Thomas A. Johnson - Page 15

          that these illustrations do not qualify as the development of               
          computer software.  Petitioner submitted a letter from an                   
          attorney dated December 11, 1992, the topic of which is the                 
          patentability of petitioner's system.  Nothing in the letter                
          indicates that petitioner was developing computer software in               
          1988 or 1989.                                                               
               We presume that some of the nutritional information culled             
          by Akabas found its way into the notebook titled "The Food                  
          Comparison Machine".  Nonetheless, petitioner provided no                   
          evidence coupling the various expenditures to any research or               
          experiment in nutritional science or computer software in 1988 or           
          1989.  Petitioner repeatedly described his activities as the                
          development of computer software.  However, the record does not             
          support petitioner's characterization of his activities, and his            
          subjective belief is not determinative.  See Mayrath v.                     
          Commissioner, supra at 590-591.  We conclude that the                       
          expenditures are not deductible as research or experimental                 
          expenses under section 174.  Accordingly, it is unnecessary to              
          consider whether they were in connection with a trade or business           
          or whether a proper election was made.  We sustain respondent's             
          Additions to Tax Under Section 6651(a)(1)                                   
               Respondent determined an addition to tax under section                 
          6651(a)(1) for each year in issue, asserting that petitioner                
          failed to file timely a Federal income tax return.                          

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