                  T.C. Summary Opinion 2004-117



                     UNITED STATES TAX COURT



                  COREY L. WHEIR, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 4350-03S.               Filed August 30, 2004.


     Corey L. Wheir, pro se.

     Frederic J. Frenandez, for respondent.



     COUVILLION, Special Trial Judge:    This case was heard

pursuant to section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.1    The decision to be entered

is not reviewable by any other court, and this opinion should not

be cited as authority.



     1
          Unless otherwise indicated, subsequent section
references are to the Internal Revenue Code in effect for the
years at issue. All Rule references are to the Tax Court Rules
of Practice and Procedure.
                                 - 2 -


     Respondent determined deficiencies of $2,168, $1,958, and

$1,470, respectively, in petitioner's Federal income taxes for

1999, 2000, and 2001.

     The issues for decision are:     (1) Whether, for the 3 years

in question, petitioner is entitled under section 162(a) and

(a)(2) to deductions for unreimbursed travel and transportation

expenses in connection with his employment and (2) whether, for

the 3 years, petitioner is entitled under section 162(a) to

deductions for certain expenses incurred in a body building trade

or business activity.2

     Some of the facts were stipulated, and those facts, with the

annexed exhibits, are so found and are incorporated herein by

reference.   At the time the petition was filed, petitioner's

legal residence was Wisconsin Rapids, Wisconsin.

     Petitioner is a boilermaker and has been engaged in this

activity since 1993.     During the years in issue, he worked

exclusively within the State of Wisconsin at various plants and

paper mills throughout the State.     He was a member of the

boilermakers' union, and all of his job assignments came from the

union.   The union was affiliated with the AFL-CIO.    Petitioner's


     2
          One additional adjustment in the notice of deficiency
is unreported interest income of $39 for the year 2000. The
parties did not address this adjustment at trial; consequently,
the Court considers this item conceded by petitioner. With
respect to the two contested issues, the Court decides this case
without regard to the burden of proof under sec. 7491(a).
                               - 3 -


work assignments were exclusively in the repair, maintenance,

construction, or rehabilitation of paper mills and power plants,

which included nuclear, gas turbine, and coal-fired plants,

engaged in either the generation of electricity or the production

of pulp or paper products.   Petitioner's work assignments were

temporary, lasting a few hours, a few days, several weeks, or for

months.   The latter categories usually involved new construction

or the major overhaul of an existing facility.   Petitioner was

never an employee of the regular workforce at any facility.

     Pursuant to a collective bargaining agreement between the

union and the owners and operators of the various mills and power

plants in Wisconsin, all work involving boilermakers at mills and

plants was directed and coordinated by the union from its offices

at Waukesha, Wisconsin.   Whenever a call or request came from a

mill or plant for one or more boilermakers, the union assigned

boilermakers to the requesting plants under what was described as

a "ladder" system, wherein the union maintained a list of its

boilermaker members.   Whenever a call or request came for one or

more boilermakers, the first name or names on the list were

assigned to the job.   When a job was completed, the union steward

at the mill called the union office at Waukesha, Wisconsin, and

the "laid off" workers' names were placed at the bottom of the

ladder.   The union had a "no turn down" policy, which required

each designated boilermaker to accept an assignment.   Members of
                                - 4 -


the union were never required to report to the union hall.     They

were called by the union at their respective homes when they were

given job assignments.   The boilermakers, in essence, were always

on standby at their respective homes when they were not on

assignment.

     Petitioner's home, at Wisconsin Rapids, Wisconsin, is

practically in the geographic center of the State of Wisconsin.

The union offices, at Waukesha, Wisconsin, are in southeast

Wisconsin, approximately 30 minutes west of Milwaukee.

     For each of his job assignments, petitioner traveled from

his home at Wisconsin Rapids to the job site on a daily basis,

except that at more distant places (the farthest being 115 miles)

when, occasionally, he was required to work 10-hour shifts,

petitioner stayed overnight at a local motel.    Some of

petitioner's assignments were in his home area of Wisconsin

Rapids, or its environs, and petitioner always drove home each

day from these locations, even if he worked a 10-hour shift.

     For the 3 years at issue, petitioner worked at 19 different

locations throughout the State of Wisconsin.    The farthest

location from Wisconsin Rapids was Kakuna, Wisconsin,

approximately 115 miles from Wisconsin Rapids.    Other locations,

as noted, were elsewhere in the State, including some within the

environs of Wisconsin Rapids.
                                - 5 -


       Petitioner received no reimbursements for his expenses in

driving to and from the job sites or for the room and meal

expenses he incurred in connection with his assignments.      On his

Federal income tax returns for 1999, 2000, and 2001, petitioner

claimed itemized deductions for these expenses on Schedules A,

Itemized Deductions, as unreimbursed employee expenses.    These

expenses included mileage for the use of his automobile and the

living expenses incurred at the more distant locations, from

which it was neither practical nor feasible to drive home each

day.    Petitioner did not claim any deductions for expenses

incurred on any job assignments that were within a 35-mile radius

of his home at Wisconsin Rapids.    The net amounts deducted on

petitioner's Federal income tax returns as miscellaneous

unreimbursed employee business expenses, after the section 67(a)

adjustment, were $9,845, $8,652, and $5,035, respectively, for

1999, 2000, and 2001.    In the notice of deficiency, respondent

disallowed all the claimed deductions on the ground that the

expenses were commuting expenses and, therefore, were personal

and not deductible under section 262.    Respondent has not

questioned or challenged the substantiation of the amounts

petitioner claimed.

       In addition to his work as a boilermaker, petitioner was

also a professional bodybuilder.    In this activity, petitioner

lifted weights, posed to display his muscular finesse, trained
                                - 6 -


other bodybuilders, and gave seminars.    Some of his poses were

published in bodybuilding publications.    Petitioner won awards

and received at least one endorsement from a supplement

manufacturer for which he received supplements valued at $100 per

month.   Petitioner's income from this activity, therefore, came

from posing, seminars, publication of his poses, training

bodybuilders, and the supplements from the supplement

manufacturer.

     Petitioner reported the income and expenses of his

bodybuilding activity as a trade or business on Schedules C,

Profit or Loss From Business, of his Federal income tax returns.

For the years at issue, petitioner reported the following income,

expenses, and net losses:


                                1999       2000       2001

     Gross income             $ 2,405    $ 8,840    $ 3,975
     Total expenses            11,771     14,708     14,539
     Net loss                  (9,366)    (5,868)   (10,564)


     In the notice of deficiency, respondent disallowed

deductions of expenses for supplements in the amounts of $4,630,

$4,352, and $4,744, respectively, for the years in question.

Respondent determined that these amounts represented payments for

products that were personal and, therefore, were not deductible

under section 262.    No other deductions were disallowed.
                               - 7 -


     Included in the disallowed deductions labeled as

"Supplements" were the costs of bison (buffalo) meat, which

petitioner consumed daily, year round, at the rate of 3 pounds

per day.   Petitioner contends he consumed the meat for muscle

development because the protein levels in buffalo are much higher

than those in beef or other meat products.3   In addition,

petitioner also consumed enormous quantities of vitamins and

minerals through various types of "shakes" containing ingredients

to enhance strength and muscle development.   Petitioner also used

a variety of other products that were not ingested but were

simply sprayed on or massaged into the skin to enhance his

appearance.   One of these products was called ProTan Muscle Juice

Professional Posing Oil and, according to instructions, was

applied "prior to pumping up backstage for optimum effects."

Another similar product called Blow Out was applied to the body 5

minutes before a workout.   Still another product was massaged

over the body several hours before a posing to provide a suntan

brown color or a deep tan to the body.   Most of these products

could not be purchased in local health food stores but were

purchased solely through advertisements in bodybuilding

publications.   Respondent, in the notice of deficiency,


     3
          Petitioner testified that, while he could have consumed
beef, which is less expensive than bison, he would have had to
consume 6 pounds of beef per day to equal the effects of the
bison.
                                - 8 -


disallowed the deductions claimed for the described items on the

ground that, under section 262, these expenses were personal

because the products described could be consumed by bodybuilders

and nonbodybuilders as well.

     With respect to the first issue relating to petitioner's

employment as a boilermaker, section 262 disallows any deduction

for personal, living, or family expenses.    Transportation

expenses ordinarily incurred between one's residence and one's

principal place of business (a job site) are typically referred

to as "commuting expenses" and are nondeductible personal

expenses under section 262.     Fausner v. Commissioner, 413 U.S.

838 (1973); Commissioner v. Flowers, 326 U.S. 465 (1946).

However, transportation expenses in going between one's business

location and another business location are generally deductible

under section 162(a).   Additionally, when an employee, because of

the nature of the work, is required to stay at a business

location, and the stay requires sleep or rest, the expenses for

transportation, meals, and lodging are deductible under section

162(a)(2) as travel expenses.

     A taxpayer whose principal place of business is at a

distance from his residence cannot deduct the cost of the travel

to and from the business or the costs of meals and lodging at the

place of business.   Such expenses are regarded as personal

commuting expenses and are not deductible under section 262.
                               - 9 -


Fausner v. Commissioner, supra; Commissioner v. Flowers, supra.

Under an exception to this rule, a taxpayer may deduct travel

expenses associated with employment that is temporary (as opposed

to indefinite) in duration when the taxpayer is away from home.

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

temporary if it is expected to terminate within a relatively

short period and such termination is foreseeable.    Stricker v.

Commissioner, 54 T.C. 355 (1970), affd. 438 F.2d 1216 (6th Cir.

1971).   In petitioner's situation, there is no dispute that all

of his work assignments were temporary.

     The first issue in this case is whether, under section

162(a), petitioner is entitled to deductions for his

transportation expenses when he drove daily to and from his

temporary assignments, and whether, under section 162(a)(2),

petitioner is entitled to deduct travel expenses when he stayed

overnight at more distant locations from his home.

     Initially, this Court held in Turner v. Commissioner, 56

T.C. 27, 33 (1971), vacated and remanded per order (2d Cir. Mar.

21, 1972), that "Commuting is commuting, regardless of the nature

of the work engaged in, the distance traveled or the mode of

transportation used" and disallowed the deduction by an employee

of expenses for transportation from his residence to a distant

temporary job.   The Commissioner, however, in Rev. Rul. 190,

1953-2 C.B. 303, allowed deduction of transportation expenses of
                                - 10 -


an employee where the expenses are to a temporary, as

distinguished from an indefinite or permanent, job where the job

is beyond the general metropolitan area of the taxpayer's tax

home.     Since Turner, this Court has decided cases where the issue

has been framed in terms of the test of Rev. Rul. 190, supra.

McCallister v. Commissioner, 70 T.C. 505 (1978); Norwood v.

Commissioner, 66 T.C. 467 (1976).     Rev. Rul. 190, supra, has been

modified or clarified by the IRS over the years.    For our

purposes here, Rev. Rul 99-7, 1999-1 C.B. 361, applies, and this

case has been presented for decision under its provisions.       The

parties do not dispute the applicability of Rev. Rul. 99-7,

supra.     Rev. Rul. 99-7, supra, in pertinent part, provides:


             In general, daily transportation expenses incurred in
        going between a taxpayer's residence and a work location are
        nondeductible commuting expenses. However, such expenses
        are deductible under the circumstances described in
        paragraph (1) * * * below.

             (1) A taxpayer may deduct daily transportation expenses
        incurred in going between the taxpayer's residence and a
        temporary work location outside the metropolitan area where
        the taxpayer lives and normally works. * * *


        Respondent's position, as set out in a trial memorandum, is

as follows:


             According to Rev. Rul. 99-7, "a taxpayer may deduct
        daily transportation incurred in going between the
        taxpayer's residence and a temporary work location outside
        the metropolitan area where the taxpayer lives and normally
        works." In our case, the petitioner does not live in a
                              - 11 -


     Metropolitan area as defined by the United States Census
     Bureau. Therefore, the primary issue of concern is where
     the petitioner normally works. The government's primary
     position is that the whole State of Wisconsin would be
     deemed to be the petitioner's normal work area (commuting
     area) and any job site outside Wisconsin would be deemed
     non-commuting.


     The Court disagrees with that construction or interpretation

of Rev. Rul. 99-7, supra.   Nowhere in Rev. Rul. 99-7, supra, is

there a definition of "metropolitan area", nor is there any

statement in the revenue ruling that the meaning of "metropolitan

area" is an area designated as such by the U.S. Bureau of the

Census.   Moreover, respondent has cited no legal authority

adopting such a construction of "metropolitan area".

Additionally, in the Court's view, such a meaning as respondent

urges could lead to unfair and illogical results.   For example, a

boilermaker who happens to live in a Bureau of the Census-

designated metropolitan area would be allowed a deduction for

transportation expenses to any job site outside that metropolitan

area; yet, a taxpayer such as petitioner who does not live in an

area so designated would not be entitled to deduct the same

expenses.   Such a position does not establish a level playing

field for taxpayers.4


     4
          It is evident that Rev. Rul. 99-7, 1999-1 C.B. 361,
applies to daily transportation expenses under sec. 162(a) and
does not address travel expenses incurred away from home when
sleep or rest is involved under sec. 162(a)(2). Moreover,
                                                   (continued...)
                              - 12 -


     The Court is of the view and holds that an ordinary common

sense meaning of "metropolitan area" as that term is used in Rev.

Rul. 99-7, supra, applies in this case.   In Webster's Third New

International Dictionary (1986) the word "metropolitan" is

defined as "relating to, or constituting a region including a

city and the densely populated surrounding areas that are

socially and economically integrated with it".   In this case,

petitioner, on his tax returns, considered a 35-mile radius from

Wisconsin Rapids as his metropolitan area.   No evidence was

presented to convince the Court that the area should be expanded

or diminished.

     Respondent presented two alternatives that would constitute

a substitute for the term "metropolitan area" in Rev. Rul. 99-7,

supra.   One of the alternative positions is that petitioner's

normal work area consisted of any area within 80 miles from



     4
      (...continued)
neither Rev. Rul. 99-7, supra, nor any of the intervening revenue
rulings on this subject (Rev. Rul. 94-47, 1994-2 C.B. 18; Rev.
Rul. 90-23, 1990-1 C.B. 28) appears to have changed the concept
of "metropolitan area" in Rev. Rul. 190, 1953-2 C.B. 303. There,
the employees in question ordinarily worked at construction jobs
within the metropolitan area of a certain city and worked for
only 2 to 4 months at a "site located 18 miles from the limits of
that city and some distance beyond the suburbs generally regarded
as constituting part of such metropolitan area." Rev. Rul. 190,
1953-2 C.B. at 304. The Court questions why respondent in this
case is characterizing "metropolitan area" as the entire State
instead of characterizing "metropolitan area" in the same context
that "metropolitan area" is characterized in Rev. Rul. 190,
supra.
                              - 13 -


petitioner's home at Wisconsin Rapids.    Respondent cited no

authority to support this argument.    Respondent's second

alternative is that petitioner's normal work area should be based

on an "economic area" defined by the Bureau of Economic Analysis

of the U.S. Department of Commerce.    The breadth of this area as

it affected petitioner was considerably larger than the 35-mile

radius from Wisconsin Rapids that petitioner used as the outer

limits of his work area.   Rev. Rul. 99-7, supra, provides no

alternatives to the term "metropolitan area" as that term is used

in the ruling.   The Court cannot ignore Rev. Rul. 99-7, supra, by

adopting alternatives that, in effect, negate the ruling.

Respondent presented no evidence to show that the 35-mile radius

petitioner used was unreasonable.   The Court, therefore, rejects

the alternatives suggested by respondent, accepts petitioner's

35-mile radius as the limit of the metropolitan area in which

petitioner lived, and holds that petitioner is entitled to

deductions for the claimed travel and transportation expenses.

Petitioner, therefore, is sustained on this issue.5

     With respect to the second issue, involving expenses

incurred in petitioner's bodybuilding activity, respondent


     5
           As noted earlier, as to those job sites where
petitioner stayed overnight because of distance and his extended
work shifts, which resulted in his incurring expenses for sleep
or rest, the deductibility of those expenses is governed by sec.
162(a)(2). Respondent presented no argument addressing sec.
162(a)(2).
                              - 14 -


disallowed expenses petitioner claimed for supplements, which

included buffalo meat consumed daily, shake drinks of vitamins

for energy and body enhancing effects, and various skin or body

applications to enhance petitioner's physical appearance as a

competitive bodybuilder.

     Under section 262, a taxpayer is not allowed deductions for

personal, living, or family expenses.   Petitioner was engaged in

a trade or business activity, and the expenses he incurred that

were ordinary and necessary to that activity are deductible under

section 162.   The peculiarity of petitioner's business activity

is that it included expenses for things that are generally

considered personal.   As the Court noted in Hynes v.

Commissioner, 74 T.C. 1266, 1289 (1980), resolution of such

issues requires a reconciliation of sections 262 and 162.    In

Commissioner v. Heininger, 320 U.S. 467 (1943), the Court held

that whether expenses are ordinary and necessary business

expenses and, therefore, deductible is a question of fact, and

the taxpayer has the burden of demonstrating that the purpose of

an expenditure is primarily business rather than personal, and

that the business in which the taxpayer is engaged benefited or

was intended to be benefited by the expenditure.   In numerous

cases, the courts have decided that, where a business wardrobe

was a necessary condition for employment, costs for the wardrobe

are generally not deductible under section 262 under the general
                               - 15 -


rule that, where business clothing is suitable for general wear,

the expense is more inherently personal than business related.

Donnelly v. Commissioner, 262 F.2d 411 (2d Cir. 1959), affg. 28

T.C. 1278 (1957); Roth v. Commissioner, 17 T.C. 1450 (1952);

Roberts v. Commissioner, 10 T.C. 581 (1948), affd. 176 F.2d 221

(9th Cir. 1949); Drill v. Commissioner, 8 T.C. 902 (1947).         Such

costs are not deductible even when it is shown that the expense

would not have been incurred but for the employment.    Stiner v.

United States, 524 F.2d 640 (10th Cir. 1975).    However,

exceptions have been allowed where an item is useful only in the

business environment in question.    Hynes v. Commissioner, supra

at 1290.    This case, which does not involve clothing, can

nevertheless be analogized with these general rules.

       With respect to petitioner's consumption of buffalo meat,

respondent has not challenged petitioner's argument that the meat

developed proteins and strength that enhanced his bodily

physique.    However, there is no doubt that buffalo meat is also

consumed as food by nonbodybuilders, albeit not with the

regularity and in the quantities consumed by petitioner.      On

balance, the Court holds that petitioner's expenses for buffalo

meat are inherently personal and are not deductible under section

262.    Respondent, therefore, is sustained on that portion of the

expenses at issue.    The shake drinks consumed by petitioner also,

in the Court's view, fall in this same category, and respondent
                               - 16 -


is also sustained as to those disallowed expenses.    Such items

may well be consumed not only by bodybuilders but also by others

interested in their health and physical appearance.

     As noted above, petitioner also used a variety of other

products that were not ingested but were physically applied to

the body primarily to enhance his appearance as a professional

bodybuilder.   Even though no evidence was presented to establish

that those products were used by nonprofessional bodybuilders,

the Court recognizes that such products could be and might in

fact be used by nonprofessionals interested in their physical

appearance.    The evidence presented indicates that these products

were marketed only through bodybuilding publications and were not

generally for sale through normal marketing outlets.    The fact

that nonprofessionals may have used such products does not, in

the Court's view, tip the scale against professional

bodybuilders, bearing in mind the general rule cited above that

the Court's role on questions of this nature is to reconcile

sections 262 and 162.   As to these products, while there may be

some doubt, the Court concludes, on balance, that the scale tips

ever so slightly in favor of petitioner.   Petitioner, therefore,

is allowed a deduction for this portion of the expenses.
                            - 17 -


    Reviewed and adopted as the report of the Small Tax Case

Division.

                                  Decision will be entered

                             under Rule 155.
