                    T.C. Summary Opinion 2008-11



                       UNITED STATES TAX COURT



         ESTATE OF DAVID B. LEASE, DECEASED, KATHY A. LEASE,
         ADMINISTRATRIX, AND KATHY A. LEASE, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5455-05S.              Filed January 30, 2008.



     Kathy A. Lease, pro se.

     Andrew M. Stroot, for respondent.



     GERBER, Judge:1   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect




     1
       This case was submitted to Special Trial Judge Carleton D.
Powell, who died on Aug. 23, 2007, after the trial. By order
dated Oct. 25, 2007, Chief Judge Colvin resubmitted this case to
Judge Joel Gerber without objection of the parties.
                                - 2 -

when the petition was filed.2   Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and

this opinion shall not be treated as precedent for any other

case.    Respondent determined a $2,403 income tax deficiency for

the 2002 tax year of David B. and Kathy A. Lease.      The deficiency

was predicated on the disallowance of several deductions, and

after concessions the issues we must decide are whether Mr.

Lease’s expenses of driving to and from his work locations are

deductible and/or whether his meal expenses are deductible.

                             Background

     Some of the facts have been stipulated and are incorporated

by this reference.    At the time the petition was filed Mr. and

Mrs. Lease resided in West Virginia.      Mr. Lease, now deceased,

was employed as a millwright during 2002.      His jobs were assigned

at his local union hiring hall in Cumberland, Maryland.      Every

week Mr. Lease would go to the union hall and sign up for work in

the “workbook”.    The union representative would call when a job

was available, and Mr. Lease would then proceed from his locality

to his work.    Many jobs were within a 50-mile radius, but during

2002 local jobs were scarce, and his work assignments expanded to




     2
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 2002, the taxable year in
issue, and Rule references are to the Tax Court Rules of Practice
and Procedure.
                               - 3 -

as far as a 250-mile radius.   Some of those assignments were from

the Pittsburgh, Pennsylvania, union hall.

     As a millwright, Mr. Lease would work on various jobs.     A

typical job involved maintenance, making of parts, and rebuilding

of a motor, sometimes at an electric power generating plant.

Once he completed the rebuilding of a motor or completed a job,

he was laid off and awaited an assignment from the union.

Usually, he did not work again for the same employer.   He would

generally not spend the night at a work location but would return

home.   Mr. Lease worked long days, leaving as early as 3:30 or 4

a.m. and returning home at 7 or 8 p.m.   Mr. Lease was required to

bring tools to his work assignments.   His tools consisted of

“standard tools”,   “metric tools”, and “precision tools”.   The

three sets of tools were kept in tool boxes that Mr. Lease

transported to the jobsite in his truck.

     During 2002 Mr. Lease regularly drove to worksites beyond

the area of his home and union hall.   He received nine Forms W-2,

Wage and Tax Statement, for 2002 from different employers.    Mr.

Lease drove an average of 900 miles per month to and from work

assignments; he worked 112 days and drove an average of almost

100 miles per workday.

     For 2002, Mr. and Mrs. Lease deducted $3,934 in business

travel expenses using the standard mileage rate of 36.5 cents per

mile.   They also deducted $5,503 for away from home expenses
                                 - 4 -

which were largely for meals.    In the notice of deficiency,

respondent disallowed both deductions.

                            Discussion3

     Mr. and Mrs. Lease deducted the expense of Mr. Lease’s trips

between his residence and various worksites, contending that the

employment was temporary.    Respondent contends that Mr. Lease’s

work outside of the area of his residence was a permanent

situation and that he made the personal (nonbusiness) choice to

drive to and from work rather than to move.     In effect,

respondent’s argument is that Mr. Lease’s tax home was where he

normally worked and that his trips constituted commuting.

     Section 162 allows a deduction for ordinary and necessary

expenses paid or incurred in carrying on a trade or business.

Conversely, section 262 provides that no deduction is allowed for

personal, living, or family expenses.     Generally, the cost of

commuting to and from work is a nondeductible personal expense.

Commissioner v. Flowers, 326 U.S. 465, 473-474 (1946); sec.

1.162-2(e), Income Tax Regs.

     Traveling expenses include meals and lodging while away from

home.    Sec. 162(a)(2).   To deduct such expenses a taxpayer must

show:    (1) The expenses are reasonable and necessary; (2) they

were incurred while away from home; and (3) they were incurred in



     3
         No questions were raised concerning the burden of proof.
                                - 5 -

the pursuit of a trade or business, including meals while away

from home.    Commissioner v. Flowers, supra at 470.

      A taxpayer’s “home”, as used in section 162(a)(2), has been

defined to mean the vicinity of the taxpayer’s principal place of

employment rather than the location of his personal or family

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

Daly v. Commissioner, 72 T.C. 190 (1979), affd. 662 F.2d 253 (4th

Cir. 1981).

      Where a taxpayer’s principal place of employment is other

than his residence and he chooses not to move his residence for

personal reasons, the additional living or travel expenses are

not considered to be ordinary and necessary business expenses.

Tucker v. Commissioner, 55 T.C. 783 (1971).     Where, however, a

taxpayer is away from home on a temporary basis, his living or

travel expenses may be considered deductible business expenses.

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

been defined as “temporary” if it is forseeably terminable or

lasts for a relatively short fixed duration.    Boone v. United

States, 482 F.2d 417, 419 (5th Cir. 1973).    Whether a taxpayer’s

job is temporary or indefinite is determined by the facts and

circumstances of each case.    Peurifoy v. Commissioner, supra at

61.
                               - 6 -

     To be deductible, traveling expenses must be substantiated

by adequate records or sufficient corroborating evidence.    Sec.

274(d).

     Before 2002, Mr. Lease regularly worked out of the

Cumberland, Maryland, union hall and was assigned jobs that were

within 50 miles of his residence.   For 2002, there were fewer

jobs available from the Cumberland, Maryland, union hall and he

was forced to accept jobs outside of his principal place of

employment, some from a distant union hall that he had not

previously used.   Each of the jobs outside of his principal place

of employment was of short duration.

     Considering the record as a whole, we hold that Mr. Lease’s

2002 travel was outside of his usual and principal place of

employment and was both temporary and forseeably terminable.     Mr.

Lease’s travel log was stipulated by the parties and meets the

substantiation requirements of section 274(d).   Mr. Lease’s costs

for daily transportation outside of his metropolitan area where

he normally worked are deductible within the meaning of Rev. Rul.

99-7, 1999-1 C.B. 361.   Accordingly, petitioners are entitled to

deduct travel expenses of $3,934 for 2002.

     Although it is likely that Mr. Lease incurred meal expenses

during 2002, no substantiation or sufficient corroborating

evidence was offered that would meet the substantiation

requirements of section 274(d).   Moreover, Mr. Lease normally
                                 - 7 -

returned home each day, and the record is insufficient to show

the occasions that he was away from home overnight.       See, e.g.,

Bissonnette v. Commissioner, 127 T.C. 124 (2006).       Mrs. Lease

testified that there were no receipts and that the meals were

likely paid for in cash.   Accordingly, we must hold that

petitioners are not entitled to the $5,503 meal expense

deductions claimed for tax year 2002.

     To reflect the foregoing,


                                         Decision will be entered

                                 under Rule 155.
