1 Section references are to the Internal Revenue Code in

effect for the year in issue. Rule references are to the Tax

Court Rules of Practice and Procedure.

T.C. Memo. 1996-120

UNITED STATES TAX COURT

HORACE E. McCANN, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 678-95. Filed March 12, 1996.

Horace E. McCann, pro se.

Horace Crump, for respondent.

MEMORANDUM OPINION

POWELL, Special Trial Judge: This case was assigned

pursuant to the provisions of section 7443A(b)(3) and Rules 180,

181, and 182.1

By notice of deficiency dated November 3, 1994, respondent

determined a deficiency in petitioner's 1991 Federal income tax

and an accuracy-related penalty pursuant to section 6662(a) in
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the respective amounts of $2,394 and $479. At the time the

petition was filed petitioner resided in Birmingham, Alabama.

The issues are whether petitioner is (1) entitled to

deductions in amounts greater than those allowed by respondent

for charitable contributions, employee business expenses, and

other miscellaneous deductions, and (2) liable for an accuracyrelated penalty for negligence under section 6662(a).

The facts may be summarized as follows. Petitioner is an

employee of the Occupational Safety and Health Administration

(OSHA). On Schedule A of petitioner's 1991 Federal income tax

return petitioner claimed deductions for the following:

Charitable Contributions $3,125

Miscellaneous Employee Business Expenses 4,088

Other Miscellaneous Deductions 5,821

Upon examination respondent disallowed portions of the claimed

deductions as follows:

 Allowed Disallowed

Charitable Contributions $2,040 $1,085

Miscellaneous Employee Business Expenses 1,814 2,274

Other Miscellaneous Deductions 670 5,151

The primary difficulty with this case is that, although

petitioner prepared his return for 1991, he cannot identify with

any specificity items of contributions or expenses he claimed. 

He had no documentation with regard to the disallowed amounts. 

Furthermore, his testimony was unclear and often evasive.
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Charitable Contributions

Petitioner testified that he made cash contributions in the

amount of $1,085 to various, but unspecified, churches and

charitable organizations. Petitioner has the burden of

establishing that respondent's determination is incorrect in

whole or in part, and he has not carried that burden. Rule 142. 

Respondent's determination is sustained.

Employee Business Expenses

Petitioner claims that the disputed employee business

expenses arise from three areas: (1) Education and training

expenses; (2) cost of a printer for his computer; and (3) cost of

safety shoes. With regard to the training and eduction

expenses, petitioner contends that he incurred expenses in

learning how to operate computers. He has no records showing the

date or amounts of these alleged expenses.

Petitioner submitted a receipt in the amount of $310.26 for

the cost of a computer printer. According to petitioner he uses

a computer and printer in his employment. Petitioner concedes,

however, that the printer was located at his home and that he was

not required to buy the computer or printer as a condition of his

employment. The printer is so-called listed property as defined

by section 280F(d)(4), and accordingly no deduction is allowable

under section 280F(d)(3)(A).
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Petitioner also submitted a receipt in the amount of $133.86

for safety shoes that he testified are required for his job. We

will allow petitioner a deduction in this amount as an employee

business expense to the extent that the amount exceeds the

limitation contained in section 67(a).

Other Miscellaneous Deductions

Of the $5,151 at issue in this category, the parties agree

that petitioner paid $1,000 in legal expenses during 1991. Legal

expenses are deductible under section 162 or 212 if they are

ordinary and necessary expenses incurred in a trade or business,

expenses incurred for the management, conservation, or

maintenance of property held for the production of income, or

expenses incurred with respect to Federal income taxes. Personal

expenses are not deductible. Sec. 262. Petitioner contends that

$1,000 was incurred in connection with a suit concerning his

Federal income taxes. Whether a legal expense is deductible

under section 162 or 212 depends on the origin and nature of the

expense. United States v. Gilmore, 372 U.S. 39, 42 (1963). It

appears from an order of the Circuit Court of Tuscaloosa County,

Alabama, filed July 15, 1991, that petitioner's former wife

brought an action against petitioner to recover from petitioner

various amounts including "monies withheld from * * * [the former

wife's] income tax refund by the Internal Revenue Service for

payment of taxes due from * * * [petitioner which petitioner] was
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ordered to pay under Paragraph 8 of the Final Decree of Divorce

entered on February 8, 1988." The action, therefore, had nothing

to do with any dispute concerning petitioner and the Internal

Revenue Service over petitioner's tax liability, but rather arose

from a debt between petitioner and his former wife that in turn

arose out of the divorce proceedings. As such the legal expenses

incurred were clearly personal and are nondeductible. United

States v. Gilmore, supra.

The remainder of the miscellaneous deductions in dispute

($4,151) are more nebulous. Petitioner appears to argue that at

least part of this amount was for other legal expenses, including

his former wife's attorney's fees incurred in connection with the

litigation described above. For the same reason, these expenses

are not deductible. Petitioner also contends that a part of this

amount was incurred in purchasing or depreciating a computer. 

Petitioner, however, offers no substantiation for this expense. 

Moreover, it appears that, similar to the printer discussed

infra, section 280F(d)(3)(A) prohibits any deduction.

In sum, except for the allowance of $133,86 for safety

shoes, respondent's determination is sustained with respect to

the deficiency.

Respondent also determined that petitioner was liable for an

accuracy-related penalty for negligence in the preparation and

filing of his return. Section 6662(a) imposes a penalty in the
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amount of 20 percent on any underpayment to which the section

applies. Section 6662(b) applies to underpayments due to

negligence. Sec. 6662(b)(1). Negligence is the failure to make

a reasonable attempt to comply with the law. Sec. 6662(c). 

Petitioner has not established that he used reasonable care in

preparing his return. Indeed, all of the deductions, except for

the safety shoes, are clearly not deductible. Thus, the entire

deficiency as redetermined is attributable to negligence. 

Respondent's determination with respect to the penalty under

section 6662(a) is sustained.

Decision will be entered

for respondent.