- 19 -
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...)
Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 NextLast modified: May 25, 2011