T.C. Memo. 1997-522
UNITED STATES TAX COURT
ELIZABETH H. AND ALBERT B. TURNER, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 19966-95. Filed November 19, 1997.
Elizabeth H. Turner and Albert B. Turner, pro se.
Jaye Andras Caffrey, for respondent.
MEMORANDUM OPINION
PAJAK, Special Trial Judge: This case was heard pursuant to
section 7443A(b)(3) of the Code and Rules 180, 181, and 182. All
section references are to the Internal Revenue Code in effect for
the year in issue. All Rule references are to the Tax Court
Rules of Practice and Procedure.
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Respondent determined a deficiency in petitioners' 1991
Federal income tax in the amount of $2,971. The issue for
decision is whether petitioners are entitled to deductions for
"away from home" expenses pursuant to section 162(a)(2).
Some of the facts have been stipulated and are so found.
Petitioners resided in Houston, Texas, at the time they filed
their petition. For clarity and convenience, the findings of
fact and opinion have been combined.
Petitioner Elizabeth H. Turner (petitioner) was a college
professor. She taught United States history with a special
emphasis on the study of nineteenth and twentieth century
southern women.
From 1979 to 1982, petitioner taught history at Queens
College in Charlotte, North Carolina. Petitioners owned a house
in Charlotte, North Carolina, where they lived from January 1,
1974, through July 1, 1982. In 1982, petitioners moved from
Charlotte, North Carolina, to Houston, Texas. At that time, they
leased the house in Charlotte to tenants at least to the date of
trial.
Petitioners moved to Houston, Texas, because petitioner-
husband accepted a job in Houston and so that petitioner could
pursue her doctorate degree in history at Rice University,
Houston, Texas. Petitioner received her Ph.D. in history from
Rice University in 1990.
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In 1989, petitioner was offered a guest lecturer teaching
position at the University of North Carolina at Charlotte, North
Carolina. She accepted the offer and moved to North Carolina.
She taught United States and Southern History during the 1989-
1990 academic year at the University of North Carolina at
Charlotte. She replaced a faculty member who had taken a 1-year
leave of absence. Upon the completion of her term as guest
lecturer, the University of North Carolina at Charlotte was
unable to offer petitioner further employment.
As stated above, petitioner had taught at Queens College in
Charlotte, North Carolina, from 1979 to 1982. After applying to
many schools, petitioner again was offered a teaching position at
Queens College, Charlotte, North Carolina, for the 1990-1991
academic year. She accepted the position as an Assistant
Professor of History. Petitioner had a "tenure-track" position
at Queens College.
Petitioners' teenage daughter, Laura, accompanied petitioner
to Charlotte, North Carolina. Laura attended high school in
Charlotte, North Carolina, from August 1990, through June 1991.
Laura graduated from that high school in June 1991.
Laura applied to and was accepted at the North Carolina
School of the Arts in Winston-Salem, North Carolina, for the
1991-1992 academic year. She continued at the North Carolina
School of the Arts through the fall semester of 1992.
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On November 5, 1990, while petitioner was employed at Queens
College, she applied for employment at the University of Alabama
at Birmingham and the University of South Alabama. On
November 18, 1990, petitioner applied for a position as Assistant
Professor of History at the University of Houston-Downtown,
Houston, Texas. Petitioner was not offered a position by either
university in Alabama.
In mid-March 1991, petitioner was offered employment by the
University of Houston-Downtown. By a May 10, 1991, letter from
the president of Queens College, petitioner was offered a
continued appointment as Assistant Professor of History for the
1991-1992 academic year. On May 13, 1991, the president of the
University of Houston-Downtown formally offered her a position.
Petitioner accepted the offer from the University of Houston-
Downtown.
On their 1991 Federal income tax return, petitioners claimed
deductions related to petitioner's employment in Charlotte, North
Carolina, in the amount of $9,586, as follows:
Rent $ 2,438
Electricity 665
Phone 784
Auto Expenses 862
Maintenance 360
Food 3,120
Postage 99
Return to Houston 1,158
Food 100
Total 9,586
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Respondent disallowed all of the unreimbursed employee
business expenses on the basis that petitioner was not away from
her tax home when she incurred the expenses.
Deductions are a matter of legislative grace. New Colonial
Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). Petitioners bear
the burden to prove that respondent's determination is incorrect.
Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).
Section 262 specifically disallows the deduction of personal
living expenses. However, section 162(a)(2) permits a deduction
for traveling expenses (including meals and lodging) incurred
while away from home in the pursuit of a trade or business. To
qualify for this deduction, three conditions must be satisfied:
(1) The expense must be a reasonable and necessary traveling
expense; (2) the expense must be incurred while away from home;
and (3) the expense must be incurred in pursuit of business.
Commissioner v. Flowers, 326 U.S. 465, 470 (1946). The
determination of whether these conditions have been met is a
question of fact. Commissioner v. Flowers, supra at 470.
This Court has held that a taxpayer's home for purposes of
section 162(a)(2) is the vicinity of the taxpayer's principal
place of employment and not where his or her personal residence
may be located. Mitchell v. Commissioner, 74 T.C. 578, 581
(1980); Kroll v. Commissioner, 49 T.C. 557, 561-562 (1968). An
exception exists when a taxpayer accepts employment away from
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home which is temporary, as opposed to indefinite, in duration.
Peurifoy v. Commissioner, 358 U.S. 59, 60 (1958). If the
employment is temporary, the tax home is considered to be the
place of the taxpayer's residence; whereas, if the employment is
indefinite, the tax home is the location of employment. Kroll v.
Commissioner, supra at 562. Employment is considered to be
temporary if termination within a short period could be expected.
Mitchell v. Commissioner, supra at 581; Tucker v. Commissioner,
55 T.C. 783, 786 (1971). In contrast, employment is considered
indefinite if termination could not be expected or foreseen
within a fixed or reasonably short period of time. Mitchell v.
Commissioner, supra at 581. This expectation is measured by what
was contemplated at the time employment was accepted.
McCallister v. Commissioner, 70 T.C. 505, 509 (1978). The
duration of employment is a factual issue, and no single element
is determinative. Norwood v. Commissioner, 66 T.C. 467, 470
(1976).
Based on this record, we conclude that petitioner's
employment at Queens College was indefinite in 1991. Petitioner
had been employed previously by Queens College. During 1991,
petitioner was employed as a full-time assistant professor at
Queens College. It was a tenure-track position. Under the terms
of her contract, tenure may be granted after a designated
probationary period. A grant of tenure confers continuous
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appointment. Nothing in the record indicates that Queens College
expressed any intention to limit the duration of petitioner's
employment.
Petitioners argue that a tenure-track position should be
considered temporary because petitioner could be terminated after
her nine-month appointment. The absence of permanence does not
require a finding that petitioner's employment was temporary.
Garlock v. Commissioner, 34 T.C. 611 (1960). An "employment
which merely lacks permanence is indefinite unless termination is
foreseeable within a short period of time." Kasun v. United
States, 671 F.2d 1059, 1061 (7th Cir. 1982); Boone v United
States, 482 F.2d 417, 419-420 (5th Cir. 1973) (This is the
circuit to which this case is appealable).
Regardless of whether there existed the possibility that
petitioner would not be reappointed, we are convinced that
petitioner had a reasonable expectation that her employment at
Queens College would continue for a substantial or indefinite
period of time. In fact, petitioner was offered continued
employment at Queens College. However, she declined the offer.
We conclude that petitioner's employment was indefinite,
and, therefore, she was not away from her tax home. Petitioner's
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tax home in 1991 was Charlotte, North Carolina, and not Houston,
Texas. Respondent's determination is sustained.
Decision will be entered
for respondent.