NOTE: This disposition is nonprecedential.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, Un ited 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 Appealed from: United States Court of Federal Claims Judge George W. MillerNOTE: This disposition is nonprecedential.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.

__________ ________________ DE CIDED: February 6, 2007

__________________________
Before MAYER, SCHALL and BRYSON, Circuit Judges.

PER CURIAM. Andrew M. D’Avanzo (“D’Avanzo”) and hi s wife Linda J. D’Avanzo appeal the final judgment of the United St ates Court of Federal Claim s, 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 an d returned ins u rance premiums to the IRS. Under I.R.C. § 7422(a), filing an administrat ive refund claim is a prerequisite for establish i n g jurisdiction in the Court of Federal Cla ims. Accordingly, the trial court’s dismissal of

D’Avanzo’s later-filed claims was proper. With respect to the claim decided on t he merits, D’Avanzo failed to maintain adequate c ontemporaneous records to substantia te the amount of time he devoted t o rental property activities in 1994 and, by his admissio n , his figures are a “post-event 2004 ballpark, best guesst imate” of the hours wo rked. As such, the trial court correctly determined that he did not qualif y as a real estate professional. D’Avanzo’s failure to maintain adequate records is no t excused by Treas. Reg. § 1.274-5T, allowing for po sthoc recons truction of lost records. Even if s e ction 1.274-5T applie d to D’Av a nzo’s real estate professional case, his failure to reco nstruct the lost reco rds from June 1994 until trial, ten years after the fact, coupled wit h his failure to maintain contemporaneous records for the second half of 1994, does not satisfy the regul ation’s “reasonable reconstruction” requirement. Next, Schedule A provides that a taxpayer may not deduct expenses under it t hat are deductible under Schedule E. See 1994 Form 1040 and

Instructions. Based on the instr u ctions to Schedule E, Part 1, th e trial court properly

found that the rental property expenses in question ( e .g ., advertising, travel, supplies, utilities) we re deductib l e un der Schedule E. Finally, b e cause D’Avanzo c o ncedes tha t

he does not have records to substantiate t he $2,400 he donated t o his churc h , the trial court properly found that he was not entit led to deduct that amount.

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