T.C. Summary Opinion 2010-143
UNITED STATES TAX COURT
ROCKWOOD GEWANNA SUMMERFIELD, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13856-09S. Filed September 23, 2010.
Peter Andrew Lowy, for petitioner.
Benjamin J. Peeler, for respondent.
ARMEN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect when the petition was filed.1 Pursuant to section
7463(b), the decision to be entered is not reviewable by any
1
Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for 2006,
the taxable year in issue, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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other court, and this opinion shall not be treated as precedent
for any other case.
Respondent determined a deficiency in petitioner’s 2006
Federal income tax of $5,333.
All but one of the issues in this case have been resolved by
the parties in a Stipulation Of Settled Issues. The remaining
issue is whether petitioner is entitled to a deduction for travel
expenses as claimed on his Federal income tax return for 2006.
The resolution of this issue requires that we decide whether, in
2006, petitioner had a “tax home” within the meaning of section
162(a)(2). If petitioner did not, then he is not entitled to the
deduction in issue; but if petitioner did, then we must also
decide where his tax home was and the amount of the deduction.
Background
Many of the facts have been stipulated, and they are so
found. We incorporate by reference the parties’ stipulation of
facts and accompanying exhibits.
At the time that the petition was filed, petitioner resided
in the State of Texas “due to taking a temporary job” with a
company in Houston, Texas.2
2
So stipulated. In the petition, petitioner listed a
mailing address in Texas, but specified Florida as his State of
legal residence. See sec. 7482(b)(1)(A).
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By profession petitioner is, and has been for many years, a
plumber/pipefitter. As such, petitioner is a member of the
United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada (UA).3
Throughout his professional career, petitioner has been a
member of UA Local 5, also known as Plumbers Local Union 5.4 UA
Local 5 has geographical jurisdiction over the metropolitan
Washington, D.C. area. Petitioner was initiated into UA Local 5
as an apprentice in December 1984 and achieved journeyman status
in June 1988.
Petitioner has never undertaken to transfer his membership
to another local union but has instead chosen to remain a member
of UA Local 5 throughout his professional career because of his
perception that, except for a period in the late ‘80s and early
3
The UA is a multicraft union with more than 325,000
members throughout the United States and Canada who engage in the
fabrication, installation, and servicing of various piping
systems. United Association, http://www.ua.org/aboutua.asp. The
UA includes pipefitters and plumbers, as well as other related
tradespersons such as welders, sprinklerfitters, and service
technicians for heating, ventilation, air conditioning, and
refrigeration (HVACR). Id. Pipefitters (also known as
steamfitters) lay out, fabricate, assemble, install, maintain,
and repair piping systems that typically operate under high
pressure and that transport all types of fluids, slurries, and
gases in industrial, commercial, and residential contexts. Id.
Plumbers install, repair, maintain, and service piping and
plumbing systems and equipment used for potable water
distribution, sanitary storm water systems, and waste disposal;
plumbers also work on technical installations for medical gas and
other health and safety systems. Id.
4
See http://www.local5plumbers.org.
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‘90s, “Washington, D.C., always seems to have some kind of work
even when the rest of the country doesn’t.”
For most if not all of his career as a journeyman,
petitioner has specialized in industrial and commercial projects
involving work on structures such as oil refineries, power
plants, hospitals, and schools. Petitioner is also certified to
work on medical gas systems found in hospitals.
As a journeyman, petitioner typically works in various
locations on projects of limited duration. The length of these
projects generally ranges from a few days or a week to a couple
of months.
Generally speaking, petitioner finds work by signing the
out-of-work list (Referral Book) at the business office of UA
Local 5 in Washington, D.C., and waiting for his name to come to
the top of the list. In order to remain on the out-of-work list
and therefore be eligible for an assignment to a project,
petitioner is required to sign the Referral Book every 30 days
when he is without work, and he must do this in person by
returning to the business office of UA Local 5 in Washington,
D.C.
Petitioner was formerly married, and he and his then-wife
lived in Maryland. In 2001 the couple separated, and “a pretty
bitter divorce” followed in 2003.
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In November 2002, petitioner went to Florida at the request
of his father, who was retired and caring for petitioner’s
seriously-ill mother, who subsequently died in 2004.
Petitioner’s parents owned a house in Ocala, Florida. Petitioner
obtained a Florida driver’s license and registered to vote in
Florida; he also registered his vehicles in Florida and paid
applicable licensing and registration fees.
During 2006 petitioner worked for nine different employers
on nine different projects for the following periods and at the
following locations:
Period Location
9/12/05 - 1/23/06 Metro Washington, D.C.
2/6/06 - 3/30/06 Chalmette, LA (Exxon-Mobil oil refinery)
4/3/06 - 5/1/06 Fort Riley, KS (US Army base)
5/9/06 - 5/19/06 Paducah, KY
6/7/06 - 6/16/06 Metro Washington, D.C.
6/19/06 - 6/22/06 Metro Washington, D.C.
7/3/06 - 7/7/06 Metro Washington, D.C.
7/10/06 - 7/30/06 McPherson, KS (Valero oil refinery)
8/14/06 - 10/22/06 Washington, D.C. (Children’s Hospital)
Petitioner traveled to all of the foregoing jobsites in his
Chevy Trailblazer. He took with him worktools, as well as a
microwave oven, coffeepot, and other similar necessities of
everyday life. He sought out economical accommodations and
negotiated for weekly rates. On occasion he shared a room with
another pipefitter or tradesman in order to minimize expenses.
Petitioner received no reimbursement from either his union
or any employer for travel expenses.
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When he was not working, petitioner returned to Florida.
Petitioner did not maintain a separate abode but stayed with his
father in Ocala.5 Petitioner did not pay rent; however, he did
contribute to household expenses, but only during the time that
he was actually staying with his father.6
Petitioner was unemployed for the last 2 months of 2006
because of an injury sustained in a motorcycle mishap. During
that period he collected unemployment insurance benefits from the
State of Florida.
Petitioner filed a Form 1040, U.S. Individual Income Tax
Return, for 2006. On his return, petitioner itemized his
deductions on Schedule A, Itemized Deductions. Among those
claimed was one for unreimbursed employee business expenses.
Petitioner did not claim any deduction for either mortgage
interest or real estate tax.
5
Petitioner did maintain a storage unit in Orlando, Fla.,
for some of his personal effects.
6
At trial, petitioner testified that he did not pay rent
to his father, “the reason being because I’m running halfway
around the country three-quarters, nine-tenths of the year. When
I’m there, I do contribute to the household. I mean, I’m running
up his water because I’m taking showers, extra electricity, you
know, whatever the case.”
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Discussion7
Generally, outlays for food and shelter are considered
personal expenses and are not deductible. Sec. 262. However,
section 162(a)(2) allows a taxpayer to deduct traveling expenses
(including amounts expended for meals and lodging) that are paid
or incurred while “away from home” in the pursuit of a trade or
business. Commissioner v. Flowers, 326 U.S. 465 (1946); Brandl
v. Commissioner, 513 F.2d 697 (6th Cir. 1975), affg. T.C. Memo.
1974-160; Bochner v. Commissioner, 67 T.C. 824, 827 (1977).
Respondent contends that petitioner had no tax home and was
therefore not “away from home” when he incurred the expenses in
issue. In contrast, petitioner contends that Ocala, Florida, was
his tax home and that he was therefore “away from home” when
working at various projects in Washington, D.C., and elsewhere
around the country.
As a general rule, a taxpayer’s principal place of
employment is the taxpayer’s tax home. Kroll v. Commissioner, 49
T.C. 557, 561-562 (1968). An employee without a principal place
of business may treat a permanent place of residence at which the
employee incurs substantial continuing living expenses as his or
her tax home. Weidekamp v. Commissioner, 29 T.C. 16, 21 (1957).
Where “the taxpayer has neither a principal place of business nor
7
We decide this case without regard to the burden of
proof.
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a permanent residence, he has no tax home from which he can be
away. His home is wherever he happens to be.” Barone v.
Commissioner, 85 T.C. 462, 465 (1985), affd. without published
opinion 807 F.2d 177 (9th Cir. 1986); see Michel v. Commissioner,
629 F.2d 1071, 1073-1074 (5th Cir. 1980), affg. T.C. Memo.
1977-345.
Was Ocala, Florida, Petitioner’s Tax Home?
If petitioner did not have a principal place of employment,
as both parties implicitly assume, then resolution of the tax
home issue is simple and straightforward. Thus, the law is clear
that the purpose of the “away from home” requirement of section
162(a)(2) is to mitigate the burden of the taxpayer who, because
of the exigencies of his or her trade or business, must maintain
two places of abode and thereby incur additional and duplicate
living expenses. Henderson v. Commissioner, 143 F.3d 497, 499
(9th Cir. 1998), affg. T.C. Memo. 1995-559; Rosenspan v. United
States, 438 F.2d 905, 912 (2d Cir. 1971); Wirth v. Commissioner,
61 T.C. 855, 859 (1974); Kroll v. Commissioner, supra at 561-562;
Hicks v. Commissioner, 47 T.C. 71, 74 (1966). An obvious
precondition to a taxpayer being away from home is that the
taxpayer have a home. See Bochner v. Commissioner, supra at 828.
This means that the taxpayer must have incurred substantial
continuing living expenses at a permanent place of residence and
must also have paid the expenses incurred in connection with his
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or her business while on the road. See Brandl v. Commissioner,
supra at 699; James v. United States, 308 F.2d 204 (9th Cir.
1962); Bochner v. Commissioner, supra at 828.
In the instant case, petitioner did have some ties to the
State of Florida. But significantly, and indeed determinatively,
petitioner bore no duplicate living expenses. Petitioner did not
maintain a separate abode but stayed with his father in Ocala.
He did not make mortgage payments or pay rent, and he contributed
to household expenses only while he was actually staying with his
father.8 These contributions are not of the type considered to
be costs of maintaining a home such that the expenses related to
petitioner’s life on the road would be redundant.9 In short,
Ocala was not petitioner’s tax home in 2006.
Was Metro Washington, D.C., Petitioner’s Tax Home?
As previously indicated, both parties implicitly assume that
petitioner had no principal place of employment. However, the
record belies such assumption. Thus, we conclude, based on the
totality of the following six factors, that the metropolitan
8
At trial, petitioner acknowledged that his father paid
the mortgage on the house and that when his mother died in 2004
he (i.e., petitioner) did not inherit any interest in the house.
Presumably petitioner’s father also paid the real estate tax on
the house because petitioner claimed no deduction for real estate
tax on Schedule A of his 2006 return.
9
We reject any suggestion that payment of rent on a
storage unit is equivalent to maintaining a household.
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Washington, D.C. area was petitioner’s principal place of
employment in 2006.
First, petitioner was a member of UA Local 5 in Washington,
D.C.
Second, petitioner was a member of UA Local 5 because, as he
testified at trial, “Washington, D.C. has work most of the time”.
Third, petitioner generally found work by signing the
Referral Book at the business office of UA Local 5 in Washington,
D.C., and waiting for his name to come to the top of the out-of-
work list.
Fourth, in order to remain on the out-of-work list and
therefore be eligible for an assignment to a project, petitioner
was required to sign the Referral Book in person at the business
office of UA Local 5 in Washington, D.C., every 30 days when he
was without work.
Fifth, more than one-half of the jobsites where petitioner
worked in 2006 were in the metropolitan Washington, D.C. area.
Sixth, approximately one-half of petitioner’s workdays in
2006 were spent at jobsites in the metropolitan Washington, D.C.
area.
Because the metropolitan Washington, D.C. area was
petitioner’s principal place of employment in 2006, we hold that
metropolitan Washington D.C., was petitioner’s tax home for that
year. See Kroll v. Commissioner, 49 T.C. at 561-562.
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Amount of Deduction
Because petitioner had a tax home in 2006, he is entitled to
a deduction under section 162(a)(2) for traveling expenses.
Those expenses include lodging, meals and incidental expenses,
and mileage while on business “away from home”, i.e., away from
petitioner’s tax home in Washington, D.C.
Regarding lodging, petitioner is entitled to deduct actual
expenses as stipulated by the parties variously as “lodging”,
“hotel”, and “hotel lodging”, except that petitioner is not
entitled to deduct either (1) hotel costs incurred on or about
August 6 and 22, 2006, in traveling between Washington, D.C., and
Ocala, Florida, as those costs were personal in nature; or (2)
rent paid in the metropolitan Washington, D.C. area, as
petitioner was not “away from home” when he was at his tax home.
In addition, petitioner is entitled to deduct the $8 daily
lodging cost he incurred in staying at the FEMA camp while he was
working at the Exxon-Mobil oil refinery in Chalmette, Louisiana.
Regarding meals and incidental expenses, the parties appear
to agree that petitioner is entitled to a per diem allowance
based on Rev. Proc. 2005-67, 2005-2 C.B. 729, and Rev. Proc.
2006-41, 2006-2 C.B. 777, as applicable to the calendar year
2006.10 Naturally, petitioner is not entitled to any per diem
10
The allowance for meals is, of course, subject to the
50-percent limitation of sec. 274(n).
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allowance for the times that he was working in the metropolitan
Washington, D.C. area, as he was not then “away from home”.
Finally, regarding mileage, petitioner is entitled to an
allowance based on $0.445 per mile driven as stipulated by the
parties, see Rev. Proc. 2005-78, sec. 5.01, 2005-2 C.B. 1177,
1179 except that petitioner is not entitled to any allowance for
mileage between Washington, D.C., and Ocala, Florida, which
mileage was personal in nature.
Conclusion
We have considered all of the arguments advanced by the
parties, and, to the extent that we have not expressly addressed
any, we conclude that none supports an outcome contrary to that
reached herein.
To give effect to our disposition of the disputed issue, as
well as the parties’ Stipulation Of Settled Issues,
Decision will be entered
under Rule 155.