                        T.C. Memo. 2008-131



                      UNITED STATES TAX COURT



                 AUSTIN D. YANKE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 22120-05.               Filed May 15, 2008.



     Austin D. Yanke, pro se.

     John D. Davis, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     SWIFT, Judge:   Respondent determined a $4,812 deficiency in

petitioner’s 2001 Federal income tax.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for 2001.

     The issue for decision is the deductibility of $27,294 in

travel expenses (including meal and lodging expenses) petitioner
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incurred in California while training to qualify as a journeyman

electrical power lineman.


                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

     At the time the petition was filed, petitioner resided in

Idaho, a resident of the same home in which petitioner was

raised.   In 1997, petitioner graduated from high school.

     In 1998, petitioner enrolled at the Northwest Lineman

College in Meridian, Idaho, in a 3-month course offering training

to become an electrical power lineman (lineman).   Upon completion

of this course, petitioner joined the Boise local union of the

International Brotherhood of Electrical Workers (IBEW) as an

apprentice lineman.

     In August 1999, to qualify as a journeyman lineman and also

to seek employment in California, which offered more employment

opportunities for union linemen than were available in Idaho (a

right-to-work State), petitioner enrolled in a California/Nevada-

based (Cal/Nev) journeyman lineman training program sponsored by

the National Electrical Contractors Association (NECA) and by

IBEW.   A similar IBEW and NECA-sponsored program was available to

petitioner in Idaho, but petitioner chose to enroll in the

Cal/Nev program.

     The Cal/Nev journeyman lineman training program, which

petitioner began in August 1999, lasted 3-1/2 years.
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Participants in the program were required to work for various

electrical power companies in California and/or Nevada during the

entire 3-1/2 years.

     As part of the journeyman lineman training program in which

petitioner enrolled and on the basis of the employment needs of

NECA contractors located in California and Nevada, the linemen,

including petitioner, were assigned to work with contractors at

particular job sites.   When a job was finished and the contractor

no longer needed the linemen, the linemen were reassigned to

another NECA contractor in California or Nevada.       Petitioner was

assigned work only in California.

     The schedule below indicates the dates of petitioner’s

employment during his journeyman lineman training, the contractor

for whom petitioner worked, if known, and the California cities

in which petitioner’s job sites were located:

  Dates of Employment         Contractor          Location of Job Site
     Jan.--Apr. 2000              ---            San Diego
    May--July 2000                ---            Moorepark
    Aug.--Oct. 2000      Hot Line Construction   Valencia
    Jan.--Apr. 2001      Hot Line Construction   Valencia
    June--July 2001      Hot Line Construction   Valencia
    Aug.--Nov. 2001      Par Electrical          Pacifica
    Jan. 2002            Par Electrical          Pacifica, Bakersfield, &
                                                   Sacramento
    Feb. 2002                     ---            Sacramento, Lakeport, &
                                                   Chico
    Mar.--May 2002                ---            Chico & Ukiah
    June--July 2002               ---            Ukiah & Grass Valley
    Aug.--Oct. 2002               ---            Grass Valley & Willits
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     In 2001 and over the years, petitioner has maintained a room

in his parents’ home in Boise, in which petitioner has kept

clothes and furniture, and petitioner has parked on his parents’

property a motorcycle, a boat, and two snowmobiles.

     During his journeyman lineman training in California and

through the end of 2002, petitioner lived in a fifth-wheel travel

trailer which he parked near each job site.   When a job was

finished or when he was given time off, petitioner often would

return to his parents’ home in Boise until he was notified of his

next job site in California.   In 2001, petitioner spent

approximately 45 days in Boise and the balance of his time in

California working at job sites.

     The evidence is unclear as to whether petitioner paid rent

to his parents for use of the room he maintained in his parents’

home in 2001.

     In the fall of 2002, upon qualifying as a journeyman

lineman, petitioner committed to maintaining his union membership

as a journeyman lineman for at least the following 4 years during

which petitioner committed to working only for union-approved

contractors wherever employed in the United States.

      For the journeyman lineman training in California,

petitioner paid no tuition or other fees, and while being trained

in California as a journeyman lineman petitioner received wages

for his work with the NECA contractors.   If, however, during the
                               - 5 -
4-year period following qualification as a journeyman lineman,

petitioner worked for a nonunion contractor, petitioner would be

required to repay the cost of his journeyman lineman training

program.

     In 2002, shortly after qualifying as a journeyman lineman,

petitioner added his name to a list of union journeyman linemen

available for work in the Boise area.   Petitioner, however,

continued to work in California as a union journeyman lineman

until July 2004.

     In August 2004, petitioner took a union job as a journeyman

lineman in Idaho, and during the remainder of 2004 and into

January 2005 petitioner worked in Idaho.

     Petitioner paid Idaho State income taxes on the wages

petitioner earned in California in 2001.   Petitioner maintained

an Idaho driver’s license and an Idaho fishing license, but

petitioner did not own any real property in Idaho.

     On petitioner’s 2001 Federal income tax return, petitioner

deducted $27,294 as ordinary and necessary business expenses he

had incurred in 2001 for travel, meals, and lodging relating to

his training and his work in California.   On audit, respondent

disallowed all $27,294 as personal, nonbusiness expenses.

     On their joint Federal income tax return for 2001,

petitioner’s parents did not report any rental income from

petitioner.   On their joint Federal income tax return for 2002,
                               - 6 -
petitioner’s parents reported rental income from petitioner of

$2,400.


                              OPINION

     Under section 162(a)(2), a taxpayer is allowed a deduction

for travel expenses, including meal and lodging expenses, if the

expenses are ordinary and necessary, incurred while away from

home, and incurred in the pursuit of a trade or business.

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

only challenges whether petitioner was “away from home” when he

incurred the expenses in dispute.

     The primary reason for the allowance of a deduction for

travel expenses under section 162(a)(2) is to alleviate the

burden on a taxpayer whose business needs require him to maintain

two places of abode and to therefore incur duplicate living

expenses.   Kroll v. Commissioner, 49 T.C. 557, 562 (1968).

     For purposes of section 162(a)(2), generally a taxpayer’s

“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); see Coombs v.

Commissioner, 608 F.2d 1269, 1275 (9th Cir. 1979), affg. in part

and revg. in part 67 T.C. 426 (1976).   When different from the

vicinity of his principal place of employment, a taxpayer’s

residence may be treated as his tax home if his principal place

of business is “temporary”, rather than “indefinite”.   See
                              - 7 -
Peurifoy v. Commissioner, 358 U.S. 59, 60 (1958); Kroll v.

Commissioner, supra at 562.

     However, a taxpayer may be treated as an itinerant taxpayer,

as never “away from home”, and therefore as not entitled to

travel expense deductions under section 162(a)(2).    See James v.

United States, 308 F.2d 204, 208 (9th Cir. 1962); Barone v.

Commissioner, 85 T.C. 462, 465 (1985), affd. without published

opinion 807 F.2d 177 (9th Cir. 1986).

     In determining whether a taxpayer has a fixed tax home,

courts consider three factors set forth in Rev. Rul. 73-529,

1973-2 C.B. 37, 38, as follows:   (1) Whether there existed a

business connection to the location of the alleged tax home, (2)

whether duplicate living expenses were incurred while traveling

and while maintaining the alleged tax home, and (3) whether

personal connections existed to the alleged tax home.    See

Henderson v. Commissioner, 143 F.3d 497, 500 (9th Cir. 1998),

affg. T.C. Memo. 1995-559.

     This Court, as well as the U.S. Court of Appeals for the

Ninth Circuit, requires that a taxpayer must have some business

justification beyond merely personal reasons for maintaining an

alleged tax home remote from a place of employment.    See id.;

Tucker v. Commissioner, 55 T.C. 783, 787 (1971).     Where a

taxpayer has no business connection to a remotely located alleged

tax home, claimed section 162(a)(2) travel expense deductions
                                - 8 -
generally will be denied.    See Henderson v. Commissioner, supra

at 500; Tucker v. Commissioner, supra at 787.

     Mere “hopes” of some day returning to an alleged tax home

and finding employment, particularly where job opportunities are

“bleak”, is not sufficient to provide the necessary business

connection to an alleged tax home.      Kaye v. Commissioner, T.C.

Memo. 1974-111; see Tucker v. Commissioner, supra at 786; Wright

v. Commissioner, T.C. Memo. 1991-280; Linn v. Commissioner, T.C.

Memo. 1984-324.

     On the facts before us, we conclude that petitioner in 2001

did not have a reasonable business reason or justification for

maintaining a tax home in Boise and that his visits to Boise in

2001 for approximately 45 days were not motivated by business

reasons.    In August 1999, petitioner enrolled in the journeyman

lineman training program knowing that for the next 3-1/2 years he

would be working with contractors only in California and/or

Nevada.    Petitioner acknowledged at trial that his employment

prospects in Boise were not good in light of Idaho’s right to

work laws and petitioner’s commitment to work only for union

contractors for 4 years after the journeyman lineman training.

     In 2001, petitioner’s business connections to Boise were

tenuous and preclude a finding that the room petitioner

maintained in his parents’ home was maintained for anything other

than personal reasons.
                               - 9 -
     In addition, the record does not establish that petitioner

had “substantial continuing living expenses” in Boise that

duplicated his travel expenses in California.    See James v.

United States, supra at 207-208; see Rev. Rul. 73-529, supra.      No

copies of checks, bank statements, or other documents were

presented at trial that would indicate that petitioner in 2001

incurred significant Boise housing expenses in addition to his

travel expenses in California, and petitioner’s parents did not

report any rental income on their 2001 return.

     From 1999 to 2003, petitioner did not perform any work in

Idaho, and petitioner earned all of his income from work in

California.   See Jeppsen v. Commissioner, T.C. Memo. 1978-343.

     In Henderson v. Commissioner, supra, the U.S. Court of

Appeals for the Ninth Circuit affirmed a Memorandum Opinion of

this Court and found that a traveling stagehand spent personal

time between jobs at his parents’ home in Boise.   Boise was not

treated as the taxpayer’s tax home because during the year in

issue he had no business or employment connection to Boise, and

he had no significant duplicate travel expenses.   Despite ties to

Boise (e.g., Idaho driver’s license, payment of Idaho State

income tax, bank accounts in Idaho, Idaho voter registration, and

storage of belongings in his parents’ home in Boise), we and the

U.S. Court of Appeals for the Ninth Circuit denied the taxpayer’s

claimed business deductions for travel expenses.    Id. at 498.    In

our Memorandum Opinion in Henderson we stated:
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     In sum, we conclude that petitioner cannot claim that
     Boise, Idaho, was his home for the purposes of section
     162(a)(2). While he did spend his idle time there, the
     source of his 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. [Henderson v. Commissioner, T.C.
     Memo. 1995-559; fn. ref. omitted.]


     In light of petitioner’s lack of business reasons for

maintaining a tax home in Boise, petitioner’s failure to incur

substantial duplicate living expenses in Boise, and our decision

and the decision of the U.S. Court of Appeals for the Ninth

Circuit in Henderson, we conclude that in 2001 petitioner did not

have a tax home in Boise, Idaho, for purposes of section

162(a)(2).   Petitioner’s claimed $27,294 in travel expense

deductions is denied.

     This case is decided on the preponderance of the evidence,

and is unaffected by section 7491.     See Estate of Bongard v.

Commissioner, 124 T.C. 95, 111 (2005).

     To reflect the foregoing,


                                        Decision will be entered

                                 for respondent.
