taxpayers to deduct unreimbursed volunteer expenses.
                                        17 These organizations are: Island Cat Resources and Adoption, Berkeley East Bay Humane

                                      Society, East Bay Society for the Prevention of Cruelty to Animals, and Second Chance Cat Res-
                                      cue. All of these organizations were listed in IRS Publication 78 in 2004. See Jennings v. Com-
                                      missioner, T.C. Memo. 2000–366 (concluding that donees were not sec. 170(c) organizations be-
                                      cause they were not listed in IRS Publication 78); supra note 3 (taking judicial notice of IRS
                                      Publication 78, a cumulative list of sec. 170(c) organizations).




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                                      (515)                        VAN DUSEN v. COMMISSIONER                                       525


                                        The IRS also contends that even if Van Dusen was affili-
                                      ated with Fix Our Ferals, Fix Our Ferals’ mission consists
                                      solely of ‘‘education and sterilization’’, and therefore fostering
                                      cats could not constitute services to Fix Our Ferals. As our
                                      fact findings explained, however, the organization’s mission
                                      encompasses foster care. Fix Our Ferals actively recruits vol-
                                      unteers to foster cats during spay/neuter recovery, and it
                                      encourages volunteers to provide sanctuary for cats requiring
                                      long-term care. Thus Van Dusen served Fix Our Ferals’ mis-
                                      sion by fostering cats. The remainder of this Opinion con-
                                      siders which of Van Dusen’s expenses are deductible as inci-
                                      dental to foster-cat volunteer work.
                                      II. Pet-Cat Cremation Expense, Bar Association Dues, and
                                          DMV Fees
                                         As we have found, Van Dusen rendered services to Fix Our
                                      Ferals. To be deductible, unreimbursed expenses must be
                                      directly connected with and solely attributable to the ren-
                                      dition of services to a charitable organization. E.g., Saltzman
                                      v. Commissioner, 54 T.C. at 724; Babilonia v. Commissioner,
                                      T.C. Memo. 1980–207, affd. per curiam 681 F.2d 678 (9th
                                      Cir. 1982). In applying this standard, courts have considered
                                      whether the charitable work caused or necessitated the tax-
                                      payer’s expenses. For example, in Orr v. United States, 343
                                      F.2d 553, 557–558 (5th Cir. 1965), the court disallowed
                                      deductions for the expenses of insuring and repairing two
                                      vehicles because the expenses were not solely attributable to
                                      charitable use. The taxpayer had used the vehicles partly for
                                      personal use and would have incurred the expenses regard-
                                      less of any charitable work. Id. Similarly, in McCollum v.
                                      Commissioner, T.C. Memo. 1978–435, we denied National Ski
                                      Patrol volunteers’ deductions for ski equipment because the
                                      volunteers owned the equipment and could use it for per-
                                      sonal recreation. We also denied deductions for motor home
                                      use and food given to non-volunteering family members. Id.
                                      And in Smith v. Commissioner, 60 T.C. at 995, we disallowed
                                      meal, laundry, and camping expenses incurred for non-pros-
                                      elytizing children who had accompanied the taxpayers on an
                                      evangelical mission.
                                         Van Dusen’s documentation includes the following non-
                                      foster-cat expenses: an $85 credit card charge to Bubbling




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                                      Well Pet Memorial, a $170 check to the California State Bar
                                      Association, and a $146 check to the ‘‘DMV’’. The $85 charge
                                      to Bubbling Well Pet Memorial is not deductible because this
                                      expense was for the cremation of a pet cat. The checks to the
                                      California State Bar Association and the DMV are not deduct-
                                      ible because they are not charitable expenses.
                                      III. Costco Membership Dues and Wet/Dry Vacuum Repair
                                        Van Dusen has not shown that any portion of her Costco
                                      membership dues or wet/dry vacuum repair costs constitutes
                                      an exclusively charitable expense. Like the vehicles in Orr v.
                                      United States, supra, the Costco membership and the wet/dry
                                      vacuum served both personal and charitable purposes. We
                                      conclude that Van Dusen would have paid for her Costco
                                      membership and repaired her vacuum even if she had not
                                      fostered cats. Thus these expenses were not directly con-
                                      nected with and solely attributable to charitable activities.
                                      IV. Veterinary Expenses, Pet Supplies, Cleaning Supplies, 18
                                           and Utilities
                                        One broad category of Van Dusen’s expenses—veterinary
                                      expenses, pet supplies, cleaning supplies, and utilities—was
                                      partly incidental to her services to Fix Our Ferals. If Van
                                      Dusen had not fostered cats, she would have paid for fewer
                                      veterinary services, fewer pet supplies, and fewer cleaning
                                      supplies. Her utility bills would have been significantly lower
                                      because she would not have had to run a special ventilation
                                      system, do as much laundry, or dispose of as much cat waste.
                                      We find that the portions of these expenses attributable to
                                      caring for foster cats were directly connected with and solely
                                      attributable to Van Dusen’s services to Fix Our Ferals.
                                            A. Some Payments to Orchard Supply Hardware and
                                               Lowe’s Must Be Categorically Disallowed.
                                        Van Dusen purchased bags of woodstove pellets from
                                      Orchard Supply Hardware and Lowe’s. She used woodstove
                                      pellets as cat litter. Unfortunately, Van Dusen’s documents
                                      show only the total payment she made for each visit to these
                                      stores. Her documents do not reveal what items she pur-
                                           18 See   definitions of ‘‘pet supplies’’ and ‘‘cleaning supplies’’, supra notes 9 and 10.




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                                      (515)                        VAN DUSEN v. COMMISSIONER                                       527


                                      chased. 19 Thus the documents alone do not show how much
                                      she spent on pellets. She does not claim that she purchased
                                      any other items whose costs would be deductible. We there-
                                      fore must determine, on the basis of her testimony, what por-
                                      tions of her payments to the two stores were for pellets.
                                         In determining the amounts that Van Dusen spent on pel-
                                      lets from Orchard Supply Hardware and Lowe’s, we divide
                                      her shopping trips to these stores into two types. With the
                                      first type of shopping trip, the amount of each payment was
                                      an exact multiple of $4.55625, the price of one bag of pel-
                                      lets. 20 The payments for this type of trip are:
                                         • check nos. 1405, 1421, 1433, 1451, and 1461; and
                                         • Orchard Supply Hardware purchases on October 12,
                                      October 19, November 22, and November 30, 2004, as
                                      reflected in Van Dusen’s bank statements.
                                      We believe that, on the first type of shopping trip, Van
                                      Dusen indeed purchased bags of pellets and nothing else.
                                        With the second type of shopping trip, the amount of each
                                      payment was not an exact multiple of the $4.55625 price of
                                      a bag of pellets. For each trip, Van Dusen testified as to how
                                      much she spent on pellets. She claimed that she either (1)
                                      purchased eight bags of pellets for $36.45 ($4.55625/bag × 8
                                      bags), or (2) purchased the maximum number of bags of pel-
                                      lets that could have been purchased with the dollar amount
                                      spent. 21 While we generally find Van Dusen a credible wit-
                                      ness, Van Dusen provides no basis for us to presume that
                                      every trip involved the purchase of either (1) eight bags of
                                      pellets, or (2) as many bags of pellets as could be purchased
                                        19 Van Dusen had other payees besides Orchard Supply Hardware and Lowe’s. For one of the

                                      other payees—Costco—Van Dusen introduced a document that described each item she pur-
                                      chased. For the other payees, Van Dusen does not have documents showing what items she pur-
                                      chased, but this fact is insignificant because it is evident that the payments were entirely re-
                                      lated to cat care. For example, her payments to a veterinarian were entirely for cat medical
                                      care.
                                        20 We determined the per-bag cost of pellets by dividing $36.45 by 8. Van Dusen testified

                                      credibly that the cost of eight bags of pellets in 2004 was $36.45. This amount appeared fre-
                                      quently in her documentation as the amount she paid to Orchard Supply Hardware. We believe
                                      that the amount $36.45 includes the sales tax on the purchase, which is why dividing $36.45
                                      by 8 yields a number that includes a fraction of a penny (as opposed to a round number).
                                        21 For instance, check no. 1341 shows Van Dusen paid $33.52 to Orchard Supply Hardware.

                                      Van Dusen testified that on the check no. 1341 shopping trip, she bought seven bags of pellets
                                      for $31.90 (and presumably spent the remaining $1.62 on other things). She apparently com-
                                      puted the $31.90 amount by multiplying $4.55625 by 7. The product of 7 and $4.55625 turns
                                      out to be $31.89375, which, rounded to the nearest cent, is $31.89.




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                                      by the payment amount reflected on her documentation. 22
                                      Therefore, we exclude the following payments from calcula-
                                      tion:
                                         • check nos. 1215, 1225, 1234, 1253, 1289, 1335, 1341,
                                      1351, 1368, 1382, 1389, and 1478;
                                         • Orchard Supply Hardware purchases on May 15 and
                                      June 6, 2004, as reflected in Van Dusen’s credit card state-
                                      ments; 23 and
                                         • an Orchard Supply Hardware purchase on October 6,
                                      2004, as reflected in Van Dusen’s bank statements.
                                           B. Percentages of Veterinary Expenses, Pet Supplies,
                                              Cleaning Supplies, and Utility Bills Attributable
                                              to Foster-Cat Care
                                        Of the expenses for veterinary care, pet supplies, cleaning
                                      supplies, and household utilities, we have explained that
                                      some of the expenses (i.e., some of the Orchard Supply Hard-
                                      ware and Lowe’s purchases) must be disallowed entirely. Of
                                      the remaining amounts, we must consider what portions
                                      were attributable to foster-cat care. Van Dusen estimates
                                      that foster cats were responsible for the following percent-
                                      ages of expenses:
                                        • 90 percent of veterinary expenses,
                                        • 90 percent of pet supplies,
                                        • 90 percent of paper towels and garbage bags,
                                        • 50 percent of laundry detergent and dish detergent, and
                                        • 50 percent of household utility bills. 24
                                        Van Dusen’s percentage estimates for veterinary expenses
                                      and pet supplies are reasonable. Van Dusen had about 7 pet
                                      cats and 70 to 80 total cats in 2004. In general, the cat-care
                                      costs were distributed equally among pet cats and foster
                                      cats. 25 Thus we conclude that approximately 90 percent of
                                        22 We believe Van Dusen chose eight bags of pellets as an estimate because the cost of eight

                                      bags—$36.45—is the most common amount in her documentation for Orchard Supply Hardware
                                      purchases. However, we are not convinced that Van Dusen purchased eight bags of pellets so
                                      regularly that $36.45 can be used as a default estimate for shopping trips.
                                        23 Unless otherwise stated, dates regarding Van Dusen’s credit card statements refer to the

                                      transaction date, not the posting date.
                                        24 Van Dusen also estimates that 50 percent of the cost of her Costco membership renewal

                                      was attributable to foster cats. We do not discuss the Costco membership renewal here because
                                      we find that no portion of it was attributable to foster cats. See supra pt. III. For the same
                                      reason, we do not discuss the wet/dry vacuum repair (for which Van Dusen’s percentage esti-
                                      mate is unclear).
                                        25 Van Dusen testified that the foster cats caused a disproportionate amount of the veterinary

                                      expenses. However, she has not indicated a basis for determining the precise percentage of vet-




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                                      (515)                        VAN DUSEN v. COMMISSIONER                                       529


                                      the veterinary and pet supply expenses was attributable to
                                      foster cats.
                                         We determine that 50 percent of Van Dusen’s cleaning
                                      supply and utility expenses was attributable to foster cats.
                                      Van Dusen believes the foster cats actually accounted for
                                      around 75 percent, 80 percent, or even 90 percent of her
                                      cleaning and utility expenses. However, she cannot prove
                                      precisely how much the foster cats contributed to these
                                      expenses. We determine that all the cleaning supplies—paper
                                      towels, garbage bags, laundry detergent, and dish deter-
                                      gent—should be counted using the same percentage estimate.
                                      Van Dusen has not shown why paper towels and garbage
                                      bags had a smaller personal use component than laundry
                                      detergent and dish detergent. We consider 50 percent a suffi-
                                      ciently conservative estimate to ensure that no personal
                                      expenses are counted. Van Dusen ran a large-scale foster cat
                                      operation. The number of cats in her home caused consider-
                                      able expenses. She laundered bedding several times a week,
                                      and she frequently sanitized floors and surfaces. She also ran
                                      a special ventilation system and disposed of all cat-related
                                      waste. Under these circumstances, it seems highly unlikely
                                      that foster cats accounted for less than 50 percent of her
                                      cleaning and utility expenses.
                                         We find that 90 percent of the veterinary expenses, 90 per-
                                      cent of the pet supplies, 50 percent of the cleaning supplies,
                                      and 50 percent of the utility bills are foster-cat expenses and
                                      therefore charitable. These percentage estimates apply to
                                      Orchard Supply Hardware and Lowe’s expenses only to the
                                      extent that Van Dusen’s documentation provides a precise
                                      amount for each cat-care expense. See supra part IV.A. The
                                      table below lists Van Dusen’s payees and the expense cat-
                                      egory into which we classify Van Dusen’s payments to them
                                      (i.e., veterinary expenses, pet supplies, cleaning supplies, or
                                      utilities):
                                                              Payee                               Foster-cat expense category

                                               Thornhill Pet Hospital                            Veterinary expenses
                                               St. Louis Vet Clinic                              Veterinary expenses or
                                                                                                   pet supplies1
                                               Bay Area Veterinary Specialist                    Veterinary expenses
                                               Berkeley Dog and Cat Hospital                     Veterinary expenses

                                      erinary expenses attributable to foster cats. We therefore treat veterinary expenses as if they
                                      were incurred proportionally between pet cats and foster cats.




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                                      530                 136 UNITED STATES TAX COURT REPORTS                                     (515)


                                                              Payee                               Foster-cat expense category

                                               Deanne Jarvis                                     Veterinary expenses
                                               Revival Animal Health                             Veterinary expenses or
                                                                                                   pet supplies1
                                               Orchard Supply Hardware                           Pet supplies
                                               Lowe’s                                             Pet supplies
                                               Pet Vet Pet Food                                  Veterinary expenses or
                                                                                                   pet supplies1
                                               Pet Club                                          Pet supplies
                                               Costco                                            Pet supplies or cleaning
                                                                                                   supplies (item by item)
                                               Pacific Gas & Electric                            Utilities
                                               Waste Management                                  Utilities
                                               East Bay Municipal Utility District               Utilities
                                                1 It is unnecessary to determine the precise category under which
                                              each payment falls because both veterinary expenses and pet supplies
                                              are 90 percent charitable.

                                      Van Dusen’s foster-cat expenses, however, are deductible
                                      only to the extent that she has substantiated them, a point
                                      we consider next.
                                           C. Whether Van Dusen’s Expenses Are Adequately Substan-
                                              tiated
                                        Charitable deductions are subject to the recordkeeping
                                      requirements of section 1.170A–13(a), Income Tax Regs., for
                                      contributions of money, or section 1.170A–13(b), Income Tax
                                      Regs., for contributions of non-money property. Contributions
                                      of $250 or more must satisfy not only these recordkeeping
                                      requirements, but also the requirements of section 1.170A–
                                      13(f)(1), Income Tax Regs. 26 Therefore, we divide Van
                                      Dusen’s expenses into expenses of less than $250 and
                                      expenses of $250 or more. We evaluate whether each expense
                                      satisfies the requirements for its category.
                                           1. Van Dusen Has Met the Recordkeeping Requirements for
                                              Her Foster-Cat Expenses of Less Than $250.
                                           a. Unreimbursed Volunteer Expenses of Less Than $250 Are
                                              Governed by Section 1.170A–13(a), Income Tax Regs.,
                                              Not Section 1.170A–13(b), Income Tax Regs.
                                        Section 1.170A–13, Income Tax Regs., divides contributions
                                      of less than $250 into only two categories: ‘‘contributions of
                                         26 The requirements of sec. 1.170A–13(f)(1), Income Tax Regs., do not apply to separate con-

                                      tributions of less than $250 made to the same donee, even if the aggregate donations to the
                                      donee exceed $250 within the same taxable year.




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                                      (515)                        VAN DUSEN v. COMMISSIONER                                       531


                                      money’’ and ‘‘contributions of property other than money’’.
                                      See sec. 1.170A–13(a) and (b), Income Tax Regs. The regula-
                                      tions do not expressly state whether a contribution through
                                      the payment of unreimbursed volunteer expenses is subject
                                      to the requirements for contributing money set forth in sec-
                                      tion 1.170A–13(a), Income Tax Regs., the requirements for
                                      contributing non-money property set forth in section 1.170A–
                                      13(b), Income Tax Regs., or neither set of requirements. The
                                      idea that unreimbursed volunteer expenses are free from
                                      recordkeeping requirements is implausible. Therefore, one of
                                      the two sets of rules must govern those expenses.
                                         Of the two sets of recordkeeping rules, we hold that section
                                      1.170A–13(a), Income Tax Regs.—which sets forth the record-
                                      keeping rules for money contributions—contains the relevant
                                      rules for determining whether unreimbursed volunteer
                                      expenses are deductible. These rules, and not the rules for
                                      non-money contributions, apply to unreimbursed volunteer
                                      expenses for several reasons. 27 First, the substantiation
                                      requirements for expenses of $250 or more, which are found
                                      in section 1.170A–13(f)(10), Income Tax Regs., implicitly cat-
                                      egorize unreimbursed expenses as cash contributions by sub-
                                      jecting them to the requirements of section 1.170A–13(a),
                                      Income Tax Regs. 28 Second, unreimbursed expenses are
                                      similar to money contributions because taxpayers who serve
                                      as volunteers usually use money to purchase goods or serv-
                                      ices. 29 Third, if the rules for non-money contributions in sec-
                                      tion 1.170A–13(b), Income Tax Regs., were interpreted to
                                      govern unreimbursed volunteer expenses, they would require
                                        27 In Cavalaris v. Commissioner, T.C. Memo. 1996–308, we cited sec. 1.170A–13(a), Income

                                      Tax Regs., without further analysis, in considering the deductibility of unreimbursed volunteer
                                      expenses.
                                        28 For contributions of $250 or more, sec. 1.170A–13(f)(1), Income Tax Regs., requires the tax-

                                      payer to acquire and maintain the charity’s written acknowledgment of the contribution. Such
                                      an acknowledgment must include ‘‘The amount of any cash the taxpayer paid and a description
                                      (but not necessarily the value) of any property other than cash the taxpayer transferred to the
                                      donee organization’’. Sec. 1.170A–13(f)(2), Income Tax Regs. However, for taxpayers who incur
                                      unreimbursed expenditures incident to the rendition of charitable services, sec. 1.170A–13(f)(10),
                                      Income Tax Regs., provides that the required acknowledgment need only include a ‘‘description
                                      of the services provided by the taxpayer’’, so long as the taxpayer has adequate records under
                                      sec. 1.170A–13(a), Income Tax Regs., ‘‘to substantiate the amount of the expenditures’’.
                                        29 The IRS treats unreimbursed volunteer expenses as cash contributions in instructing tax-

                                      payers how to complete their returns. The IRS instructions for Form 8283, Noncash Charitable
                                      Contributions, instruct taxpayers not to use the form for out-of-pocket volunteer expenses. In-
                                      stead the instructions tell taxpayers to treat out-of-pocket expenses as cash contributions. IRS
                                      instructions, however, generally carry no authoritative weight. See Merlo v. Commissioner, 126
                                      T.C. 205, 211 n.10 (2006), affd. 492 F.3d 618 (5th Cir. 2007); Zimmerman v. Commissioner, 71
                                      T.C. 367, 371 (1978), affd. without published opinion 614 F.2d 1294 (2d Cir. 1979).




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                                      information that would not be helpful in a subsequent audit
                                      or litigation about the propriety of a charitable-contribution
                                      deduction. See Bond v. Commissioner, 100 T.C. 32, 41 (1993)
                                      (‘‘the reporting requirements of section 1.170A–13, Income
                                      Tax Regs., are helpful to * * * [the IRS] in the processing
                                      and auditing of returns on which charitable deductions are
                                      claimed’’). The rules for non-money contributions require a
                                      taxpayer who lacks a donee receipt to keep written records
                                      of:
                                          • the value of the property,
                                          • the cost of the property,
                                          • any previous contributions by the taxpayer of a partial
                                      interest in the contributed property, and
                                          • any restrictions the taxpayer has placed on the use of
                                      the property.
                                      Sec. 1.170A–13(b)(2)(ii), Income Tax Regs. 30 These facts are
                                      generally irrelevant to the deductibility of unreimbursed vol-
                                      unteer expenses. Such expenses involve a monetary payment
                                      by the taxpayer for which the taxpayer seeks a deduction
                                      equal to the monetary outlay. We conclude that the record-
                                      keeping requirements for money contributions in section
                                      1.170A–13(a), Income Tax Regs., govern Van Dusen’s foster-
                                      cat expenses. 31


                                         30 If a taxpayer contributing non-money property has a receipt from the donee organization,

                                      the receipt need only contain: (i) the name of the donee, (ii) the date and location of the con-
                                      tribution, and (iii) ‘‘A description of the property in detail reasonably sufficient under the cir-
                                      cumstances.’’ Sec. 1.170A–13(b)(1), Income Tax Regs. The receipt need not contain certain infor-
                                      mation (listed above) that is required by sec. 1.170A–13(b)(2)(ii), Income Tax Regs. Because Van
                                      Dusen lacks a donee receipt, we use the rules for non-money contributions without a receipt
                                      as the point of comparison.
                                         31 We recognize that the recordkeeping rules for money contributions are also not well suited

                                      to unreimbursed volunteer expenses. The rules for money contributions provide that records
                                      showing the name of the donee are acceptable substitutes for canceled checks. Sec. 1.170A–
                                      13(a)(1)(iii), Income Tax Regs. This reflects the assumption that records showing the name of
                                      the donee provide the same information as canceled checks. This assumption is correct for
                                      money contributions because a canceled check reflects the name of the donee. But for unreim-
                                      bursed volunteer expenses, a canceled check reflects the name of the payee, not the donee. Thus
                                      a record of the name of the donee would not reflect the same information as a canceled check.
                                      Van Dusen’s documents do not indicate the name of the donee.
                                         We hold that the recordkeeping requirements of sec. 1.170A–13(a), Income Tax Regs., govern
                                      unreimbursed volunteer expenses of less than $250 in order to avoid the implausible result that
                                      such expenses would be free from recordkeeping requirements. Of the two provisions that could
                                      govern unreimbursed volunteer expenses of less than $250, we believe sec. 1.170A–13(a), Income
                                      Tax Regs., is more suitable for the reasons stated in the text.




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                                      (515)                         VAN DUSEN v. COMMISSIONER                                       533


                                            b. Van Dusen’s Documentation Meets the Recordkeeping
                                                Requirements of Section 1.170A–13(a), Income Tax
                                                Regs.
                                        Section 1.170A–13(a)(1), Income Tax Regs., requires the
                                      taxpayer to maintain one of the following:
                                         (i) A cancelled [sic] check.
                                         (ii) A receipt from the donee charitable organization showing the name
                                      of the donee, the date of the contribution, and the amount of the contribu-
                                      tion. A letter or other communication from the donee charitable organiza-
                                      tion acknowledging receipt of a contribution and showing the date and
                                      amount of the contribution constitutes a receipt * * * .
                                         (iii) In the absence of a canceled check or receipt from the donee chari-
                                      table organization, other reliable written records showing the name of the
                                      donee, the date of the contribution, and the amount of the contribution.

                                      In determining whether Van Dusen has substantiated her
                                      payments for veterinary services, pet supplies, cleaning sup-
                                      plies, and utilities, we look to the following records that Van
                                      Dusen introduced into evidence: check copies, 32 bank account
                                      statements, credit card statements, a Thornhill Pet Hospital
                                      client account history, a Costco purchase history, Pacific Gas
                                      & Electric invoices, a Waste Management payment history,
                                      and an East Bay Municipal Utility District billing history. 33
                                      We find that Van Dusen’s records are sufficient to substan-
                                      tiate all her foster-cat expenses of less than $250.
                                         Van Dusen’s documents are not canceled checks 34 or
                                      receipts from the donee charitable organization, Fix Our
                                      Ferals. Nor are her documents ‘‘other reliable written
                                      records’’, which are defined by section 1.170A–13(a)(1)(iii),
                                      Income Tax Regs., as records that show ‘‘the name of the
                                      donee, the date of the contribution, and the amount of the
                                      contribution.’’ Van Dusen’s documents do not show the name
                                      of the donee, which is Fix Our Ferals. Instead they show the
                                      names of the entities she paid. Van Dusen’s documents do
                                           32 See
                                                supra note 12 for an explanation of why we refer to the documents as ‘‘check copies’’.
                                           33 Weassume all of these documents have been properly ‘‘[maintained]’’ within the meaning
                                      of sec. 1.170A–13(a)(1), Income Tax Regs. The IRS does not argue that the ‘‘maintain’’ require-
                                      ment means Van Dusen had to keep records continuously from the time she incurred the ex-
                                      penses. Rather, the IRS contends that Van Dusen’s documents do not satisfy the substantiation
                                      requirements regardless of how long they were kept.
                                         34 A canceled check is ‘‘A check bearing a notation that it has been paid by the bank on which

                                      it was drawn.’’ Black’s Law Dictionary 269 (9th ed. 2009). Van Dusen’s check copies bear no
                                      such notation and thus are not canceled checks. Rather, they are photocopies of carbon copies
                                      of the original checks. See supra note 12.




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                                      not show the amounts of her contributions to Fix Our Ferals.
                                      Instead they show the amounts of her cat-care expenses,
                                      which invariably have a nondeductible component because
                                      some of her cats were pet cats. Thus Van Dusen’s documents
                                      do not strictly comply with section 1.170A–13(a)(1), Income
                                      Tax Regs.
                                         Nonetheless, we find that Van Dusen has substantially
                                      complied with section 1.170A–13(a)(1), Income Tax Regs. We
                                      analogize Van Dusen’s situation to that of the taxpayer in
                                      Bond v. Commissioner, 100 T.C. 32 (1993). In Bond, a tax-
                                      payer donated two blimps to a charitable organization. Id. at
                                      33. Section 1.170A–13(c)(2)(i), Income Tax Regs., required
                                      him to obtain a document appraising the two blimps. Id. at
                                      38–39. The regulation required that the appraisal document
                                      contain specific items of information. Id. The taxpayer failed
                                      to obtain a separate written appraisal. Id. at 34. However,
                                      the taxpayer attached a Form 8283, Noncash Charitable
                                      Contributions, on which an appraiser had recorded informa-
                                      tion about the value of the two blimps. Id.
                                         Bond distinguished between a regulatory requirement
                                      relating to ‘‘the substance or essence of the statute’’, strict
                                      adherence to which is mandatory, and a requirement that is
                                      merely ‘‘procedural or directory’’, which may be satisfied by
                                      substantial compliance. Id. at 41. Bond held that the
                                      reporting requirements of section 1.170A–13, Income Tax
                                      Regs., are directory and require only substantial compliance.
                                      Id. The Court further held that because substantially all of
                                      the information required in an appraisal document was
                                      recorded on the Form 8283, the taxpayer had complied with
                                      the regulatory requirement to obtain an appraisal document.
                                      Id. at 42.
                                         Returning to Van Dusen, the relevant regulatory require-
                                      ment is section 1.170A–13(a)(1), Income Tax Regs., which
                                      allows a taxpayer to rely on canceled checks to record con-
                                      tributions of money. Under Bond, Van Dusen’s documents
                                      are legitimate substitutes for canceled checks. Van Dusen
                                      produced records of her expenses which contained all of the
                                      information that would have been on a canceled check. Her
                                      records show the name of the payee, the date of the payment,
                                      and the amount of the payment. (A canceled check by a vol-
                                      unteer generally reflects the name of the payee, but it does
                                      not reflect the name of the charitable organization to which




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                                      (515)                        VAN DUSEN v. COMMISSIONER                                              535


                                      the volunteer’s services are rendered. It might be useful for
                                      the volunteer to keep records of the name of the charitable
                                      organization, but it is not our role to impose such a require-
                                      ment in the absence of a specific regulatory requirement.)
                                      Therefore, Van Dusen has substantially complied with sec-
                                      tion 1.170A–13(a)(1), Income Tax Regs.
                                         An objection might be raised that the substantial compli-
                                      ance doctrine should not apply to Van Dusen because section
                                      1.170A–13(a)(1), Income Tax Regs., specifies what records are
                                      valid substitutes for canceled checks. The regulation states
                                      that the taxpayer can maintain a canceled check, a receipt
                                      from the donee, or ‘‘In the absence of a canceled check or
                                      receipt from the donee charitable organization, other reliable
                                      written records showing the name of the donee, the date of
                                      the contribution, and the amount of the contribution.’’ Id. In
                                      specifying what documents are valid substitutes for canceled
                                      checks, though, the regulation was plainly not written with
                                      unreimbursed volunteer expenses in mind. It requires sub-
                                      stitute records to reflect the name of the donee, even though
                                      canceled checks for unreimbursed volunteer expenses would
                                      reflect the name of the payee. It requires substitute records
                                      to reflect the amount of the contribution, even though can-
                                      celed checks for unreimbursed volunteer expenses often
                                      reflect a nondeductible component. 35 Van Dusen’s documents
                                      fail to qualify as ‘‘other reliable written records’’ only because
                                      the regulation was not written with unreimbursed volunteer
                                      expenses in mind. 36 This failure should not preclude the
                                      application of the substantial compliance doctrine in Bond.
                                        35 As noted above, sec. 1.170A–13(f)(10), Income Tax Regs., partially incorporates the require-

                                      ments of sec. 1.170A–13(a), Income Tax Regs., for unreimbursed volunteer expenses of $250 or
                                      more. See supra note 28. In what appears to be an attempt to correct the inadequacies of sec.
                                      1.170A–13(a), Income Tax Regs., as a recordkeeping requirement for unreimbursed volunteer ex-
                                      penses, sec. 1.170A–13(f)(10), Income Tax Regs., specifies that sec. 1.170A–13(a), Income Tax
                                      Regs., need be satisfied only to the extent necessary ‘‘to substantiate the amount of the expendi-
                                      tures’’. (Emphasis added.)
                                        36 ‘‘[O]ther reliable written records’’ must, by definition, also be ‘‘reliable’’. Their reliability is

                                      determined by the circumstances, including whether the records were contemporaneous and
                                      whether the records were regularly kept. Sec. 1.170A–13(a)(2)(i), Income Tax Regs. Further-
                                      more, the information required by sec. 1.170A–13(a)(1)(iii), Income Tax Regs. (the ‘‘other reliable
                                      written records’’ provision), must be stated on the taxpayer’s return if required by the return
                                      form or its instructions. Sec. 1.170A–13(a)(2)(ii), Income Tax Regs.
                                        Van Dusen’s records satisfy the reliability requirement of sec. 1.170A–13(a)(2)(i), Income Tax
                                      Regs. The documents were made contemporaneously and in the course of regular recordkeeping.
                                      The check copies faithfully duplicate the original checks, which Van Dusen wrote in 2004. Van
                                      Dusen’s credit card company, Van Dusen’s bank, and Pacific Gas & Electric issued her state-
                                      ments in 2004 based on electronic compilations of transactions at the time. Similarly, Thornhill
                                                                                                      Continued




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                                      536                136 UNITED STATES TAX COURT REPORTS                                      (515)


                                        We conclude that Van Dusen has substantiated all the vet-
                                      erinary, pet supply, cleaning supply, and utility expenses of
                                      less than $250. As discussed earlier, these expenses must be
                                      adjusted to exclude amounts not attributable to foster-cat
                                      care. After such adjustments are made, Van Dusen can
                                      deduct 90 percent of her less-than-$250 veterinary and pet
                                      supply expenses and 50 percent of her less-than-$250
                                      cleaning supply and utility expenses.
                                           2. Van Dusen Has Not Met the Substantiation Require-
                                               ments for Her Foster-Cat Expenses of $250 or More.
                                         To claim a charitable-contribution deduction of $250 or
                                      more, the taxpayer must substantiate the contribution with
                                      a contemporaneous written acknowledgment from the donee
                                      organization. Sec. 170(f)(8)(a); sec. 1.170A–13(f)(1), Income
                                      Tax Regs. A taxpayer who incurs unreimbursed expenses
                                      ‘‘incident to the rendition of services’’ is treated as having
                                      obtained a contemporaneous written acknowledgment if the
                                      taxpayer: (1) ‘‘Has adequate records under * * * [section
                                      1.170A–13(a), Income Tax Regs.] to substantiate the amount
                                      of the expenditures’’, and (2) acquires a contemporaneous
                                      statement from the donee organization containing:
                                        (A) A description of the services provided by the taxpayer;
                                        (B) A statement of whether or not the donee organization provides any
                                      goods or services in consideration, in whole or in part, for the unreim-
                                      bursed expenditures; and
                                        (C) [A description and good faith estimate of the value of any goods or
                                      services provided by the donee organization].
                                        [Sec. 1.170A–13(f)(10), Income Tax Regs.]

                                      For the statement to be contemporaneous, the taxpayer must
                                      obtain the donee’s statement on or before the earlier of: (1)
                                      Pet Hospital, Costco, Waste Management, and East Bay Municipal Utility District recorded Van
                                      Dusen’s payments in their computer systems in 2004, and later retrieved the data in response
                                      to her customer service inquiries.
                                         Van Dusen’s tax return did not need to disclose any information required by sec. 1.170A–
                                      13(a)(1)(iii), Income Tax Regs. Although Van Dusen submitted Form 8283, which requires the
                                      name of the donee, the date of the contribution, and the amount of the contribution—informa-
                                      tion required under sec. 1.170A–13(a)(1)(iii), Income Tax Regs.—Van Dusen did not need to file
                                      this form. The instructions for Form 8283 explicitly state that it does not apply to out-of-pocket
                                      expenses incurred for volunteer work. (Although IRS form instructions are generally not bind-
                                      ing, see supra note 29, we cite the form instructions here because sec. 1.170A–13(a)(2)(ii), In-
                                      come Tax Regs., directs the taxpayer to furnish the information required by sec. 1.170A–
                                      13(a)(1)(iii), Income Tax Regs., on the taxpayer’s return if required by the return form or its
                                      instructions.) On her tax return, Van Dusen simply had to enter the total amount of her mone-
                                      tary contributions (including out-of-pocket expenses)—which she did.




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                                      (515)                        VAN DUSEN v. COMMISSIONER                                        537


                                      the date the return was filed, or (2) the due date (including
                                      extensions) for filing the return. Sec. 1.170A–13(f)(3), Income
                                      Tax Regs. 37
                                        Van Dusen has not satisfied the contemporaneous written
                                      acknowledgment requirement. The due date for filing her
                                      2004 return was April 15, 2005, and she filed her return on
                                      January 25, 2007. The earlier of the two dates is April 15,
                                      2005. The date by which Van Dusen was required to obtain
                                      the donee’s statement is therefore April 15, 2005. Van Dusen
                                      had not obtained any written acknowledgment of her services
                                      from Fix Our Ferals by April 15, 2005. Even by trial, she had
                                      failed to obtain from Fix Our Ferals a statement with the
                                      information required by section 1.170A–13(f)(10), Income Tax
                                      Regs. 38
                                        Since Van Dusen lacks the appropriate written acknowl-
                                      edgment from Fix Our Ferals, she has not substantiated and
                                      cannot deduct any foster-cat expenses of $250 or more. 39
                                      Neither party, however, has identified which portions of the
                                      claimed deduction are attributable to foster-cat expenses of
                                      $250 or more. It seems to us that the proper identification
                                      procedure is to multiply each cat-care expense by the rel-
                                      evant percentage (90 percent or 50 percent) and see whether
                                      the resulting amount equals or exceeds $250. Any amount
                                      less than $250 is deductible, and any amount that is $250 or
                                         37 The regulations do not specifically require the taxpayer to attach the contemporaneous writ-

                                      ten acknowledgment to the tax return.
                                         38 Sec. 1.170A–13(f)(10)(ii), Income Tax Regs., specifies the particular information required to

                                      be on the donee statement. Van Dusen attempted to submit a letter written by the Fix Our
                                      Ferals treasurer in 2008 as proof of contemporaneous written acknowledgment. See Ex. 3–P. At
                                      trial we sustained the IRS’s hearsay objection to the letter. Van Dusen filed a motion for recon-
                                      sideration of the evidentiary ruling. We denied the motion. The letter does not qualify for any
                                      hearsay exception. And regardless, it fails to meet the requirements of sec. 1.170A–13(f)(10)(ii),
                                      Income Tax Regs.
                                         39 In Cohan v. Commissioner, 39 F.2d 540, 543–544 (2d Cir. 1930), the Court of Appeals for

                                      the Second Circuit held that if the taxpayer has proven deductible expenses but the precise
                                      amount remains uncertain, courts can estimate the amount of such expenses. The Cohan rule
                                      does not allow Van Dusen to deduct any foster-cat expenses of $250 or more. Sec. 170(f)(8) and
                                      sec. 1.170A–13(f), Income Tax Regs., impose specific substantiation requirements on charitable
                                      contributions of $250 or more. The Cohan rule does not relieve taxpayers of substantiation re-
                                      quirements that Congress has specifically laid out. See Addis v. Commissioner, 118 T.C. 528,
                                      537 (2002) (denying charitable contribution deduction because taxpayer’s contemporaneous writ-
                                      ten acknowledgment did not comply with sec. 170(f)(8)), affd. 374 F.3d 881 (9th Cir. 2004);
                                      Stussy v. Commissioner, T.C. Memo. 2003–232 (disallowing deductions for residential expenses
                                      for the portions of a house used by charity because taxpayer failed to provide contemporaneous
                                      written acknowledgment); see also Sanford v. Commissioner, 50 T.C. 823, 827–828 (1968)
                                      (Cohan rule inapplicable when taxpayer has not satisfied sec. 274(d) substantiation require-
                                      ments), affd. per curiam 412 F.2d 201 (2d Cir. 1969).




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                                      538                  136 UNITED STATES TAX COURT REPORTS                                          (515)


                                      more is not deductible. By our calculations, the following
                                      foster-cat expenses are $250 or more:
                                                                                                                                  Amount
                                                                                                                                   consti-
                                                                                                                    Amount        tuting a
                                                                                                                   listed on     foster-cat
                                                      Payee               Date1              Document              document       expense

                                           Thornhill Pet Hospital         1/17/04    Thornhill Pet Hospital cli-    $1,532.68    $1,379.41
                                                                                       ent account history
                                           Thornhill Pet Hospital         2/17/04    Bank statement2                   306.78       276.10
                                           Pet Vet Pet Food               5/30/04    Credit card statement             417.54       375.79
                                           St. Louis Vet Clinic           7/28/04    Credit card statement             477.00       429.30
                                           Pet Vet Pet Food               9/21/04    Check No. 1428                    687.81       619.03
                                           St. Louis Vet Clinic          10/16/04    Check No. 1442                    309.00       278.10
                                           Thornhill Pet Hospital        11/06/04    Credit card statement2            723.25       650.93
                                           Pet Vet Pet Food              11/11/04    Check No. 1462                    332.81       299.53
                                           Berkeley Dog and Cat          11/15/04    Bank statement                    500.00       450.00
                                             Hospital
                                           Thornhill Pet Hospital        11/30/04    Credit card statement2            320.54       288.49
                                            1For   credit card statements, dates refer to the transaction date, not the posting date.
                                            2Also   reflected on the Thornhill Pet Hospital client account history.

                                      Each of the remaining foster-cat expenses is less than
                                      $250. 40
                                      V. Effect of Section 280A
                                        Section 280A(a) provides that for individual taxpayers ‘‘no
                                      deduction otherwise allowable under this chapter shall be
                                      allowed with respect to the use of a dwelling unit which is
                                      used by the taxpayer during the taxable year as a residence.’’
                                      Section 280A(b) contains an exception to section 280A(a). It
                                      provides: ‘‘Subsection (a) shall not apply to any deduction
                                      allowable to the taxpayer without regard to its connection
                                      with his trade or business (or with his income-producing
                                      activity).’’ The IRS argues that section 280A forbids Van
                                      Dusen from claiming a charitable-contribution deduction for
                                      a portion of her household utility bills. We hold that section
                                      280A does not affect the deductibility of Van Dusen’s
                                      expenses. Van Dusen’s expenses would be deductible without
                                      regard to any connection with a trade or business. See sec.
                                      280A(b). Van Dusen’s trade or business was legal services.
                                      She worked as an attorney and derived all her income from
                                      legal jobs. She derived no income or expectation of income
                                        40 On the basis of Van Dusen’s credit card statement, we find that the $292.15 payment to

                                      Bay Area Veterinary Specialist on Nov. 29, 2004, was offset by a credit of $35.97 that was post-
                                      ed on Nov. 30, 2004. Since Van Dusen’s total payment to Bay Area Veterinary Specialist was
                                      $256.18 ($292.1 – $35.97), the amount of her foster-cat expense was $230.56 (90 percent of
                                      $256.18). Therefore, we categorize this expense as less than $250.




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                                      (515)                        VAN DUSEN v. COMMISSIONER                                       539


                                      from fostering cats. Therefore, the utility bills are covered by
                                      the exception in section 280A(b).
                                      VI. $100 Check to Island Cat Resources and Adoption
                                         Van Dusen’s documentation includes a $100 check to
                                      ‘‘ICRA’’ (Island Cat Resources and Adoption) with ‘‘fundraiser’’
                                      in the memo line. Island Cat Resources and Adoption is a
                                      section 170(c) organization. See supra note 17 and accom-
                                      panying text. We hold that $100 is deductible as a charitable
                                      contribution to Island Cat Resources and Adoption. Van
                                      Dusen testified that the check was a donation to the chari-
                                      table organization, and her documentation meets the record-
                                      keeping requirements of section 1.170A–13(a), Income Tax
                                      Regs.
                                         To reflect the foregoing,
                                                                         Decision will be entered under Rule 155.

                                                                               f




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