                        T.C. Memo. 2010-12



                      UNITED STATES TAX COURT



          JAMES M. AND JERI L. MINICK, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6517-07.                Filed January 21, 2010.



     James M. and Jeri L. Minick, pro se.

     Michael T. Sargent, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


     PARIS, Judge:   Respondent determined an income tax

deficiency of $3,628 for petitioners’ 2004 tax year.

     After concessions, the parties dispute the following:   (1)

Whether petitioner James M. Minick (Mr. Minick) was “away from
                                - 2 -

home” within the meaning of section 162(a)(2)1 for business

purposes during the taxable year 2004; (2) if Mr. Minick was away

from home within the meaning of section 162(a)(2), whether he

sought reimbursement for claimed unreimbursed employee business

expenses for the taxable year 2004; and (3) whether Mr. Minick

and Jeri L. Minick (Mrs. Minick) are entitled to an itemized

deduction for unreimbursed employee business expenses for the

taxable year 2004.2   As explained below, this Court holds that

petitioners cannot deduct their claimed travel expenses, because

Mr. Minick was not “away from home” within the meaning of section

162(a)(2) and petitioners’ expenses were not ordinary and

necessary business expenses.    This determination makes any

remaining issues moot.

                           FINDINGS OF FACT

     The parties’ stipulation of facts and the attached exhibits

are incorporated herein by this reference, and the facts

stipulated are so found.    During the taxable year 2004 Mr. and

Mrs. Minick (petitioners) maintained a personal residence in

Eure, Gates County, North Carolina.     Petitioners resided in Eure

at the time their petition was filed.




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and Rule references are to
the Tax Court Rules of Practice and Procedure.
     2
      This issue is considered prior to the application of the 2
percent of gross income limitation imposed by sec. 67(a).
                               - 3 -

     Mr. Minick failed to appear at trial.    Mrs. Minick testified

on behalf of petitioners.   Petitioners married in 2002.   In Eure

Mrs. Minick worked at a shipyard for 24 years before her marriage

to Mr. Minick.   She raised her children from a prior marriage

there on a property with a mobile home (the Eure residence).     She

has been making mortgage payments on the Eure residence for 23

years.   She expressed an emotional attachment to the Eure

residence and believes that she would never sell it.

     Petitioners married when Mrs. Minick was “between jobs”.

Neither of the Minicks had employment in Eure during the tax year

at issue.   Petitioners often traveled to Virginia so that Mrs.

Minick could stay with and care for her sick mother.    Petitioners

considered Virginia their home State in 2004.    Petitioners

maintained Virginia driver’s licenses, and their cars were

registered and titled in that State.   Petitioners had to travel

outside the Eure area to find work.    Mrs. Minick estimated that

approximately 85 percent of Gates County residents received

welfare benefits because that county’s impoverished economy could

not offer any employment opportunities.   During 2004 Mrs. Minick

spent an undisclosed amount of time traveling between Virginia,

Eure, and Mr. Minick’s assigned jobsites.    Mrs. Minick was not

employed during that same year, and only after that tax year did

Mrs. Minick work at the same construction site as Mr. Minick.
                                - 4 -

      Throughout 2004 Pizzagalli Construction (Pizzagalli) hired

Mr. Minick as a field engineer and considered him an hourly

employee.    Pizzagalli was in South Burlington, Vermont, but Mr.

Minick worked elsewhere.    He worked where hospitals or water

treatment plants were being built.      At each jobsite he surveyed

the land at the beginning of the construction process.     The

Minicks did not live in or near the area where Pizzagalli was

located at anytime during the tax year 2004.

     From January 2004 to July 2004 Mr. Minick was assigned to a

jobsite in Taylors, South Carolina.     From July 2004 to December

2004 Mr. Minick worked at an assigned jobsite in Flowery Branch,

Georgia.    Pizzagalli expected its hourly employees to live in

motels while finding an apartment or other housing to rent near

an assigned jobsite.    When not traveling between Virginia and

Eure, Mrs. Minick accompanied Mr. Minick to the assigned

jobsites, where they resided in a camper.     Petitioners had

purchased that camper to travel between the jobsites.     The cost

of maintaining the camper was less than renting an apartment or

other housing.    Petitioners did not use the camper for camping.

Mrs. Minick did not accompany Mr. Minick when he lived in motels.

In September and November 2004 Mr. Minick stayed at Lake Lanier

Lodges.

     During 2004 petitioners maintained the Eure residence.      They

made mortgage payments and paid utilities expenses.     No one lived
                                - 5 -

in the Eure residence when petitioners were not there.

Petitioners considered Mr. Minick’s assigned jobsites to be

temporary and intended to return to Eure when possible.

     Petitioners timely filed a joint return for the taxable year

2004.    The return indicated that petitioners’ home address was a

post office box in Harpers Ferry, West Virginia.    Petitioners

claimed deductions for unreimbursed employee expenses related to

Mr. Minick’s employment with Pizzagalli.3    Petitioners claimed

deductions for “MOTELS” expenses of $2,341 and “LIVING EXPENSES”

of $13,075 before respondent had conceded certain expenses,

including business mileage, phone expenses, safety equipment,

tools, and other miscellaneous expenses.    Petitioners’ “LIVING

EXPENSES” included mortgage payments on the camper, camper

parking lot rent payments, insurance on the camper, gas, tolls,

and repairs and maintenance on the camper.    Those “LIVING

EXPENSES” also included insurance on the Eure residence,

utilities payments for the Eure residence, life insurance,

medical insurance, and DirecTV cable bills.    Petitioners

purchased an insurance policy on Mr. Minick’s life from Chase


     3
      Petitioners claimed an itemized deduction for unreimbursed
employee business expenses of $18,983 for the taxable year 2004.
At the start of the trial respondent conceded that petitioners
are entitled to a $4,602 deduction for these expenses, consisting
of the following: (I) Safety equipment in the amount of $600;
(ii) a depreciation and sec. 179 expense deduction for small
tools in the amount of $250; (iii) phone maintenance in the
amount of $2,627; and (iv) vehicle expenses of $1,125, consisting
of 3,000 miles at the applicable standard mileage rate.
                                 - 6 -

Insurance Life Co., an insurance policy on Mrs. Minick’s life

from Zurich Life Insurance Co. of America, and an insurance

policy that would cover Mrs. Minick’s medical expenses from NNS

Group Insurance.

                               OPINION

     For the expenses remaining in dispute, the parties have

raised the following issues:    (1) Whether Mr. Minick was “away

from home” within the meaning of section 162(a)(2) for business

purposes during the taxable year 2004; (2) if Mr. Minick was away

from home within the meaning of section 162(a)(2), whether he

sought reimbursement for unreimbursed employee business expenses

for the taxable year 2004; and (3) whether petitioners are

entitled to an itemized deduction for unreimbursed employee

business expenses for the taxable year 2004.    As explained below,

this Court holds that petitioners cannot deduct their claimed

travel expenses, because Mr. Minick was not “away from home”

within the meaning of section 162(a)(2) and petitioners’ expenses

were not ordinary and necessary business expenses.    This

determination makes the remaining issues moot.

     Deductions are a matter of legislative grace, and taxpayers

bear the burden of proving their entitlement to a deduction.

Rule 142(a)(1); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84

(1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440

(1934).   Petitioners argue that their claimed unreimbursed
                                  - 7 -

employee business expenses are deductible because they were

incurred while Mr. Minick was traveling away from home for

business purposes.

     Section 262 provides that a taxpayer generally cannot deduct

personal, living, or family expenses.     However, section 162(a)(2)

allows taxpayers to deduct travel expenses paid or incurred while

away from home in the pursuit of a trade or business.     Travel

expenses include travel fares, meals, lodging, and other expenses

incident to travel.    Sec. 1.162-2, Income Tax Regs.   The

deduction for “away from home” travel expenses alleviates the

burden of duplicate living expenses incurred by a taxpayer whose

business needs require him to maintain two places of abode.

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

     In order to claim a travel expense deduction, a taxpayer

must show that his expenses are ordinary and necessary, that he

was away from home when he incurred the expense, and that the

expense was incurred in pursuit of a trade or business.

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

particular expense fulfills these three conditions is generally a

question of fact.     Id.   All three conditions must be satisfied to

claim the deduction.    See id. at 472.   Petitioners have failed to

demonstrate that Mr. Minick was away from home within the meaning

of section 162 and that their expenses were ordinary and

necessary business expenses.
                                 - 8 -

      Under section 162, the term “‘home’ does not have its usual

and ordinary meaning.”   Henderson v. Commissioner, 143 F.3d 497,

499 (9th Cir. 1998) (quotation marks omitted), affg. T.C. Memo.

1995-559.   This Court has interpreted a taxpayer’s “home” under

section 162 to mean his principal place of employment and not

where his personal residence is located.     Mitchell v.

Commissioner, 74 T.C. 578, 581 (1980).     The Court must consider

the “away from home” requirement “in light of the further

requirement that the expense be the result of business

exigencies”.   Hantzis v. Commissioner, 638 F.2d 248, 253 (1st

Cir. 1981), revg. T.C. Memo. 1979-299.    Where a taxpayer’s

principal place of employment is other than his residence and he

chooses not to move his residence for personal reasons, his

additional living and travel expenses are a result of that

personal choice.   Such personal expenditures cannot be deemed

ordinary and necessary business expenses.     Commissioner v.

Flowers, supra at 473-474; Tucker v. Commissioner, 55 T.C. 783,

786 (1971).

     An exception to the general rule does exist.    A taxpayer may

claim his personal residence as his home in situations where the

taxpayer is away from his home on a temporary, rather than

indefinite or permanent basis.     Peurifoy v. Commissioner, 358

U.S. 59, 60 (1958); Kroll v. Commissioner, supra.     If a taxpayer

cannot show that he had both a permanent and temporary abode for
                                - 9 -

business purposes during the year at issue, he is not entitled to

the deduction.   See Kroll v. Commissioner, supra; Farran v.

Commissioner, T.C. Memo. 2007-151; Bauer v. Commissioner, T.C.

Memo. 1973-111; see also Rosenspan v. United States, 438 F.2d

905, 912 (2d Cir. 1971) (holding that traveling salesman had no

permanent place of abode); James v. United States, 308 F.2d 204,

207 (9th Cir. 1962); Hicks v. Commissioner, 47 T.C. 71, 74

(1966); Deneke v. Commissioner, 42 T.C. 981, 983 (1964); Verner

v. Commissioner, 39 T.C. 749, 755-756 (1963) (holding that

engineer maintained no abode in area from which he was

transferred).    The Court may consider a taxpayer’s subjective

intent as to the length of time he may wish to remain in a

particular position, but it is not a controlling factor in

determining whether that position is temporary or indefinite.

See, e.g., Henderson v. Commissioner, supra at 500.

      In arguing that their “home” was their Eure residence and

that Mr. Minick was temporarily away from that home while working

at the assigned jobsites, petitioners rely on the exception to

the general rule.   The Court disagrees with petitioners’

inaccurate application of the law.

      The Court need not decide whether Mr. Minick’s work at the

assigned jobsites was “temporary” or “indefinite” if Mr. Minick

had no “tax home” pursuant to section 162.   See, e.g., Hantzis v.

Commissioner, supra at 255; Stewart v. Commissioner, 77-2 USTC
                                  - 10 -

par. 9617 (10th Cir. 1972), affg. T.C. Memo. 1971-307.         An

individual may be considered as an itinerant for purposes of

section 162 if that individual has neither a principal place of

business nor a place he resides permanently.       Deamer v.

Commissioner, 752 F.2d 337, 339 (8th Cir. 1985), affg. T.C. Memo.

1984-63; Edwards v. Commissioner, T.C. Memo. 1987-396; see also

Hantzis v. Commissioner, supra at 253 (finding that “where a

taxpayer is constantly on the move due to his work, he is never

‘away’ from home”).       The Court considers all the facts and

circumstances of a particular case to determine the existence of

an individual’s tax home.       Henderson v. Commissioner, supra at

500.       Courts have examined the following objective factors set

forth in Rev. Rul. 73-529, 1973-2 C.B. 37,4 with respect to this

determination:       (1) Whether there exists a business connection to

the location of the alleged tax home; (2) whether duplicate

living expenses are incurred while traveling and while

maintaining the alleged tax home; and (3) whether personal

connections exist to the alleged tax home.       See Henderson v.

Commissioner, supra at 500.       For the following reasons, the Court




       4
      While revenue rulings do not have force of law, they are
instructive because they represent the interpretations of the
agency responsible for enforcing the tax laws. See Henderson v.
Commissioner, 143 F.3d 497, 500 n.2 (9th Cir. 1998), affg. T.C.
Memo. 1995-559; see also Merchs. Indus. Bank v. Commissioner, 475
F.2d 1063, 1064 (10th Cir. 1973), affg. T.C. Memo. 1972-18.
                               - 11 -

holds that Eure was not Mr. Minick’s tax home and that he was an

itinerant for the tax year 2004.

      First, Mr. Minick had no business reason for his tax home

to be in Eure.   Petitioners contend that Mr. Minick traveled to

the assigned jobsites because no employment opportunities existed

in the Eure area.    During the year at issue Mr. Minick spent

approximately 6 months at each of the two assigned jobsites.

During 2004 Mr. Minick did not return to Eure at any time for

business purposes.   Moreover, petitioners gave no indication of

any foreseeable ability or intention to return to Eure for

business purposes.    Petitioners had no business reason for

maintaining their Eure residence.

      Courts may regard a taxpayer’s decision to keep his family

at his previously established residence as motivated by personal

reasons unrelated to his trade or business where a taxpayer has

no business ties to the area of that residence and when the

prospects for employment in his chosen profession are better away

from the area than in it.    Tucker v. Commissioner, supra at 787;

see also Hantzis v. Commissioner, 638 F.2d at 255.    This is so

even though his job in another place lasts for less than a year.

See, e.g., Tucker v. Commissioner, supra.    Under some

circumstances, a job duration of 6 months may be short enough to

merit a finding that it would be unreasonable to expect the

taxpayer to move his family.    However, this Court cannot reach
                              - 12 -

such a conclusion here, where Mr. Minick has no business

relationship with the Eure area for tax home purposes.

     Mrs. Minick also had no business ties to the Eure residence

on account of her unemployment during the year in issue.

However, this fact is not dispositive, since the deduction

claimed is not for her business activities.     In cases involving

spouses with careers in different locations, “Each must

independently satisfy the requirement that deductions taken for

travel expenses incurred in the pursuit of a trade or business

arise while he or she is away from home.”     Hantzis v.

Commissioner, supra at 254 n.11.

     Second, petitioners failed to show that their living

expenses incurred in the maintenance of the Eure residence had

the requisite business connection.     In 2004 petitioners made

mortgage and utilities payments for the Eure residence.     However,

Mrs. Minick testified that petitioners’ “home” was Virginia

during that time and that petitioners’ driver’s licenses, as we1l

as the registration and title to their car, were issued by the

State of Virginia.   Mrs. Minick accompanied Mr. Minick at his

assigned jobsites, where they resided in a camper5 purchased for

the purpose of traveling between the jobsites.     Mrs. Minick



     5
      The Court notes that petitioners had already received
deductions for their use of the camper. At the commencement of
the trial respondent conceded vehicle expenses of $1,125 for
3,000 miles at the applicable standard mileage rate.
                               - 13 -

appears to have spent a negligible amount of time at the Eure

residence, and Mr. Minick seemingly did not return to Eure at all

during the year in issue.    In any event, any duplicate living

expenses are attributable to petitioners’ personal choice and are

not dictated by the exigencies or demands of Mr. Minick’s

business.

       In the light of petitioners’ failure to establish the

existence of any business relationship with the Eure area, the

Court finds neither that the Eure residence was Mr. Minick’s tax

home nor that he incurred the expenses in question while away

from home within the meaning of section 162(a)(2).

       For the tax year 2004 petitioners deducted “MOTELS” expenses

and “LIVING EXPENSES” relating to the purchase and maintenance of

their camper.    As discussed previously, Mr. Minick for the tax

year 2004 was not away from home within the meaning of section

162.    The local motels and the camper allowed Mr. Minick to

maintain his peripatetic lifestyle.     Mr. Minick’s motel expenses

and the cost of purchasing and using the camper were not dictated

by the exigencies of his engineering trade.    The Court concludes

that these motel and camper expenses are all personal expenses

that cannot be deducted under section 162.

       Likewise, the Court concludes petitioners’ expenses incurred

in the maintenance of the Eure residence are not deductible under

section 162(a).    Petitioners deducted other “LIVING EXPENSES”
                                - 14 -

consisting of insurance premiums and utility bills for the tax

year 2004.   These expenses arose out of Mrs. Minick’s choice to

maintain her personal residence, and, therefore, Mr. Minick did

not incur these expenses in the carrying on of his trade.      Any

expenses related to “The cost of insuring a dwelling owned and

occupied by the taxpayer as a personal residence [are] not

deductible.”    Sec. 1.262-1(b), Income Tax Regs.   Furthermore, any

“Expenses of maintaining a household, including amounts paid for

rent, water, utilities * * * and the like, are not deductible.”

Id.   Thus, the insurance payments and utilities expenses incurred

for the maintenance of Mrs. Minick’s Eure residence were personal

expenses and not deductible as Mr. Minick’s ordinary and

necessary business expenses.

      The Court further finds that their personal insurance

premiums are not deductible as business expenses.     Petitioners

deducted their life insurance and medical premiums for the tax

year 2004.     The payments for Mrs. Minick’s life and medical

insurance are not ordinary and necessary business expenses

because these expenses were not incurred in the furtherance of

Mr. Minick’s engineering trade or any other business conducted by

him or Mrs. Minick.     Nor does the record demonstrate that

petitioners’ payments of Mr. Minick’s life insurance premiums are

ordinary and necessary business expenses.     Additionally,

“Insuring against the costs of maintaining [petitioners’] health
                              - 15 -

is primarily a personal concern, not merely a business concern.”

Green v. Commissioner, 74 T.C. 1229, 1236 (1980).   Therefore,

petitioners’ payments of life and medical insurance premiums are

not deductible under section 162.

     Last, petitioners deducted the cost of their DirecTV service

as a business expense.   Payments for television and cable bills

are not deductible business expenses if they were not directly

related to a taxpayer’s business.   See, e.g., Judisch v. United

States, 755 F.2d 823, 826 (11th Cir. 1985); Stemkowski v.

Commissioner, 690 F.2d 40, 48 (2d Cir. 1982), affg. in part and

revg. in part 76 T.C. 252 (1981).   Petitioners failed to prove

how their cable service assisted Mr. Minick with his engineering

duties.   Hence, the Court infers their DirecTV payments afforded

them nothing more than personal entertainment.   Accordingly,

petitioners’ DirecTV payments were personal expenses and not

deductible as ordinary and necessary business expenses.

Conclusion

     Petitioners have failed to prove that Mr. Minick incurred

ordinary and necessary business expenses while traveling away

from home in the pursuit of business for the tax year 2004.     The

Court therefore denies petitioners’ claim to business expense

deductions under section 162 for the expenses in dispute.
                        - 16 -

To reflect the foregoing and respondent’s concessions,


                                   Decision will be entered

                              under Rule 155.
