John Paul Massa - Page 6




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          found to be merely substitutes for foods normally consumed by an            
          individual.  Harris v. Commissioner, 46 T.C. 672 (1966); Estate             
          of Webb v. Commissioner, 30 T.C. 1202, 1213-1214 (1958); Collins            
          v. Commissioner, T.C. Memo. 1965-233.  The costs of a special               
          diet are deductible only to the extent the taxpayer establishes             
          that such costs exceed the costs of a normal diet.  Nehus v.                
          Commissioner, T.C. Memo. 1994-631, affd. without published                  
          opinion 108 F.3d 338 (9th Cir. 1997); Crawford v. Commissioner,             
          T.C. Memo. 1993-192.                                                        
               Based on the record, we find that petitioner has failed to             
          establish that his special diet was other than a substitute for a           
          normal diet.  We are not convinced that his special diet,                   
          although followed for medical reasons, differed from the diet of            
          an ordinarily health-conscious individual.  Sec. 1.213-                     
          1(e)(1)(ii), Income Tax Regs.  Moreover, petitioner has failed to           
          establish the amount by which his actual food expenditures                  
          exceeded the costs of a normal diet.  Petitioner testified that             
          he deducted 66 percent of his total food expenditures for 1992 as           
          medical expenses, but submitted little evidence of the cost,                
          quantity, or type of foods and supplements which he purchased               
          during 1992.  We are therefore unable to make an estimate of his            
          excess costs.  Cf. Cohan v. Commissioner, 39 F.2d 540 (2d. Cir.             
          1930); Von Kalb v. Commissioner, supra.                                     
               We hold that petitioner is not entitled to a medical expense           
          deduction for the amounts claimed for his special diet.                     




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