NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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 posthoc 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