                      T.C. Summary Opinion 2009-1



                        UNITED STATES TAX COURT



                   ROBERT RUIZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16519-07S.             Filed January 5, 2009.


     Robert Ruiz, pro se.

     Nathan C. Johnston and Jordan Musen, for respondent.




     GERBER, Judge:    This case was heard pursuant to the

provisions of section 74631 of the Internal Revenue Code in

effect when the petition was filed.    Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,



     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 2005, the taxable year in
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                                - 2 -

and this opinion shall not be treated as precedent for any other

case.    Respondent determined a $2,062 income tax deficiency for

petitioner’s 2005 tax year.    The deficiency is solely

attributable to respondent’s disallowance of certain deductions.

We consider whether petitioner is entitled to certain job-related

deductions claimed on Schedule A, Itemized Deductions, of his

2005 tax return.2

                            Background

     Petitioner resided in California at the time his petition

was filed.    During 2005 petitioner was a high school mathematics

teacher in the Los Angeles Unified School District.    As part of

his official duties he also coached the girls’ softball team,

which was an official school program.    The school system provided

a $1,500 budget for the softball program, which did not cover all

of its expenses for the program.    Petitioner used the $1,500 to

purchase the catcher’s equipment and safety items such as batting

helmets.    The students were financially unable to purchase

uniforms and equipment.    To make up the shortfall, petitioner and

other staff members purchased and donated various equipment and

other items for the team and team members.

     Petitioner purchased and donated uniforms for the team at a

cost of $1,083.37.    In addition, petitioner purchased other items



     2
      Respondent conceded that petitioner is entitled to a $250
deduction for the preparation of his 2005 tax return.
                                - 3 -

including balls, bats, practice tees, and related softball

equipment for a total of $1,092.78.     In addition to the equipment

for the softball team, petitioner purchased $311.42 of supplies,

including a bookcase, DVDs, and electronic materials that were

needed to teach mathematics in the high school classroom.

     In connection with the softball activity, petitioner, other

staff members, and parents would pitch in to purchase food for

the team after a game.    Typically, the food was provided after

all-day tournaments.    During 2005 petitioner paid $1,643.40 for

food and related items for the team members after games, both at

petitioner’s school grounds and at other school teams’ grounds.

     Petitioner paid union dues of $635.04 during 2005.    The

school system was a union shop, and petitioner was a union

member.

     Petitioner claimed $8,115 for business automobile mileage

and $520 for parking fees during 2005.    At trial petitioner

conceded the deduction for $520 in parking fees.    With respect to

the $8,115 claimed for automobile mileage, petitioner maintained

a log reflecting the total miles for each month of 2005 along

with a breakdown of the distances and the places to which he

drove.    The mileage consisted of, to a limited extent, driving

his automobile to games when the school bus was not available

and, more often, transporting team members from the game sites to

their homes, which was necessary because it was late in the
                                - 4 -

evening and there were safety issues that dictated that the team

members be accompanied home.

       None of petitioner’s expenditures in connection with his

coaching and teaching were reimbursed by the school district.

                            Discussion

       In general, the Commissioner’s determinations in a notice of

deficiency are presumed correct.    Welch v. Helvering, 290 U.S.

111, 115 (1933).    In pertinent part, Rule 142(a)(1) provides the

general rule that “The burden of proof shall be upon the

petitioner”.     Petitioner bears the burden of showing entitlement

to the disallowed deductions, and no question was raised in this

case about whether the burden was shifted to respondent.    See

sec. 7491.

       With respect to the items in dispute, respondent determined

that petitioner failed to substantiate or to show the employee

business purpose of certain claimed expenditures.    Secs. 162,

212.    Taxpayers are required to maintain records sufficient to

permit the verification of income and expenses.    Sec. 6001.    As a

general rule, if the trial record provides sufficient evidence

that the taxpayer has incurred a deductible expense, but the

taxpayer is unable to fully substantiate the precise amount of

the deduction, the Court may estimate the amount of the

deductible expense and allow a deduction to that extent.     Cohan

v. Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930).     Such
                                - 5 -

estimates are to be made bearing heavily against the taxpayer

whose inexactitude in substantiating the amount of the expense

is of his own making.   Id. at 544.     For the Court to estimate the

amount of an expense there must be some basis upon which an

estimate may be made.   Vanicek v Commissioner, 85 T.C. 731, 742-

743 (1985).

     Petitioner was a mathematics teacher and girls’ softball

coach in the Los Angeles high school system.     The system provided

supplies and a limited budget for the athletic program.     The

supplies and budget provided were insufficient to minimally

operate the athletic program or for petitioner to properly teach

mathematics.   Petitioner purchased supplies and athletic

equipment that were used in teaching and for the athletic

program.   When petitioner left his teaching and coaching position

at that school, he left all of the unused equipment and supplies.

Petitioner used his automobile in support of the athletic program

and claimed the mileage at the rate prescribed by respondent.

Petitioner also claimed the cost of meals provided to softball

team members after the games.   Finally, petitioner claimed

amounts for professional subscriptions, union dues, and tax

return preparation.   The total amount claimed for all of the

above-described items for 2005 was $14,622.     Petitioner reduced

that amount by $873 to $13,749 to account for the 2-percent

threshold on employee job expenses when claimed as an itemized
                                - 6 -

deduction on Schedule A.    Respondent disallowed the entire

deduction.

     Initially, we point out that respondent conceded that

petitioner is entitled to $250 for the preparation of his 2005

income tax return.   We hold that petitioner’s union dues of

$635.04 are deductible.    Petitioner also claimed $315 for

professional subscriptions, but he did not provide substantiation

or pursue this matter at trial.    Accordingly, petitioner is not

entitled to the $315 deduction.

     Overall, petitioner sufficiently substantiated the purchase

of $2,487.55 of items used for teaching mathematics and operating

the softball program.   Petitioner was not reimbursed for any of

these items and they were ordinary, and necessary to the basic

operation of the educational and sports programs.    Accordingly,

petitioner is entitled to claim, subject to the 2-percent

threshold, an itemized deduction of $2,487.55.

     Petitioner also substantiated $1,643.40 for food and related

items for the team members after games.    With respect to these

expenditures, it was not necessary to the operation of the

softball program that banquets be held following games.    We

compliment petitioner’s generosity but must hold that he is

not entitled to deduct these expenditures as they do not

constitute ordinary and necessary expenses within the meaning of

section 162.
                               - 7 -

     Concerning the softball program, petitioner claimed $8,115

for mileage.   In connection with attending seminars petitioner

also claimed $520 for parking fees, but he has conceded that

item.   The substantiation of the use of listed property, such as

an automobile, is subject to more rigorous requirements and is

not allowable without adequate records.     See secs. 274(d)(4),

280F(d)(4)(A)(i).   In that regard, petitioner provided a log that

reflects his mileage to and from various softball games and

events and the mileage connected with driving softball team

members home after games and practice on account of safety

precautions.   Because the games and events were repetitive,

petitioner was able to show the round trip mileage to each

location, then account for the trips to each location on a

month-by-month basis.   With respect to the daily mileage

connected with driving team members home after practice and local

games, petitioner’s methodology was less exact making it

difficult to ascertain the correctness of the mileage claimed.

     Overall, petitioner’s log reflected over 17,000 miles for

2005, which converted, at the standard mileage rates, to an

$8,115 deduction claimed for 2005.     Almost 13,000 of the more

than 17,000 miles claimed for 2005 were connected with the daily

driving of team members to their homes.     In the final analysis,

petitioner’s substantiation is sufficient to permit the allowance

of 4,500 miles that were ordinary and necessary business miles.
                                 - 8 -

We further hold that 3,000 of the miles were driven before

September 1, 2005, and the remaining 1,500 were driven after

August 31, 2005.   Accordingly, we hold that petitioner is

entitled to deduct $1,9433 for business mileage during 2005.

     To reflect the foregoing,

                                      Decision will be entered

                                 under Rule 155.




     3
      Mileage before Sept. 1, 2005, has a 40.5-cent standard
mileage rate, whereas mileage after Aug. 31, 2005, has a
48.5-cent standard mileage rate.
