Hradesky, Frank J. v. Comm.

Decision will be entered under Rule 155.

Frank J. Hradesky, pro se. Johnny B. Mostiler, for the respondent.

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Respondent determined deficiencies in petitioner's income taxes of 6,801.69 for 1966 and 2,744.03 for 1967. Both parties have made concessions and so there are only two issues: (1) Whether petitioner substantiated certain expenses in excess of amounts respondent allowed; (2) whether petitioner, a cash basis taxpayer, can deduct real estate taxes under section 164 ¹ in the year petitioner paid them into a mortgage company's escrow account or the year the mortgage company paid them to the taxing authority.

FINDINGS OF FACT

Petitioner, a cash basis taxpayer, filed 1966 and 1967 income tax returns with the District Director of Internal Revenue, Jacksonville, Fla., listing his residence as Clearwater, Fla. Actually petitioner's wife and children lived in Clearwater. Petitioner made trips there but lived in Illinois when he filed his 1966 return and in Indiana when he filed his 1967 return. Petitioner lived in Houston, Tex., when he filed his petition in this case.

During 1966 and 1967, petitioner was an engineer, working primarily in Illinois and Indiana.

On his 1966 and 1967 returns, petitioner took depreciation deductions of 1,166.66 and 380.57, respectively, for a 1964 Mercury automobile. During 1966 petitioner loaned this car to a friend. While in the friend's possession, a bank repossessed it. Thus petitioner no longer had this car at the end of 1966 or in 1967. At trial, petitioner failed to submit any documentary evidence to substantiate ownership or basis for the 1964 Mercury or any other automobile.

Petitioner took deductions in 1966 and 1967 for air travel to Tampa, Fla., advertising, business meals and lodging, medical expenses, and charitable contributions. Petitioner also took a deduction in 1967 for general sales taxes. The amounts of these deductions were:

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                             1966        1967

                             1966        1967

Petitioner took depreciation deductions on a 1964 Mercury automobile on his 1966 and 1967 returns. Petitioner loaned this car to a friend in 1966; a bank then repossessed it; petitioner did not have the car at the end of 1966 or in 1967. At trial, he admitted he should not have taken depreciation on the 1964 Mercury. He did contend, however, that he should have taken depreciation on a 1965 Chevrolet and a 1966 Rambler, but he offered no documentary evidence of basis or ownership of those automobiles. Petitioner has the burden of substantiating amounts taken for depreciation; we hold he has failed to carry

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that burden. Welch v. Helvering, 290 U.S. 111 (1933); Rule 142(a), Tax Court Rules of Practice and Procedure. Thus he may not deduct for depreciation in 1966 or 1967 for the 1964 Mercury, 1965 Chevrolet, or 1966 Rambler.

Petitioner took deductions in 1966 and 1967 for air travel, advertising, business meals and lodging, medical expenses, and charitable contributions. In 1967, he took a deduction for general sales taxes. In two instances, air travel and general sales taxes, he offered merely unverified oral testimony, with no supporting documentary evidence. In the others, he offered no substantiation at all. We hold that petitioner has again failed to carry his burden of substantiation and accordingly may not deduct for any of these expenses beyond the amounts respondent has allowed him, which are:

                             1966        1967

It is clear that a cash basis taxpayer, such as petitioner, may deduct taxes only when paid to the taxing authority. Motel Corp., 54 T.C. 1433, 1441 (1970); Eugene Vassallo, 23 T.C. 656, 664 (1955). See in particular Arthur T. Galt, 31 B.T.A. 930 (1934). In that case, taxpayer could not determine the amount of his

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1929 real estate taxes, due in 1930, because of an irregularity in the assessment rolls for Cook County, Ill. Taxpayer therefore estimated the amount of 1929 taxes due and deposited this amount in 1930 with a real estate firm which handled real estate matters for him. He instructed the firm to pay his taxes "as soon as the bills can be obtained." The firm paid his taxes in 1931. Taxpayer tried to deduct the amount paid to the real estate firm for property taxes on his 1930 income tax return, arguing that an irrevocable trust had been created in 1930 when he deposited the estimated amount of the taxes and that it was immaterial when the taxing authority actually received the funds. The Board of Tax Appeals assuming, without deciding, that an irrevocable trust had been created when taxpayer deposited the funds with the real estate firm, nevertheless, held against taxpayer since the statute, section 23(c) of the Revenue Act of 1928, ch. 852, 45 Stat. 791, 799, contemplated a payment of taxes to the taxing authority. The Board concluded that payment is not made when money "is placed in another's hands to be used to pay the petitioner's taxes," (p. 931). The Board decided Galt under section 23(c) of the Revenue Act of 1928; this case will be decided under section 164. We think the reasoning of Galt is applicable to this case since both section 23(c) and section 164 allow deductions for taxes when paid (in the case of cash basis taxpayers such as petitioner).

Petitioner tries to distinguish Galt by arguing that Galt's action was voluntary while petitioner had an absolute contractual obligation to pay the mortgage company the tax dollars. Even if this is so, we do not see what difference it would make. The key is not whether payment is voluntary; rather, it is whether payment has been made by a cash basis taxpayer to the taxing authority. In neither Galt nor this case was payment made to the taxing authority, but rather to third parties who paid the taxes in later years.

Since section 164 allows a deduction when taxes are "paid" and since Galt has held that payment to a third party does not constitute payment within the meaning of the statute, we accordingly hold that petitioner may deduct only 560.61 in 1966 and the remaining 689.89 in 1967.

Petitioner in his brief raises, for the first time, an issue involving the statute of limitations. Our rules require that petitioner raise special matters such as the statute of limitations

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in his pleadings. Rule 39, Tax Court Rules of Practice and Procedure. Since he did not raise this matter in his pleading, he has waived it.

While each issue tried in this case has been decided in respondent's favor, both parties conceded some issues before and at trial. Thus,

Decision will be entered under Rule 155.

² The deduction for medical expenses is, of course, subject to the limitations of sec. 213.