Hyslope v. Commissioner

Charles H. Hyslope and Anna J. Hyslope, Petitioners, v. Commissioner of Internal Revenue, Respondent Hyslope v. Commissioner Docket No. 35941 United States Tax Court 21 T.C. 131; 1953 U.S. Tax Ct. LEXIS 39; October 29, 1953, Promulgated *39 Decision will be entered for the respondent. In 1949, Charles H. Hyslope received a salary of $ 2,475 as a State Police Trooper for the State of Indiana. He received an additional sum of $ 842 from the State as reimbursement for various expenses incurred by him, including $ 545 representing reimbursement for meals purchased during hours of official duty. Petitioner's home was within 20 miles of the most distant point of duty in the area of the State to which he was assigned. 1. Held, the sum of $ 842 was properly included by petitioner in gross income in his return for 1949; 2. Held, further, the sum of $ 545 of such amount was a personal expenditure under section 24 (a) (1) and is, therefore, not deductible. John J. Rochford, Esq., and Paul T. Rochford, Esq., for the petitioners. R. G. de Quevedo, Esq., for the respondent. Rice, Judge. RICE *132 This proceeding involves a deficiency in income tax for the year 1949 of $ 152.36 determined against Charles H. Hyslope (hereinafter referred to as the petitioner) and Anna J. Hyslope, his wife. The issues to be determined are: (1) Was the sum of $ 842, which petitioner received from the State of Indiana as reimbursement for various expenses incurred by him, includible in gross income within the provision of section 22 (a) of the Code; and (2) if so, was $ 545 of such amount, which petitioner spent for meals while on official duty, deductible under the provisions of either section 22 (n) or 23 (a) of the Code? Additional adjustments, which respondent made in his deficiency notice, have been conceded by petitioner. FINDINGS OF FACT. Petitioner and Anna J. Hyslope were husband and wife during the year in question. They resided together in *41 Speedway City, Indiana, and filed their joint income tax return on the cash receipts and disbursements basis with the collector of internal revenue at Indianapolis. Since 1938, except for 37 months spent in military service, petitioner was employed as a State Police Trooper by the State of Indiana. He received a salary of $ 2,475 from such employment in 1949 on which Federal income tax was withheld and reported on Treasury Form W-2. He received an additional sum of $ 842 from the State as reimbursement for the expense of uniform maintenance, telephone, lodging while away from home, meals eaten during his daily tour of duty, and occasional meals bought for prisoners temporarily in his custody. Two dollars of such amount was for lodging while attending a shooting school at Camp Atterbury, Indiana. The remaining $ 840 was paid to him in 12 monthly checks of $ 70 each. When petitioner was first employed as a State Trooper, each trooper was required to submit itemized monthly vouchers of every expenditure for which the State authorized reimbursement. A short time thereafter, such system was discontinued; and the practice of paying troopers an average monthly sum to cover such expenses*42 was adopted. Such sum was $ 70 in 1949. Petitioner's home was within 20 miles of the most distant point in the area of the State to which he was assigned. He worked an average of 10 hours per day; and at various times during the year in question, he worked each shift -- from 6 a. m. to 4 p. m., 2 p. m. to 12 p. m., or *133 from 12 p. m. to 8 a. m. He was subject to call at all times and always notified his headquarters-post of his whereabouts. Petitioner included the sum of $ 842, which the State had reimbursed to him, in gross income on his return for 1949. He deducted the same amount as "Miscellaneous Deductions" on page 3 of such return. The respondent allowed $ 297 of that amount as a deduction. It consisted of uniform maintenance expense, telephone expense, attendance at shooting match expense, and room rent while away from home. The only amount here in issue is $ 545 of such sum representing reimbursement for meals purchased during his daily tours of duty. OPINION. Having originally included the $ 842 reimbursed to him by the State of Indiana in gross income on his return for 1949, petitioner now argues that such sum should not have been so included within the meaning*43 of section 22 (a) of the Code. In support of his argument, he relies on Clifford Jones v. United States, 60 Ct. Cl. 552 (1925). That case was specifically distinguished by this Court in Gunnar Van Rosen, 17 T. C. 834 (1951) wherein we said at pages 839-40: while the Jones case is authority for the exclusion from gross income by military personnel of cash allowances made to them for subsistence and quarters, it does not, in our opinion, require or justify an extension of the rule therein to similar allowances made to civilian personnel. We think that the Van Rosen case is ample authority for our holding here that the amount reimbursed to petitioner by the State of Indiana was clearly within the meaning of gross income as defined by section 22 (a) of the Code and was, therefore, correctly included as such by him in his return as filed. See also: Marcus O. Benson, 2 T. C. 12 (1943), affd. 146 F. 2d 191 (C. A. 9, 1944); I. T. 3978, 1949-2 C. B. 24. We are also unable to agree that the $ 545 which petitioner spent for meals*44 was a properly deductible expense under either section 22 (n) (2) 1 or 23 (a) (1) 2*45 of the Code. We think the amount so spent *134 falls within the ambit of section 24 (a) (1) 3 and is, therefore, not deductible. The petitioner was regularly employed within an area, the most distant point of which was not more than 20 miles from his home. There is no showing that he was away from home for any extended time or at any great distance during the year in question except for his attendance at a shooting school at Camp Atterbury for which allowances were made. Such travel as he did was daily routine and, hence, cannot come within the scope of our decision in Kenneth Waters, 12 T. C. 414 (1949). As we said in Fred Marion Osteen, 14 T. C. 1261 (1950): "* * * The petitioner was in no essentially different position from the worker who is unable to have one of his meals at home." The fact that sometimes the meal which he ate in a restaurant was the evening one rather than lunch, or that occasionally*46 it was both, does not, in any way, make the cost thereof anything other than a personal expenditure. See Louis Drill, 8 T. C. 902 (1947). Petitioner testified that on some few occasions it was necessary for him to purchase a meal for a prisoner temporarily in his custody, as required by State Police Regulations. He was unable even to roughly approximate the number of such meals purchased during the year in question, though he did estimate that their cost, as well as the cost of his own meals, was probably $ 1 each. Since this record contains no evidence with respect to either the total amount so spent or the number of instances when it was necessary for him to purchase a prisoner's food, we are unable to make any allocation therefor under the Cohan4 rule. Decision will be entered for the respondent. Footnotes 1. SEC. 22. GROSS INCOME. (n) Definition of "Adjusted Gross Income". -- As used in this chapter the term "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; * * *↩ 2. SEC. 23. DEDUCTIONS FROM GROSS INCOME. In computing net income there shall be allowed as deductions: (a) Expenses. -- (1) Trade or business expenses. -- (A) In General. -- All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business; * * *↩ 3. SEC. 24. ITEMS NOT DEDUCTIBLE. (a) General Rule. -- In computing net income no deduction shall in any case be allowed in respect of -- (1) Personal, living, or family expenses, except extraordinary medical expenses deductible under section 23 (x); * * *↩ 4. Cohan v. Commissioner, 39 F. 2d 540↩ (C. A. 2, 1930).