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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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