Zbylut v. Comm'r

T.C. Memo. 2008-44

UNITED STATES TAX COURT

RAYMOND J. AND MARIA V. ZBYLUT, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 15269-06. Filed February 27, 2008.

Ellin Vicki Palmer, for petitioners.

Valerie L. Makarewicz, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

COHEN, Judge: Respondent determined a deficiency of $2,293

and an addition to tax of $573.25 for failure to file a timely

return pursuant to section 6651(a)(1) with regard to petitioners’

Federal income tax liability for 2002. After concessions, the

issues to be decided are:
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(1) Whether for the years in issue petitioners may deduct at

Federal per diem rates meal expenses that Raymond J. Zbylut

(petitioner) did not pay or incur;

(2) whether petitioners are entitled to deductions for

expenses related to petitioner’s travel to union halls in 2002;

and

(3) whether petitioners are entitled to deductions claimed

for other job-related expenses in 2002.

Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the year in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

FINDINGS OF FACT

Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

Petitioners resided in Nebraska at the time they filed their

petition.

Petitioner was employed as a merchant sailor at various

times in 2002 by American Ship Management, L.L.C. (American

Ship), and by Matson Navigation Co. (Matson Navigation). During

that year, American Ship provided meals and lodging without cost

to petitioner whenever he was on active status and assigned to a

vessel for that company. Petitioner worked for American Ship

aboard a container vessel called the President Wilson for
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approximately 112 consecutive days between July and November

2002.

Petitioner incurred expenses traveling to union halls in San

Francisco, California, and Honolulu, Hawaii, in order to seek

temporary employment in 2002. Petitioner traveled to and

remained at the union hall in San Francisco in order to seek

employment from March 17 through 27, 2002. Petitioner did not

obtain a job during his March 2002 trip to San Francisco.

Petitioner traveled to the union hall in Honolulu in order to

seek employment on June 15, 2002. He remained in Honolulu until

at least June 28, 2002, during which time he was able to secure

several temporary jobs. On the following dates in 2002,

petitioner served as a port relief engineer in Honolulu for

Matson Navigation, which provided petitioner with meals when he

was serving aboard one of its vessels:

Vessel Dates

SS Chief Gadao June 19-June 21
SS Maui June 23
SS Manulani June 24-June 28

Petitioner incurred lodging expenses on all but the last 5 days

of his trip to Honolulu, during which petitioner was employed

exclusively on the SS Manulani. Petitioner incurred necessary

meal expenses on the days he was in Honolulu looking for work but

not employed on a Matson Navigation vessel.
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Petitioner did not receive a per diem cash allowance or

reimbursement for lodging, meals, or incidental expenses from

American Ship or Matson Navigation in 2002. He was not a

permanent or indefinite employee of either employer or of any

other company during 2002. He served only in temporary positions

on various vessels that year and then returned to his home in

Nebraska for vacation and during periods of unemployment.

In addition to wages from American Ship and Matson

Navigation, petitioner received unemployment compensation in 2002

from the New York State Department of Labor-Unemployment

Insurance.

Petitioners filed their Form 1040, U.S. Individual Income

Tax Return, for 2002 over 9 months late on January 28, 2004.

Petitioners did not request an extension of time to file their

2002 return.

Under Job Expenses and Most Other Miscellaneous Deductions

on their Schedule A, Itemized Deductions, for 2002, petitioners

claimed the following deductions:

Unreimbursed employee expenses $13,067
Other expenses 3,488

Petitioners attached an extensive compilation of documents

entitled “Sailor Travel Statement” to substantiate their claim

for unreimbursed employee expenses. The Sailor Travel Statement

included, among other things, the “Supplemental Sailor Travel

Schedule” reproduced below, authorities upon which petitioners
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rely in support of their tax position, and documentation showing

the respective locations of petitioner and the President Wilson

on particular dates in 2002. The Supplemental Sailor Travel

Schedule, with original emphases, that petitioners attached to

their 2002 return is reproduced in part below:

Taxpayer is a Merchant Sailor assigned to work aboard a Cargo Ship
traveling between ports located around the entire Pacific Ocean
and therefore qualifies per attached Rev Proc 2001-47’s
“Transportation Industry Employees” and attached MARIN JOHNSON TAX
COURT DECISION & IRS Publication 463 (Chapter 1 Page 5) to compute
his DEEMED SUBSTANTIATED Out-of-Town Travel Costs by using
attached Pub 1542’s Foreign OCONUS Rates and Domestic CONUS Rates
for EACH CITY as follows:
27 Days x $119 Yokohama, Japan = 3,213.
23 Days x $76 Guam, Island of = 1,748.
15 Days x $82 Qingdao , China = 1,230.
10 Days x $87 Pusan, South Korea = 870.
14 Days x $50 San Pedro , California = 700.
6 Days x $113 Nagoya, Japan = 678.
7 Days x $84 Naha , Japan = 588.
6 Days x $46 San Pedro , California = 276.
4 Days x $38 Oakland, California = 152.
--------
Total Sailor Travel Costs Allowed per OCONUS & CONUS Rates 9,455.

Taxpayer also took a Sailor Continuing Education Program. This
additional Rating is deductible since he already has other SAILOR
ratings and this course does NOT qualify him for a new occupation.
Note the Union paid the tuition in full. This is related
Educational Travel Expenses ONLY.
35 Days x $42 Easton , Maryland = 1,470.
Airfare & Other Education Related Costs = 1,272.
Less Union Education Reimbursement Per 1099 <2,712>

As a MERCHANT SAILOR, taxpayer was forced by his attached Union
Letter to personally show up at his Union Hall to look for his
next work assignment. He was NOT ALLOWED to simply phone his
Union Hall to see what new jobs were currently available. Per
attached IRS Publication 17, auto mileage and possibly other
travel-related costs back and forth to his Union Hall Looking
[sic] for work are FULLY DEDUCTIBLE as follows:
16 Days x $72 Honolulu , Hawaii = 1,152.
12 Days x $205 San Francisco, California = 2,460.
-------
Total U.S. Tax Court
& Other Sailor Travel Expenses Allowed 13,067.

In another statement attached to their 2002 return,

petitioners listed their other expenses as follows:
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Sailor required medical expenses $1,227
Sailor required supplies 655
Sailor uniforms/cleaning 692
Sailor union dues 914
======
3,488

OPINION

Section 162 permits taxpayers to deduct all ordinary and

necessary business expenses paid or incurred during the taxable

year and specifically includes traveling expenses (including

amounts expended for meals and lodging other than amounts that

are lavish or extravagant under the circumstances) while away

from home in the pursuit of a trade or business. Sec. 162(a)(2).

Section 274(d) generally disallows any deduction under section

162 for, among other things, “any traveling expense (including

meals and lodging while away from home)”, unless the taxpayer

complies with stringent substantiation requirements as to the

amount, time and place, and business purpose of the expense.

Sec. 274(d)(1). Section 274(d) authorizes the Secretary to

provide by regulations that some or all of these substantiation

requirements “shall not apply in the case of an expense which

does not exceed an amount prescribed pursuant to such

regulations.”

Under the applicable section 274 regulations, the

Commissioner is authorized to prescribe rules under which

optional methods of computing expenses, including per diem
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allowances for ordinary and necessary expenses for traveling away

from home, may be regarded as satisfying the substantiation

requirements of section 274(d). Sec. 1.274-5(j), Income Tax

Regs. Under this authority, the Commissioner issued Rev. Proc.

2001-47, 2001-2 C.B. 332 (applicable to petitioner’s travel

January through September 2002), and Rev. Proc. 2002-63, 2002-2

C.B. 691 (applicable to petitioner’s travel October through

December 2002) (collectively, the applicable revenue procedures).

Under the applicable revenue procedures, taxpayers may elect to

use, in lieu of substantiating actual expenses, certain

authorized methods for deemed substantiation of employee lodging,

meal, and incidental expenses incurred while traveling away from

home. Rev. Proc. 2002-63, sec. 1, 2002-2 C.B. at 691, provides

the following introduction:

SECTION 1. PURPOSE

This revenue procedure updates Rev. Proc. 2001-47,
2001-2 C.B. 332, by providing rules under which the
amount of ordinary and necessary business expenses of
an employee for lodging, meal, and incidental expenses
or for meal and incidental expenses incurred while
traveling away from home will be deemed substantiated
under section 1.274-5 of the Income Tax Regulations
when a payor (the employer, its agent, or a third
party) provides a per diem allowance under a
reimbursement or other expense allowance arrangement to
pay for the expenses. In addition, this revenue
procedure provides an optional method for employees and
self-employed individuals who pay or incur meal costs
to use in computing the deductible costs of business
meal and incidental expenses paid or incurred while
traveling away from home. This revenue procedure also
provides an optional method for use in computing the
deductible costs of incidental expenses paid or
 - 8 -

incurred while traveling away from home by employees
and self-employed individuals who do not pay or incur
meal costs and who are not reimbursed for the
incidental expenses. Use of a method described in this
revenue procedure is not mandatory, and a taxpayer may
use actual allowable expenses if the taxpayer maintains
adequate records or other sufficient evidence for
proper substantiation. * * *

Rev. Proc. 2001-47, sec. 1, 2001-2 C.B. at 332, is almost

identical to the passage quoted above, but the following sentence

is omitted:

This revenue procedure also provides an optional method
for use in computing the deductible costs of incidental
expenses paid or incurred while traveling away from
home by employees and self-employed individuals who do
not pay or incur meal costs and who are not reimbursed
for the incidental expenses. * * *

Rev. Proc. 2002-63, sec. 4.05, 2002-2 C.B. at 694, expressly

provides that taxpayers who do not pay or incur meal expenses

when traveling away from home may use, in lieu of providing

actual receipts to substantiate incidental expenses, an

established rate of $2 per day. Rev. Proc. 2001-47, sec. 4,

2001-2 C.B. at 333-334, which provides specific rules for the per

diem substantiation method, does not contain a similar provision.

However, we have held previously that the incidental portion of

the per diem rates for meals and incidental expenses (M&IE) may

be used as deemed substantiation of incidental expenses when

meals are provided by a taxpayer’s employer. Johnson v.

Commissioner, 115 T.C. 210, 210-211 (2000).
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Rev. Proc. 2001-47, sec. 6.01, 2001-2 C.B. at 337, and Rev.

Proc. 2002-63, sec. 6.01, 2002-2 C.B. at 698, each provide that

the Federal M&IE rate will be applied, with stated exceptions, in

the same manner as applied under the Federal Travel Regulations,

41 C.F.R. sec. 301-11, in effect at the time each respective

revenue procedure was released.

Deductions for Meals and Incidental Expenses

American Ship furnished petitioner with lodging and meals

without charge while he worked on the President Wilson in 2002.

Matson Navigation provided meals to petitioner without charge

while he worked as a relief port engineer on its vessels docked

in Honolulu for several days in 2002. Although petitioner did

not pay for his meals while at sea or while docked in ports,

petitioners deducted the full M&IE rate for each day that

petitioner worked aboard a vessel in 2002.

Petitioners argue that the applicable revenue procedures,

which are cited above, in conjunction with the Federal Travel

Regulations, permit them to deduct the full applicable M&IE rate

for work-related travel even though all of petitioner’s meals

were provided to him free of charge by his employers. Section

301-11.17 of the Federal Travel Regulations provides that a meal

provided by a common carrier or a complimentary meal provided by

a hotel or motel does not affect a taxpayer’s otherwise allowable

per diem expense deduction for meals. 41 C.F.R. sec. 301-11.17
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(2000); 41 C.F.R. sec. 301-11.17 (2002). None of the vessels on

which petitioner worked were common carriers, and he did not

receive meals from a hotel or motel. Additionally, the Federal

Travel Regulations require that a Federal employee’s M&IE rate be

adjusted for meals provided by the Government by deducting

appropriate amounts for each meal provided. Johnson v.

Commissioner, supra at 227-228; Federal Travel Regulations, 41

C.F.R. sec. 301-11.18 (2000); 41 C.F.R. sec. 301-11.18 (2002).

Because, as petitioners acknowledge, the revenue procedures

regarding M&IE rate deductions for non-Government employees are

to be applied according to the Federal Travel Regulations for

Federal employees, the regulations require that petitioner

decrease the M&IE rate deduction otherwise allowable to account

for meals provided by petitioner’s employers.

Petitioners also argue that this issue is novel to the

Court. We disagree. In Johnson v. Commissioner, supra, the

taxpayer, also a merchant seaman, deducted the full Federal M&IE

rates on his return, even though all of his meals were provided

to him free of charge by his employer. We held that, because the

taxpayer’s actual expenses consisted solely of incidental

expenses, his use of the M&IE rates to calculate his deductions

for business expenses due to travel away from home was limited to

the incidental portion of those rates. Id. at 210-211. The

taxpayer in that case established that he had incurred incidental
 - 11 -

expenses during his travel away from home and was allowed to use

the incidental portion of the M&IE rates to substantiate those

expenses in lieu of providing actual receipts. The purpose of

the Federal per diem rates is to ease the burden of

substantiating travel expenses away from home, not to eliminate

the requirement that those expenses be incurred before they can

be claimed as deductions from income. Although petitioners

contend that the Court has not yet addressed this issue, we

explicitly stated in Johnson v. Commissioner, supra at 227: “We

do not read the revenue procedures to allow a taxpayer to use the

full M&IE rates when he or she incurs only incidental expenses.”

Respondent concedes that petitioners are entitled to a

miscellaneous itemized incidental expenses deduction for 2002

equal to the per diem rate then applicable for each day

petitioner was traveling away from home for business. Respondent

performed those calculations according to methods established by

relevant revenue procedures.

Petitioners may, as respondent has conceded, deduct the

incidental portion of the M&IE per diem rate for days that

petitioner worked away from home for which they have

substantiated the time, place, and business purpose of

petitioner’s travel. Johnson v. Commissioner, supra at 225; see

also Westling v. Commissioner, T.C. Memo. 2000-289. In

accordance with the applicable revenue procedures, respondent
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calculated petitioner’s deemed substantiated incidental expenses

using the incidental expense portion of applicable M&IE rates

based on petitioner’s substantiated work locations for January

through September 2002 and a fixed per diem rate of $2 for

incidental expenses for October through December 2002. We

sustain respondent’s calculations regarding petitioner’s deemed

substantiated incidental expenses for 2002.

Travel to Union Halls

Section 162 generally allows a taxpayer to deduct “all the

ordinary and necessary expenses paid or incurred during the

taxable year in carrying on any trade or business”, including

travel expenses while the taxpayer is “away from home in the

pursuit of a trade or business”. Sec. 162(a)(2). A taxpayer’s

“home”, for purposes of section 162(a)(2), is generally

considered as the vicinity of his principal place of employment

rather than his personal residence. Mitchell v. Commissioner, 74

T.C. 578, 581 (1980); Daly v. Commissioner, 72 T.C. 190 (1979),

affd. 662 F.2d 253 (4th Cir. 1981). Accordingly, expenses

incurred in commuting from a taxpayer’s personal residence to a

taxpayer’s business or place of employment are generally

nondeductible personal expenses. Gilberg v. Commissioner, 55

T.C. 611, 616-617 (1971); sec. 1.262-1(b)(5), Income Tax Regs.

Where a taxpayer does not have a permanent place of business, but

rather is employed temporarily by various employers at different
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locations, we generally deem the situs of the taxpayer’s

permanent residence to be his or her tax home, and the taxpayer’s

traveling expenses from his residence to those temporary places

of employment may be deductible. Johnson v. Commissioner, 115

T.C. at 221, 223; Dean v. Commissioner, 54 T.C. 663, 667-668

(1970); see Case v. Commissioner, T.C. Memo. 1985-530 (holding

that taxpayer, a merchant sailor who incurred expenses traveling

to a union hall in order to seek employment, could deduct

traveling expenses related to his business affairs at the union

hall because he was not employed by the union hall, his

employment with each employer that he met through the union hall

was temporary, and thus his expenses were not related to

commuting).

Petitioner testified at trial that he took trips to San

Francisco and Honolulu to seek work in 2002 and that obtaining a

job in his field required being present physically at union halls

when job opportunities were announced. Petitioner incurred

expenses traveling to union halls in San Francisco and Honolulu

in order to seek temporary employment. He was not a permanent or

indefinite employee of American Ship, Matson Navigation, or any

other company. He served only in temporary positions on various

vessels and then returned to his home in Nebraska for vacations

and during periods of unemployment.
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Petitioners deducted on their 2002 return as unreimbursed

employee expenses the following amounts for “auto mileage and

possibly other travel-related costs back and forth to his Union

Hall looking for work”:

16 Days x $72 Honolulu , Hawaii = 1,152.
12 Days x $205 San Francisco, California = 2,460.

Although petitioners’ statement attached to their return

attributes the deductions to auto mileage and other travel-

related expenses, the rate petitioners used to calculate the

expenses for Honolulu was the applicable M&IE rate for June 2002.

The rate they used to calculate expenses for San Francisco was

the applicable maximum per diem rate, which includes standard

deemed substantiated expense allowances for lodging, meals, and

incidental expenses. Respondent argues that petitioners are not

entitled to the expense deductions claimed for petitioner’s

travels to San Francisco and Honolulu for several reasons.

In respondent’s opening brief, respondent argues that

Nebraska was petitioner’s personal residence and advances the

argument that expenses for travel to San Francisco and Honolulu

were nondeductible commuting expenses to and from his places of

work. Respondent argues that petitioners should not be allowed

deductions for these commuting expenses because they were free to

choose the location of their personal residence and chose to live

far from petitioner’s various places of work. Respondent’s

implicit argument is that petitioner’s union halls, rather than
 - 15 -

his personal residence in Nebraska, should be considered

petitioner’s tax home. However, as we explained in Johnson v.

Commissioner, supra, because petitioner was employed by various

employers in various locations, he had no principal place of

business, and his personal residence is his tax home. See

Johnson v. Commissioner, supra at 221-224. Thus, petitioner’s

travel between his personal residence and his union halls and

various places of employment is business-related travel away from

home.

In respondent’s reply brief, respondent argues that, because

petitioner received unemployment compensation from the State of

New York and did not testify explicitly that he resided in

Nebraska during 2002, petitioners have not established that

Nebraska was their permanent residence and tax home. Such an

argument is inconsistent with arguments in respondent’s opening

brief that assume that Nebraska was petitioner’s home and

permanent residence. Respondent never questioned petitioner at

trial about where he resided in 2002 or about his receipt of

unemployment compensation from the State of New York. The

parties stipulated that petitioners resided in Nebraska at the

time they filed their petition. Petitioner’s permanent residence

was not an issue presented before or during trial, and the

argument that Nebraska was not petitioner’s permanent residence

was first made in respondent’s reply brief. Until respondent’s
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reply brief, neither we nor petitioners were aware that

respondent did not consider Nebraska petitioner’s permanent

residence. Because their residence was not an issue presented

until respondent’s reply brief, we are not persuaded by

respondent’s argument that, because they did not explicitly

establish that Nebraska was their permanent residence and tax

home at trial, petitioners may not treat their personal residence

as their tax home. We find that petitioners did have a permanent

residence and tax home for 2002 in Nebraska, where petitioners

maintained their personal residence, and we hold that

petitioner’s traveling and living expenses related to trips to

union halls in order to seek temporary employment are not

commuting expenses but may be deductible expenses for business-

related travel away from home.

Respondent also argues that petitioner’s trips to San

Francisco and Honolulu do not constitute ordinary and necessary

business trips and thus are not deductible under section 162

because petitioners have not shown that petitioner’s employers

required petitioner to stop at the union halls. Petitioner

testified credibly that he was notified of job opportunities only

if he was physically present at a union hall, where potential

employers announced their current needs. Petitioners have

adequately established that petitioner’s trips to union halls in

2002 were ordinary and necessary business expenses.
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Respondent also argues that petitioners have failed to

substantiate petitioner’s expenses related to his trips to union

halls in 2002. Petitioners claimed deductions at per diem rates

for 16 days in Honolulu and 12 days in San Francisco. Although

the per diem rates serve as an alternative method of

substantiating the amount of expenses, petitioners must still

substantiate the time, place, and business purpose of the

underlying trip to deduct the per diem rates as ordinary and

necessary business expenses. Sec. 274(d)(1); sec. 1.274-5T(b),

Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov. 6, 1985).

Petitioner testified that the expenses related to his trips

to the union halls to seek employment are accurately represented

by credit card statements that petitioners presented as evidence

at trial. The credit card statements, which include an array of

expenditures including personal expenses, show that petitioner

was present in San Francisco approximately 11 days in March and

incurred expenses there for lodging and meals. Petitioner

asserts, and we believe, that he traveled to the San Francisco

area union hall in March 2002 in search of a job, but it appears

that he was unable to secure a job at that time. Petitioner

incurred ordinary and necessary business expenses related to his

trip to San Francisco in March 2002 and may deduct his expenses

for lodging, meals, and incidental expenses at the applicable per

diem rates for those 11 days.
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The credit card statements also show that petitioner was

present in Honolulu at least 14 days in June, during which period

he incurred expenses including some for lodging and meals.

Petitioner asserts, and we believe, that he traveled to the

Honolulu area union hall in June 2002 in search of a job, in

which endeavor he was successful. Petitioner was employed by

Matson Navigation as a port relief engineer in Honolulu on three

different ships at various times totaling 9 days. Matson

Navigation provided petitioner with meals on the days he was

working aboard a vessel, and petitioner did not incur necessary

meal expenses during the 9 days when he was employed by Matson

Navigation. Matson Navigation generally did not provide housing

for port relief engineers, and petitioner incurred lodging

expenses for the 4 days that he was employed on two of Matson

Navigation’s ships in Honolulu. However, petitioner did not

incur lodging expenses for the other 5 days he was employed by

Matson Navigation on the SS Manulani. Petitioner also incurred

lodging and meal expenses for the remaining 5 days in Honolulu

during which he was seeking employment.

Petitioners claimed deductions for meals and incidental

expenses for 16 days in Honolulu on their 2002 return.

Petitioners have shown that petitioner was present in Honolulu

and seeking employment or working for 14 days in June 2002.

Petitioners are entitled to deductions at the applicable per diem
 - 19 -

rate for lodging, meals, and incidental expenses for the 5 days

that petitioner was not employed but was seeking work at the

Honolulu area union hall. Petitioners are entitled only to

lodging and incidental expense deductions for the 4 days that

petitioner worked on two of Matson Navigation’s ships and was

provided meals but incurred lodging expenses. See Federal Travel

Regulations, 41 C.F.R. sec. 301-11.18 (2002). For the 5 days

between June 24 and June 28, during which petitioner worked for

Matson Navigation on the SS Manulani and did not incur any

lodging or meal expenses, petitioners may deduct the applicable

per diem rate for incidental expenses only. See Johnson v.

Commissioner, 115 T.C. at 210-211; Federal Travel Regulations, 41

C.F.R. sec. 301-11.18 (2002).

Other Job-Related and Miscellaneous Expenses

Petitioners claimed other job expense deductions in 2002 for

medical exams, supplies, uniform expenses, and union dues.

Respondent has allowed a deduction of $718.45 for petitioner’s

union dues paid in 2002. Petitioners have not established that

they paid more than the amount respondent has allowed for

petitioner’s union dues in 2002. Petitioners have not

substantiated the amount of any of the other miscellaneous

expenses they claimed on their 2002 return. Although petitioners

presented copies of their credit card statements for 2002, the

statements do not list any items purchased by petitioner and
 - 20 -

include charges for patently personal expenses. Petitioners are

not entitled to deductions for “other expenses” beyond those

conceded by respondent.

In reaching our decision, we have considered all arguments

made, and, to the extent not mentioned, we conclude that they are

irrelevant, moot, or without merit.

Decision will be entered

under Rule 155.