                     T.C. Summary Opinion 2008-78



                        UNITED STATES TAX COURT



         PAUL L. TUCKER, JR., AND ANITA H. TUCKER, Petitioners
             v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5854-06S.                   Filed July 2, 2008.



     Paul L. Tucker, Jr., and Anita H. Tucker, pro sese.

     Marshall R. Jones, for respondent.



     CARLUZZO, Special Trial Judge:     This case was heard

pursuant to the provisions of section 7463.1      Pursuant to section

7463(b), the decision to be entered is not reviewable by any



     1
       Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, as amended, in effect for the
relevant period. Rule references are to the Tax Court Rules of
Practice and Procedure.
                                - 2 -

other court, and this opinion shall not be cited as precedent for

any other case.

       In a notice of deficiency dated December 20, 2005,

respondent determined a $7,276 deficiency in and imposed a $1,455

section 6662(a) accuracy-related penalty with respect to

petitioners’ 2002 Federal income tax.     The issues for decision

are:    (1) Whether petitioners are entitled to an employee

business expense deduction in excess of the amount allowed by

respondent; (2) whether petitioners are entitled to a charitable

contribution deduction in excess of the amount allowed by

respondent; and (3) whether petitioners are liable for an

accuracy-related penalty.

                             Background

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

Petitioners are, and were at all times relevant, married to each

other.    At the time the petition was filed, they resided in

Birmingham, Alabama.    References to petitioner are to Paul L.

Tucker, Jr.

       During 2002 petitioner was employed as a pilot for Southwest

Airlines (Southwest).    As a Southwest pilot, he functioned in

two capacities–-as a line captain and as a check airman.      For

purposes of this case, his duties in each capacity can be briefly

summarized.    As a line captain, petitioner was responsible:    (1)

For piloting an aircraft between departure and arrival on any
                                - 3 -

given flight assignment; and (2) for the safe transportation of

passengers, crew, and cargo.    As a check airman, petitioner, in

accordance with Federal Aviation Administration requirements

and as supervised from Dallas, Texas, was responsible to train

or to review the performance of other Southwest employees.

Petitioner’s rate of compensation was the same regardless of the

function he performed on any flight assignment.    During 2002

petitioner estimates that more of his earnings from Southwest

were attributable to flights during which he functioned as a

check airman than to those during which he functioned as a line

captain.

     Petitioners resided in Birmingham, Alabama, during 2002, but

most of petitioner’s flight assignments (as a line captain, check

airman, or both) during that year originated and concluded at

Midway Airport in Chicago, Illinois (Midway).    In connection with

his flight assignments, petitioner routinely drove from his

residence in Birmingham to a nearby airport and then flew to

Midway so as to arrive in sufficient time for his flight

assignment.    Sometimes that required him to leave Birmingham the

night before his flight assignment and spend the night in

Chicago.   Typically, at the conclusion of a flight assignment he

flew from Midway back to Birmingham and returned to his

residence.    Again, depending upon the timing of the flights,

petitioner might spend the night in Chicago and return to
                               - 4 -

Birmingham the next morning.   Pursuant to Southwest’s travel

reimbursement policy, petitioner was reimbursed for travel

expenses on an hourly basis for a period that began 1 hour before

the scheduled departure time of any given flight assignment and

ended one-half hour after the flight assignment terminated.     On

those occasions when petitioner spent the night in Chicago, he

did so in an apartment that he rented there.

     During 2002 petitioners were members of the Dawson Memorial

Baptist Church in Birmingham (Church).   Forty checks totaling

$6,410 show donations in that amount to Church during 2002.

     Petitioners’ joint 2002 Federal income tax return, which was

prepared by a paid income tax return preparer, was timely filed.

As relevant here, petitioners claimed a $28,536 employee business

expense deduction and a $19,979 charitable contribution deduction

on a Schedule A, Itemized Deductions, included with that return.2

     In the notice of deficiency respondent:   (1) Disallowed all

but $10,810 of the employee business expense deduction; (2)

disallowed all but $2,196 of the charitable contribution

deduction; and (3) imposed a section 6662(a) accuracy-related

penalty upon the ground that the underpayment of tax required to

be shown on petitioners’ 2002 return is due to negligence or


     2
       To some extent, the details of the employee business
expense deduction are shown on a Form 2106, Employee Business
Expenses, also included with petitioners’ 2002 return. The
amount shown above for that deduction does not take into account
sec. 67(a).
                                - 5 -

intentional disregard of rules or regulations.    The disallowed

portion of the employee business expense deduction relates almost

entirely to:   (1) Expenses petitioner incurred traveling between

Birmingham and Chicago; (2) the cost of renting and maintaining

an apartment in Chicago; and (3) a claim for meals expenses on

those occasions when petitioner was required to remain in Chicago

because of the timing of his Midway flight assignments and

available flights from and to Birmingham.

                             Discussion

1. Employee Business Expense Deduction

     Ordinarily, expenses incurred by an individual for meals and

lodging are considered personal, living expenses and may not be

deducted.   Sec. 262(a).   On the other hand, expenses for meals

and lodging (other than amounts that are lavish or extravagant

under the circumstances) incurred by an employee can qualify as

deductible trade or business expenses if the expenses were

incurred while the employee was traveling away from home in

connection with the employee’s employment.    Sec. 162(a)(2);

Primuth v. Commissioner, 54 T.C. 374, 377 (1970).     To qualify for

deduction under section 162(a)(2), among other things, the

expenses for meals and/or lodging must be incurred while the

taxpayer is away from home, and the expenses must be directly

connected with carrying on the taxpayer’s business.     Commissioner

v. Flowers, 326 U.S. 465, 470 (1946).
                                 - 6 -

     The reference to “home” in section 162(a)(2) means the

taxpayer’s tax home.     Mitchell v. Commissioner, 74 T.C. 578, 581

(1980); Foote v. Commissioner, 67 T.C. 1, 4 (1976); Kroll v.

Commissioner, 49 T.C. 557, 561-562 (1968).

     The disallowed portion of the employee business expense

deduction consists of expenses petitioner incurred to travel

between his residence and Midway, as well as expenses for meals

and lodging while petitioner remained in Chicago.      According to

petitioners, those expenses are properly deductible as travel

expenses petitioner incurred while traveling away from home as an

employee of Southwest.    According to respondent, those expenses

represent nondeductible personal, living, or family expenses.

     The dispute between the parties reduces to their

disagreement regarding the location of petitioner’s “tax home”

during the year in issue.    According to petitioners, petitioner’s

tax home was Dallas, and “traveling expenses” incurred in

connection with traveling to or remaining in Chicago are

deductible under section 162(a)(2).      According to respondent,

petitioner’s tax home was Chicago during 2002, and the expenses

incurred to travel there or for meals and lodging while present

in Chicago are not deductible because the expenses are personal

in nature.   For the following reasons, we agree with respondent.
                                - 7 -

     Generally, a taxpayer’s tax home is determined by the

location of the taxpayer’s regular or principal (if more than one

regular) place of business.     Mitchell v. Commissioner, supra;

Kroll v. Commissioner, supra; cf. sec. 1.911-2(b), Income Tax

Regs.

     Petitioners point out that much of petitioner’s income from

Southwest during 2002 was generated from flights on which he

functioned as a check airman.    They further note that he was

supervised from Dallas on those flights.      Upon the basis of those

facts, they argue that Dallas should be considered his tax home.

We have difficulty following their reasoning on the point, and

they have offered no support or authority for such a proposition.

We can envision many scenarios where an employee regularly works

in one location but is supervised from a distant one.      As

previously noted and well established, it is the taxpayer’s

regular place of business that determines the taxpayer’s tax home

for purposes of section 162(a)(2).      The location of the

employee’s supervision or supervisor might be instructive, but it

is hardly determinative.

     During 2002 most of petitioner’s flight assignments

originated and terminated at Midway.      As best can be determined

from Southwest’s records, he was physically present in Dallas on

relatively few occasions for business purposes during that year.

It follows that Midway was petitioner’s regular (or at least
                               - 8 -

principal) place of business during 2002 and Chicago is

petitioner’s tax home during that year.    Respondent’s adjustments

that reflect those findings are sustained.    Petitioners are not

entitled to an employee business expense deduction in excess of

the amount allowed by respondent.

2. Charitable Contribution Deduction

     Petitioners claimed a $19,979 charitable contribution

deduction on their 2002 return.    In general, a taxpayer is

allowed to deduct any donations, contributions, or gifts made to

a qualifying organization.   See sec. 170(a), (c).   The only donee

specifically identified in the record is Church, and nothing in

the record suggests that Church was not a qualifying organization

described in section 170.

     Checks made to Church show that petitioners contributed

$6,410 to that organization during 2002.    According to

petitioner, his religious principles constrained him to make cash

donations to Church anonymously.    According to petitioner, those

cash donations totaled almost $14,000.

      We appreciate petitioner’s religious beliefs and practices,

but a deduction for a charitable contribution, whether made in

cash or otherwise, must be substantiated by at least one of the

following:   (1) A canceled check; (2) a receipt from the donee

charitable organization showing the name of the donee, the date

of the contribution, and the amount of the contribution; or (3)
                                - 9 -

in the absence of a canceled check or receipt from the donee

charitable organization, other reliable written records showing

the name of the donee, the date of the contribution, and the

amount of the contribution.   Sec. 1.170A-13(a)(1), Income Tax

Regs.    The reliability of the records is determined on the basis

of all of the relevant facts and circumstances.   See sec. 1.170A-

13(a)(2), Income Tax Regs.

     Other than his testimony regarding his religious beliefs and

donation practices, the only evidence in the record relating to

the amount of cash contributions made to Church during 2002 is a

handwritten log prepared by petitioner.   The entries made in the

log were copied from notations made in another “ledger” also

maintained by petitioner but not produced at trial.   Set against

petitioners’ practice of making substantial donations to Church

by check, we do not find petitioner’s handwritten log to be

persuasive or otherwise to satisfy the provisions of the

regulation cited above.   Petitioners are entitled to a charitable

contribution deduction in excess of the amount allowed by

respondent in the notice of deficiency, but only to the extent

that the contributions are evidenced by canceled checks to

Church.3




     3
       That amount exceeds the amount allowed in the notice of
deficiency by $3,214.
                              - 10 -

3. Section 6662(a) Accuracy-Related Penalty

     According to respondent, the underpayment of tax required to

be shown on petitioners’ 2002 return is due to negligence or

intentional disregard of rules or regulations.    See sec. 6662(a),

(b)(1), (c).

     According to respondent, the imposition of the section

6662(a) accuracy-related penalty upon the ground of negligence is

appropriate because:   (1) Petitioners improperly failed to treat

Chicago as petitioner’s tax home during 2002; and (2) they

claimed a charitable contribution deduction without having

maintained sufficient records to support that deduction.

     The burden of production rests with respondent to come

forward with sufficient evidence to show that petitioners are

liable for the penalty here in dispute.   See sec. 7491(c).    After

carefully considering the evidence in this case, we find that

respondent’s burden has not been met.   Petitioners are not liable

for a section 6662(a) accuracy-related penalty for 2002.

     To reflect the foregoing and to take into account payments

made after the notice of deficiency was issued,


                                    Decision will be entered

                               under Rule 155.
