Guido Lemos and Adabelle Herrera-Lemos - Page 6




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          in the course of delivering various items to his employer’s                 
          customers.                                                                  
               In general, a taxpayer is entitled to deductions for                   
          ordinary and necessary trade or business expenses.  Sec. 162(a).            
          Trade or business expense deductions are allowed to those                   
          taxpayers who are self-employed as well as those taxpayers who              
          are engaged in the trade or business of being an employee.                  
          Primuth v. Commissioner, 54 T.C. 374, 377 (1970); Christensen v.            
          Commissioner, 17 T.C. 1456 (1952).                                          
               During 1996, Mr. Lemos was an employee of Cintas.  However,            
          nothing in the record suggests that, as a condition of that                 
          employment, Mr. Lemos was required or expected to use his own car           
          for delivery purposes.  That being so, the expenses, even if                
          incurred, are not deductible.  Schmidlapp v. Commissioner, 96               
          F.2d 680 (2d Cir. 1938); Eder v. Commissioner, T.C. Memo. 1981-             
          408.  Respondent’s determination disallowing the deduction for              
          employee business expenses is, therefore, sustained.1                       

               1  The disallowance of this itemized deduction in and of               
          itself reduces the total of other itemized deductions to an                 
          amount below the standard deduction applicable to married                   
          individuals who elect to file a joint return.  Consequently,                
          respondent computed the deficiency here in dispute by disallowing           
          all itemized deductions and allowing the appropriate standard               
          deduction.  Because we have sustained respondent’s disallowance             
          of the employee business expense deduction, it is unnecessary to            
          address the dispute between the parties with respect to the                 
          proper amount of petitioners’ medical expense deduction.                    








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