1 All section references are to the Internal Revenue Code in

effect for the year in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.

T.C. Memo. 2007-324

UNITED STATES TAX COURT

MICHAEL KEVIN BOLTINGHOUSE, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 2033-06. Filed October 29, 2007.

Michael Kevin Boltinghouse, pro se.

Blake W. Ferguson, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

GOEKE, Judge: Respondent determined a deficiency in

petitioner’s 2003 Federal income tax of $6,841, an addition to

tax under section 6651(a)(1)1 of $1,179.23, an addition to tax
- 2 -

2 The parties agree that petitioner received $44,883.20 of

gross income in 2003. Respondent concedes that petitioner is not

liable for the addition to tax under sec. 6651(a)(2) or sec.

6654. Respondent also concedes that petitioner is entitled to

deduct a portion of his medical and dental expenses and taxes

paid, although those concessions would not allow petitioner

itemized deductions in an amount greater than the standard

deduction.

under section 6651(a)(2) of $445.49, and an addition to tax under

section 6654(a) of $132.49. After concessions,2 there are three

issues remaining for decision: 

(1) Whether petitioner is entitled to a dependency

exemption deduction under section 151(c) for his daughter. We

hold that he is not; 

(2) whether petitioner is entitled to a deduction for

itemized expenses in an amount greater than the standard

deduction. We hold that he is not;

(3) whether petitioner is liable for the addition to tax

under section 6651(a)(1) for failing to file a return. We hold

that he is. 

FINDINGS OF FACT

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

The stipulated facts and the accompanying exhibits are

incorporated herein by this reference. 

Petitioner resided in Mebane, North Carolina, at the time he

filed his petition.
- 3 -

During 2003, petitioner was employed as a store manager of

the Men’s Warehouse in Durham, North Carolina. Petitioner earned

gross income of $44,883.20 consisting of compensation for his

work at The Men’s Warehouse and a small amount of dividend

income. Of this amount, $1,591.04 was withheld as Federal income

tax.

I. Failure To File a Return

On or before April 15, 2004, petitioner timely mailed and

the Internal Revenue Service (IRS) timely received a Form 1040A,

U.S. Individual Income Tax Return, for 2003. Petitioner listed

his wages and total income as zero, claimed one personal

exemption, claimed the standard deduction, and requested a refund

of $1,600.84 as income tax that had been withheld. Petitioner

attached a document to his Form 1040A in which he presented

unfounded arguments as to why he was not liable for Federal

income tax. The IRS did not process the Form 1040A as an income

tax return.

In December of 2004, petitioner submitted a Form 1040NR,

U.S. Nonresident Alien Income Tax Return, for 2003 to the IRS. 

Petitioner listed his wages and total income as zero, claimed an

exemption for himself, and requested a refund of $1,598.80 that

had been withheld. On the information sheet accompanying his

Form 1040NR, petitioner answered all questions by writing “N/A”

to assert that none of the questions applied to him.
- 4 -

3 There is a slight discrepancy between the total amount of

deductions that respondent concedes and our calculation, which is

based on respondent’s brief of the total amount of deductions he

concedes, but the discrepancy does not alter our conclusions.

II. Settlement Attempt

Respondent issued a notice of deficiency to petitioner on

October 31, 2005, and petitioner timely filed a petition for

redetermination with this Court.

While preparing his case, petitioner gave respondent an

unsigned Form 1040, U.S. Individual Income Tax Return (the

proposed Form 1040) for 2003 and a Schedule A, Itemized

Deductions. On the proposed Form 1040, petitioner reports his

income and dividends consistently with his Form W-2, Wage and Tax

Statement, and Form 1099-DIV, Dividends and Distributions. He

also claims a personal exemption for himself, a dependency

exemption, and itemized deductions of $12,999. Respondent

concedes that petitioner has allowable itemized deductions of

$920.94, which is less than the standard deduction of $4,750 for

2003, and therefore respondent asserts that petitioner is

entitled only to the standard deduction.3

A. Dependency Exemption Deduction for Petitioner’s Daughter

Petitioner and his ex-wife have a daughter, Brandi, who was

born in March 1985. In 1991, petitioner and his ex-wife

divorced. 
- 5 -

In a prior case before the Court regarding the tax year

1998, Boltinghouse v. Commissioner, T.C. Memo. 2003-134, the

Court decided that petitioner could claim Brandi as a dependent. 

However, in that year Brandi was 13 years old, while in the year

at issue she was no longer a minor. 

Brandi turned 18 years old in March 2003, and she filed her

own Form 1040 with the IRS for 2003 on which she claimed a

personal exemption for herself. Brandi lived with her mother in

Virginia and was a full-time college student during that year. 

However, petitioner claims Brandi as a dependent on the proposed

Form 1040.

B. Itemized Deductions

On the Schedule A attached to the proposed Form 1040,

petitioner claims he is entitled to itemized deductions of

$12,999 after properly making adjustments based upon his adjusted

gross income (AGI). 

1. Medical and Dental Expenses

On the Schedule A attached to the proposed Form 1040,

petitioner claims to have incurred $4,162 of medical and dental

expenses in 2003. As evidence, petitioner provided receipts for

medical and dental insurance premiums paid, physician visits,

medications and vitamins, and other miscellaneous items

purporting to be medical expenses. Respondent concedes that

petitioner is entitled to deductions for the medical and dental
- 6 -

premiums paid and for certain transportation costs, as well as a

portion of the other medical expenses.

2. Taxes Paid

On the Schedule A attached to the proposed Form 1040,

petitioner seeks to deduct $598 for income taxes paid to the

State of North Carolina and $313 for personal property taxes

paid. Respondent concedes that petitioner is entitled to

deductions for the State income taxes paid and for $263.33 of the

personal property taxes paid. As to the remaining $49.67,

petitioner provided a certificate showing that a portion of this

amount was $25 to renew his vehicle registration, but he

presented no evidence as to the remaining $24.67.

3. Charitable Contributions

Petitioner asserts on the Schedule A attached to the

proposed Form 1040 that he made a charitable gift by cash or

check of $256 and that he made noncash charitable gifts of

$2,057. Petitioner did not offer to substantiate the reported

gift by cash or check. However, in order to substantiate the

noncash gifts, petitioner provided three receipts from the

Goodwill Community Foundation indicating that he made donations

of various items with a total value of $2,313. The receipts give

a general description of the donated items, indicating a couch, a

stereo stand, household goods, seven pieces of men’s clothing

(slacks, shoes, and pants), a coffee table, flatware, plates, and
- 7 -

bowls. However, the receipts do not provide any information as

to the age, quality, or condition of the donated items or any

information as to who valued them or what method was used.

4. Business Deductions

Petitioner reports on the Schedule A attached to the

proposed Form 1040 $9,211 of unreimbursed business expenses.

a. Transportation and Travel Expenses

Petitioner claims that he is entitled to a deduction for

$2,122 of vehicle expenses, $52 of other travel expenses, and

$737 of overnight travel expenses. In 2003, petitioner’s job

required him to go to the post office, the bank, other stores,

meetings, and locations where he was involved with recruiting

potential employees. 

As evidence of the claimed expenses, petitioner provided a

receipt for payment for a rental car, some airline boarding

passes, some receipts from hotels, and other miscellaneous

receipts that purport to be from expenses he incurred while

traveling. 

b. Business Gifts

Petitioner seeks to deduct $165.14 for business gifts. 

Petitioner provided receipts for nine purchases that purport to

be business gifts, but no additional specific information.
- 8 -

c. Entertainment and Business Meals

On the Schedule A attached to the proposed Form 1040,

petitioner asserts that he is entitled to a deduction of 50

percent of his meals and entertainment expenses, which he

calculated to be $977. To substantiate this deduction,

petitioner offered receipts from various convenience stores,

video rental stores, entertainment venues, and restaurants, as

well as his electricity bills for 2003. Petitioner estimates

that he entertained about 100 potential customers or employees at

his home during 2003. He also occasionally bought lunch, sodas,

and snacks for employees in order to meet The Men’s Warehouse’s

corporate goal of establishing a “high-quality work environment”. 

Petitioner paid for these expenses out of his own pocket even

though he had a discretionary budget for such entertainment

expenses and it was not a common practice for managers to spend

such a high amount for food and beverages for employees.

d. Cable Television and Telephone

Petitioner also seeks to deduct $523.44 for his home cable

television and $619.07 for his home telephone for 2003 after

conceding that 10 percent of his telephone use was for

nonbusiness purposes. Petitioner used the cable to determine

whether the weather was too severe to open the store, and he used

the telephone service to make himself available in case of an

emergency and to enable him to make long-distance calls to his
- 9 -

supervisors. However, about two-thirds of the cost of the long

distance calls was attributable to calls made to family members.

e. Laundry, Dry Cleaning, Cost of Clothing, and

 Haircuts

Petitioner seeks to deduct $3,604.65 as the combined cost of

clothing purchases, laundry and dry cleaning, and haircuts. The

clothing purchased consists of suits, sport coats, slacks, ties,

socks, and alterations. These expenses were necessary for

petitioner’s continued employment at The Men’s Warehouse because

his dress code required him to wear a suit or a sport coat and

slacks combination with a tie and to be well groomed.

5. Casualty Loss

Petitioner claims that he suffered a $500 casualty loss in

2003 because he tore a business suit on a piece of glass while at

work. 

6. Tax Preparation Software and Publications

On the proposed Form 1040, petitioner claims a $166.49

deduction for tax preparation software and publications.

OPINION

I. Dependency Exemption Deduction for Petitioner’s Daughter

A taxpayer bears the burden of proving that the

Commissioner’s determinations set forth in the notice of

deficiency are incorrect. Rule 142(a)(1); Welch v. Helvering,

290 U.S. 111, 115 (1933). Tax deductions are a matter of

legislative grace, and a taxpayer has the burden of proving that
- 10 -

he is entitled to the deductions claimed. Rule 142(a)(1);

INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992); New

Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). In

addition, a taxpayer must keep sufficient records to substantiate

any deductions claimed. Sec. 6001; New Colonial Ice. Co. v.

Helvering, supra at 440. Section 7491(a) does not apply in this

case because petitioner did not introduce credible evidence that

he is entitled to the deduction he seeks.

In general, under section 151(a) and (c), a taxpayer is

allowed a dependency exemption deduction for each dependent. 

Sec. 152(a)(1). The definition of a “dependent” provided by

section 152(a) includes a child of the taxpayer over half of

whose support for the year was provided by the taxpayer. See

sec. 1.152-1(a), Income Tax Regs. In the case of a child of

divorced parents, the child generally is treated as receiving

over half his support from the parent having custody for the

greater portion of the year. Sec. 152(e)(1) and (2). 

In order to satisfy the support test of section 152(a) so as

to be entitled to a dependency exemption deduction, the taxpayer

must prove the amount of total support the child received during

the year and establish that the support that the taxpayer

provided exceeds half the total. Rule 142(a); Stafford v.

Commissioner, 46 T.C. 515, 517-518 (1966); Vance v. Commissioner,

36 T.C. 547, 549 (1961); Lear v. Commissioner, T.C. Memo. 2004-
- 11 -

4 Petitioner’s argument that respondent never asked him for

substantiation is without merit. A taxpayer who fails for any

reason to substantiate a claimed deduction does so at his peril. 

See Sanford v. Commissioner, 50 T.C. 823, 830 (1968), affd. 412

F.2d 201 (2d Cir. 1969).

253. Petitioner is not required to provide the precise total

amount of support for his daughter but must at least provide

convincing evidence that he provided more than half of it in

2003. See Seraydar v. Commissioner, 50 T.C. 756, 760 (1968). 

Petitioner failed to maintain and provide sufficient records

establishing the total amount of support his daughter received in

2003 and the amount he provided. While petitioner testified at

trial that he paid tuition, child support, and insurance premiums

benefiting his daughter, he failed to provide any evidence to

substantiate how much these payments amounted to.4 Further,

petitioner did not offer any evidence as to how much support his

ex-wife provided, who paid his daughter’s other living expenses,

or whether his daughter was employed during 2003. Therefore, we

hold that petitioner failed to carry his burden of establishing

that he met the support test of section 152(a) so as to be

entitled to claim a dependency exemption deduction for his

daughter for 2003.

Petitioner also does not qualify for the deduction under the

special support test for children of divorced parents. Sec.

152(e)(1). Section 152(e)(1) applies only when the child is in

the custody of one or both parents for more than one-half of the
- 12 -

calendar year. We have held that once a child reaches the age of

majority under State law, she is no longer in the custody of

either parent for purposes of section 152(e). Ferguson v.

Commissioner, T.C. Memo. 1994-114; Kaechele v. Commissioner, T.C.

Memo. 1992-457. Petitioner’s daughter was a resident of Virginia

in 2003, and under Virginia law an individual reaches the age of

majority when she becomes 18 years of age. Va. Code Ann. sec. 1-

204 (2005). Petitioner’s daughter became 18 years of age in

March 2003, and therefore could not be in the custody of either

parent for more than one-half of the calendar year. Therefore,

we hold that for 2003, petitioner is not entitled to claim a

dependency exemption deduction under section 152(e) for his

daughter.

II. Deductions

Petitioner also bears the burden of proving that he is

entitled to the itemized deductions he claims and that he has

maintained sufficient records to substantiate those deductions. 

See sec. 6001; Rule 142(a)(1); INDOPCO, Inc. v. Commissioner,

supra at 84; New Colonial Ice Co. v. Helvering, supra at 440.

A. Medical and Dental Expenses

Section 213(a) allows deductions for medical and dental

expenses only to the extent that they exceed a floor of 7.5

percent of the taxpayer’s AGI. Petitioner claims to have
- 13 -

incurred $4,162 of medical and dental expenses in 2003 before

subtracting 7.5 percent of his AGI ($3,366). 

Respondent concedes that petitioner is entitled to a

deduction for medical and dental insurance premiums paid, $26.92

for physician visits, $156.59 for medications, and certain

transportation expenses, leaving $446.01 for physician visits,

$48.50 for medications, and $14.96 for contour replacement grips. 

Petitioner offered no evidence to substantiate $187.02 of the

amount claimed on the Schedule A; thus he is not entitled to a

deduction for that amount.

As evidence of the disputed expenses, petitioner provided

three Explanation of Benefits statements showing that he made

copayments totaling $65 for physician visits, two statements that

he owed a total of $401.01 for physician visits, two receipts

that he paid $48.50 for vitamins, and one receipt that he paid

$14.96 for two contour replacement grips. 

Respondent appears to have misread the Explanation of

Benefits statements that petitioner provided regarding three of

the physician visits, which clearly indicate that petitioner made

copayments totaling $65 during those visits (however, petitioner

may be liable for an additional $65, which petitioner is not

claiming), and therefore petitioner has met his burden regarding

that amount. However, respondent correctly points out that as to

the two statements indicating that petitioner owed a total of
- 14 -

$401.01, there is no evidence to establish that petitioner paid

that amount. Therefore he may not claim a deduction for that

amount. 

The $48.50 for medications that respondent disputes consists

of payments for vitamins. Under section 213(b), amounts paid for

medicines or drugs are deductible only if they are prescribed or

are insulin. The vitamins in question are neither, and therefore

their costs are not deductible.

Petitioner has not provided any medical reason for

purchasing contour replacement grips, and therefore we agree with

respondent that he is not entitled to a deduction for that

expense.

Consequently, including those amounts respondent concedes,

we hold that petitioner is entitled to deductions of $3,242 for

medical and dental premiums paid, $91.92 for physician visit

copayments made, $156.29 for medication expenses, and $20 for

transportation expenses, to the extent that the total exceeds 7.5

percent of petitioner’s AGI. 

B. Taxes Paid

Section 164(a) allows a taxpayer deductions for State and

local income taxes, real property taxes, and personal property

taxes. On the proposed Form 1040, petitioner seeks to deduct

$911 for State and local taxes paid, of which respondent has

conceded $861.33. 
- 15 -

Of the remaining $49.67, petitioner claims he is entitled to

a deduction of $25 for vehicle registration fees and has provided

a certificate reflecting this amount. Section 164(b)(1) defines

a “personal property tax” as an annual ad valorem tax that is

imposed upon personal property. Petitioner has not provided any

evidence that any of this fee is an ad valorem fee as opposed to

an annual flat fee, and therefore it is not deductible. See N.C.

Gen. Stat. sec. 20-87(5) (2005). 

Petitioner has offered no evidence regarding the remaining

$24.67. Therefore, we agree with respondent that petitioner is

entitled to a deduction of only $861.33 for taxes paid.

C. Gifts to Charity

Section 170(a) allows a taxpayer a deduction for charitable

contributions, but only if verified under the prescribed

regulations. Section 170(f)(8) provides that no deduction will

be allowed for a contribution of $250 or more unless the taxpayer

substantiates the contribution by a contemporaneous written

acknowledgment from the donee organization. A taxpayer who makes

charitable contributions of property other than money must have a

receipt or letter from the donee or other written record showing

the name of the donee, the date and location of the contribution,

and a description of the property in detail reasonably sufficient

under the circumstances. Sec. 1.170A-13(b)(1) and (2), Income

Tax Regs. On his return, the taxpayer must include the same
- 16 -

three pieces of information, and additionally, if claiming a

deduction of more than $500, he must maintain records that show

the fair market value of the property at the time of the

contribution and the method used in determining the fair market

value. Sec. 1.170A-13(b)(2)(ii) and (3), Income Tax Regs. 

Petitioner asserts on the Schedule A attached to the

proposed Form 1040 that he made a charitable gift by cash or

check of $256, but he has failed to provide any evidence to

substantiate the gift and therefore is not entitled to a

deduction for that amount.

Petitioner asserts on the same Schedule A that he made

noncash charitable gifts of $2,057, and to substantiate his claim

he provided three receipts from the Goodwill Community Foundation

indicating that he made donations of various items totaling

$2,313 in value. Respondent argues that petitioner is not

entitled to a charitable contribution deduction because neither

the receipts nor the Form 8283, Noncash Charitable Contributions,

accompanying petitioner’s proposed Form 1040 contains a

“description of the property in detail reasonably sufficient

under the circumstances” or states the method used in determining

the fair market value. 

The receipts identify and quantify the items contributed,

although they do not provide any information regarding the age,

quality, or condition of the donated items, or any information as
- 17 -

to who valued them or what method was used. We find that under

the circumstances, considering the nature of the items donated

and of the donee institution, the description of the property is

reasonable, and petitioner has substantially complied with the

requirements of section 1.170A-13, Income Tax Regs. However,

petitioner has not provided sufficient substantiation of the fair

market value of the property at the time the contribution was

made or the method used in determining the value provided on the

receipts. Therefore we will not accept his calculation of the

amount of claimed deduction. See Bond v. Commissioner, 100 T.C.

32, 41 (1993). Even if we were to exercise our discretion to

approximate the value of the contributions and allow petitioner a

deduction for the entire amount of noncash charitable

contributions claimed, considering our other findings, petitioner

would still not be entitled to itemized deductions for 2003

greater than the standard deduction applicable for that year. 

See Cohan v. Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930);

see also Fontanilla v. Commissioner, T.C. Memo. 1999-156;

Cavalaris v. Commissioner, T.C. Memo. 1996-308; Bernardeau v.

Commissioner, T.C. Memo. 1981-584; cf. Kendrix v. Commissioner,

T.C. Memo. 2006-9. Therefore, we decline to exercise our

discretion under Cohan. 
- 18 -

D. Unreimbursed Employee Expenses

Section 162(a) allows a taxpayer a deduction for ordinary

and necessary expenses paid or incurred during the taxable year

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

as an employee, subject to the limitation that a taxpayer is

allowed a deduction for miscellaneous itemized deductions only to

the extent that they exceed 2 percent of his AGI. Furthermore, a

taxpayer is not allowed any deductions for personal, living, or

family expenses. Sec. 262.

1. Transportation and Travel Expenses

Section 162(a)(2) allows a taxpayer a deduction for

traveling expenses while away from home and in the pursuit of a

trade or business. However, section 274(d) requires strict

substantiation by adequate records or by sufficient evidence

corroborating the taxpayer’s statement for deductions otherwise

allowed under section 162 and for any expenses related to listed

property such as cars and trucks, travel, and meals and

entertainment expenses. Sec. 280F(d)(4)(A); sec. 1.274-5T(a),

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

The substantiation must show the amount, time, place, and

business purpose of the expense. Sec. 1.274-5T(b)(2), (6), (c),

Temporary Income Tax Regs., 50 Fed. Reg. 46014-46017 (Nov. 6,

1985).
- 19 -

On the proposed Form 1040, petitioner claims that he is

entitled to a deduction of $2,122 for vehicle expenses, $52 for

other traveling expenses, and $737 for overnight travel expenses.

Petitioner admits that he did not maintain an accurate

mileage log but asserts that he is entitled to a deduction for

mileage while working as an employee of The Men’s Warehouse

because his employment frequently required him to drive to other

locations. This evidence does not satisfy the strict

substantiation requirement of section 274(d).

Petitioner provided receipts and other evidence that he

traveled away from home in 2003. But did not offer any testimony

or other evidence as to whether these expenditures had any

business purpose and provided only minimal evidence as to the

time spent away from home. Furthermore, petitioner did not offer

any testimony or other evidence that his employer did not

reimburse him for his travel expenses. Petitioner has not met

his burden, and we allow no deduction for these transportation

and travel expenses.

2. Business Gifts

Petitioner seeks to deduct $165.14 for business gifts. 

Under section 274(b), a taxpayer may not claim a deduction under

section 162 for any expenses for gifts made directly or

indirectly to any individual to the extent the value of the gifts

exceeds $25. To substantiate expenses relating to gifts, a
- 20 -

taxpayer must provide adequate records or corroborating evidence

showing the costs of the gifts, the dates the gifts were made,

descriptions of the gifts, the business purposes of the gifts,

and the business relationships between the taxpayer and the gift

recipients. Sec. 274(d); sec. 1.274-5T(b)(5), (c), Temporary

Income Tax Regs., 50 Fed. Reg. 46016-46017 (Nov. 6, 1985).

Petitioner introduced no evidence showing the dates of the

gifts and provided only vague, uncorroborated testimony regarding

the business purposes of the gifts and his relationships with the

recipients. Therefore, we agree with respondent that petitioner

is not entitled deduct the costs of the business gifts for 2003.

3. Entertainment and Business Meals

Under section 274(d)(2), a taxpayer may not claim a

deduction for entertainment expenses unless the taxpayer meets

the strict substantiation requirements. To substantiate such an

expenditure, a taxpayer must provide adequate records or have

sufficient evidence corroborating the amount of the expenditure,

the date of the entertainment, the location of the entertainment,

the business purpose of the entertainment, and the business

relationship between the taxpayer and the person entertained. 

Sec. 1.274-5T(b)(5), Temporary Income Tax Regs., supra. 

Petitioner asserts that he is entitled to a deduction of 50

percent of $977, which he allegedly spent on meals and
- 21 -

entertainment in 2003. See sec. 274(n). To substantiate his

deduction, petitioner offered receipts from various convenience

stores, video rental stores, entertainment venues, and

restaurants and provided his electricity bills for 2003. 

Petitioner also testified that he entertained about 100 potential

customers or employees during 2003, and he occasionally bought

lunches, sodas, and snacks for other employees in order to meet

The Men’s Warehouse’s corporate goal of establishing a “highquality work environment”.

The location of the entertainment activities was frequently

apparent from the receipts that petitioner provided, and

petitioner testified that he entertained potential customers and

employees in his home and provided sodas and snacks for employees

at The Men’s Warehouse store. However, petitioner provided only

vague testimony that he incurred expenses entertaining potential

customers and employees, without providing specific names, dates,

corroborating evidence that the expenditures were so spent, or

evidence that he was not reimbursed for these expenses. He also

provided no specific evidence of what the business purposes of

the entertainment activities were other than to keep the other

employees happy. We are not convinced that petitioner has

satisfied the strict substantiation requirements of section

274(d) or that these expenditures were ordinary and necessary

expenses as required by section 162(a).
- 22 -

Section 274(e) provides that expenses for food and beverages

furnished on the business premises of a taxpayer primarily for

his employees may be deductible and are not subject to the strict

substantiation requirements of section 274(d). See sec. 1.274-

5T(c)(7), Temporary Income Tax Regs., supra. However, this

section does not apply to petitioner’s expenditures because the

employees at the store that petitioner manages are The Men’s

Warehouse’s employees, not petitioner’s employees. This section

is aimed at expenses that are deductible by an employer because

they are in the nature of compensation paid to his employees,

which is not true of the expenses in this case. See Haman v.

Commissioner, T.C. Memo. 1972-118, affd. 500 F.2d 401 (9th Cir.

1974). Therefore, we find that petitioner has failed to carry

his burden, and we will not allow him a deduction for any

entertainment or meal expenses.

4. Cable Television and Home Telephone

Section 262 provides that personal, living, and family

expenses are not deductible unless expressly allowed, and the

regulations specify that personal, living, and family expenses

include utilities provided to a taxpayer’s home unless the

taxpayer uses a part of his home for his business. Sec. 1.262-

1(b)(3), Income Tax Regs. Section 262(b) specifically disallows

any deduction for the first line of basic local telephone service

provided to a taxpayer’s residence.
- 23 -

After conceding that 10 percent of his telephone use was for

nonbusiness uses, petitioner is attempting to deduct $523.44 for

cable television and $619.07 for his telephone in 2003. 

Petitioner has provided no evidence to establish that he uses his

home as a place of business. Furthermore, we find that only a

small portion of petitioner’s cable and telephone use was for

business purposes. Therefore, we agree with respondent that

petitioner’s cable and telephone expenses are nondeductible

personal expenses under section 262. Section 262(b) also

specifically disallows any deductions for local telephone

service. Therefore, we will not allow petitioner a deduction for

cable or telephone expenses.

5. Laundry, Dry Cleaning, Cost of Clothing, and

 Haircuts

Petitioner proposes to deduct $3,604.64 as expenses incurred

for purchasing business clothing, laundry and dry-cleaning, and

haircuts. Petitioner argues that these are ordinary and

necessary business expenses because they were required as a

condition of his employment and he would not have made such

expenditures if his employer did not require them.

Expenses for uniforms are deductible under section 162(a) if

the uniforms are required or essential for employment, are not

suitable for general wear, and are not worn as ordinary clothing. 

Yeomans v. Commissioner, 30 T.C. 757, 767 (1958); Udoh v.

Commissioner, T.C. Memo. 1999-174. Petitioner testified that the
- 24 -

clothing he purchased was of a type that people ordinarily wear,

although he himself would not wear such clothing if not required

to. Therefore, because the clothing that petitioner purchased is

suitable for general wear, his clothing expenses are

nondeductible personal expenses under section 262, as are the

expenses incurred for laundering and dry-cleaning his clothing. 

Haircuts are nondeductible personal expenses even when required

as a condition of employment. See Hynes v. Commissioner, 74 T.C.

1266, 1291-1292 (1980). Therefore, petitioner is not entitled to

deduct any of the expenses relating to his appearance.

E. Casualty Loss

 Under section 165(a), a taxpayer is allowed a deduction for

losses sustained during the taxable year and not compensated for

by insurance or otherwise. Petitioner claims that he suffered a

$500 casualty loss because he tore his suit on a piece of glass

while at work. As discussed in the section above, we have

determined that petitioner’s business clothing is not considered

business property. Thus, he is eligible for a casualty loss

deduction only if he meets the requirements of section 165(c)(3)

and (h). Under section 165(h), petitioner may deduct his net

casualty loss only to the extent that it exceeds 10 percent of

his adjusted gross income, or $4,488 for 2003. Therefore, even

if we were to accept petitioner’s unsubstantiated claim that he

suffered a casualty loss of $500, petitioner still fails to meet
- 25 -

the threshold requirement under section 165(h), and thus he is

not entitled to a casualty loss deduction.

F. Tax Preparation Software and Publications

Petitioner claims a deduction for $166.49 for purchases of

tax preparation software and publications. Petitioner failed to

introduce any documentation to substantiate his entitlement to

this deduction. See sec. 6001; sec. 1.6001-1, Income Tax Regs. 

Therefore, we conclude that petitioner is not entitled to deduct

the $166.49 for tax preparation software and publications.

III. Section 6651(a)(1) Addition to Tax

Section 6651(a)(1) imposes an addition to tax of up to 25

percent of the amount required to be shown as tax for failure to

timely file a Federal income tax return, unless the taxpayer

shows that the failure is due to reasonable cause and not due to

willful neglect. Sec. 6651(a). 

Section 7491(c) places the burden of production on the

Commissioner to show that the imposition of an addition to tax or

penalty on a taxpayer is appropriate. To satisfy this burden,

the Commissioner must present sufficient evidence that the

particular penalty is appropriate to impose on the taxpayer. 

Higbee v. Commissioner, 116 T.C. 438, 446 (2001). If the

Commissioner makes such a showing, the burden of proof is on the

taxpayer to raise any issues that would negate the

appropriateness of the penalty, such as reasonable cause. Id.
- 26 -

Petitioner was required to file a return for tax year 2003,

and he appears to concede this point. See secs. 6011(a),

6012(a). To determine whether a document that a taxpayer files

constitutes a valid return for purposes of section 6651(a), we

follow the test in Beard v. Commissioner, 82 T.C. 766, 777

(1984), affd. 793 F.2d 139 (6th Cir. 1986). Under the Beard

test, a document constitutes a “return” only if it meets four

requirements:

First, there must be sufficient data to calculate tax

liability; second, the document must purport to be a

return; third, there must be an honest and reasonable

attempt to satisfy the requirements of the tax law; and

fourth, the taxpayer must execute the return under

penalties of perjury.

Respondent concedes that petitioner satisfied the second and

fourth requirements by filing two documents that purported to be

tax returns and by executing both documents under penalties of

perjury. However, respondent asserts that neither the Form 1040A

nor the Form 1040NR petitioner submitted constitutes a “return”

within the meaning of the Beard test because neither form

contains sufficient data to calculate tax liability and neither

form indicates that petitioner made an honest and reasonable

attempt to satisfy the requirements of the tax law. Petitioner

does not argue that the unsigned proposed Form 1040 constitutes a

return.

This Court has held that a Federal income tax return

containing only zero entries, particularly when accompanied by
- 27 -

frivolous arguments that the taxpayer is not liable for Federal

income tax, is not considered a valid return because it fails the

first and third prongs of the Beard test. See Cabirac v.

Commissioner, 120 T.C. 163, 169 (2003); Arnett v. Commissioner,

T.C. Memo. 2006-134, affd. 99 AFTR 2d 3418, 2007-2 USTC par.

50,575 (10th Cir. 2007); Halcott v. Commissioner, T.C. Memo.

2004-214. We have held that the arguments that the petitioner

attached to the purported returns are without merit, and the

inclusion of similar arguments on a purported return is an

indication that the taxpayer is not making an honest and

reasonable attempt to satisfy the requirements of the tax law. 

Arnett v. Commissioner, supra; Coulton v. Commissioner, T.C.

Memo. 2005-199; Halcott v. Commissioner, supra. Therefore,

because both the Form 1040A and Form 1040NR that petitioner

submitted contained only zero entries for income and were

accompanied by frivolous arguments, we find that petitioner did

not file a valid return.

Petitioner’s only explanation for not filing a valid return

is his assertion that an IRS agent failed to inform him that his

Form 1040A was not valid. Primary responsibility for filing

Federal income tax returns is on the taxpayer, and the absence of

an objection from the IRS does not amount to “reasonable cause”

for not filing a return under section 6651(a). See United States

v. Boyle, 469 U.S. 241, 251 (1985). 
- 28 -

Therefore, we find that respondent has carried his burden of

production and petitioner has failed to negate his liability. 

Petitioner is liable for the addition to tax for failure to file

a return pursuant to section 6651(a)(1).

IV. Conclusion

On the record before us, we hold that petitioner failed to

meet his burden of proving entitlement to a dependency exemption

deduction for his daughter for 2003. Furthermore, we find that

in addition to the itemized deductions respondent conceded,

petitioner would be entitled to an additional $65 deduction for

medical and dental expenses. However, our findings do not alter

respondent’s conclusion that petitioner is not entitled to

itemized deductions in an amount greater than the standard

deduction, and therefore we sustain his determination that

petitioner is entitled only to the standard deduction. Finally,

we find that petitioner has not demonstrated reasonable cause for

failing to file his 2003 tax return. Therefore, we sustain the

imposition of an addition to tax under section 6651(a).

In reaching our holdings, we have considered all the

parties’ contentions, and to the extent that we have not

addressed them, we conclude that they are irrelevant, moot, or

without merit. 
- 29 -

To reflect the foregoing and concessions by the parties,

Decision will be entered

under Rule 155.