                       T.C. Memo. 1995-559



                     UNITED STATES TAX COURT


                JAMES O. HENDERSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 12692-94.           Filed November 27, 1995.


     John B. Hinton, for petitioner.

     Victor A. Ramirez, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION



     POWELL, Special Trial Judge:   This case was assigned

pursuant to the provisions of section 7443A(b)(3) and Rules 180,

181, and 182.1




     1
         All section references are to the Internal Revenue Code
in effect for the year in issue, and Rule references are to the
Tax Court Rules of Practice and Procedure.
                                     2

        Respondent determined a deficiency in petitioner's Federal

income tax for 1990 in the amount of $1,791.       At the time the

petition was filed, petitioner resided in Las Vegas, Nevada.

        After concessions,2 the issue is whether petitioner is

entitled to deduct expenses for travel "while away from home"

pursuant to section 162(a)(2).

                             FINDINGS OF FACT

     James O. Henderson (petitioner) graduated from college in

June 1989 majoring in theatrical arts.       Immediately after

graduation petitioner was employed by the Oregon Shakespeare

Festival for 6 months.       During 1990, petitioner was employed as a

lighting technician for Walt Disney's World on Ice (World on

Ice).       World on Ice had its headquarters in Virginia; however,

the show toured, stopping in various cities for brief periods of

time.       Petitioner traveled on three tours during 1990.   The first

tour lasted from January 1 to May 13, 1990, and included stops in

19 cities in 10 States.      The second tour ran from July to

November 1990 and consisted of shows exclusively in Japan.       The

third tour lasted from December 5 to December 31, 1990, and

included stops in Washington, Montana, and North Dakota.

Petitioner was employed on a tour by tour basis, signing a new




        2
         Respondent concedes that petitioner is entitled to a
deduction in the amount of $2,685 for miscellaneous expenses on
Schedule A.
                                  3

employment contract before each tour.    While traveling,

petitioner received a per diem allowance of $30 for expenses.

     When petitioner was on tour he stayed in hotel rooms with

other employees.    When not on tour petitioner stayed at his

parents' house in Boise, Idaho, where he kept his car, dog, and

other belongings.   He was registered to vote, was licensed to

drive, and paid State income tax in Idaho.    Petitioner had no

ownership interest in his parents' house and paid no rent.      He

did perform some work around the house when he was not traveling,

including painting, electrical repairs, installing light fixtures

with motion sensors, landscaping, and constructing a dog house.

Petitioner's sole financial contribution to the household

consisted of approximately $500 paid to obtain the supplies

needed to perform these activities.

     On his 1990 Federal income tax return, petitioner claimed

deductions totaling $14,021 for expenses incurred while traveling

on the tours.    In the notice of deficiency respondent determined

that petitioner was not entitled to deduct the traveling expenses

because petitioner was not "away from home".    Petitioner contends

that these expenses are properly deductible as traveling expenses

while away from home pursuant to section 162(a)(2), because his

home was his parents' house in Boise, Idaho, and his employment

was temporary.
                                  4

                               OPINION

     Section 162(a)(2) allows a taxpayer to deduct traveling

expenses, including amounts expended for meals and lodging, if

such expenses are (1) ordinary and necessary; (2) incurred while

away from home; and (3) incurred in the pursuit of a trade or

business.   Commissioner v. Flowers, 326 U.S. 465, 470 (1946).

For purposes of section 162, generally "home" (or tax home) means

the vicinity of the taxpayer's principal place of business or

employment.    Mitchell v. Commissioner, 74 T.C. 578, 581 (1980);

Bixler v. Commissioner, 5 B.T.A. 1181, 1184 (1927).    A taxpayer's

residence, when different from the vicinity of his principal

place of employment, may be treated as his tax home if the

taxpayer's employment is "temporary" rather than "indefinite".

Peurifoy v. Commissioner, 358 U.S. 59, 60 (1958).

     It is axiomatic that, to be entitled to a deduction under

section 162(a)(2), a taxpayer must have a tax home from which to

be away.    A taxpayer without a tax home is deemed to have

"carried his home on his back" and is not entitled to the

deduction because he was not "away from home".    Hicks v.

Commissioner, 47 T.C. 71, 73 (1966).

     A primary consideration in determining whether a taxpayer

has a tax home is whether or not the taxpayer incurs substantial,

continuous, and duplicative living expenses.    The duplication of
                                  5

expenses is a primary raison d'être for the deduction under

section 162(a)(2).    Barone v. Commissioner, 85 T.C. 462, 465-466

(1985), affd. without published opinion 807 F.2d 177 (9th Cir.

1986).   While the meaning of the phrase "substantial, continuous,

and duplicative" may lie to some extent in the eyes of the

beholder, we concluded in Barone v. Commissioner, supra at 466,

that:

     Petitioner's total payment to his parents for the use of
     * * * their house amounts to $503 for the taxable year 1981.
     This token amount together with payments he made for his
     share of the electric and telephone bills does not
     constitute substantial, continuing living expenses. [Fn.
     ref. omitted; citation omitted.]

The facts of this case are similar to the facts in Barone.

     Petitioner argues that our decisions in Gustafson v.

Commissioner, 3 T.C. 998 (1944), and Ralston v. Commissioner,

T.C. Memo. 1968-248, are controlling.    We disagree.    While the

facts of Gustafson are somewhat similar, the reasoning of that

opinion is no longer apposite.    We noted in Hicks v.

Commissioner, supra at 74, "a change in the judicial climate * *

* has sapped the Gustafson opinion of much, if not all, of its

vitality."

     In Ralston the taxpayer incurred only minimal expenses, but

there was a coalescence of other factors that suggested a

different result.    The taxpayer claimed that Louisville,
                                 6

Kentucky, was his tax home.   He was a groom for a racing stable

located in Louisville, but spent much of the year at various

racetracks around the country.   Part of that time, however, was

spent at Keeneland Race Track in Lexington, Kentucky, near

Louisville, and, when he was not on the racing circuit, the

taxpayer was working at the home stable in Louisville.   We

concluded that:

          Where there has been a coalescence of place of abode
     and the performance of some work in the vicinity thereof for
     an employer who was based in the same vicinity, the courts
     have generally permitted a deduction for meals and lodging
     elsewhere. * * * [Ralston v. Commissioner, supra.]

Those factors are not present in this case.

     In sum, we conclude that petitioner cannot claim that Boise,

Idaho, was his home for the purposes of section 162(a)(2).3

While he did spend his idle time there, the source of his

     3
         In James v. United States, 308 F.2d 204, 208 (9th Cir.
1962), the Court of Appeals for the Ninth Circuit indicated that,
while the existence of a tax home was a prerequisite to deducting
total (emphasis in the original) traveling expenses, an itinerant
taxpayer (without a tax home) might be able to deduct that
portion of his traveling expenses attributable to the increased
cost of meals and lodging associated with travel. Appeal in this
case lies in the Court of Appeals for the Ninth Circuit.
However, James was decided based on the language "the entire
amount" in section 23(a)(1)(A) of the Internal Revenue Code of
1939 and that language has been removed from the statute by a
1962 amendment. Revenue Act of 1962, Pub. L. 87-834, sec. 4(b),
76 Stat. 960, 976-977. Furthermore, we need not decide whether
the Court of Appeals for the Ninth Circuit would interpret the
amended statute as it did in James, because petitioner, as in
James, has not shown what portion of his traveling expenses are
attributable to the increased cost associated with travel.
                                  7

employment had no connection with Boise.    Moreover, petitioner's

minimal financial contribution to his parents' home does not lead

to the conclusion that he incurred substantial, continuous, and

duplicative expenses.

     To reflect the foregoing,

                                      Decision will be entered

                                 under Rule 155.
