MEMORANDUM FINDINGS OF FACT AND OPINION
STERRETT, Judge: Respondent, on March 21, 1974, issued a statutory notice of deficiency in which he determined the following deficiencies in petitioners' Federal income tax:
| Calendar Year | Deficiency |
| 1968 | $4,078.53 |
| 1969 | 1,818.54 |
| 1970 | 830.40 |
The following questions have been presented for our determination: (1) whether petitioners are entitled to a deduction for operational costs and depreciation for one of their automobiles in excess of the 75 percent deduction of such costs allowed by respondent for their taxable years 1969 and 1970; (2) whether petitioners are entitled to a deduction for operating costs and depreciation of their yacht for their taxable years 1968, 1969 and 1970; and (3) whether petitioners are entitled to deduct a casualty loss for their taxable year 1968 as a result of damage, if any, sustained by their yacht during a hurricane.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found. The stipulation of facts, together with the exhibits attached thereto, are incorporated herein by this reference.
Petitioners, F. Tyler Morgan and Helen W. Morgan, husband and wife, resided in Hixson, Tennessee at the time of filing their petition herein. Their joint Federal income tax returns for their taxable years 1968, 1969 and 1970 were filed with the internal revenue service center, Chamblee, Georgia. Helen W. Morgan is a party to this action only because she joined in the filing of these returns and, accordingly, F. Tyler Morgan will hereinafter be referred to as petitioner.
Petitioner, during the years in issue, was a combustion engineer. He was a manufacturer's representative, designing and supervising the installation of heavy firing equipment for industrial and commercial use. Additionally 2 weeks per month he did consultant work for East Tennessee Natural Gas. His office was located approximately 3-1/2 miles from his home. Both jobs required that petitioner travel extensively.
Petitioner owned two automobiles during 1969 and 1970. One car was primarily, but not exclusively, used in his trade or business. On his Federal income tax returns for his taxable years 1969 and 1970 petitioner claimed deductions related to the business use of his automobile calculated in the following manner:
| Year | Amount | Explanation |
| 1969 | $2,328.11 | gas and oil |
| 1,666.67 | depreciation |
| $3,994.78 |
| 1970 | $1,865.93 | gas and oil |
| 1,666.67 | depreciation |
| $3,532.60 | |
Respondent allowed 75 percent of these amounts ($2,996.08 for 1969 and $2,649.45 for 1970) based on his determination that 75 percent of the use of this car related to petitioner's business. During the taxable years in issue petitioner owned a yacht known as "Southern Lass IV". Petitioner purchased the yacht in 1967 for $33,000. The yacht is a Chris-Craft Constellation, 55 feet in length and 14-1/2 feet wide. When purchased it was 12 years old and had a sleeping capacity of 10 people.
The log maintained by petitioner on the yacht reflects the dates, places and names of persons on board at various times. Subsequent to the initiation of respondent's tax audit, petitioner made notations on the logs to indicate petitioner's recollection of the business relationship of such persons.
According to the yacht's log and guest register the following persons boarded it during the years in issue:
| | Business relationships |
| | per notations made |
| Dates | Persons on board | during 1974 audit |
| 1968 |
| Florida |
| Jan. 29 | Catherine Gladish | Sold heating equipment to |
| Raymond Gladish | machine shop |
| Herman Dowlin |
| Opal Dowlin |
| Lynn Challis |
| Feb. 1-2 | Herman & Opal Dowlin | Buy structual steel prods. |
| Fred & Lynn Challis |
| Tyler & Helen Morgan |
| March 9-11 | [no names entered] |
| April 14-15 | Tyler & Helen Morgan |
| Fred & Lynn Challis |
| Raymond & Catherine Gladish |
| May 4-11 | Tyler & Helen Morgan |
| Fred & Lynn Challis |
| Polly & Luther Wikerson | Prospt. Tenant |
| May 16-18 | Patsy & Clayton Burton | Employees |
| Glen, Catherine & |
| Glenn, Jr. Patterson | Employees |
| Capt. Ferrell |
| June 1-4 | [no names entered] |
| Florida to Chattanooga |
| June 5-25 |
| June 11 | Fred & Lynn Challis departed |
| June 13 | Capt. Paul Ferday came aboard |
| June 15 | Mrs. Byrd - Friend of Ernest Holmes |
| June 21 | Capt. Ferday signed off |
| Katherine & Raymond came aboard |
| June 23 | Gene & Chip Allen | Sold Equipment |
| Tennessee |
| July 6-7 | Tommy Rutledge, Mary Gill, |
| Frank & Trudie Jones |
| July 7 | Catherine & Raymond Gladish |
| July 13 | Lanny & Enis Bosion & Cindy |
| July 20 | Glenn & Mary E. Card |
| 1969 |
| April 17 | This is a trip requested by the |
| Tennessee Valley Authority. |
| Harry & Eileen Bank |
| Ruth & Graham Wells |
| Peter Billam |
| Bud & Mary Cliff |
| Joy & Dennis Gilliman |
| Bill Carsworth |
| Mr. & Mrs. James E. Watson |
| June 2 | Mr. & Mrs. Raymond Gladish |
| Mr. & Mrs. Gene Allen |
| August 10 | D. B. Jordan |
| Sarah Robbins |
| Frances & E.B. "Spider" Favre |
| Joe & Irene Renfroe |
| Aug. 29- | Maggie & Gene Allen |
| Sept. 4 | Bill Morgan |
| August 29 | Jim Watson |
| Dennis |
| Graham & Ruth Wells |
| Harry & Eileen Bank |
| Deno Jordan |
| August 30 | Joyce, Mrs. Marler, Children |
| were waiting for Bill |
| Mr. & Mrs. Dan W. Davis, Reba |
| Sept. 2 | Jake & Melba Hull | Bought Equipment |
| Oct. 5 | Sarah Robbins |
| Frances & E.B. Favre |
| 1970 |
| July 31 | Betty Baker | E.T.N.G. Employees did |
| Jeane & daughter Woolsey | consulting work for firm |
| Barbara Herron |
| Don Richardson |
| Marty Richardson | |
On June 1, 1968 petitioner left Florida intending to sail to Chattanooga, Tennessee. Dur to bad weather and warnings that an approaching hurricane would cause torrential rains the yacht was returned to its mooring. On June 5 the trip was resumed. Unbeknownst to petitioner the hurricane's course had reversed. It was headed back in the direction of the route chosen by petitioner. The impact of the hurricane hit the yacht while crossing Lake Okeechobee. As a result of damages incurred during the storm, petitioner submitted an insurance claim of $2,136.88 for "hull" damage to the exterior of the yacht. The policy had a $400 deductible clause. Petitioner recovered $1,736.88. He submitted no claim for damages to the interior of the yacht.
The insurance policy covered the following damages:
Upon the said Vessel, including its Hull, Spars, Sails, Materials, Tenders, Boats, Furniture, Machinery and other fittings, for the value stipulated under the heading "Agreed Value" in the Hull coverage.
due to marine perils, losses and misfortunes.
Petitioner did not claim a section 165, I.R.C. 1954 casualty loss on his 1968 Federal income tax return. Neither did he claim a section 165 loss in his petition to this Court. At trial petitioner moved to amend his original pleadings to allege a section 165(c)(3) loss for damages incurred during the hurricane to the interior of the yacht, and in his brief sets the amount of that loss at not less than $25,000.
OPINION
Petitioner has presented three issues for our determination. The first of these concerns the availability of a deduction in 1969 and 1970 for operational costs and depreciation for an automobile in excess of the 75 percent deduction allowed by respondent.
Of petitioner's two cars, one was used primarily in his trade or business. He testified that this car was occasionally used for other purposes. This car was also used for travel between his home and office when it was necessary for him to stop there. Petitioner offered no records delineating the amount of use that was personal to him. We find, therefore, that there was an appreciable degree of personal use of this car.
The burden of proving that respondent's determination is erroneous rests on petitioner. Welch v. Helvering,290 U.S. 111 (1933). With no hard evidence and only vague generalities on the record with respect to the amount of personal use, we find that petitioner has failed to carry his burden of establishing business use in excess of 75 percent. Marcello v. Commissioner,43 T.C. 168 (1964), affd. 380 F.2d 499 (5th Cir. 1967).
The second issue for our determination is whether petitioner is entitled to a deduction for operating costs and depreciation of the yacht for each of his taxable years 1968, 1969 and 1970. Because of the typically nonbusiness nature of boating a deduction under section 162 will not be allowed unless we find that petitioner has complied with the substantiation requirements of section 274(a) and (d). 1
In Nicholls, North, Buse Co. v. Commissioner,56 T.C. 1225 (1971) we found that, where only the guests' names and their business affiliation were concurrently recorded in the boat's log but not the specific business purpose served or even that a business discussion in fact took place, the section 274 substantiation requirements are not satisfied. Petitioner's argument is weaker than that of the taxpayer in Nicholls because he failed to make concurrent notations on the log with respect to the business affiliation of his guests. Neither do we find the two letters confirming that the Gladishes and the Hulls had been "entertained" as "guests" on the yacht corroborative of a business use. The letters state no dates or business purposes nor do they specify business discussions held on such trips. We find that petitioner has failed to comply with the substantiation requirements of section 274.
The third issue concerns the allowance of a section 165(c)(3) casualty loss. At trial petitioner moved to amend his original pleadings to allege such loss for his taxable year 1968. The original pleadings were filed on June 19, 1974. The case was set for trial on May 28, 1975. At that time petitioner was granted a continuance. The case was reset for trial on June 14, 1976. Again petitioner was granted a continuance. The case was finally heard on May 26, 1977. Subsequently the motion was filed in written form. Petitioner concedes that no mention of such assignment of error in respondent's determination was made until a conference with respondent some 3 months before trial.
Respondent contends that this motion must be denied due to its untimeliness. He contends that he lacked adequate notice to prepare a rebuttal to petitioner's allegation. In California Brewing Assn. v. Commissioner,43 B.T.A. 721 (1941), affd. per curiam 129 F.2d 321 (9th Cir. 1942), we denied such a motion, made at time of trial, where granting it would have caused undue delay and actual unfairness. While we strongly sympathize with respondent's position on the instant facts and would be sorely tempted to sustain his objection, we will not do so because we hold that petitioner cannot prevail on the merits.
Petitioner claims that he sustained damages to his yacht in 1968 during a hurricane that should result in a section 165(c)(3) casualty loss of between $25,000 and $30,000.
In general, section 165(c)(3)2 allows a deduction for any casualty loss sustained during the taxable year if not compensated for by insurance. For purposes of applying this section "compensated for by insurance" means covered by insurance. Axelrod v. Commissioner,56 T.C. 248 (1971).
The damages that petitioner alleges gave rise to his loss were to the interior of the yacht and were covered under the insurance policy.
When damages are covered by an insurance policy but not claimed for fear of cancellation or other business reasons, they no longer are considered to be the result of a casualty but rather losses voluntarily incurred. Axelrod v. Commissioner,supra;Kentucky Utilities Co. v. Commissioner,394 F.2d 631 (6th Cir. 1968).
Therefore, we need not determine the amount, if any, of damages incurred to petitioner's yacht during the hurricane. We find that petitioner sustained a casualty loss in his taxable year 1968 only to the extent of the amount of the insurance policy's deductible clause, $400. This amount is subject to the $100 floor. Therefore, his deductible section 165(c)(3) loss is $300.
Decision will be entered under Rule 155.