1 Unless otherwise indicated, all subsequent section

references are to the Internal Revenue Code in effect for the

taxable year in issue, and all Rule references are to the Tax

Court Rules of Practice and Procedure. 

T.C. Summary Opinion 2008-25 

UNITED STATES TAX COURT

JUVY LYN ANDRADE TE ENG FO, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 24023-05S. Filed March 5, 2008. 

Juvy Lyn Andrade Te Eng Fo, pro se.

Orsolya Kun, for respondent.

GOLDBERG, Special Trial Judge. This case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1 Pursuant to section

7463(b), the decision to be entered is not reviewable by any
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other court, and this opinion shall not be treated as precedent

for any other case. 

Respondent determined a $3,195 deficiency in petitioner’s

Federal income tax for 2002. 

The issue for decision is whether petitioner is entitled to

the deduction for unreimbursed employee expenses claimed on

Schedule A, Itemized Deductions, of her 2002 return. 

Background

Some of the facts have been stipulated, and they are so

found. Petitioner resided in New York, at the time that the

petition was filed. 

In 2002, the taxable year in issue, petitioner was employed

as a family physician by the Fridley Children’s and Teenagers’

Medical Center, P.A., in Fridley, Minnesota. Petitioner worked

full time at the medical center from November of 2000 to November

of 2002. Petitioner has been unemployed and seeking employment

as a physician since November of 2002. 

Petitioner filed a Federal income tax return for 2002 on

which she reported total income of $117,007 and adjusted gross

income of $116,679. 

Petitioner attached to her return a Schedule A. Petitioner

claimed total itemized deductions of $44,245, which included

unreimbursed employee expenses of $15,059 before diminution by

the 2-percent floor prescribed by section 67. 
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In support of her Schedule A deduction for unreimbursed

employee expenses, petitioner attached to her return Form 2106,

Employee Business Expenses, and reported the following: 

Vehicle expenses $4,289

Unreimbursed employee

 expenses: 

 Uniforms/protective clothing 1,236

 Laundry/dry cleaning 548 

 Shoes, stockings, socks 425

 Instrument/equipment 704

 Supplies 601

 Books/journals/magazines 350 

 Malpractice insurance 2,359 

 Professional license 192 

 Job seeking expenses 2,608 

 Business gifts 1,747

 Total 15,059

Petitioner’s 2002 State of Minnesota income tax return was

selected for income tax audit by the State of Minnesota. For

taxable year 2002, the State tax audit allowed $4,419 of the

claimed $15,059 of unreimbursed employee expenses claimed on

Schedule A and disallowed the remainder, $10,640. Deductions

were allowed for: (1) Malpractice insurance; (2) professional

license; and (3) a substantiated portion ($1,868) of job-seeking

expenses. The State auditor disallowed $10,640 of unreimbursed

employee expenses because they were either unsubstantiated and/or

personal. The personal expenses related to receipts petitioner

provided for items of clothing purchased such as khaki slacks

from the J.Crew clothing store and shirts and slacks from the

Armani and Banana Republic clothing stores. When at work,

petitioner wore a pair of khaki pants and a dress shirt or
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blouse. There was no dress code per se for physicians at the

medical center. When petitioner was seeing patients, she usually

wore either a scrub shirt or a lab coat over her blouse. 

Petitioner did not wear suits or dresses while at work. 

Petitioner did not purchase any scrubs or lab coats in 2002. 

Petitioner’s State income tax liability was recomputed as a

result of the State audit, and she consented to the recalculated

liability. The result of the State audit was then forwarded to

the Internal Revenue Service (IRS) pursuant to an exchange

agreement between the IRS and the Minnesota Department of

Revenue. 

Respondent mailed to petitioner a notice of deficiency in

which it was determined that petitioner had failed to fully

substantiate the aforementioned deduction claimed for

unreimbursed employee expenses. Accordingly, respondent reduced

$44,245 of Schedule A deductions to $33,605, disallowing

unreimbursed employee expenses totaling $10,640. Respondent

allowed the same $4,419 of the claimed $15,059 unreimbursed

employee expenses that were allowed by the State audit. 

Petitioner disputed respondent’s deficiency determination by

timely filing a petition for redetermination; however, she did

not set forth any reason in her petition as to why she is

entitled to relief. Petitioner’s quarrel, as expressed at trial, 
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was that she is entitled to the deduction at issue because she

claimed the expenses “as a lay person [would]”. 

Discussion

Deductions are a matter of legislative grace, and the

taxpayer bears the burden of proving that he or she is entitled

to any deduction claimed. Rule 142(a); New Colonial Ice Co. v.

Helvering, 292 U.S. 435, 440 (1934); see INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992). This includes the burden

of substantiation. Hradesky v. Commissioner, 65 T.C. 87, 90

(1975), affd. per curiam 540 F.2d 821 (5th Cir. 1976); cf. sec.

7491(a) (which does not effect any burden shifting given

petitioner’s failure to: (1) Raise the matter and (2) comply

with all requirements of section 7491(a)(2)). 

Section 162 allows a deduction for ordinary and necessary

business expenses paid or incurred during the taxable year in

carrying on a trade or business. Sec. 162(a); Deputy v. du Pont,

308 U.S. 488, 495 (1940). A trade or business includes the trade

or business of being an employee. O’Malley v. Commissioner, 91

T.C. 352, 363-364 (1988). The taxpayer bears the burden of

substantiation. Hradesky v. Commissioner, supra at 90. 

Section 6001 provides, in pertinent part, as follows: 

SEC. 6001. NOTICE OR REGULATIONS REQUIRING RECORDS,

STATEMENTS, AND SPECIAL RETURNS. 

Every person liable for any tax imposed by this 

title [title 26, Internal Revenue Code of 1986], or 

for the collection thereof, shall keep such records, 
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render such statements, make such returns, and comply

with such rules and regulations as the Secretary may 

from time to time prescribe. * * * 

Generally, if in the absence of such records a taxpayer

provides sufficient evidence that the taxpayer has incurred a

deductible expense, but the taxpayer is unable to adequately

substantiate the amount of the deduction to which he or she is

otherwise entitled, the Court may estimate the amount of the

expense and allow the deduction to that extent. Cohan v.

Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930). In order for

the Court to estimate the amount of the expense, however, we must

have some basis upon which an estimate may be made. Vanicek v.

Commissioner, 85 T.C. 731, 743 (1985). Without such a basis, any

allowance would amount to unguided largesse. Williams v. United

States, 245 F.2d 559, 560 (5th Cir. 1957). 

In the case of certain expenses, section 274(d) overrides

Cohan. Sanford v. Commissioner, 50 T.C. 823, 827 (1968), affd.

per curiam 412 F.2d 201 (2d Cir. 1969); sec. 1.274-5T(a),

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

Specifically, section 274(d) provides that no deduction is

allowable with respect to listed property as defined in section

280F(d)(4) unless the deduction is substantiated in accordance

with the strict substantiation requirements of section 274(d) and

the regulations promulgated thereunder. Included in the

definition of listed property in section 280F(d)(4) is any 
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passenger automobile. Sec. 280F(d)(4)(A)(i). Cellular phones

are also included in “listed property” for purposes of sections

274(d)(4) and 280F(d)(4)(A)(v) and are thus subject to the strict

substantiation requirements. Gaylord v. Commissioner, T.C. Memo.

2003-273. 

Accordingly, under section 274(d), no deduction is allowable

for expenses incurred with respect to listed property such as a

passenger automobile on the basis of any approximation or the

unsupported testimony of the taxpayer. E.g., Golden v.

Commissioner, T.C. Memo. 1993-602. These stringent

substantiation requirements are designed to encourage taxpayers

to maintain records together with the documentary evidence

substantiating each element of the expense to be deducted. Sec.

1.274-5T(c)(1), Temporary Income Tax Regs., 50 Fed. Reg. 46016

(Nov. 6, 1985). 

With respect to petitioner’s claimed vehicle expense

incident to her employment as a physician, we must decide whether

this expense (or any portion thereof) is allowable under sections

162(a) and 274(d) and the regulations thereunder. 

Petitioner presented evidence at trial consisting of a

single page of handwritten notations as follows: 

Car insurance $1,258.10 

Gasoline/fuel 875.39 

Car maintenance 615.60 

Car repairs 267.50 
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At the bottom of this same page petitioner attached a copy

of a $267.50 receipt from Coon Rapids Collision dated September

18, 2002. There were no other receipts presented that pertained

to petitioner’s 2002 vehicle expenses. 

As previously stated, no deduction is allowable under

section 274(d) with respect to expenses incurred for a passenger

vehicle on the basis of any approximation or the unsupported

testimony of the taxpayer. In addition, it is clear that, as a

matter of law, a taxpayer’s cost of commuting between the

taxpayer’s personal residence and place of employment is a

nondeductible personal expense. Commissioner v. Flowers, 326

U.S. 465, 473-474 (1946); secs. 1.162-2(e), 1.262-1(b)(5), Income

Tax Regs. 

As an initial matter, we are unconvinced that petitioner

used the automobile for which these purported expenses were

incurred for anything other than her commute from her home to the

medical center and personal use. Second, petitioner has not

satisfied the strict substantiation requirements under section

274(d) for claiming such expenses. Accordingly, because

commuting to and from a workplace is nondeductible as a matter of

law, and further because petitioner’s one-page record does not

satisfy the strict substantiation requirements of section 274(d)

and section 1.274-5T(a), Temporary Income Tax Regs., supra, we
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sustain respondent’s disallowance of petitioner’s deduction for

vehicle expenses.

As previously stated, petitioner deducted the following

unreimbursed employee expenses as reflected on Form 2106

accompanying her Schedule A for 2002: 

Uniforms/protective clothing $ 1,236

Laundry/dry cleaning 548 

Shoes, stockings, socks 425

Instrument/equipment 704

Supplies 601

Books/journals/magazines 350 

Job-seeking expenses 2,608 

Business gifts 1,747 

At trial, petitioner offered the following evidence to

substantiate her claimed unreimbursed employee expenses: (1) 13

receipts from Plaza Cleaners totaling $242.52; (2) 6 receipts

from Office Max totaling $387.28; (3) 1 receipt from Sprint

totaling $10.64; and (4) 11 receipts totaling $665.06 for a

variety of clothing purchased from stores including J.Crew, Ann

Taylor, and Macy’s. Petitioner testified that the supplies

purchased at Office Max were for her patient medical records kept

at home and that her dry cleaning expenses were for her work

attire. Petitioner also submitted six pages of handwritten notes

wherein she listed other purported expenses, such as business

gifts and job-seeking expenses. Petitioner provided no evidence

whatsoever to substantiate that she actually incurred any of the

expenses annotated in these handwritten notes.
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In the light of petitioner’s testimony regarding her need to

keep patient medical records at home and the aforementioned

receipt from Office Max that petitioner provided to the Court, we

hold that petitioner is entitled to a deduction of $387.28 for

supplies. 

With respect to the $1,236 and $425 in unreimbursed employee

expenses for uniforms/protective clothing and shoes/stockings

/socks, petitioner testified that she would not wear either the

clothing or stockings that she wore to work outside of work,

although she did admit they would be suitable for wear outside of

work. Articles of clothing, including shoes, stockings, and

socks are deductible under section 162(a) only if the clothing is

required in the taxpayer’s employment, is not suitable for

general or personal wear, and is not worn for general or personal

purposes. Yeomans v. Commissioner, 30 T.C. 757, 767-768 (1958). 

Petitioner testified that there was no dress code or uniform

requirement at the medical center where she worked, and that even

though she was not inclined to wear the clothing in question when

she was not at work, the clothes were, in fact, suitable for

general wear. In fact, petitioner acknowledged at trial that she

was actually wearing some of the clothes that she purchased for

work in 2002. Therefore, and on the record before us, we find

that petitioner is not entitled to the deductions she claims for

clothing, shoes, stockings, and socks for her 2002 taxable year,
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nor is she entitled to claim dry cleaning expenses for these

items. Accordingly, respondent’s determination is sustained

regarding the aforementioned unreimbursed employee expenses. 

With respect to the $704 claimed as instrument/equipment

expenses, petitioner testified that most of the amount claimed as

an unreimbursed expense was for her cellular phone. A taxpayer

must establish the amount of business use and the amount of total

use for the property. Nitschke v. Commissioner, T.C. Memo. 2000-

230; sec. 1.274-5T(b)(6)(i)(B), Temporary Income Tax Regs., 50

Fed. Reg. 46016 (Nov. 6, 1985). As previously discussed,

cellular phones are included in “listed property” for purposes of

section 274(d)(4), and therefore, the strict substantiation

requirement applies. 

Petitioner offered scant evidence regarding the claimed

expenses for her cellular phone. That evidence consisted of the

aforementioned $10.64 receipt from Sprint and her testimony that

she often had to return patient phone calls using her cell phone. 

Petitioner did not offer a detailed breakdown of the personal

versus business use of the cellular phone. In addition,

petitioner failed to introduce any evidence to prove that the

medical center required her to have a cellular phone. While

petitioner did provide handwritten notations of some of the

amounts that she purportedly paid to Sprint for cellular service

in 2002, we do not find these notes credible or sufficient to
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satisfy the strict substantiation requirements under section

274(d). Accordingly, and on the basis of the foregoing, we hold

that petitioner is not entitled to deduct any cellular phone

expenses under the listing of “instrument/equipment” for taxable

year 2002. 

Finally, and with respect to the unreimbursed employee

expenses for books/journals/magazines, job-seeking expenses, and

business gifts, petitioner provided no credible evidence

whatsoever substantiating that she did, in fact, actually incur

these costs. First, petitioner did not provide any titles of

journals or books or periodicals or any documentary evidence that

she actually incurred the expenses claimed. Second, and with

respect to the $1,868 of job-seeking expenses disallowed by

respondent, petitioner did not provide any credible evidence

showing that she incurred the job-seeking expenses claimed on her

2002 return. Although petitioner did testify that she flew to

New York City for interviews, she admitted that these trips were

for personal pleasure and that she did not always make these

trips for primarily job-seeking reasons. For example, petitioner

candidly admitted that one of the trips was actually made for the

purpose of attending a funeral. Finally, petitioner produced

only one receipt for a bottle of cologne to substantiate the

$1,747 business gifts expense included in unreimbursed business

expenses on her Schedule A. We are unconvinced that the expense
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for which this receipt was included was actually a business gifts

expense. Accordingly, we hold that petitioner is not entitled to

claim any unreimbursed employee expenses for books/journals/

magazines, job-seeking expenses, or business gifts. 

To reflect the foregoing, 

Decision will be entered

under Rule 155.