                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                     2005-5174


                              ANDREW M. D’AVANZO,

                                                    Plaintiff-Appellant,

                                        and

                                LINDA J. D’AVANZO,

                                                    Plaintiff-Appellant,

                                         v.

                                 UNITED STATES,

                                                    Defendant-Appellee.



      Andrew M. D’Avanzo, et al, of Wellesley, Massachusetts, pro se.

       Patricia M. Bowman, Attorney, Tax Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With her on the brief were Eileen
J. O’Connor, Assistant Attorney General; and Michael J. Haungs, Attorney. Of counsel
was Samuel A. Lambert, Attorney.

Appealed from: United States Court of Federal Claims

Judge George W. Miller
                       NOTE: This disposition is nonprecedential.


      United States Court of Appeals for the Federal Circuit


                                       2005-5174


                                ANDREW M. D’AVANZO,

                                                            Plaintiff-Appellant,

                                           and

                                  LINDA J. D’AVANZO,

                                                             Plaintiff-Appellant,

                                            v.

                                   UNITED STATES,

                                                            Defendant-Appellee.


                           __________________________

                           DECIDED: February 6, 2007
                           __________________________


Before MAYER, SCHALL and BRYSON, Circuit Judges.

PER CURIAM.

       Andrew M. D’Avanzo (“D’Avanzo”) and his wife Linda J. D’Avanzo appeal the

final judgment of the United States Court of Federal Claims, which dismissed two tax

refund claims for lack of jurisdiction and denied their remaining tax refund claim in part.

D’Avanzo v. United States, 67 Fed. Cl. 39 (2005). We affirm.
      D’Avanzo does not dispute that he failed to present claims based on the

unclaimed real estate taxes and returned insurance premiums to the IRS. Under I.R.C.

§ 7422(a), filing an administrative refund claim is a prerequisite for establishing

jurisdiction in the Court of Federal Claims. Accordingly, the trial court’s dismissal of

D’Avanzo’s later-filed claims was proper.

      With respect to the claim decided on the merits, D’Avanzo failed to maintain

adequate contemporaneous records to substantiate the amount of time he devoted to

rental property activities in 1994 and, by his admission, his figures are a “post-event

2004 ballpark, best guesstimate” of the hours worked. As such, the trial court correctly

determined that he did not qualify as a real estate professional. D’Avanzo’s failure to

maintain adequate records is not excused by Treas. Reg. § 1.274-5T, allowing for post-

hoc reconstruction of lost records. Even if section 1.274-5T applied to D’Avanzo’s real

estate professional case, his failure to reconstruct the lost records from June 1994 until

trial, ten years after the fact, coupled with his failure to maintain contemporaneous

records for the second half of 1994, does not satisfy the regulation’s “reasonable

reconstruction” requirement. Next, Schedule A provides that a taxpayer may not deduct

expenses under it that are deductible under Schedule E. See 1994 Form 1040 and

Instructions. Based on the instructions to Schedule E, Part 1, the trial court properly

found that the rental property expenses in question (e.g., advertising, travel, supplies,

utilities) were deductible under Schedule E. Finally, because D’Avanzo concedes that

he does not have records to substantiate the $2,400 he donated to his church, the trial

court properly found that he was not entitled to deduct that amount.




2005-5174                                   2
