Carlton Simmons v. Commissioner., United States Tax Court - Memorandum Decision, T.C. Memo. 1994-222, Docket No. 6422-92., Filed May 23, 1994

Carlton Simmons v. Commissioner.

United States Tax Court - Memorandum Decision

T.C. Memo. 1994-222

Docket No. 6422-92.

Filed May 23, 1994.

Carlton Simmons, pro se. Sandra M. Jefferson, for the respondent.

Memorandum Findings of Fact and Opinion

COHEN, Judge: Respondent determined a deficiency of $12,201 in petitioner's Federal income taxes for 1987 and additions to tax under sections 6651(a) and 6653(a)(1)(A) and (B). Unless otherwise indicated, 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.

Remaining in dispute are certain employee business expense deductions and Schedule C deductions.

Findings of Fact

Some of the facts have been stipulated, and the stipulated facts are incorporated in our findings by this reference. At the time he filed his petition, petitioner was a resident of Baltimore, Maryland.

In 1987, petitioner was employed full time as an automobile salesman. On his 1987 return, he claimed employee business expense deductions of $8,623. After an audit, petitioner was allowed $2,038 of the claimed deductions. The items and amounts remaining in dispute are as follows:

Petitioner also worked part time as a self-employed disc jockey in 1987, and he earned total gross income of $11,875 from this occupation. On Schedule C of his 1987 return, petitioner deducted expenses of $22,104, claiming a net loss of $10,229. After an audit, respondent allowed $730 of these items. The items and amounts remaining in dispute are as follows:

Respondent also determined that petitioner was liable for self-employment taxes on his income as a disc jockey.

Petitioner also claimed on his 1987 return, but failed to substantiate during audit, a charitable contribution of $2,000 and a child care credit of $480. Petitioner claimed a dependency exemption for his daughter, Kelly, and head of household filing status. Kelly was 12 years old in 1987 and resided with petitioner's former wife pursuant to a divorce decree that gave his former wife legal custody.

During 1987, petitioner received a premature distribution from his individual retirement account in the amount of $1,853. Respondent determined that petitioner was liable for the 10-percent premature distribution tax.

Opinion

Petitioner contends that respondent lost his records during an audit. He did not, however, present any persuasive evidence that the records that were allegedly lost would support any deductions beyond those allowed by respondent's agent during the audit of petitioner's return. Petitioner made no attempt to reconstruct or even to describe the records that were allegedly lost. His testimony on certain items was essentially that the return was correct as filed, which is insufficient to satisfy petitioner's burden of proof. Rule 142(a); Wilkinson v. Commissioner [Dec. 35,848], 71 T.C. 633, 639 (1979).

Petitioner presented no evidence with respect to the disallowed dependency exemption, head of household status, child care credit, charitable contribution deduction, or premature distribution from his individual retirement account. The stipulated facts and applicable statutes require that respondent's determination as to these items be sustained. Secs. 2(b), 21(a), 72(t), 151, 152(e), 170(a)(1).

Petitioner did testify about the employee business expenses and self-employment expenses that he claimed. He did not recall to whom the items that were claimed were paid. It appeared that the amount deducted as "accounts receivables" related to an automobile accident. Petitioner candidly admitted lack of recollection and vagueness about many of the items claimed as employee business expenses. For example, with respect to $520 for "lot bags", petitioner testified "I don't know what that is myself."

It appears from petitioner's testimony and the nature of his income-producing activities that he is entitled to some deductions beyond those allowed by respondent. Using our best judgment on the entire record, we conclude that petitioner is entitled to the following additional deductions for employee business expense:

With respect to the items claimed on Schedule C, petitioner's testimony indicated that some expenses related to use of his home. He failed, however, to satisfy the exclusive use or other requirements of section 280A. He offered no substantiation of the entertainment expenses and depreciation claimed, as required by sections 274(d) and 280F(d)(4). He failed to present any details that would justify the substantial amounts claimed for transportation, insurance, and interest. Many of the amounts claimed appeared to be estimates. Upon due consideration, and using our best judgment on the entire record, we conclude that petitioner is entitled to deduct the following amounts as Schedule C expenses relating to his disc jockey income:

See generally Cohan v. Commissioner [2 USTC ╤ 489], 39 F.2d 540 (2d Cir. 1930). Petitioner is liable for self-employment tax on the resulting net income from his disc jockey business. Sec. 1401.

Petitioner has stipulated that he did not have reasonable cause for filing his 1987 return beyond the due date and that his underpayment of tax is due to negligence or intentional disregard of rules or regulations. He is therefore liable for the additions to tax under sections 6651(a) and 6653(a).

Decision will be entered under Rule 155.

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