Chimento v. Commissioner

Carmen Chimento and Susan Chimento, Petitioners v. Commissioner of Internal Revenue, Respondent Chimento v. Commissioner Docket No. 5105-67 United States Tax Court 52 T.C. 1067; 1969 U.S. Tax Ct. LEXIS 51; September 29, 1969, Filed *51 Decision will be entered for the respondent. T was a writer of technical reports and manuals who obtained employment with various firms that in turn had contracts or arrangements with various corporations to furnish writers to such corporations to prepare reports and manuals for them. From May 1956 when T left the Air Force until September 1963, he held 13 different jobs at widely scattered locations in California, Texas, Colorado, Massachusetts, New York, and Pennsylvania. In between jobs, T often stayed at his brother's house in Garfield, N.J., where he kept certain belongings during his jobs; he paid no rent to his brother. In September 1963, T was employed by Theil Publications, Inc., which sent him to Binghamton, N.Y., to perform writing services for General Precision, Inc. T remained in Binghamton at this job until May 1966. T at first lived for 2 weeks in a motel in Binghamton and then rented a furnished apartment. In 1964, he married, and shortly thereafter rented an unfurnished apartment for which he purchased furniture; he and his wife remained in that apartment until May 1966. T's car was registered in New York, and he and his wife filed a joint resident New York*52 State income tax return for 1965. On his joint Federal income tax return for 1965, T deducted the cost of his meals and lodging while in Binghamton in 1965 as travel expenses incurred while "away from home." Sec. 162(a)(2), I.R.C. 1954. The Commissioner disallowed the deduction in full. Held, the expenses were not incurred by T while "away from home." He had no home other than Binghamton during 1965; his connections with Garfield, N.J., were too tenuous for it to be considered his home. Further, at least by 1965, his job in Binghamton was indefinite rather than temporary in nature, so that Binghamton had in any event become his "tax home," regardless of whether he might otherwise have had a home in Garfield. Carmen Chimento, *53 pro se. Bert W. Hunt, for the respondent. Raum, Judge. RAUM *1068 The Commissioner determined a deficiency of $ 1,014.86 in petitioners' income tax for 1965. The sole issue is whether certain expenditures made by petitioner Carmen Chimento for meals and lodging during that year were made while he was "away from home" so as to be deductible as "traveling expenses * * * while away from home" within section 162(a)(2), I.R.C. 1954. The resolution of the issue turns on where his "home" was located for the purposes of the statute. FINDINGS OF FACT The parties have stipulated certain facts, which, together with the attached exhibits, are incorporated herein by this reference. Petitioners Carmen and Susan Chimento are husband and wife; they resided in Honeoye Falls, N.Y., at the time of filing their petition herein. They filed their joint Federal income tax return for 1965 with the district director for the Buffalo district of New York. Carmen Chimento will sometimes hereinafter be referred to as petitioner. Petitioner was born March 14, 1930, in Pittston, Pa. After graduating from high school in 1947, he moved with his father to Buffalo, N.Y., where his father lived until*54 his death in 1956. In the latter part of 1953, petitioner moved to his brother's house at 150 Schley Street, Garfield, N.J. He worked from this time until April 1954 for General Motors in East Bloomfield, N.J. In April 1954, petitioner joined the Air Force where he served until May 1956 as a radar technician. He then returned to Buffalo where he worked for Bell Aircraft as an engineering writer for a period of a few months. Upon his father's death in 1956, petitioner went to his brother's home in Garfield and stayed for about a month before moving to El Segundo, Calif., where he worked as a technician for Hughes Aircraft from November 1956 until at least July 1959. His activities between July and November 1959 do not clearly appear in the record. From November 1959 to February 1960 petitioner worked for United Technical Services of Hollywood, Calif., as an engineering writer on Atlas missile electronic systems. He then worked for Mark Hild Publications of Los Angeles, Calif., from February 1960 to April 1960 as an engineering writer on certain aspects of the Atlas *1069 missile system. He worked for Cushing & Nevell in Denver, Colo., from May 1960 to January 1961 as an*55 engineering writer on the Titan missile electronics systems. He then moved to Massachusetts where he was assigned by Nationwide Consultants of Cleveland, Ohio, to perform technical writing duties for Raytheon on the Hawk missile radar equipment. Petitioner remained at this job from February 1961 to June 1961. He then worked for Missiltron of West Hempstead, Long Island, from June 1961 through July 1961 doing reports on the Sparrow and Sidewinder simulator designs. His next job was for Malt and Ness of Buffalo, which assigned him to General Dynamics in Rochester, N.Y., as a technical writer, from August 1961 to December 1961. Upon the termination of that job, he returned to his brother's house in Garfield and remained there for 2 months while looking for a new assignment. In February 1962, he was employed by Theil Publications, Inc. (Theil), 1 of Franklin Square, N.Y., which assigned him as a technical writer to a job with IBM in Kingston, N.Y.; the job lasted until May 1962. Petitioner then returned to Garfield and sought employment on the east coast. Unable to find such employment, he took a job in Downey, Calif., for a Beverly Hills consulting firm where he worked for 7 *56 or 8 weeks. Returning to Garfield in July or August, he was unable to find employment until December 1962, when he was reemployed by Theil and sent again to Kingston, N.Y., to work with IBM. This assignment lasted until February 1963. Petitioner then returned to Garfield for 3 weeks before obtaining an assignment from NIBA Associates of New York City to perform writing services in Richardson, Tex., for Collins Radio. This assignment lasted from March 1963 until May 1963. Petitioner returned to Garfield in June or July 1963 and obtained an assignment from Development & Designers Co. of Norristown, Pa., in which he performed writing services for Burroughs Corp. in Paoli, Pa. This assignment lasted until September 1963. In September 1963, petitioner began his third assignment with Theil, which took him to Binghamton, N.Y., until May 1966, during which time he wrote technical manuals for General Precision, Inc. After the termination of that assignment, he began work in October 1966 directly for General Dynamics, which assigned him to Rochester for 2 months, then to Fort Worth, Tex., until February or March 1967, and then back to Rochester until May 1968. Petitioner then began *57 work for Atlantic Design Co. in Endicott, N.Y., where he stayed until November 1968 at which time he was assigned by Atlantic Design to Pittsfield, Mass., until March or April 1969. *1070 During the year at issue (1965), therefore, petitioner was working in Binghamton, N.Y., where he had begun work in September 1963 which he performed continuously until May 1966. His employer, Theil, was engaged in subcontracting its employees' services to aerospace, aircraft, and other companies, with its technical employees writing technical manuals at the physical locations of such companies. During this period, Theil had a contract with General Precision, Inc., to write certain technical manuals and reports, and hired petitioner to help perform such tasks. Petitioner was paid during this period by Theil. Most of petitioner's previous jobs were of a similar nature. At the time he began this*58 assignment in September 1963, petitioner was unmarried. He had certain personal possessions in his brother's house in Garfield, N.J. He owned a car, which may have been registered in either California or New Hampshire. Petitioner first lived in a motel in Binghamton for 2 weeks and then moved into a furnished apartment, where he stayed for about 1 year. During this time he would return to Garfield for weekends every month or 6 weeks. Petitioner married in 1964. He and his wife lived in his furnished apartment for 3 or 4 months and then rented an unfurnished apartment. They did not regard any furnished apartment as "suitable living quarters." They purchased furniture for the new apartment, and petitioner's car was eventually registered in New York. The new apartment was located at 730 Chenango Street, Binghamton, N.Y., and petitioner and his family resided there throughout 1965. Petitioner registered to vote in Buffalo in the early 1950's, but since that time has not been registered to vote anywhere. The addresses given by petitioner on his Federal income tax returns for the years 1963-67 were as follows (errors in spelling and street numbers have been corrected): [1963] 145 Court Street, Binghamton, N.Y. 1964 1 730 Chenango Street, Binghamton, N.Y. 1965 1 730 Chenango Street, Binghamton, N.Y. 1966 1 1806 Quaker Meeting House Road, Honeoye Falls, N.Y. 1967 1 1806 Quaker Meeting House Road, Honeoye Falls, N.Y. *59 Petitioner filed New York State income tax returns for the years 1961-64. Petitioner and his wife filed joint resident New York State income tax returns for 1965 and 1967. The address on the 1965 return was 730 Chenango Street, Binghamton, N.Y. The address in the 1967 return was 1806 Quaker Meeting House Road, Honeoye Falls, N.Y. In 1962, petitioner submitted a resume to Theil, giving his address as 13 Sibley Place, Rochester, N.Y. Petitioner never voted, paid taxes, had his name listed in a telephone book, owned real estate, or registered *1071 a car in New Jersey. He never paid rent to his brother in Garfield. During 1965, he maintained a bank account in Binghamton. In 1965, he owned racehorses which he kept in New York State. In 1968, he purchased a 20-acre farm in Gibson, Pa., for $ 22,500. Petitioner's Federal income tax return for 1965 included a Form 2106 "Statement of Employee Business Expenses," on which he reported expenses for meals and lodging of $ 4,641 and for automobile expenses of $ 800. That these amounts were actually expended is not in dispute. From the resulting total of $ 5,441, petitioner subtracted*60 $ 2,578 as "Amount of employer's payments for above expenses (other than amounts included on Form W-2)," and arrived at a figure of $ 2,863 which he deducted in computing adjusted gross income. The parties have now agreed that petitioner was reimbursed for his expenses in the amount of $ 2,667.94 in 1965 by his employer. In his notice of deficiency, the Commissioner disallowed the $ 2,863 deduction for employee business expenses and increased petitioner's gross income by $ 1,867.94 in respect of reimbursements by his employer. The effect of these adjustments was that petitioner's $ 800 deduction for automobile expenses was allowed, his $ 4,641 deduction for meals and lodging was disallowed, and the reimbursement of $ 2,667.94 was included in gross income in an amount $ 89.94 greater than the $ 2,578 that was in effect included by petitioner, with a resulting increase in adjusted gross income of $ 4,730.94 ($ 4,641 plus $ 89.94). OPINION Section 162(a), I.R.C. 1954, provides for the deduction of ordinary and necessary business expenses, which include "traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the *61 circumstances) while away from home in the pursuit of a trade or business." The dispute in this case concerns whether petitioner was "away from home" during 1965. Petitioner claims his home was his brother's house in Garfield, N.J., while the Commissioner contends that it was in Binghamton, N.Y. We sustain the Commissioner. Cases involving the meaning of "away from home" often involve a situation in which the taxpayer's residence and place of work are at different locations. In such cases, a taxpayer may argue that "home" in section 162(a) (2) means residence, a view that has not been universally accepted: compare Rendell Owens, 50 T.C. 577, 580; Ronald D. Kroll, 49 T.C. 557, 561-562; Floyd Garlock, 34 T.C. 611, 614; and Mort L. Bixler, 5 B.T.A. 1181, 1184; with Steinhort v. Commissioner, 335 F. 2d 496, 504-505 (C.A. 5); Burns v. Gray, 287 F. 2d 698, 700 (C.A. 6); Commissioner v. Janss, 260 F. 2d 99, 104 (C.A. 8); *1072 and Wallace v. Commissioner, 144 F. 2d 407, 411*62 (C.A. 9); cf. Stidger v. Commissioner, 386 U.S. 287, 291-292. A taxpayer may also argue that his job assignment is merely "temporary," as opposed to "indefinite," so that he falls under the rule that a temporary place of employment that differs from a taxpayer's residence does not become his "tax home" for section 162(a)(2) purposes. See, e.g., Ronald D. Kroll, 49 T.C. 557, 562; Lawrence P. Dowd, 37 T.C. 399, 409; Floyd Garlock, 34 T.C. 611, 615; Harry F. Schurer, 3 T.C. 544, 547. Cf. Peurifoy v. Commissioner, 358 U.S. 59 While petitioner was not here represented by counsel and filed no brief, we think that neither of the above arguments are relevant to his case because he did not during the year in issue (1965) maintain a residence separate from his place of employment. There was no place other than Binghamton that could be considered petitioner's home under any theory. His connections in Garfield, N.J., were far too tenuous to warrant characterizing it as his home. He paid no rent to *63 his brother; he owned no property and paid no taxes in New Jersey. At best, he merely visited his brother's home there on occasion and kept a few of his belongings there. He lived throughout the year with his family in Binghamton, registered his automobile in New York State, and filed a resident New York State income tax return. Petitioner's peripatetic existence over the 9 years prior to his assignment in Binghamton found him in some 13 different jobs in 13 widely scattered locations. At no time did he have a fixed place of residence. Petitioner from the time he left the Air Force in 1956 until his assignment to Binghamton was one of those taxpayers without a fixed abode who have been held, for purposes of section 162(a)(2) "to carry their homes on their backs" and are thus never "away from home." See, e.g., James v. United States, 308 F. 2d 204 (C.A. 9), Kenneth H. Hicks, 47 T.C. 71; Henry C. Deneke, 42 T.C. 981; Wilson John Fisher, 23 T.C. 218, affirmed 230 F. 2d 79 (C.A. 7); Charles E. Duncan, 17 B.T.A. 1088,*64 affirmed per curiam 47 F. 2d 1082 (C.A. 2). Petitioner carried his home on his back to Binghamton and there his home remained during his assignment there. Many cases have pointed out that the primary purpose of allowing "away from home" expenses to be deducted is to mitigate the burden on a taxpayer who must maintain two separate places of abode and thus duplicate certain expenses. See, e.g., James v. United States, 308 F. 2d 204, 207-208 (C.A. 9); Harvey v. Commissioner, 283 F. 2d 491, 495 (C.A. 9); Ronald D. Kroll, 49 T.C. 557, 562; Kenneth H. Hicks, 47 T.C. 71, 74; and Leo M. Verner, 39 T.C. 749, 754. Here, petitioner incurred no living expenses in respect of his alleged home in Garfield. As the court stated in James v. United States, 308 F. 2d at 207-208: *1073 For these reasons it has generally been held that the taxpayer cannot be "away from home" within the meaning of Section 23(a)(1)(A) [the predecessor in the 1939 Code to section 162(a)(2)] unless*65 he has a "home"; or the same result is reached by holding that the "home" of a taxpayer without a fixed and permanent abode is located wherever the taxpayer happens to be. n8 And we think the better reasoned authority holds that a taxpayer has a "home" for this purpose only when it appears that he has incurred substantial continuing living expenses at a permanent place of residence. n9 [Footnotes omitted.] See also United States v. Mathews, 332 F. 2d 91 (C.A. 9). By such definition, petitioner's home in 1965 was not Garfield, N.J., but was Binghamton, N.Y. The expenses for which he took deductions were thus not incurred while he was "away from home" and are therefore not properly deductible. Moreover, we note that even if petitioner had a bona fide residence in Garfield, it would not qualify as his "home" within the statute, for, by 1965 at least, when the petitioner was married, had rented an unfurnished apartment in Binghamton, and had purchased furniture therefor, his presence in Binghamton had become indefinite rather than temporary, and, for that reason alone he would not have been "away from home" within the meaning of section 162(a)(2). *66 Cf. Leo M. Verner, 39 T.C. 749; Arnold P. Bark, 6 T.C. 851. Decision will be entered for the respondent. Footnotes 1. This company is also referred to as "Theil Technical Services" and "Theil Incorporated" on various letterheads and forms in evidence.↩ 1. Joint returns with Susan M. Chimento.↩