*74 Decision will be entered for the respondent.
T was one of five field agents for the Massachusetts Office of School Lunch Programs. The State was divided into five territories and one field agent was assigned to each territory. Although T's territory was northeastern Massachusetts, he continued to reside in Worcester in the central Massachusetts area where he had his home prior to being hired as a field agent. His work involved travel by his own automobile from his home each day to a town within his assigned territory to conduct an audit of the school lunch program within such town, and on infrequent occasions he was sent to towns outside his assigned territory for like purposes. In connection with all such travel he was reimbursed for his automobile expenses on the basis of the lesser of the distances between Boston and the place of assignment and between Worcester and the place of assignment. In some but not most instances the distance from Worcester was shorter, and for the entire year 1965 the aggregate distances measured from Worcester in all cases exceeded such distances measured from Boston by more than 9,000 miles. Held, T is not entitled to deduction for mileage*75 in excess of that for which he was reimbursed. The excess expenses were personal rather than business connected and resulted from T's determination for his own convenience to continue to reside outside his assigned territory at a point likely to require extensive additional travel. Cf. Commissioner v. Flowers, 326 U.S. 465">326 U.S. 465.
*837 The Commissioner determined a deficiency in petitioners' Federal income tax for the year 1965 in the amount of $ 175.07. The sole issue is whether certain automobile*76 expenses were properly deductible under section 162, I.R.C. 1954.
FINDINGS OF FACT
The parties have stipulated most of the facts, and their stipulation and the attached exhibits are incorporated herein by this reference.
*838 Petitioners Joseph J. and Lucy U. Bunevith, husband and wife, are and were at all relevant times residents of Worcester, Mass., and filed their joint Federal income tax return for 1965 with the Worcester office of the district director of internal revenue, Boston, Mass. The husband will sometimes hereinafter be referred to as the petitioner.
Petitioner worked from 1964 until June 30, 1968 (including 1965, the year here at issue), as a field agent for the Office of School Lunch Programs, State Department of Education, Commonwealth of Massachusetts. His duties included the examination and audit of the books and records of the "School Lunch Programs" of public schools in Massachusetts. There were a total of five field agents (including petitioner) for the entire State, one for each of five areas or territories into which the State was divided. These five territories were as follows: (1) The northeastern part of the State, (2) the southeastern part of the*77 State (including the "Cape"), (3) the City of Boston, which lies between and is surrounded by the two foregoing territories, (4) the central part of the State, and (5) the western part of the State.
When petitioner applied for his job he tried to obtain the assignment for the "Worcester area," i.e., the central part of the State, within which he resided, but that area "had been taken" by someone else, and he was assigned to the northeastern area. His employer described his "official territory" as "the counties of Suffolk, Middlesex, Essex, Norfolk and parts of North East Worcester." On a typical work day during 1965 petitioner drove his personal automobile from his home in Worcester to a particular town or city within the northeastern territory to conduct an audit of the school lunch program in such town or city. Such audit might require from about 1 to 10 days, but petitioner returned to his home in Worcester every night. Overnight stays at his job assignment were very rare. On occasion he would visit more than one town in a day. Petitioner received instructions as to his job assignments by mail from the main office of the Office of School Lunch Programs, located in Boston. *78 On infrequent occasions he was sent to cities or towns outside his official territory; thus in 1965 he executed assignments in Springfield, Amherst, and Athol.
Although petitioner's "official station" was in Boston, he was not required to report to the Boston office except for staff meetings, which took place about once a month; nor did he conduct any audits within Boston. Petitioner generally kept in touch with the Boston office by mail, and he would at times prepare letters, organize work papers, and perform other such tasks in connection with his job at his home in Worcester.
All field agents, including petitioner, were reimbursed for their travel mileage in the same manner. A comparison would be made between the mileage from the city hall in Boston to the city hall of the town in which work was assigned and the mileage from the city hall *839 of the home town of the field agent to the city hall of the town in which work was assigned. Reimbursement would be based on the shorter of the two distances. In addition, field agents were reimbursed for mileage between work assignments for those days during which they had work assignments in more than one location. For the year*79 1965, the total round-trip mileage between city hall, Boston, and the city halls of the towns of petitioner's daily work assignments (including mileage between work assignments for those days during which more than one town was visited) was 10,863 miles. For the same year, the total round-trip mileage between city hall, Worcester, and the city halls of the towns of petitioner's daily work assignments (including mileage between work assignments for those days during which more than one town was visited) was 19,990. The total mileage for which petitioner was reimbursed for 1965 was 9,547.
The following table sets forth the towns visited by petitioner in connection with his job in 1965, the county in which each is located, the days spent in each, and the distances from each to Boston and Worcester:
| Distance | Distance | |||
| Town or city | County | Days 1 | from | from |
| Boston | Worcester | |||
| (miles) | (miles) | |||
| 1. Amesbury | Essex | 2 | 38 | 69 |
| 2. Amherst | Hampshire | 6 | 86 | 47 |
| 3. Andover | Essex | 5 | 22 | 51 |
| 4. Arlington | Middlesex | 2 | 6 | 39 |
| 5. Ashby | Middlesex | 4 | 49 | 32 |
| 6. Athol | Worcester | 1 | 72 | 38 |
| 7. Ayer | Middlesex | 1 | 39 | 28 |
| 8. Bedford | Middlesex | 1 | 16 | 37 |
| 9. Belmont | Middlesex | 7 | 7 | 37 |
| 10. Beverly | Essex | 2 | 18 | 57 |
| 11. Bolton | Worcester | 1 | 31 | 17 |
| 12. Boston | Suffolk | 10 | 0 | 40 |
| 13. Boxford | Essex | 6 | 25 | 58 |
| 14. Bradford | Essex | 1 | 31 | 59 |
| 15. Brockton | Plymouth | 1 | 20 | 53 |
| 16. Burlington | Middlesex | 5 | 13 | 42 |
| 17. Cambridge | Middlesex | 13 | 2 | 37 |
| 18. Dracut | Middlesex | 6 | 27 | 43 |
| 19. Easton | Bristol | 7 | 25 | 49 |
| 20. Fitchburg | Worcester | 1 | 46 | 24 |
| 21. Framingham | Middlesex | 1 | 19 | 23 |
| 22. Franklin | Norfolk | 1 | 19 | 30 |
| 23. Georgetown | Essex | 3 | 28 | 59 |
| 24. Gloucester | Essex | 1 | 32 | 71 |
| 25. Groton | Middlesex | 8 | 34 | 31 |
| 26. Haverhill | Essex | 6 | 31 | 59 |
| 27. Holden | Worcester | 1 | 46 | 7 |
| 28. Hopkinton | Middlesex | 1 | 26 | 18 |
| 29. Ipswich | Essex | 1 | 28 | 67 |
| 30. Leicester | Worcester | 1 | 46 | 6 |
| 31. Lincoln | Middlesex | 1 | 16 | 32 |
| 32. Lowell | Middlesex | 5 | 25 | 41 |
| 33. Lynn | Essex | 4 | 9 | 48 |
| 34. Medfield | Norfolk | 4 | 19 | 33 |
| 35. Medway | Norfolk | 6 | 25 | 28 |
| 36. Methuen | Essex | 9 | 27 | 51 |
| 37. Millis | Norfolk | 4 | 22 | 30 |
| 38. Natick | Middlesex | 3 | 16 | 24 |
| 39. Needham | Norfolk | 1 | 12 | 32 |
| 40. Newburyport | Essex | 10 | 34 | 67 |
| 41. Newton | Middlesex | 7 | 8 | 32 |
| 42. North Andover | Essex | 2 | 24 | 52 |
| 43. North Reading | Middlesex | 2 | 15 | 52 |
| 44. North Woburn | Middlesex | 1 | 10 | 44 |
| 45. Peabody | Essex | 1 | 17 | 54 |
| 46. Pepperell | Middlesex | 1 | 39 | 36 |
| 47. Reading | Middlesex | 6 | 12 | 48 |
| 48. Rowley | Essex | 5 | 28 | 66 |
| 49. Salem | Essex | 1 | 16 | 55 |
| 50. Salisbury | Essex | 4 | 36 | 69 |
| 51. Saugus | Essex | 9 | 9 | 47 |
| 52. Shirley | Middlesex | 8 | 35 | 27 |
| 53. Spencer | Worcester | 1 | 51 | 11 |
| 54. Springfield | Hampden | 5 | 89 | 51 |
| 55. Stoneham | Middlesex | 1 | 9 | 45 |
| 56. Swampscott | Essex | 11 | 13 | 52 |
| 57. Tewksbury | Middlesex | 6 | 21 | 46 |
| 58. Townsend | Middlesex | 1 | 42 | 31 |
| 59. Tyngsboro | Middlesex | 2 | 31 | 41 |
| 60. Waltham | Middlesex | 4 | 10 | 34 |
| 61. Wayland | Middlesex | 6 | 17 | 27 |
| 62. Wenham | Essex | 1 | 22 | 61 |
| 63. Westford | Middlesex | 5 | 26 | 35 |
| 64. West Townsend | Middlesex | 1 | 42 | 31 |
| 65. Winchester | Middlesex | 8 | 8 | 42 |
| 252 |
*840 On his tax return for 1965, petitioner deducted $ 1,085.54 for automobile expenses. This figure was computed on the basis of 19,990 miles attributable to business. Petitioner took 10 cents per mile for the first 15,000 miles and 7 cents per mile for the remainder and obtained a figure of $ 1,849.30. 1*81 From this amount he subtracted $ 763.76, the amount he was reimbursed by his employer (9,547 miles at 8 cents per mile), and arrived at $ 1,085.54. The Commissioner, in his notice of deficiency disallowed the deduction to the extent of $ 894.60 on the ground that it had not been established that the excess over $ 190.94 2 constituted an ordinary or necessary business expense or was in fact paid or incurred, under section 162 or 212, I.R.C. 1954. The disallowed deduction required a concomitant decrease in petitioner's allowable medical expense deduction.
OPINION
We are here faced with a variation of the oftrecurring problem of deductions sought for automobile expenses which are claimed to be related to the taxpayer's trade or business. The governing statutory provisions are contained in section 162 of the 1954 Code, 3 though it is not clear whether petitioner's principal reliance *841 is upon the general introductory provisions of subsection (a) or upon the specific language of paragraph (2) thereof.
*82 At the outset we may put (a) (2) aside as inapplicable. It deals with "traveling expenses * * * while away from home," and these provisions have been held to relate only to so-called overnight trips or to travel requiring sleep or rest. United States v. Correll, 389 U.S. 299">389 U.S. 299. We have found generally that overnight stays at petitioner's job assignments were "very rare," and we were unable to find on this record that any of the 1965 travel expenses in issue herein satisfied this "away from home" requirement. Accordingly, we must conclude that (a) (2) is of no help to petitioner in this case.
However, travel that does not qualify under (a) (2) so as to warrant a deduction for cost of meals may nevertheless be business connected so as to form the basis for a deduction of transportation expenses (e.g., a lawyer's 1-day round-trip airplane fare from Boston to Washington in connection with representation of a client). Cf. United States v. Correll, 389 U.S. at 303-304; United States v. Tauferner, 407 F.2d 243">407 F. 2d 243, 245 (C.A. 10); Rev. Rul. 63-82, 1 C.B. 33">1963-1 C.B. 33, 34.*83 And in determining whether the transportation expenses are business connected, it is pertinent to inquire whether they are in the nature of commuting expenses, which are not deductible because they are regarded as personal rather than business. Commissioner v. Flowers, 326 U.S. 465">326 U.S. 465, 473; United States v. Tauferner, 407 F. 2d at 246; Steinhort v. Commissioner, 335 F. 2d 496, 503 (C.A. 5); Smith v. Warren, 388 F. 2d 671, 672 (C.A. 9); Frank H. Sullivan, 1 B.T.A. 93">1 B.T.A. 93, 94.
As we view the present case, the crucial question is whether the transportation expenses, 4 to the extent disallowed, were, like commuting expenses, incurred for personal reasons, or whether they were directly related to petitioner's trade or business. We hold, in the words of Commissioner v. Flowers, 326 U.S. at 473, that these "added costs" were "as unnecessary and inappropriate to" the conduct of petitioner's trade or business as "were his personal and living costs in" Worcester.
*84 Petitioner's home was in Worcester. When he originally applied for his job, he sought assignment to the central Massachusetts territory in which he resided. But someone else already had that territory, and he was given the northeast territory. Nevertheless, he continued to reside in Worcester, incurring substantially greater transportation expenses than he would have incurred had he moved his residence to some town or city that was more centrally located in respect to his territory. That he continued to reside in Worcester was obviously for personal reasons, unrelated to the performance of his duties, and it *842 seems clear to us that the excess expenses must be regarded as having been incurred for his personal convenience. See Carragan v. Commissioner, 197 F.2d 246">197 F. 2d 246, 249 (C.A. 2):
A nation of city-hoppers and suburbanites though we may be, the Supreme Court has steadfastly refused to say that traveling expenses are incurred in the pursuit of business when they stem from the petitioner's refusal to bring his home close to his job. The job, not the taxpayer's pattern of living, must require the travel. Commissioner of I.R. v. Flowers, 326 U.S. 465">326 U.S. 465,*85 * * *
See also Barnhill v. Commissioner, 148 F. 2d 913, 917 (C.A. 4):
But it is not reasonable to suppose that Congress intended to allow as a business expense those outlays which are not caused by the exigencies of the business but by the action of the taxpayer in having his home, for his own convenience, at a distance from his business. Such expenditures are not essential to the prosecution of the business and were not within the contemplation of Congress which proceeded on the assumption that a business man would live within reasonable proximity to his business. * * *
To be sure, Boston's city hall was used as a point of origin for determining the shortest distance for each trip, but there is no indication that this was less advantageous to petitioner than some other more centrally located place within his territory. Certainly, we cannot say that petitioner's decision to continue to reside in Worchester and thus use his automobile over 9,000 miles in excess of what might normally be required was motivated by anything other than personal considerations. The fact that some towns visited were closer to Worchester than to Boston is immaterial*86 in the context of this record, which discloses that when all towns visited are taken into account petitioner is found to have traveled many thousands of excess miles. In the circumstances, expenses referable to such substantial excess mileage may not be deducted as business connected under section 162(a). 5
*87 Decision will be entered for the respondent.
Footnotes
1. Petitioner worked 229 days in 1965. On 23 days he visited two towns. Each visit to a town is treated as a day in the chart, resulting in the total of 252 days.↩
1. See Rev. Proc. 66-10, 1 C.B. 622">1966-1 C.B. 622↩, for this method of computing the amount of the expenses.
2. This amount plus $ 763.76 (the amount by which petitioner was reimbursed) equals $ 954.70, which would represent 9,547 miles at 10 cents per mile.↩
3. SEC. 162. TRADE OR BUSINESS EXPENSES.
(a) In General. -- There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including --
* * * *
(2) traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade or business; * * *↩
4. No question is raised as to whether the mileage was improperly determined on the basis of city hall to city hall rather than on the basis of actual distance traveled. In some instances the actual distance may have been greater and in other instances smaller. Thus, it may fairly be assumed in any event that the formula used resulted in a reasonably accurate approximation of the actual mileage involved,↩
5. Since the Commissioner does not here question the deductibility of expenses to the extent of the mileage with respect to which petitioner was entitled to reimbursement under the State formula, we do not consider the more serious and difficult question whether, apart from the cost of travel between towns, the entire cost of petitioner's travel to and from the various towns visited by him might be disallowed as commuting expenses, or perhaps whether such costs might thus be disallowed at least in the case of travel to and from towns that are within the metropolitan area of the selected point of departure. Cf. William L. Heuer, Jr., 32 T.C. 947">32 T.C. 947, affirmed 283 F. 2d 865 (C.A. 5); Steinhort v. Commissioner, 335 F. 2d 496 (C.A. 5); Smith v. Warren, 388 F. 2d 671↩ (C.A. 9).