Oscar R. Contreras - Page 19

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          employer for such expenses.                                                 
               On the record before us, we find that petitioner has failed            
          to carry his burden of establishing that he is entitled for his             
          taxable year 2001 to the deduction that he claims for                       
          unreimbursed employee expenses.12                                           
          Claimed Schedule C Restaurant Expenses                                      
               The trade or business requirement of section 162(a) is not             
          met until the trade or business has begun to function as a going            
          concern and the activities for which it was organized are per-              
          formed.  Jackson v. Commissioner, 86 T.C. 492, 514 (1986), affd.            
          864 F.2d 1521 (10th Cir. 1989).  A restaurant trade or business             
          does not begin until the restaurant is open to the public.13                


               12Assuming arguendo that petitioner had established the                
          deductibility under sec. 162(a) of the unreimbursed employee                
          expenses at issue, he would still have to satisfy the require-              
          ments of sec. 274(d) for any such expenses that are subject to              
          those requirements.  For example, petitioner contends that during           
          2001 he drove his Mercedes and Volvo, inter alia, while making              
          sales calls on behalf of his employer.  On the instant record, we           
          find that petitioner’s Mercedes and Volvo, which are not subject            
          to the exception in sec. 280F(d)(5)(B), are listed property                 
          within the meaning of sec. 280F(d)(4)(A)(i).  We concluded above            
          that we shall not rely on petitioner’s credit card statements,              
          petitioner’s ticket stubs, or petitioner’s testimony with respect           
          to his claimed expenses to establish petitioner’s position                  
          regarding such expenses, including the unreimbursed employee                
          expenses at issue.  On the record before us, we find that peti-             
          tioner has failed to carry his burden of establishing all of the            
          elements that he must prove in order to satisfy the requirements            
          under sec. 274(d) for any such expenses that are subject to those           
          requirements.  See sec. 1.274-5T(b)(2), (3), (4), (6), Temporary            
          Income Tax Regs., 50 Fed. Reg. 46014-46016 (Nov. 6, 1985).                  
               13See Wilson v. Commissioner, T.C. Memo. 2002-61; Walsh v.             
          Commissioner, T.C. Memo. 1988-242, affd. without published                  
                                                             (continued...)           




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