Lorenzo Battle - Page 10

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          that the gym membership fee is not an ordinary or necessary                 
          expense of petitioner’s employment as a firefighter and arson               
          investigator or as the president of Zomans Productions.                     
               Petitioner argues that the gym membership fee was an                   
          ordinary and necessary expense of his employment as a                       
          professional firefighter.  Petitioner contends that fitness is              
          mandatory since a healthy body is important to the performance of           
          his duties as a firefighter.  Petitioner succinctly explained:              
          “my tool is my body.”                                                       
               Under section 262(a), no deductions are allowed for                    
          personal, living, or family expenses.  Moreover, section 262                
          takes precedence over section 162.  Sharon v. Commissioner, 66              
          T.C. 515, 522-523 (1976), affd. 591 F.2d 1273 (9th Cir. 1978).              
          The taxpayer must demonstrate that the expenses were different              
          from or in excess of what he would have spent for personal                  
          purposes.  Sutter v. Commissioner, 21 T.C. 170, 173 (1953);                 
          Tschetter v. Commissioner, T.C. Memo. 2003-326; see also Moss v.            
          Commissioner, 80 T.C. 1073, 1078 (1983) (finding that daily meals           
          are an inherently personal expense, and a taxpayer bears a heavy            
          burden to prove that the meals are routinely deductible), affd.             
          758 F.2d 211 (7th Cir. 1985).                                               
               A gym membership fee is an inherently personal expense.  It            
          is desirable to be physically fit regardless of one’s profession.           
          Petitioner has not offered any evidence to show that his gym                






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