Bogue v. Comm'r

T.C. Memo. 2007-150

UNITED STATES TAX COURT

STEVEN S. AND LISA J. BOGUE, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 24754-05. Filed June 14, 2007.

Steven S. and Lisa J. Bogue, pro sese.

Blaine Holiday, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

KROUPA, Judge: Respondent determined a $3,442 deficiency in

petitioners’ Federal income tax for 2003. After concessions,1 we

are asked to decide two issues. First, we are asked to decide

whether petitioner Steven S. Bogue (Mr. Bogue) was away from home

when he worked as an airline mechanic for Northwest Airlines

1
See infra note 2 for the concessions each party made.
 - 2 -

(NWA) in Detroit, Washington, New York, and Milwaukee to

determine whether petitioners are entitled to deduct expenses for

his vehicle, meals, and lodging while Mr. Bogue was away from

Farmington, Minnesota, in the Minneapolis area where he normally

lived. We conclude that he was not away from home. Second, we

are asked to decide whether petitioners substantiated various

other expenses. We conclude that petitioners have substantiated

and are entitled to deduct some of these other expenses.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

Petitioners resided in Farmington, Minnesota, at the time they

filed the petition.

Mr. Bogue’s Employment With Northwest Airlines

Mr. Bogue started as a mechanic with the U.S. Navy in 1981.

He enjoyed working on planes and enrolled in an airframe and

power plant school in Wyoming in 1992 to obtain the education

necessary to be licensed as an airline mechanic by the FAA.

After working for B.F. Goodrich for a short time, Mr. Bogue

accepted a position with NWA in Minneapolis in 1996. Mr. Bogue

characterized the NWA job as his “dream job” because he could

work in the Midwest, where he had grown up. Mr. Bogue worked in

Minneapolis for most of his career with NWA.

NWA sent layoff notices to some of its employees when it

experienced financial difficulties. The employees receiving the
 - 3 -

notices could either choose to accept the layoff or exercise

their seniority. Seniority depended on the length of time an

employee had worked for NWA, regardless of where the airline

facility was located. An employee with higher seniority could

bump an employee with less seniority and take that employee’s

position. The employee with less seniority could then take the

layoff or find another employee with less seniority to bump.

This seniority bumping arrangement was in place across the

country, so that an NWA mechanic looking to keep his or her job

at NWA had to look at several different cities to find a less

senior employee to bump. Most employees exercised their

seniority in the way that would give them positions in cities as

close as possible to their families.

Mr. Bogue worked in Minneapolis until mid-April 2003, when

he received a bump notice. Mr. Bogue chose to exercise his

seniority and bump another employee rather than accept the

layoff. Bumping another employee meant he could stay an NWA

employee and could retain his health benefits. This was

important to Mr. Bogue because his wife, petitioner Lisa J. Bogue

(Mrs. Bogue), and young child relied on these benefits. Mr.

Bogue first exercised his seniority to take a position in

Detroit, Michigan, where he worked from April 16 until April 27,

2003. He was then bumped again and took a position in

Washington, D.C., on April 28, 2003. He worked in the
 - 4 -

Washington, D.C., area first at Ronald Reagan Washington National

Airport until May 8, 2003, and then at Dulles International

Airport until May 15, 2003. Mr. Bogue then exercised his

seniority to take a position in the New York, New York, area. He

worked at LaGuardia International Airport from May 16 until June

18, 2003, and John F. Kennedy International Airport from June 19

until July 3, 2003. Mr. Bogue was then bumped again and took a

position in Milwaukee, Wisconsin, where he worked from July 4

until August 18, 2003. Mr. Bogue was laid off on August 18,

2003. There was no one more junior for Mr. Bogue to bump at the

time.

After Mr. Bogue was laid off on August 18, 2003, he

unsuccessfully searched for work in Minneapolis. He was recalled

to an NWA position in Milwaukee, Wisconsin, on November 3, 2003.

He worked for NWA in Milwaukee until early 2004.

Mr. Bogue’s positions in Detroit, Washington, New York, and

Milwaukee had no specific end date. After Mr. Bogue was laid off

from his position in Minneapolis, no NWA position was available

for him to return to in Minneapolis. He was forced to bump other

employees and work in different cities to stay with NWA. Mr.

Bogue expected to return to Minneapolis as soon as there was an

NWA job available in Minneapolis that he had enough seniority to

obtain. The timing of a return to Minneapolis depended on NWA’s

needs for mechanics in that city as well as the choices of other
 - 5 -

mechanics also subject to the seniority system.

Mrs. Bogue, who was expecting the family’s second child in

2003, and petitioners’ young child remained in Farmington,

Minnesota, at the family residence while Mr. Bogue worked in

Detroit, Washington, New York, and Milwaukee. Mr. Bogue could

commute via air travel to Detroit and LaGuardia Airport in New

York and could occasionally drive to and from Milwaukee. He

rented an apartment with other NWA mechanics in Milwaukee, stayed

in a friend’s trailer for part of the time he worked in New York,

and stayed in hotels occasionally as well.

Mr. Bogue had a cellular phone, and petitioners had America

Online (AOL) Internet service at their Minnesota residence during

2003. Mr. Bogue claimed he purchased safety shoes and safety

glasses during 2003.

Mr. Bogue wore a uniform while he worked for NWA. His

uniform would get covered in debris and chemicals as he worked,

and he needed to clean the uniform frequently.

Petitioners claimed they contributed some items to charity

and made cash contributions in 2003.

Petitioners’ Return

Petitioners claimed certain expenses on Schedule A, Itemized

Deductions, on the joint return for 2003. Respondent examined

the return and issued petitioners a deficiency notice in which he

disallowed many of the expenses. Of the expenses still in
 - 6 -

dispute,2 petitioners assert they are entitled to deduct claimed

cash and noncash charitable contributions as well as unreimbursed

employee business expenses. The unreimbursed employee business

expenses petitioners claimed include expenses for Mr. Bogue’s

vehicle, lodging, and meals while in Detroit, Washington, New

York, and Milwaukee as well as expenses for Internet access,

safety glasses and safety shoes, uniform cleaning, and cellular

telephone.

Petitioners timely filed a petition.

OPINION

The parties resolved many of the disputed expenses before

trial. We are asked to determine whether petitioners are

entitled to deduct the remaining expenses. We begin by

considering whether Mr. Bogue was away from home when he incurred

expenses for his vehicle, lodging, and meals in Detroit,

Washington, New York, and Milwaukee.

2
Respondent concedes that petitioners are entitled to deduct
a portion of medical and dental expenses, State and local income
taxes, real estate taxes, a portion of personal property taxes,
home mortgage interest, a portion of points, tax preparation
fees, job search expenses, job search mileage, a portion of
maintenance of uniforms expenses, and union dues. Petitioners
concede that they are not entitled to deduct miscellaneous
expenses, miscellaneous office supplies, certain amounts for
tools, professional publications, financial publications, and
miscellaneous investment expenses, as well as portions of medical
and dental expenses, personal property taxes, points, and certain
amounts for uniforms.
 - 7 -

Travel Expenses While Away From Home

We begin by briefly outlining the rules for deducting travel

expenses. A taxpayer may deduct reasonable and necessary travel

expenses such as vehicle expenses, meals, and lodging incurred

while away from home in the pursuit of a trade or business.

Secs. 162(a)(2), 262(a).3 A taxpayer must show that he or she

was away from home when he or she incurred the expense, that the

expense is reasonable and necessary, and that the expense was

incurred in pursuit of a trade or business. Commissioner v.

Flowers, 326 U.S. 465, 470 (1946). The determination of whether

the taxpayer has satisfied these requirements is a question of

fact. Id.

The purpose of the deduction for expenses incurred away from

home is to alleviate the burden on the taxpayer whose business

needs require him or her to maintain two homes and therefore

incur duplicate living expenses. Kroll v. Commissioner, 49 T.C.

557, 562 (1968). The duplicate costs are not deductible where

the taxpayer maintains two homes for personal reasons. Sec. 262;

Commissioner v. Flowers, supra at 474.

A taxpayer may deduct the expenses he or she incurred while

away from home. Sec. 162(a)(2). The word “home” for purposes of

section 162(a)(2) has a special meaning. It generally refers to

3
All section references are to the Internal Revenue Code in
effect for 2003, and all Rule references are to the Tax Court
Rules of Practice and Procedure, unless otherwise indicated.
 - 8 -

the area of a taxpayer’s principal place of employment, not the

taxpayer’s personal residence. Daly v. Commissioner, 72 T.C.

190, 195 (1979), affd. 662 F.2d 253 (4th Cir. 1981); Kroll v.

Commissioner, supra at 561-562.

There is an exception to the general rule that a taxpayer’s

tax home is his or her principal place of employment. Peurifoy

v. Commissioner, 358 U.S. 59, 60 (1958). The taxpayer’s tax home

may be the taxpayer’s personal residence if the taxpayer’s

employment away from home is temporary. Id.; Mitchell v.

Commissioner, T.C. Memo. 1999-283. On the other hand, the

exception does not apply and the taxpayer’s tax home remains the

principal place of employment if the employment away from home is

indefinite. Kroll v. Commissioner, supra at 562.

It is presumed that a taxpayer will generally choose to live

near his or her place of employment. Frederick v. United States,

603 F.2d 1292, 1295 (8th Cir. 1979). A taxpayer must, however,

have a principal place of employment and accept temporary work in

another location to be away from home. Kroll v. Commissioner,

supra. A person who has no principal place of business nor a

place he or she resides permanently is an itinerant and has no

tax home from which he or she can be away. Deamer v.

Commissioner, 752 F.2d 337, 339 (8th Cir. 1985), affg. T.C. Memo.

1984-63; Edwards v. Commissioner, T.C. Memo. 1987-396.

All the facts and circumstances are considered in
 - 9 -

determining whether a taxpayer has a tax home. See Rev. Rul. 73-

529, 1973-2 C.B. 37 (describing objective factors the

Commissioner considers in determining whether a taxpayer has a

tax home). The taxpayer must generally have some business

justification to maintain the first residence, beyond purely

personal reasons, to be entitled to deduct expenses incurred

while temporarily away from that home. Hantzis v. Commissioner,

638 F.2d 248, 255 (1st Cir. 1981); Bochner v. Commissioner, 67

T.C. 824, 828 (1977); Tucker v. Commissioner, 55 T.C. 783, 787

(1971). Where a taxpayer has no business connections with the

area of primary residence, there is no compelling reason to

maintain that residence and incur substantial, continuous, and

duplicative expenses elsewhere. See Henderson v. Commissioner,

143 F.3d 497, 499 (9th Cir. 1998), affg. T.C. Memo. 1995-559;

Deamer v. Commissioner, supra; Hantzis v. Commissioner, supra.

In that situation, the expenses incurred while temporarily away

from that residence are not deductible. Hantzis v. Commissioner,

supra; Bochner v. Commissioner, supra; Tucker v. Commissioner,

supra; see McNeill v. Commissioner, T.C. Memo. 2003-65; Aldea v.

Commissioner, T.C. Memo. 2000-136.

Once Mr. Bogue was bumped from Minneapolis, he had no job to

return to there. His choices were to be laid off and have no

work, or to bump other employees and move to different cities to

continue working. NWA gave Mr. Bogue no end date for his
 - 10 -

positions in Detroit, Washington, New York, and Milwaukee. NWA

no longer required Mr. Bogue to perform any services whatsoever

in the Minneapolis area once he was bumped. Mr. Bogue introduced

evidence that he searched for work in the Minneapolis area but

was unsuccessful. Although Mrs. Bogue and the family remained in

the family residence with occasional visits from Mr. Bogue while

Mr. Bogue worked in Detroit, Washington, New York, and Milwaukee,

this fact alone does not dictate that Mr. Bogue’s tax home was in

Farmington, Minnesota, where the family residence was located.

Unlike traveling salespersons who may be required to return to

the home city occasionally between business trips, Mr. Bogue’s

business ties to the Minneapolis area ceased when he was bumped.

The Court understands that the NWA mechanics’ lives were

unsettled and disrupted. Mechanics did not know how long they

would have a job in one specific location. They only knew the

system was based on seniority. They could bump less senior

employees, and they could be bumped by more senior employees.

While we acknowledge that Mr. Bogue would have liked to return to

the Minneapolis area to work for NWA, Mr. Bogue did not know when

such a return would be possible due to the seniority system. The

likelihood of Mr. Bogue’s return to a position in Minneapolis

depended on NWA’s needs for mechanics there as well as the

choices of more senior mechanics. Mr. Bogue did not know how

long he would be in Detroit, Washington, New York, or Milwaukee,
 - 11 -

or where he might go next. It was not foreseeable that he would

be able to return to Minneapolis at any time due to the seniority

system. Thus, we conclude there was no business reason for

petitioners to maintain a home in the Minneapolis area.

Petitioners kept the family residence in the Minneapolis area for

purely personal reasons. Petitioners have failed to prove that

Mr. Bogue had a tax home in 2003. Accordingly, Mr. Bogue was not

away from home in Detroit, Washington, New York, and Milwaukee,

and the expenses he incurred while there are not deductible.

Substantiation of Expenses

We next turn to the substantiation issues to determine

whether petitioners are entitled to deduct any remaining

expenses. We begin by noting the fundamental principle that the

Commissioner’s determinations are generally presumed correct, and

the taxpayer bears the burden of proving that these

determinations are erroneous.4 Rule 142(a); INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, 290

U.S. 111 (1933). Moreover, deductions are a matter of

legislative grace, and the taxpayer has the burden to prove he or

she is entitled to any deduction claimed. Rule 142(a); Deputy v.

du Pont, 308 U.S. 488, 493 (1940); New Colonial Ice Co. v.

4
Petitioners do not claim the burden of proof shifted to
respondent under sec. 7491(a). Petitioners also did not
establish they satisfy the requirements of sec. 7491(a)(2). We
therefore find that the burden of proof remains with petitioners.
 - 12 -

Helvering, 292 U.S. 435, 440 (1934); Welch v. Helvering, supra.

This includes the burden of substantiation. Hradesky v.

Commissioner, 65 T.C. 87, 90 (1975), affd. per curiam 540 F.2d

821 (5th Cir. 1976).

A taxpayer must substantiate amounts claimed as deductions

by maintaining the records necessary to establish he or she is

entitled to the deductions. Sec. 6001; Hradesky v. Commissioner,

supra. The taxpayer shall keep such permanent records or books

of account as are sufficient to establish the amounts of

deductions claimed on the return. Sec. 6001; sec. 1.6001-1(a),

(e), Income Tax Regs. The Court need not accept a taxpayer’s

self-serving testimony when the taxpayer fails to present

corroborative evidence. Beam v. Commissioner, T.C. Memo. 1990-

304 (citing Tokarski v. Commissioner, 87 T.C. 74, 77 (1986)),

affd. without published opinion 956 F.2d 1166 (9th Cir. 1992).

Unreimbursed Employee Business Expenses

We shall now consider whether petitioners are entitled to

deduct the claimed expenses, beginning with the unreimbursed

employee business expenses petitioners claimed on Schedule A.

In general, all ordinary and necessary expenses paid or

incurred in carrying on a trade or business during the taxable

year are deductible, but personal, living, or family expenses are

not deductible. Secs. 162(a), 262. Services performed by an

employee constitute a trade or business. O’Malley v.
 - 13 -

Commissioner, 91 T.C. 352, 363-364 (1988); sec. 1.162-17(a),

Income Tax Regs.

If a taxpayer establishes that he or she paid or incurred a

deductible business expense but does not establish the amount of

the deduction, we may approximate the amount of the allowable

deduction, bearing heavily against the taxpayer whose

inexactitude is of his or her own making. Cohan v. Commissioner,

39 F.2d 540, 543-544 (2d Cir. 1930). For the Cohan rule to

apply, however, a basis must exist on which this Court can make

an approximation. Vanicek v. Commissioner, 85 T.C. 731, 742-743

(1985). Without such a basis, any allowance would amount to

unguided largesse. Williams v. United States, 245 F.2d 559, 560

(5th Cir. 1957).

Certain business expenses may not be estimated because of

the strict substantiation requirements of section 274(d). See

sec. 280F(d)(4)(A); Sanford v. Commissioner, 50 T.C. 823, 827

(1968), affd. per curiam 412 F.2d 201 (2d Cir. 1969). For such

expenses, only certain types of documentary evidence ordinarily

will suffice.

Internet Access Expenses

We now examine those expenses not subject to the strict

substantiation requirements. Petitioners claimed $160 for

Internet access expenses during 2003. We have characterized

Internet expenses as utility expenses. Verma v. Commissioner,
 - 14 -

T.C. Memo. 2001-132. Strict substantiation therefore does not

apply, and we may estimate the business portion of utility

expenses under the Cohan rule. See Pistoresi v. Commissioner,

T.C. Memo. 1999-39.

Petitioners introduced copies of credit card statements

indicating that AOL charged petitioners $23.90 per month in 2003.

Petitioners failed to introduce evidence to show that Mr. Bogue’s

employer, NWA, required him to have Internet access or that he

used the Internet for his work at NWA.5 Petitioners are

therefore not entitled to deduct any Internet access expenses as

employee business expenses for 2003.

Safety Glasses and Safety Shoes Expenses

Petitioners claimed $150 for safety glasses and $124 for

safety shoes for 2003. A taxpayer is entitled to deduct

unreimbursed employee expenses only to the extent that the

taxpayer demonstrates that he or she could not have been

reimbursed for such expenses by his or her employer. Sec.

162(a); Podems v. Commissioner, 24 T.C. 21, 23 (1955).

Petitioners did not provide any documentation showing that

Mr. Bogue purchased safety glasses or safety shoes in 2003.

5
Mr. Bogue stated at trial that he used the Internet for job
searching during 2003. Petitioners did not offer any evidence or
estimate to break down the cost attributable to job searching or
how much was for personal use, and we decline to speculate. We
also note that respondent has conceded that petitioners are
entitled to deduct $75 for job searching expenses.
 - 15 -

Moreover, the parties introduced the NWA airline mechanics’ union

contract (union contract), which contradicts petitioners’ claimed

deductions for safety glasses and safety shoes expenses. The

union contract indicates that NWA provided its mechanics with

safety glasses and safety shoes. Alternatively, NWA would

reimburse employees up to $90 for each of the safety glasses and

the safety shoes if the employee chose to buy his or her own.

Thus, even if petitioners had shown that Mr. Bogue purchased

safety glasses and safety shoes in 2003, petitioners have failed

to demonstrate that NWA did not reimburse Mr. Bogue for the costs

of these items. See Podems v. Commissioner, supra at 23.

Petitioners are therefore not entitled to deduct the costs of

safety glasses or safety shoes as employee business expenses for

2003.

Cleaning Expenses for Uniforms

Petitioners claimed $822 for cleaning expenses for Mr.

Bogue’s NWA uniforms. Expenses for uniforms are deductible if

the uniforms are of a type specifically required as a condition

of employment, the uniforms are not adaptable to general use as

ordinary clothing, and the uniforms are not worn as ordinary

clothing. Yeomans v. Commissioner, 30 T.C. 757, 767-769 (1958);

Beckey v. Commissioner, T.C. Memo. 1994-514.

We are satisfied that petitioners incurred deductible

expenses for uniform cleaning. Mr. Bogue gave unclear testimony,
 - 16 -

however, regarding how he calculated the $822 for cleaning costs.

Mr. Bogue introduced a document on the letterhead of his CPA that

also purports to indicate how the sum was calculated, but it

suggests an excessive amount, 22 loads of laundry per month,

roughly corresponding to the number of days Mr. Bogue worked each

month.

We may estimate the amount of deductible cleaning expenses

under the Cohan rule. Mr. Bogue testified that he paid $2 to $4

for each cycle and that he did two loads of laundry per week. We

find that Mr. Bogue did approximately eight loads of laundry per

month at $2 for each wash cycle and $2 for each dry cycle.

Petitioners are therefore entitled to deduct $304 of uniform

cleaning expenses in 2003.

Cellular Phone Expenses

Petitioners claimed $240 of cellular phone expenses for

2003. Cellular phones are included in the definition of “listed

property” for purposes of section 274(d)(4) and are thus subject

to the strict substantiation requirements. Sec.

280F(d)(4)(A)(v); Gaylord v. Commissioner, T.C. Memo. 2003-273.

A taxpayer must establish the amount of business use and the

amount of total use for the property to substantiate the amount

of expenses for listed property. Nitschke v. Commissioner, T.C.

Memo. 2000-230; sec. 1.274-5T(b)(6)(i)(B), Temporary Income Tax

Regs., 50 Fed. Reg. 46016 (Nov. 6, 1985). Expenses subject to
 - 17 -

strict substantiation may not be estimated under the Cohan rule.

Sanford v. Commissioner, 50 T.C. at 827.

Mr. Bogue did not prove that NWA required him to have a

cellular phone. Mr. Bogue also did not offer any evidence

indicating how much he used his cellular phone for business use

and how much for personal use. Mr. Bogue failed to establish

that he incurred any expenses to use his cellular phone for

business purposes in addition to those he would have incurred had

he used it only for personal purposes. Petitioners are therefore

not entitled to deduct any cellular phone expenses for 2003.

Charitable Contributions

We finally consider petitioners’ charitable contributions.

Petitioners claimed they contributed $111 cash and property worth

$200 to charitable organizations in 2003. Charitable

contributions a taxpayer makes are generally deductible under

section 170(a). No deduction is allowed, however, for any

contribution of $250 or more unless the taxpayer substantiates

the contribution by a contemporaneous written acknowledgment of

the contribution by a qualified donee organization.6 Sec.

6
There are now stricter requirements for contributions of
money. Sec. 170(f)(17). No deduction for a contribution of
money in any amount is allowed unless the donor maintains a bank
record or written communication from the donee showing the name
of the donee organization, the date of the contribution, and the
amount of the contribution. Id. This new provision is effective
for contributions made in tax years beginning after Aug. 17,
2006. Pension Protection Act of 2006, Pub. L. 109-280, sec.
(continued...)
 - 18 -

170(f)(8)(A). The deduction for a contribution of property

equals the fair market value of the property on the date

contributed. Sec. 1.170A-1(c)(1), Income Tax Regs.

A taxpayer claiming a charitable contribution is generally

required to maintain for each contribution a canceled check, a

receipt from the donee charitable organization showing the name

of the organization and the date and amount of the contribution,

or other reliable written records showing the name of the donee

and the date and amount of the contribution. Sec. 1.170A-

13(a)(1), Income Tax Regs.

We first consider petitioners’ cash contributions.

Petitioners claimed they donated $111 to Family of Christ Church

in Lakeville, Minnesota, during 2003. Mr. Bogue provided the

name and address of the church and the dates and amounts he or

his wife contributed in a document he prepared himself when he

prepared their tax returns. Petitioners offered no receipts or

acknowledgments from the church. Mr. Bogue testified that he and

his wife were searching for a church and they periodically

attended the Family of Christ Church during 2003, but were not

members or parishioners. Petitioners’ document indicates that

Mr. Bogue or Mrs. Bogue or both attended the church 17 times

during the year and contributed between $5 and $20 at each

6
(...continued)
1217, 120 Stat. 1080.
 - 19 -

service. We are convinced that petitioners attended the church

and donated money, and we find the amounts that petitioners

claimed to be credible. We conclude that petitioners are

entitled to deduct $111 of cash charitable contributions.

We next turn to petitioners’ contributions of property.

Petitioners introduced four Goodwill donation receipts to support

their claimed deduction. The receipts do not list the specific

items petitioners contributed and simply note that petitioners

donated a certain number of bags. Petitioners also introduced a

document that purports to list and value more specifically the

items petitioners contributed. This document indicates that

petitioners placed a value of $215 on the property they donated.

Petitioners did not introduce any evidence supporting their

estimated value or regarding the quality of the donated items.

While we are convinced that petitioners donated property to

charity in 2003, petitioners have failed to provide any reliable

evidence of the items they donated or their estimated values.

Petitioners are therefore not entitled to deduct any amount for

charitable contributions of property.

To reflect the foregoing and the concessions of the parties,

Decision will be entered

under Rule 155.