Thomas J. Spielbauer - Page 8

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          claim such reimbursement, the expenses are not deductible because           
          they are not “necessary”; i.e., it is not necessary for an                  
          employee to remain unreimbursed for expenses to the extent he               
          could have been reimbursed.  Orvis v. Commissioner, 788 F.2d 1406           
          (9th Cir. 1986), affg. T.C. Memo. 1984-553; Lucas v.                        
          Commissioner, 79 T.C. 1,7 (1982); Kennelly v. Commissioner, 56              
          T.C. 936, 943 (1971), affd. without published opinion 456 F.2d              
          1335 (2d Cir. 1972).  Furthermore, the mere failure of an                   
          employee to seek reimbursement cannot convert the employer's                
          expenses into the employee's.  Kennelly v. Commissioner, supra.             
          The employee has the burden of establishing that the employer               
          would not reimburse the expense had the employee requested                  
          reimbursement.  Podems v. Commissioner, 24 T.C. 21, 23 (1955).              
          Moreover, the prohibition of deductions for reimbursable expenses           
          is a “bright line rule” and applies even when the employee is               
          unaware that the expenses are reimbursable.  Orvis v.                       
          Commissioner, supra at 1408.                                                
               Respondent called Mr. Armstrong to testify as to the public            
          defender's policy regarding reimbursement of expenses.  During              
          1992, Mr. Armstrong oversaw public defenders' requests for                  
          reimbursements.  During 1992, the county reimbursed public                  
          defenders for 100 percent of their expenses for educational                 
          training up to $600 per year per attorney ($150 from the MCLE               
          Fund and $450 from the Tuition Reimbursement Fund), and 50                  





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