*210 Decision will be entered under Rule 50.
1. Income Deductions -- Expense -- Necessary -- Reimbursable. -- Automobile expenses, for which the taxpayer could have been reimbursed by his employer had he made claim therefor, are not necessary expenses of the taxpayer although paid by him.
2. Travel Expense -- Away From Home -- Not Overnight -- Automobile Costs -- Sec. 22 (n) (2). -- Automobile expenses of an employee, not reimbursable, incurred in business trips away from the city where his place of employment was, were travel expenses while away from home within the meaning of section 22 (n) (2) (1939 Code).
*21 The Commissioner determined deficiencies in income tax of $ 59 for 1948, $ 67.72 for 1949, and $ 47.58 for*211 1950. One of the petitioners used his automobile in connection with his business and the issue for decision is whether any portion of his automobile expense for each year may be subtracted from gross income as travel expense in computing adjusted gross income under section 22 (n).
FINDINGS OF FACT.
The petitioners, husband and wife, filed returns for the 3 taxable years with the collector of internal revenue for the fifth district of New Jersey. The returns were prepared on a cash basis. The standard deduction was taken.
Horace was employed during the taxable years by the Treasury Department of the United States Government as an internal revenue agent, field examiner. His office was located at Orange, New Jersey. His duties were to audit the income tax returns of taxpayers and he had to travel away from Orange to the place of business or home of most taxpayers in order to conduct the audit. He was authorized by his employer to use his automobile in that work. His duties never required him to be away from Orange overnight.
*22 Horace filed vouchers with his employer for reimbursement of travel expenses for 3 months each in 1948 and 1949 at 5 cents per mile and for 2 months*212 in 1949 and for 8 months in 1950 at 7 cents per mile. All of those vouchers were honored and Horace received as reimbursement for travel expenses the amounts shown in the table below. He never filed any other vouchers relating to use of his automobile during the taxable years.
The following table shows, in connection with Horace's automobile, the total miles traveled, the total cost of operating, the portion and the amount claimed by the petitioner on his return as attributable to his duties as an internal revenue agent, and the amounts received as reimbursements, for each year:
| Year | Total miles | Total cost | Portion | Amount | Reimbursements |
| claimed | claimed | ||||
| 1948 | 10,000 | $ 620.25 | 2/3 | $ 413.40 | $ 24.99 |
| 1949 | 12,500 | 738.00 | 2/3 | 492.00 | 33.12 |
| 1950 | 13,000 | 815.51 | 4/9 | 362.45 | 82.47 |
The automobile expenses of Horace which pertained solely to travel away from Orange on his duties as a revenue agent, which expenses were not reimbursable by his employer, were $ 300 for 1948, $ 375 for 1949, and $ 250 for 1950.
All facts stipulated by the parties are incorporated herein by this reference.
OPINION.
The petitioners claimed the standard deduction under section 23 (aa) *213 for each taxable year. Paragraph (2) of that subsection provides that "The standard deduction shall be in lieu of: (A) all deductions other than those which under section 22 (n) are to be subtracted from gross income in computing adjusted gross income, * * *." The petitioners contend that they are entitled under section 22 (n) (2) to subtract from gross income, in computing adjusted gross income, the automobile travel expense incurred by Horace in each year, less the amount thereof which was reimbursed to him, or $ 388.41 for 1948, $ 458.88 for 1949, and $ 279.98 for 1950.
The Commissioner argues that the automobile expenses here in question were not ordinary and necessary expenses of Horace within the meaning of section 23 (a) (1) (A) to the extent that he could have been reimbursed for them had he taken the trouble to claim reimbursement by filing the necessary vouchers. He filed vouchers for many of the months and there was no excuse for him failing to file vouchers for all of the months. Expenses to be deductible must be both ordinary and necessary. Obviously, it was not necessary for *23 Horace to remain unreimbursed for the expenses of his automobile to the extent that*214 he could have been reimbursed had he taken the trouble to file a voucher and be reimbursed by his employer. Those amounts were not ordinary and necessary expenses of Horace's business. ; , affd. .
The question remains, however, as to how much additional reimbursement he might have received for each year. The burden of proof was upon the petitioners. The evidence does not show the exact amount for any year. The reimbursements, which were on a mileage basis, would not fully reimburse Horace for the use of his car. They covered oil and gas consumed and a part of his other expenses. The runs were relatively short and the car was parked for long periods at the place where the audit was being made. The reimbursements would not cover such items as parking and depreciation which made up a large part of the total amount claimed. The principle of , has been applied in order to arrive at amounts which appear to be reasonable in view of all*215 of the evidence.
The Commissioner next contends that even the unreimbursable portion of the automobile expenses may not be subtracted from gross income in determining adjusted gross income under section 22 (n) (2) because the expenses were not incurred in travel "while away from home." Section 22 (n) (2) provides that adjusted gross income means the gross income minus --
(2) Expenses of travel and lodging in connection with employment. -- The deductions allowed by section 23 which consist of expenses of travel, meals, and lodging while away from home, paid or incurred by the taxpayer in connection with the performance by him of services as an employee;
The travel on which the unreimbursable expenditures were incurred was all travel away from Orange, the "home" of Horace for this purpose, and was, therefore, travel away from home within the meaning of section 22 (n) (2) even though it never entailed an overnight trip. ; .
Decision will be entered under Rule 50.