Payee	Amount
American Youth Soccer Organization	$ 250
Hillsborough Benevolent Society	1,000
Peninsula Children's Center
Charter Auxiliary	1,000
Marriage Encounter	500
San Mateo Little League	300
YMCA	300
Father Fitzsimon	100
Total:	$3,450

*100 Some of these organizations were involved in charitable or public activities, others were not. The $100 payment to Father Fitzsimon was made because he was a retiring priest whom petitioners wanted to "help out." *101 record does not disclose either the amount of the gain on the sale or the date thereof, but it appears that such sale occurred subsequent to the end of 1978.

All of the checks drawn on the church account were allegedly authorized by the church's Board which, as noted, consisted of petitioners and Mr. Supkoff during 1978. No such resolutions nor any minutes of such board meetings alleged to exist were produced in response to the Court's discovery order or introduced into evidence at trial.*102 During 1977, petitioners also claimed to have donated an additional $500 to various organizations other than the ULC-LRC, as follows:

Donee	Amount
United Fund	$ 20
Mt. Alverna Convent	35
St. Vincent	179
Good Will	155
Not Specified	111
Total:	$500

The donations allegedly consisted of both cash and personal property belonging to petitioners. No documentary evidence establishing that any of these claimed donations was in fact made during petitioners' 1977 taxable year was presented at trial, *103 reported a combined gross income in the amount of $47,056. They also claimed a charitable contributions deduction under section 170 in the amount of $20,700 for cash contributions. The $20,700 actually consisted of the $3,000 cash and the Spar Drive property allegedly contributed to the ULC-LRC in 1977, plus the $500 miscellaneous contributions to various other organizations claimed to have been made in that year. In his statutory notice of deficiency, respondent disallowed the claimed deductions in full.

OPINION

I. Alleged Contributionsto the ULC-LRC

Section 170(a)

(c) Charitable Contribution Defined.--For purposes of this section, the term "charitable contribution" means a contribution or gift to or for the use of--

* * *

(2) A corporation, trust, or community chest, fund, or foundation--

(A) * * *

(B) organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, * * *;

Deductions are a matter of legislative grace, and taxpayers must satisfy the specific requirements of the deductions they claim. Deputy v. du Pont,308 U.S. 488">308 U.S. 488 (1940); New Colonial Ice Co. v. Helvering,292 U.S. 435">292 U.S. 435 (1934).Taxpayers bear the burden of proving their entitlement to the deductions they claim. Welch v. Helvering,290 U.S. 111">290 U.S. 111 (1933); Rule 142(a), Tax Court Rules of Practice and Procedure. These rules apply with equal force to deductions claimed for charitable contributions. Davis v. Commissioner,81 T.C. 806">81 T.C. 806, 815 (1983) (on appeal 9th Cir. June 25, 1984).

We must first point out that petitioners' position that contributions made to the ULC-LRC are deductible under section 170 can derive no support from the fact that the Modesto organization enjoyed tax-exempt status under section 501(c)(3) during 1977.^{*105 to Modesto was not a group exemption, and that a "charter" organization or chapter such as the ULC-LRC involved herein does not come within the specific exemption held by Modesto. Davis v. Commissioner,supra,81 T.C. at 815.}

Petitioners do not place a great deal of reliance on the tax-exempt status of the Modesto organization during 1977, mentioning such fact only in passing in their briefs. Instead, most of petitioners' arguments are addressedto whether the ULC-LRC itself has satisfied the numerous requirements of section 170(c) and is therefore a*106 qualified recipient of deductible charitable contributions. An examination of the facts in this case leads inescapably to the conclusion that the ULC-LRC does not satisfy those requirements.

In order to carry their burden of proving that contributions to the ULC-LRC are deductible under section 170, petitioners must demonstrate, among other things, that no part of the church's net earnings (which include the contributions made to the church) inured to their private benefit, or to the private benefit of other individuals. Sec. 170(c)(2)(C). They simply have not done so.

As our findings of fact indicate, during 1978 checks payable to or on petitioners' behalf and totalling approximately $58,621 were drawn on the church account, $49,396 of which purportedly represented a "parsonage allowance." Such funds were used to pay all expenses, including mortgage payments, insurance, maintenance, and utilities, arising from the personal residence of petitioners and their two children, first with respect to the Redwood City home and then with respect to the Menlo Park home. Money withdrawn from the church account in the amount of $22,278 was used to make the downpayment on the Menlo Park*107 home, title to which was taken in petitioners' names. All subsequent mortgage and interest payments thereon were also made from the church account. Checks drawn on the church account totalling $3,543.09 were also used to purchase furniture for use in the Redwood City and Menlo Park residences.

Numerous checks were drawn on the church account and issued to petitioners, allegedly for reimbursement of expenses incurred by petitioners in church related activities. These checks totalled some $3,102. A portion of these expenses represented the cost of dinners and beverages served to those attending the church's monthly meetings. Most of these expenses remain wholly unexplained by petitioners, although vouchers allegedly exist which allegedly detail and document such expenses. Extensive discovery was conducted in this case, and no such documents were ever found or produced.

In addition, during 1978 checks totalling approximately $3,531 were drawn on the church account and used to pay the tuition for petitioners' two children at a parochial school, as well as the costs of their daughter's trip to a language school in France as part of a summer school program. Various*108 amounts were also withdrawn from the church account and used to pay the educational costs of other alleged church members and their children. All of these amounts are alleged to constitute scholarships given by the church. Petitioners presented no evidence to support this claim other than Mr. Pauli's self-serving, uncorroborated, and wholly unconvincing testimony.

Petitioners' argument that such expenditures represent valid church expenses must fail. Expenditures of the type in question here would normally be considered personal, family living expenses, and we are unpersuaded by petitioners' attempt to transform them into valid church expenditures. See Davis v. Commissioner,supra,81 T.C. at 818. In reaching this conclusion, we find it significant that petitioners' personal residence also purported to serve as the church's location. Also the bulk of the church expenditures related to purchasing, furnishing, maintaining, and paying the mortgage on the house owned and occupied by petitioners and their children. We are also impressed by the fact that petitioners' alleged contribution in 1978 of $59,000 greatly exceeded their total reported gross*109 income of $47,056 for 1977. While petitioners did not favor the Court with any evidence as to their total gross income for 1978, there is nothing to suggest that it was so significantly greater than in 1977. Petitioners have alluded to no nontaxable source of money which could be used to provide for their personal living expenses in 1978. Under these circumstances, we think a clear inference arises that most if not all of Mr. Pauli's 1978 salary was deposited in the church account and the checks drawn on the church account were used to pay a large part of petitioners' personal and family living expenses for that year.

Petitioners next assert that only the $178 monthly rental income from the Spar Drive property should be considered as "earnings" of the church. From this they apparently argue that since the amount of such rental income was less than the amounts allegedly donated by the church to various organizations in 1978, there were no "net earnings of the church left to inure to anyone's benefit." Petitioners also emphasize their claim that the total amount of the payments they received in 1978 was less than their alleged contribution in that year of $59,000.

*110 Petitioners have misconstrued the meaning of the term "net earnings" for section 170(c)(2)(C) purposes. It is settled that "net earnings" include more than net profits (and in the case of a church includes the contributions thereto) and may inure to the benefit of a private person other than by distribution of dividends. Canada v. Commissioner,82 T.C. 973">82 T.C. 973, 981 (1984), and cases cited therein. Furthermore, petitioners' argument that the amount of any earnings that inured to their benefit was less than their contributions to the church, even if it were true, McGahen v. Commissioner,76 T.C. 468">76 T.C. 468, 482 (1981), affd. without published opinion 720 F. 2d 664 (3d Cir. 1983); Unitary Mission Church v. Commissioner,74 T.C. 507">74 T.C. 507 (1980), affd. without published opinion 647 F. 2d 163 (2d Cir. 1981). *111 Petitioners' argument that the benefits received constitute no more than a parsonage allowance permitted by section 107 must also fail. Section 107, in pertinent part, provides that:

In the case of a minister of the gospel, gross income does not include--

(1) the rental value of a home furnished to him as part of his compensation; or

(2) the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home.

To the extent that the payments made to petitioners actually represented reasonable compensation for Mr. Pauli's performance of services of a type ordinarily performed by a minister of the gospel, such payments would not constitute prohibited inurement under section 170(c)(2)(C). Cf. Bubbling Well Church v. Commissioner,74 T.C. 531">74 T.C. 531, 537 (1980), affd. 670 F. 2d 104 (9th Cir. 1981); Birmingham Business College, Inc. v. Commissioner,276 F. 2d 476, 480-481 (5th Cir. 1960), affg. on this issue a Memorandum Opinion of this Court. However, excessive payments purportedly representing such compensation do constitute inurement in violation of section 170(c)(2)(C). Cf. *112 Bubbling Well Church v. Commissioner,supra,74 T.C. at 537; Mabee Petroleum Corp. v. United States,203 F. 2d 872, 876 (5th Cir. 1953); Gemological Institute of America v. Commissioner,17 T.C. 1604">17 T.C. 1604, 1609 (1952), affd. per curiam 212 F. 2d 205 (9th Cir. 1954). Whether compensation payments are reasonable in amount is purely a question of fact to be resolved in the light of all of the evidence. Bubbling Well Church v. Commissioner,supra,74 T.C. at 537-538 and cases cited therein.

Even assuming that the payments designated as "parsonage allowances" were intended as remuneration for any duties performed by Mr. Pauli of a type ordinarily performed by a minister of the gospel, a matter as to which we remain wholly unconvinced, it is clear that the amount of such payments greatly exceeded that which under any stretch of the imagination could be considered reasonable compensation under the facts in this case. Mr. Pauli was employed full time as an executive of a company. So far as the record shows, the only church services of any type performed by Mr. Pauli during 1977 and 1978 consisted*113 of the approximately 15 "meetings" held mostly at petitioners' residence during those years. These meetings appear to have been loosely structured social functions including dinners and drinks, and apparently requiring little preparation by Mr. Pauli in the way of study or research. No marriages, baptisms, or funerals were performed in either year. ^{Furthermore, even if the amount paid to petitioner ostensibly as a "parsonage allowance" could somehow be considered as reasonable compensation, other payments were made*114 to or for petitioners' benefit that would support a finding of prohibited inurement. Petitioners received payments approximating $3,102 which allegedly represented reimbursement for church related expenses. Petitioners presented do documentary evidence concerning such payments, although such documentation was alleged to exist, nor did Mr. Pauli's testimony at trial identify or explain the nature of such purported expenses. In addition, funds from the church account were used to pay the tuition for petitioners' two children at the parochial school they attended, as well as the costs associated with their daughter's trip to France as part of a summer school program. We are not persuaded by petitioners' arguments that such payments were merely a part of a scholarship program conducted by the church. We note that the "scholarship" payments on behalf of petitioners' children greatly exceeded those payments designated as scholarships and made to other alleged members of the church and their children. The presence of such payments provides an independent basis for concluding that the ULC-LRC has not passed the private inurement test of section 170(c)(2)(C).}

Our conclusion herein that*115 the church's "net earnings" inured to petitioners' private benefit in violation of section 170(c)(2)(C) also leads to the conclusion that the church has failed the "operational" test of section 170(c)(2)(B). While they constitute separate requirements, the "private inurement" test and the "operated exclusively" for exempt purposes test prescribed by sections 170(c)(2)(C) and (B), respectively, often substantially overlap, in the sense that operating for an exempt purpose necessitates providing a public, and not a private benefit. See Unitary Mission Church v. Commissioner,supra,74 T.C. at 512, n. 7.

An organization is operated "exclusively" for exempt purposes if its activities primarily serve one or more exempt purposes and not, except to an insubstantial degree, a nonexempt purpose. Sec. 1.501(c)(3)-1(c)(1), Income Tax Regs.Canada v. Commissioner,supra,82 T.C. at 981 and cases cited thereat; see also sec. 1.501(c)(3)-1(d)(1), Income Tax Regs. An organization is not operated exclusively for an exempt*116 purpose if its net earnings, in whole or in part, inure to the benefit of a private individual. See B. H. W. Anesthesia Foundation v. Commissioner,72 T.C. 681">72 T.C. 681, 684, n. 3 (1979); Lowry Hospital Association v. Commissioner,66 T.C. 850">66 T.C. 850, 857, n. 8 (1976). See also sec. 1.501(c)(3)-1(c)(2), Income Tax Regs. Although the form by-laws adopted bythe ULC-LRCcontained a provision purportedly prohibiting its members from engaging in activities proscribed by section 170(c)(2)(C), it is clear from the record that such prohibitions were not obeyed, and Mr. Pauli did engage in such proscribed activities. Thus, the extensive private inurement in this case clearly precludes the ULC-LRC from satisfying the "operational" test of section 170(c)(2)(B), and provides additional support for our conclusion that the ULC-LRC was not a qualified recipient of deductible charitable contributions. *117 Before concluding our discussion of whether or not amounts transferred to the ULC-LRC qualify for the charitable contributions deduction under section 170, there are several other issues raised by petitioners that we will address.

Petitioners assert that this Court cannot consider facts and events occurring in 1978 in determining whether their transfers occurring in 1977 are deductible in that year under section 170. Petitioners are mistaken, confused, or both. It is true that we cannot redetermine petitioners' tax liability for any year other than that in issue. Cf. sec. 6214(b). However, we clearly may consider events occurring in other years to the extent they are relevant in determining petitioners' true tax liability for the year(s) before the Court, any contention to the contrary deserving no further discussion. That is all that we have done herein. Indeed, such facts are extremely relevant in a case such as this where petitioners' organization was not even formed until the latter part of the taxable year for which the deductions were claimed. Furthermore, we find petitioners' argument on this point highly incongruous and rather disingenuous, since petitioners' *118 claim that the ULC-LRC independently meets the requirements of section 170(c) relies heavily on the events that transpired in 1978, and necessarily so. But for those 1978 events that the parties have argued and the Court has considered at length, we would have easily found and stated in far fewer words that petitioners had utterly and completely failed to carry their burden of proof.

The First Amendment claims raised by petitioners must also fail. The provisions of section 170(c) in no way interfere with petitioners' right to the free exercise of religion.Their alleged religious activities are not being taxed. The free exercise clause does not require the Government to subsidize such activities. See Church of Scientology of California v. Commissioner,83 T.C. 381">83 T.C. 381, 458, slip op. at 117 and cases cited thereat (filed Sept. 24, 1984); Graham v. Commissioner, 83 T.C. , slip op. at 10-11 (filed October 15, 1984). Nor do the provisions of section 170(c) violate the establishment clause of theFirst Amendment. See Church of Scientology of California v. Commissioner,supra,83 T.C. 460-464, slip op. at 120-127 and cases cited*119 therein; Graham v. Commissioner,supra, 83 T.C. , slip op. at 11-13.

Petitioners also assert that a holding that the "parsonage allowances" received by them constitute inurement prohibited by section 170(c)(2)(C) would result in a denial of equal protection,

*120 Also erroneous is petitioners' claim that this Court lacks jurisdiction to determine whether the ULC-LRC is a church within the legal meaning of that term. Cf. Chapman v. Commissioner,48 T.C. 358">48 T.C. 358 (1967). We stress, however, that we have not addressed this issue herein, nor need we address the sincerity of petitioners' beliefs. Even assuming the ULC-LRC was legally a "church" and that its purposes and activities were religious in nature, matters on which we express no opinion, there are other factors present in this case that preclude it from qualifying as an eligible recipient of deductible charitable contributions under section 170(c)(2).

Finally, petitioners rely on Oppewal v. Commissioner,468 F. 2d 1000 (1st Cir. 1972), DeJong v. Commissioner,309 F. 2d 373 (9th Cir. 1962), and Rev. Rul. 76-185, 1 C.B. 60">1976-1 C.B. 60, for the proposition that even if part of the contributions to the ULC-LRC were used for nonexempt purposes, the balance of such contributions would still be deductible. Petitioners' reliance is misplaced. In both cases and in the revenue ruling, the respective donee-organization involved*121 met the requirements for an eligible recipient of deductible charitable contributions under section 170(c)(2). The issue instead was what portion of a payment to an admittedly qualified organization constituted a "charitable contribution" within the meaning of section 170(c) and what portion constituted payment for tuition or other financial or economic benefits the payor received or expected to receive from the donee-organization. Petitioners' case is readily distinguishable on its facts.

Petitioners having failed to demonstrate that the ULC-LRC met the "private inurement" test and "operational" test of section 170(c)(2), the church was not an eligible recipient for deductible charitable contributions. Accordingly, respondent's disallowance of the deductions claimed by petitioners for alleged contributions thereto must be sustained.

II. Alleged Contributions to Miscellaneous Organizations

Petitioners also claimed an aggregate of $500 on their 1977 tax return for alleged cash contributions to numerous organizations. Petitioners presented no documentary evidence establishing that such contributions were in fact made or, if so, who the recipients of such contributions*122 were. The only evidence offered in support of these contributions was Mr. Pauli's unsupported and self-serving testimony, to which we attach little weight. We note that even that scant testimony dealt with only $389 of the total $500 claimed as a deduction. Petitioners have not carried their burden of proof on this item. Welch v. Helvering,290 U.S. 111">290 U.S. 111 (1933); Rule 142(a), Tax Court Rules of Practice and Procedure. Respondent's disallowance thereof is sustained. ^{*123 To reflect the foregoing and respondent's concession on the partnership loss,}

Decision will be entered under Rule 155.

Footnotes

1. On April 2, 1982, this Court granted David A. Griffith's motion to withdraw as counsel. On September 27, 1983, this Court granted petitioners' motion to withdraw as counsel all persons other than Lloyd Taylor.↩
2. In the statutory notice of deficiency, respondent disallowed in toto petitioners' claimed distributive share of partnership losses for taxable year 1977 from a partnership known as "Robal One." Respondent has now conceded this adjustment. ↩
3. Our use of the word "church" to refer to petitioners' organization is for convenience only and is in no way intended to express any conclusion on our part as to whether petitioners' organization does, in fact, constitute a church or religious organization.↩
4. The duplicated language ("not permitted to be taken or carried on by an organization") appears in the form by-laws supplied by Modesto.↩
5. Although there were two checks drawn on the church account during 1977--one dated December 28, 1977 in the amount of $680.92; the other dated December 29, 1977 in the amount of $300--both of which were payable to Mr. Pauli, respondent has apparently accepted petitioners' claim that such checks were not actually received and presented for payment until after the close of petitioners' 1977 taxable year.↩
6. This deed was recorded with the San Mateo County, California Recorder's Office on December 27, 1977.↩
7. The balance sheet attached to Robal One's 1977 partnership return (Form 1065) also lists land with a value of $34,400 as an asset of the partnership, such land being that underlying the Spar Drive property.On Mr. Pauli's Schedule K-1 from Robal One for 1977, an amount of $17,200 is shown as Mr. Pauli's distributive share of the partnership's charitable contributions for the year. This is also attributable to the land underlying the Spar Drive property. From this, respondent apparently questions whether the Spar Drive property was transferred to the ULC-LRC by the partnership or by petitioners individually. Petitioners contend that the inclusion of the land as a partnership asset, and derivatively upon Mr. Pauli's Schedule K-1, resulted from an error of the partnership's accountant. In view of our disposition of this case, we need not resolve this matter. We assume for purposes of our opinion that petitioners themselves transferred the land to ULC-LRC.↩
8. Mr. Pauli claimed the church had 10 members in 1977, and increased its membership to 16 in 1978, 21 in 1979, and 27 in 1980, respectively. None of these alleged members appeared as witnesses at trial, nor was there any other evidence that such members existed other than Mr. Pauli's self-serving, uncorroborated, and wholly unpersuasive testimony.↩
9. Two marriages were apparently performed by Mr. Pauli in 1980.↩
10. Petitioners remained affiliated with FHIS until sometime in 1981, when that organization apparently became defunct.↩
11. Petitioners also assert that they claimed no charitable contributions deductions for any portion of this amount. However, petitioners did not introduce their 1978 tax return into evidence and offer nothing in support of this assertion but Mr. Pauli's own self-serving and wholly uncorroborated testimony. ↩
12. Mr. Supkoff was an accountant with Financial Concepts. He kept the church's books and records, for which his employer was paid a total of $300 in 1978. No original books and records were presented during discovery or at trial to corroborate the figures used by Mr. Supkoff to prepare the summary of the church's income and expenses for 1978, but petitioners did not dispute the accuracy of that summary.↩
13. Adjusted to reflect Mr. Pauli's testimony that two checks drawn on the church account and dated December 28, 1977 and December 29, 1977, respectively, were not actually received by petitioners until sometime in the early part of 1978. See footnote 5, supra.↩
14. Most of these checks were signed solely by Mr. Supkoff. We find this somewhat odd since Mrs. Pauli was supposedly the Treasurer of the ULC-LRC and as such would ordinarily be expected to sign such checks rather than the Secretary, Mr. Supkoff. This practice may merely have been a reflection of the fact Mr. Supkoff was keeping the church's books and records; it could also represent an awareness by petitioners that the presence of Mrs. Pauli's signature on such checks could be an adverse factor if the deductibility of contributions to the church was later questioned by respondent. Petitioners have offered no explanation of this ambiguity.↩
15. Petitioners apparently did not report the $300 salary payment attributable to the month of December 1977 as gross income for their 1978 taxable year. Nor did petitioners report the amount on their 1977 joint return.However, respondent has not raised any issue as to unreported income and we do not address it further herein.↩
16. In addition to the monetary contributions made to the above organizations, the church also allegedly sponsored a furniture drive in 1978 and collected a small amount of furniture which was then given to an organization named Penisula Volunteer, allegedly for use at a home for indigent and financially disadvantaged senior citizens operated by that organization. However, in view of the nature of the items collected--several old lampshades, several small paintings, some old clothes and assorted odds and ends--we think it at least as likely that the furniture that allegedly resulted from the church's furniture drive in actuality represented no more than the product of a bit of "spring cleaning" of petitioners' personal residence.↩
17. We point out that attached to petitioners' reply brief were several photostatic copies of documents purporting to represent minutes of church meetings. These documents were discussed at trial but neither party offered them into evidence.Ex parte affidavits and statements in briefs do not constitute evidence and will not be considered by the Court. Rule 143(b), Tax Court Rules of Practice and Procedure; Evans v. Commissioner,48 T.C. 704">48 T.C. 704, 709 (1967), affd. per curiam 413 F. 2d 1047 (9th Cir. 1969); West 80th Street Garage Co. v. Commissioner,12 BTA 798 (1928). See Perkins v. Commissioner,40 T.C. 330">40 T.C. 330, 340↩ (1963).Furthermore, even if these documents had been timely and properly introduced into evidence, they provide at best only minimal support for petitioners' position. These documents do not constitute resolutions or minutes of board meetings and even as minutes of church meetings, they are sketchy and essentially uninformative.
18. At trial, Mr. Pauli had in his possession a yellow legal pad which allegedly represented the only record of petitioners' contributions during 1977. This document was not offered into evidence by petitioners. Even if the documents had been offered by petitioners, it was not dated, there was no indication that it had been prepared contemporaneously with the donations it supposedly documented, and it contained errors on the face of the document.↩
19. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954, as amended and in effect during the year in issue.↩
20. We note that the Internal Revenue Service has recently withdrawn its recognition of the tax-exempt status of the Universal Life Church, Inc., of Modesto, California. See Internal Revenue Service News Release, SF 84-32, dated August 28, 1984.↩
21. See Rose v. Commissioner,T.C. Memo. 1984-537↩, n. 19 and cases cited therein.
22. The payments made directly to or on behalf of petitioners, plus the payments made on their behalf for their children's tuition, equal or slightly exceed the amount petitioners allegedly contributed to the church in 1978, plus the $3,000 cash contributed in 1977.↩
23. See also Rose v. Commissioner,supra.↩
24. Although two marriages were apparently performed in later years, this fact can have no effect on the reasonableness of Mr. Pauli's compensation in earlier years.↩
25. The regulations under section 501(c)(3) to determine whether a religious organization is tax exempt may also be utilized to determine whether contributions to an organization are deductible under section 170(c), because the requirements of section 501(c)(3) parallel those of section 170(c). See Calvin K. of Oakknoll v. Commissioner,69 T.C. 770">69 T.C. 770 (1978), affd. without published opinion 603 F. 2d 211 (2d Cir. 1979), cert. denied 444 U.S. 872">444 U.S. 872↩ (1979).
26. In light of our holdings on the "private inurement" test and the "operational" test, it is not necessary to consider respondent's alternative contentions that the ULC-LRC was not "organized" for exempt purposes, sec. 170(c)(2)(B), or that petitioners retained dominion and control over the cash and property transferred to the church and thus did not make a "contribution" thereto within the meaning of section 170(c). See generally Davis v. Commissioner,81 T.C. 806">81 T.C. 806, 815↩ (1983) (on appeal 9th Cir. June 25, 1984).
27. The equal protection clause of the Fourteenth Amendment applies to state, not Federal, actions. Jewell v. City of Covington,425 F. 2d 459 (5th Cir. 1970), cert. denied 400 U.S. 929">400 U.S. 929 (1970). The due process clause of the Fifth Amendment, however, embodies the principles of equal protection. Bolling v. Sharpe,347 U.S. 497">347 U.S. 497 (1954); United States v. Falk,479 F. 2d 616 (7th Cir. 1973); United States v. Thoresen,428 F. 2d 654↩ (9th Cir. 1970). For purposes of this opinion, we will refer to petitioners' argument as an equal protection argument.
28. Petitioners' request for $50,000 in attorney's fees, raised in their brief, must also be denied. This Court has no authority to grant such fees in this case. McQuiston v. Commissioner,78 T.C. 807">78 T.C. 807 (1982), affd. without published opinion 711 F. 2d 1064 (9th Cir. 1983). We note that under section 7430, added to the Code by section 292(a) of the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97-248, 96 Stat. 324, 572, 2 C.B. 462">1982-2 C.B. 462, 546-547, we now have authority to award reasonable litigation costs to a "prevailing party" in proceedings commenced in this Court after February 28, 1983. See also Rules 230-233, Tax Court Rules of Practice and Procedure. The petition in this case was filed July 24, 1981, and in any event petitioners are not the "prevailing party" herein.
Respondent's request for damages under section 6673, also raised only in his brief, will also be denied in this instance. Respondent has conceded the partnership adjustment, and we cannot find that petitioners instituted these proceedings "merely" for delay under section 6673 as it read at the time this case was filed. Respondent did not determine a negligence addition under section 6653(a) in the notice of deficiency, although the facts as developed at the trial would no doubt support such an addition.↩