Vaksman v. CIR ( 2002 )


Menu:
  •                 IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _______________________________
    No. 02-60062
    (Summary Calendar)
    _______________________________
    FABIAN VAKSMAN,
    Petitioner-Appellant,
    versus
    COMMISSIONER OF INTERNAL REVENUE,
    Respondent-Appellee.
    _________________________________________________
    Appeal from the United States Tax Court
    (4741-00)
    _________________________________________________
    November 21, 2002
    Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
    WIENER, Circuit Judge*:
    Petitioner-Appellant Fabian Vaksman appeals the decision of
    the United States Tax Court determining a deficiency in his federal
    income tax for 1997 in the amount of $2,108.    For essentially the
    same reasons as are set forth in the Tax Court’s ruling, we
    affirm.1
    *
    Pursuant to 5th Cir. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5th Cir. R. 47.5.4.
    1
    We review the Tax Court’s factual findings for clear error
    and examine conclusions of law de novo. Dunn v. Comm’r of Internal
    Revenue, 
    301 F.3d 339
    , 348 (5th Cir. 2002).
    Vaksman appeals the Tax Court’s determinations regarding the
    deductions he claimed for (1) depreciation of his automobile; (2)
    cellular telephone expenses; (3) educational expenses; and (4)
    business use of his home. He also challenges specified IRS policies
    and procedures and alleges several constitutional violations. We
    briefly address each of Vaksman’s claims.
    1. Automobile Depreciation
    Vaksman asserts that he drove his automobile 15,000 miles in
    1997, of which 79.10 percent, or 11,865 miles were for business. On
    this basis, he computed a $1,325 depreciation deduction. He did
    not, however, submit any records to substantiate the business use
    of his vehicle, or to distinguish business use from personal use.
    Passenger automobiles are “listed property” subject to the
    strict substantiation requirements of § 274(d) of the Internal
    Revenue Code (“I.R.C.”). Under I.R.C. § 274(d), “[n]o deduction or
    credit shall be allowed . . . with respect to any listed property
    . . . unless the taxpayer substantiates by adequate records or
    sufficient evidence corroborating the taxpayer’s own statement” (1)
    the amount of the expense; (2) the time and place of the use of the
    property; and (3) the “business purpose of the expense.”2       As
    Vaksman has provided none of the required documentation, but relies
    solely on his own uncorroborated estimate, the Tax Court properly
    disallowed the deduction.
    2
    
    26 U.S.C. § 274
    (d)(4).
    2
    2. Cellular Telephone Expenses
    Vaksman claimed a deduction of $715 for cellular telephone
    expenses. Cellular telephones are also “listed property” subject to
    the substantiation requirements of I.R.C. § 274.                  As with his
    automobile, Vaksman failed to submit any documentation to establish
    the business use of his cellular telephone, the amount he paid for
    the service, or even the identity of the telephone company. The Tax
    Court properly disallowed the deduction.
    3. Educational Expenses
    Vaksman     claimed   a    deduction    of   $1,550    for   “continuing
    education.” On appeal, he argues that his tuition payments to the
    University of Houston for “dissertation hours” in the history
    department were “used as a business expense” and were necessary to
    generate business as a Russian translator.
    As a threshold matter, we again note that Vaksman has failed
    to submit documentation in support of the claimed deduction. Even
    if the deduction were adequately documented, however, Vaksman’s
    tuition payments to the university would not be deductible as
    business expenses under these circumstances. The I.R.C. authorizes
    deductions     for   business     expenses    that    are    “ordinary    and
    necessary.”3 An expense is “ordinary and necessary” if it is
    “appropriate, helpful, and of a common or frequent occurrence in
    3
    
    26 U.S.C. § 162
    (a).
    3
    the type of business carried on by the taxpayer.”4               The expense
    “must be directly related to the taxpayer’s business.”5
    Vaksman has failed to establish that his pursuit of a doctoral
    degree in history “relates to” his translating business.              Although
    Vaksman contends that a university affiliation was necessary to
    generate translation business, he produced no evidence; and the
    record on appeal reflects no evidence to support this contention.
    Neither we, the Tax Court, nor the Commissioner has questioned the
    fact       that   Vaksman   is   engaged   in   the   business   of   Russian
    translating; nevertheless, he has failed to prove a “nexus” between
    this business and the study of United States history. Although
    association with a local university, and access to computers and
    other university resources, may marginally benefit any businessman,
    we agree with the Tax Court’s conclusion that “[t]he ‘ordinary and
    necessary’ requirement . . . is not so elastic a concept as to
    countenance a marginal relationship between an expense and a
    taxpayer’s trade or business.”6
    4. Business Use of Home
    Vaksman claimed a home office deduction of $5,280 based on his
    4
    Tulia Feedlot, Inc. v. United States, 
    513 F.2d 800
    , 804 (5th
    Cir. 1975).
    5
    Hymel v. Comm’r of Internal Revenue, 
    794 F.2d 939
    , 940 (5th
    Cir. 1986).
    6
    
    82 T.C.M. (CCH) 19
    , R. 17, at 11.
    4
    estimate that, in 1997, he used 80 percent of the 900 available
    square feet in his apartment (720 square feet) for his translating
    business.     The   Commissioner   reduced   the   deduction   to   $1,588,
    allocating 25 percent of Vaksman’s $6,350 rent to business use.
    As a general rule, “the use of a dwelling unit which is used
    by the taxpayer during the taxable year as a residence” is not
    deductible.7 This rule does not apply, however, to the portion of
    a residence “which is exclusively used on a regular basis . . . as
    the principal place of business for any trade or business of the
    taxpayer.”8
    Vaksman failed to demonstrate that he used 80 percent of his
    residence exclusively and on a regular basis for his translating
    business. As the Tax Court explained, Vaksman’s claim in this
    regard is belied by his own admission that he worked only seven
    days in 1997. Moreover, Vaksman’s inclusion of his bathroom and
    bedroom in his estimate of “business use” is misplaced; although he
    may have used these areas on occasion for a business purpose, any
    business use of these areas was not exclusive. We conclude that the
    Tax Court properly disallowed the $5,280 deduction in favor of a
    more reasonable——and, we might add, generous——$1,588 home office
    deduction.
    7
    26 U.S.C. § 280A(a).
    8
    Id. § 280A(c)(A).
    5
    5. Remaining Claims
    Vaksman’s remaining arguments are entirely without merit. He
    dedicates    the   bulk   of   his    argument        on   appeal      to   perceived
    unfairness in the Internal Revenue Service (“IRS”) procedures
    leading to his notice of deficiency. In particular, Vaksman objects
    to the ability of an IRS supervisor to “overrule” or modify the
    conclusions of an auditor and repeatedly alleges “bad faith” on the
    part of the IRS for failing to comply with his discovery requests.
    Vaksman also asserts sweeping First Amendment and constitutional
    issues and seeks an award of costs and attorney fees.
    Courts   do   not    “look     behind      the   notice      of   deficiency   to
    determine or examine the evidence used, or the propriety of the
    Commissioner’s motives in making the deficiency determinations.”9
    The law is well-settled that the government’s determination of
    deficiency    is   presumed    to    be       correct;     this    “presumption     of
    correctness generally prohibits a court from looking behind the
    Commissioner’s determination even though it may be based on hearsay
    or other evidence inadmissible at trial.”10                 For this reason, we,
    like the Tax Court, will not revisit or second-guess the methods of
    the IRS.
    9
    Pasternak v. Comm’r of Internal Revenue, 
    990 F.2d 893
    , 898
    (6th Cir. 1993).
    10
    Portillo v. Comm’r of Internal Revenue, 
    932 F.2d 1128
    , 1133
    (5th Cir. 1991).
    6
    Vaksman’s First Amendment claim is grounded in his complaint
    that    the    IRS   sent   an   agent   to   his   home   to   investigate   his
    transmission of a poem to an IRS Group Manager. Assuming, without
    concluding, that the Tax Court had jurisdiction to consider this
    claim and that we have appellate jurisdiction to review it, we hold
    that Vaksman’s First Amendment claim is wholly without merit and
    not worthy of further discussion.
    Finally, Vaksman’s claim for costs and attorney fees is
    equally without merit and borders on frivolousness. As a pro se
    litigant, he is not entitled to attorney fees because, quite
    simply, he did not actually “pay” or “incur” attorney fees.11                  In
    addition, Vaksman was not the “prevailing party” as defined in
    I.R.C. § 7430(c)(4). Vaksman neither “substantially prevailed with
    respect to the amount in controversy”12——the deficiency was reduced
    only from $2,217 in the original notice, to $2,108 in the Tax
    Court’s decision——nor “substantially prevailed with respect to the
    most significant issues.”13
    We recognize that Vaksman has serious misgivings about the
    manner in which federal income taxes are collected in the United
    11
    Corrigan v. United States, 
    27 F.3d 436
    , 438 (9th Cir. 1994)
    (“A pro se litigant does not pay or incur attorney fees. Thus,
    attorney fees are not available to pro se litigants under I.R.C. §
    7430).
    12
    
    26 U.S.C. § 7430
    (c)(4)(i)(I).
    13
    
    Id.
     § 7430(c)(4)(i)(II).
    7
    States. It is obvious, and unfortunate, that he feels that he has
    been unfairly and illegally “targeted” by the IRS. Nevertheless,
    our careful review of the record, the parties’ briefs, and the
    applicable law convinces us that, as a matter of law, all Vaksman’s
    claims in the Tax Court, and his contentions on appeal, are
    baseless. Finally, we caution Vaksman against further prosecution
    of these claims, lest he incur sanctions for protracting litigation
    that is legally frivolous.
    Conclusion
    For essentially the same reasons set forth by the Tax Court,
    its disposition of this action is, in all respects,
    AFFIRMED.
    8