Peurifoy v. Commissioner

James E. Peurifoy, et al., * Petitioners, v. Commissioner of Internal Revenue, Respondent Peurifoy v. Commissioner Docket Nos. 55694, 56074, 56262 United States Tax Court 27 T.C. 149; 1956 U.S. Tax Ct. LEXIS 47; October 31, 1956, Filed *47 Decisions will be entered under Rule 50. Deductions -- Traveling Expenses. -- Held, that the evidence establishes that the employment of the petitioners away from the places of their established residences was temporary in character and that the costs of meals, lodging, and transportation constituted deductible traveling expenses while away from home. Secs. 22 (n) and 23 (a) (1) (A), I. R. C. 1939. Daniel R. Dixon, Esq., for the petitioners. Hubert E. Kelly, Esq., for the respondent. Atkins, Judge. ATKINS *149 The respondent determined deficiencies in income tax for the calendar year 1953 as follows: Jame E. Peurifoy $ 449.88 Paul V. Stines and Betty O. Stines 492.12 John S. Hall and Doris D. Hall 365.06 *150 The question presented is whether amounts expended by James E. Peurifoy, Paul V. Stines, and John S. Hall, hereinafter*48 referred to as the petitioners, for board and lodging at a job site and for transportation therefrom to their residences after termination of employment are deductible pursuant to sections 22 (n) and 23 (a) (1) (A) of the Internal Revenue Code of 1939, or whether they constitute nondeductible personal expenditures under section 24 (a) (1). FINDINGS OF FACT. In the case of each petitioner some of the facts were stipulated and are found as stipulated, the stipulations being incorporated herein by this reference. Returns were timely filed by the petitioners for the calendar year 1953 with the district director of internal revenue for the district of North Carolina. The petitioner James E. Peurifoy is a pipe welder. Since August 13, 1951, he has been a member of local No. 329, with headquarters in Wilmington, North Carolina, of the trade union known as the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (hereinafter referred to as the union). The petitioner Stines is a journeyman plumber and the petitioner Hall is a welder. Since 1947 and 1952, respectively, they have been members of local No. 785 of the same*49 union, with headquarters at Raleigh, North Carolina. They all obtain employment through their local unions which send them to various work sites where they are then hired by the employer. Members of local unions are often sent to other jurisdictions for work. In the case of a large project journeymen workers, as distinguished from foremen or superintendents, may be drawn from various States. Where a job requires more skilled craftsmen than a local union has available in the area, the local union will deal with other local unions in the same State or other States in order to procure the necessary workers. If this does not produce sufficient workmen the national union will procure journeymen and apprentices from all over the country. A journeyman craftsman working on construction projects may have several different employers in the course of a year or even though he may work for one employer throughout a year, he may work at several different job sites. In the building and construction industry, some construction jobs such as the Atomic Energy projects, may run for a period of years, but the general run of jobs is for a period of a few weeks or for a few months. The petitioner*50 Peurifoy is, and was during the year 1953, an unmarried individual. During the entire year 1953, he owned and maintained a residence at Kure Beach, North Carolina, which is about *151 20 miles from Wilmington. He actually resides there when he is employed in the vicinity of Wilmington and returns to this residence on weekends if the place of employment is within a reasonable distance. He uses his own automobile for transportation. He was first employed by the Piping Equipment Company with main offices in Greensboro, North Carolina, to work on a paper mill at Acme, North Carolina. He worked on this project from about August 13, 1951, until about March 10, 1952. He was next employed by the Grinnell Company of Charlotte, North Carolina, to work on the duPont plant at Kinston, North Carolina. He worked on this project from March 10, 1952, until November 20, 1953. While so employed he roomed and boarded near Kinston and from January 1, 1953, through November 20, 1953, he expended for room and board the sum of $ 496. The distance from his home in Kure Beach to the duPont plant is approximately 122 miles. The cost to him of driving his automobile from Kinston to Kure Beach after*51 termination of this employment was $ 8.54. He was next employed by the Grinnell Company to work on the Carolina Light and Power Company plant at Mount Misery, North Carolina, situated about 7 miles from Wilmington. He worked on this project from November 30, 1953, through May 14, 1955, and while he worked on this project he resided in his residence at Kure Beach. Thereafter, in 1955, he worked at Cherry Point, North Carolina, for 3 months, at Acme, North Carolina, for 2 weeks, and at Barberton, Ohio, for about 1 week. In his return for 1953, he deducted the amount of $ 1,920.80 from gross income as "Subsistence and temporary quarters necessary for earning income, not reimbursed by employer." The respondent disallowed the entire claimed deduction on the ground that payment thereof had not been proven and that even if paid the expenditure represented personal and living expenses. The petitioners Paul V. Stines and Betty O. Stines are husband and wife. Betty O. Stines appears as a petitioner by virtue of having joined in the filing of the income tax return for 1953. During the entire year 1953 they maintained a residence in Raleigh, North Carolina, and had maintained such residence*52 since sometime in 1952. Betty O. Stines and the petitioners' minor child actually resided in such residence during the entire year 1953. Since 1947, when he became a member of the union, the petitioner Paul V. Stines has had about 30 jobs ranging in duration from 2 weeks to over a year. He worked for one employer for over 2 years but on different jobs in different locations. He was employed by the Grinnell Company of Charlotte, North Carolina, to work on the duPont plant at Kinston, North Carolina, from March 26, 1952, until about April *152 10, 1953, when he was discharged. While so employed, he rented a room at Kinston, North Carolina, and ate his meals in restaurants. During 1953 he expended $ 262.50 for room and board. The distance from Raleigh to Kinston by automobile is approximately 78 miles and the distance from Kinston to the plant site is approximately an additional 8 miles. He drove his car or rode with others from his residence in Raleigh to his rooming house in Kinston and returned once a week. The cost to him, under his car-pool arrangement, for transporation from Kinston to Raleigh upon termination of his work in Kinston was $ 1.09. While employed at Kinston*53 he received 14.8 cents per hour greater than the normal union scale in accordance with the agreement between the Grinnell Company and the union. All union employees received this additional amount regardless of where they were living. This extra amount was intended to compensate the employees for time expended in going from the town of Kinston to the job site and return. He was next employed by Carl B. Mims of Raleigh from about April 13, 1953, to about April 28, 1953, to work in and around the environs of Raleigh. He then worked for A. L. Wright and Company, Inc., of Portsmouth, Virginia, from about May 6, 1953, to about June 23, 1953, when he quit for personal reasons. This work was performed on the Westinghouse plant near Raleigh. His next employment was with Markowitz Bros., Inc., of Miami, Florida, to work on an airbase near Charleston, South Carolina. He worked there from about June 23, 1953, to about July 15, 1953. He went to Charleston by driving his car. The distance from Raleigh to Charleston is approximately 300 miles and the distance from his boarding house in Charleston to the plant site is approximately 11 miles. While at Charleston the petitioner expended $ 57*54 for room and board. The expenses incurred for driving his car from Raleigh to Charleston and return was $ 42. He was next employed by Biemann and Rowell of Raleigh, North Carolina, from August 1, 1953, through December 31, 1953. While so employed he was loaned by his employer to Garrison and Hopkins Company, Inc., of Charlotte, North Carolina, to work on the S. H. Kress Company job in Raleigh, and to Cooper and Goodwin of Raleigh to work from December 9, 1953, through December 30, 1953, in and around the environs of Raleigh. He also worked for Garrison and Hopkins Company, Inc., at Fort Bragg, North Carolina, for approximately 7 1/2 weeks during 1953. While there he expended $ 155.63 for room and board. The distance from Raleigh to Fort Bragg is approximately 50 miles. The cost of his transportation for the round trip to Fort Bragg was approximately $ 7. *153 In their return for the year 1953, the petitioners Paul V. and Betty O. Stines deducted the amount of $ 2,480 from gross income for "Subsistence and quarter [sic] non reimbursable by employer necessary to earning income." The respondent disallowed the deduction for the same reasons as in the case of the petitioner*55 Peurifoy. The petitioners John S. Hall and Doris D. Hall are husband and wife. They have three minor children. During the entire year 1953 they maintained a residence in Raleigh, North Carolina. They maintained such residence for approximately 4 years ending in the early part of 1954. Doris D. Hall and the three children actually resided there during the entire year 1953. The petitioner John S. Hall was first employed in 1952 by the Grinnell Company of Charlotte, North Carolina, to work on the Burlington Mills plant at Neuse, North Carolina, and worked on this project until it was completed in that year. He was next employed by the Grinnell Company to work on the duPont plant at Kinston, North Carolina, and worked on this project from October 21, 1952, through July 10, 1953. He resigned for personal reasons. While working on the duPont plant at Kinston, he expended $ 530.13 for room and board during the period January 1, 1953, through July 10, 1953. During this time he returned to Raleigh on weekends. The cost to him of his transportation from Kinston to Raleigh after termination of his employment was $ 2.01. While he was employed on this project he received 14.8 cents per*56 hour greater than the normal union scale, as explained hereinabove. He was next employed by A. L. Wright and Company, Inc., of Portsmouth, Virginia, to work on the Westinghouse plant under construction in Raleigh. He worked on this project from July 13, 1953, until the project was completed on March 5, 1954. Thereafter, in 1954 and 1955, he worked at Portsmouth, Ohio, for about 3 1/2 months, at Aiken, South Carolina, for about 2 weeks, at Hopewell, Virginia, for about 7 months, at Tarboro, North Carolina, for 1 month, and at Moncure, North Carolina, on 2 successive jobs of 3 months each. The petitioners John S. Hall and Doris D. Hall filed separate individual income tax returns for the year 1953. In his return for 1953 the petitioner John S. Hall deducted from gross income the amount of $ 1,556.60 as "Subsistence and quarters non reimbursable by employer necessary to earning income." The respondent disallowed the claimed deduction of $ 1,556.60 for the same reasons as in the case of the other petitioners herein. Although the petitioner and his wife filed separate returns for 1953 the respondent, in his notice of deficiency, gave the petitioner the benefit of joint filing by including*57 in the notice of deficiency an adjustment for salary income earned by Doris *154 D. Hall in the amount of $ 270.54. No error has been assigned regarding this adjustment. The employment of the petitioners at the duPont plant at Kinston was temporary and the expenses incurred by them for food and lodging while there and for transportation therefrom to their residences upon termination of such employment were incurred while away from their homes in the pursuit of their trade. OPINION. The question presented is whether the expenses incurred by the petitioners for meals and lodging while engaged in work at the duPont plant at Kinston, and the cost of returning therefrom, upon termination of their employment, to the places of their residence, constitute allowable deductions under the provisions of sections 22 (n) and 23 (a) (1) (A) of the Internal Revenue Code of 1939, 1*58 or whether they are nondeductible personal, living, or family expenses within the meaning of section 24 (a) (1). 2 There remains no controversy as to the amounts of any of the expenditures. The stipulation fixes some of the amounts and the parties on brief agree as to others. The amounts of expenditures which we have set forth in our Findings of Fact are limited to the amounts now claimed by the petitioners on brief, they having therein waived any claim of deductibility of certain expenditures. Ordinarily the cost of meals and lodging is personal and therefore not deductible in arriving at net income. Congress has specifically provided in section 24 (a) (1) that personal, living, or family expenses are not deductible. And commuting expenses to and from work have always been treated as nondeductible. Frank H. Sullivan, 1 B. T. A. 993. *155 Thus, it has been held that if a taxpayer chooses for reasons personal to*59 him to maintain his residence at a place other than the place of his employment, his personal or living expenses at the place of employment do not lose their character as nondeductible personal expenditures. Commissioner v. Flowers, 326 U.S. 465. See also Barnhill v. Commissioner, (C. A. 4) 148 F. 2d 913; Ford v. Commissioner, (C. A. 4) 227 F. 2d 297; and Andrews v. Commissioner, (C. A. 4) 179 F. 2d 502, each affirming a decision of this Court. In the Flowers case, supra, the Supreme Court stated that "business trips are to be identified in relation to business demands and the traveler's business headquarters. The exigencies of the business rather than the personal conveniences and necessities of the traveler must be the motivating factors." The Supreme Court there also stated that whether particular expenditures fulfill the conditions so as to entitle a taxpayer to a deduction is purely a question of fact in most instances. In the Barnhill case, supra, the court stated: It is clear in the first place that Congress, in prescribing*60 the rules for the computation of net income, intended to confine the deductions for business expenses to those which are ordinary and necessary, and to prohibit the deduction of personal living or family expenses. It was recognized that the taxpayer must maintain a home for his family at his own expense even when he is absent on business, and that his personal expenses during his absence on business may fairly be regarded as expenses of the business. 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. * * * As we view the situation here, we do not have the case of a taxpayer who for personal reasons, as distinguished from the requirements of his business, maintains his residence at a place other than that of his actual employment. Each*61 of the petitioners before us is a construction worker and each maintained a residence at a particular place, Peurifoy at Kure Beach, near Wilmington, North Carolina, and Stines and Hall at Raleigh, North Carolina. Each of them belonged to a local union at or near the place of his residence and each obtained employment through that union. The stipulated facts show that throughout a number of years, including the taxable year before us, they have worked at various job sites both at or near their residences and at distant points, sometimes in other States, for varying periods of time. There was no particular place where any one of them principally had employment, although each of them at times worked at or near the place where he maintained his residence. The record indicates that each was accustomed to return to the place of his residence *156 upon the completion of a job. Impelling reasons for the acceptance of employment away from the place of residence readily come to mind, such as the availability of work, the current pay scale, or working conditions. In this situation we are of the opinion that when any of the petitioners accepted temporary employment away from the places*62 of their residence, they reasonably could not have been expected to establish a residence at the places of employment. In those instances the expenses incurred at the places of employment are considered as being due to the exigencies of the trade or business. That was the situation in Harry F. Schurer, 3 T. C. 544, and E. G. Leach, 12 T. C. 20, in which we held the traveling expenses to be deductible. The respondent recognizes that this is the proper view and concedes that the employment of the petitioner Paul V. Stines at Charleston, South Carolina, for about 3 weeks and at Fort Bragg, North Carolina, for about 7 1/2 weeks was temporary and that expenses incurred by him in traveling to those places to accept employment and returning to Raleigh and the cost of board and lodging while at those places are deductible. On the other hand, he contends that the expenses incurred by each of the petitioners in connection with employment at the duPont plant at Kinston, North Carolina, are not deductible. He argues that that job was not temporary, but was of indefinite or indeterminate duration, relying principally upon the length*63 of time the petitioners were employed there, Peurifoy for about 20 1/2 months, Paul V. Stines for about 12 1/2 months, and John S. Hall for about 8 1/2 months, portions of which periods fell within the taxable year. He relies upon the line of cases in which the position has been taken that if the employment is of indefinite duration, the additional living costs and the transportation costs incurred because of failure to bring together the place of residence and the place of employment are deemed to have been occasioned by reasons of personal choice or convenience, resulting in the nondeductibility of the expenses. See Willard S. Jones, 13 T. C. 880; Beatrice H. Albert, 13 T. C. 129; Commissioner v. Andrews, supra; and Ford v. Commissioner, supra. The principal factor upon which those cases turned was the nature of the employment. In the Albert case we said that the employment "was not the sort of employment in which termination within a short period could be foreseen, as was the situation in Harry F. Schurer, 3 T. C. 544, and E. G. Leach, 12 T. C. 20.*64 " In the Jones case the taxpayer was required to work for his employer until released and he could not obtain other work without a release. In the Andrews case the employment was "for the duration of the war" and was characterized by the court as being "of indefinite tenure." In the Ford case *157 the taxpayer had a regular and continuing employment with one employer over a number of years as subforeman and later as piping superintendent. The petitioners argue that any employment upon a construction project is temporary in that by its very nature it is terminable, and that hence any expense in connection therewith should be considered as deductible business expense. We think it obvious that such a flat rule cannot be adopted. Each case must be decided upon the basis of its own facts and circumstances, including those relating to the known or contemplated duration of the work, the taxpayer's intent with regard to the maintenance or establishment of business headquarters, and any facts that develop during the course of the employment. Employment which may appear to be temporary in character at the start may ripen into employment of indefinite duration. See Arnold P. Bark, 6 T. C. 851.*65 Furthermore, employment may be of such relatively long actual duration as to indicate, in the absence of evidence to the contrary, that the employment was either indefinite at the start or developed into indefinite employment. Upon the record in the instant cases, we think that the employment at Kinston was of the same general nature as that involved in the Schurer and Leach cases, supra. The petitioner Hall testified that when they entered upon a job at a particular site, including the Kinston job, they were not guaranteed the job for any specified time and did not know how long they would be employed there, although there was usually some hearsay information as to the duration of the work. Thus, as to all three of the petitioners, there was no reason for them to believe that the nature of the job would be any different from that of other jobs which formed the general pattern of their employment. Each of the petitioners did, upon termination of his work at Kinston, return to the place of his residence and take employment there. On these facts the employment in question is properly to be considered as temporary in nature. In such a situation it would not be reasonable*66 to expect them to shift their residences to the place of employment or to regard Kinston as their "home" for tax purposes. We conclude that the cost of board and lodging of each of the petitioners at Kinston and the cost of their transportation from Kinston to Raleigh and Kure Beach, respectively, upon termination of this particular employment constitute traveling expenses incurred while away from home in the pursuit of his trade within the intendment of section 23 (a) (1) (A), and that they are deductible under section 22 (n). See Carroll B. Mershon, 17 T. C. 861. Decisions will be entered under Rule 50. Footnotes *. Proceedings of the following petitioners are consolidated herewith: Paul V. Stines and Betty O. Stines, Docket No. 56074, and John S. Hall and Doris D. Hall, Docket No. 56262.↩ 1. SEC. 22 (n). Definition of "Adjusted Gross Income." -- As used in this chapter the term "adjusted gross income" means the gross income minus -- (1) Trade and business deductions. -- The deductions allowed by section 23 which are attributable to a trade or business carried on by the taxpayer, if such trade or business does not consist of the performance of services by the taxpayer as an employee; (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; 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. -- * * * traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business; * * *↩ 2. 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)↩; * * *