                  T.C. Summary Opinion 2010-12



                     UNITED STATES TAX COURT



                 JAY A. DURRANCE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11304-09S.            Filed February 3, 2010.



     Jay A. Durrance, pro se.

     Julia L. Wahl, for respondent.



     ARMEN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.1   Pursuant to

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




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

any other court, and this opinion shall not be treated as

precedent for any other case.

     Respondent determined a deficiency of $2,550 in petitioner’s

Federal income tax for 2006.

     After concessions by petitioner, the issue for decision is

whether petitioner is entitled to a deduction of $10,528 for

travel expenses under section 162(a)(2).   The resolution of this

issue turns on whether petitioner’s position with Meisner

Electric, Inc., in Delray Beach, Florida, was temporary or

indefinite.   We hold that petitioner’s position with Meisner

Electric, Inc., was indefinite and, therefore, that he is not

entitled to the deduction in issue.

                            Background

     Some of the facts have been stipulated, and they are so

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.

     Petitioner resided in the State of Kansas when the petition

was filed.

     On August 11, 2006, petitioner was offered a position with

Meisner Electric, Inc. (Meisner), in Delray Beach, Florida.     The

offer of employment states the position title as project

coordinator and indicates an annual salary.   The position as

project coordinator was a permanent position with an initial 6-

month probationary period and had a start date of August 21,
                                - 3 -

2006.    Although the position was permanent, petitioner intended

it to be an interim position while he pursued other employment

opportunities.    When petitioner took the position with Meisner,

he owned and lived in a townhouse in Lake Mary, Florida (a suburb

of Orlando, Florida), approximately 200 miles from Delray Beach.

     In 2006 petitioner belonged to the local electrical union in

Orlando, Florida.    When petitioner accepted the position with

Meisner, he was unemployed and was on the union’s “out-of-work

book”.    Although the position with Meisner was for work on

commercial properties, petitioner’s preference was to work on

industrial projects because the pay is better.    The Orlando

market supplied mostly commercial projects as opposed to

industrial projects; and even though he accepted the position

with Meisner, when and if he found a position closer to Lake Mary

or employment on an industrial project, petitioner intended to

resign the position.

     From August through December 2006 petitioner drove between

Lake Mary and Delray Beach.    Petitioner drove to Delray Beach at

the beginning of the work week and stayed in a motel during the

week.    Petitioner returned to Lake Mary on the weekends so as not

to incur additional motel costs for days he was not working.      The

5 days a week petitioner was in Delray Beach he stayed at a

motel.    In mid-December 2006 petitioner signed a 1-year lease for

an apartment in Delray Beach.
                                - 4 -

     In September 2007 petitioner left his position with Meisner

for a position with M.J. Electrical based out of Iron Mountain,

Michigan.    Petitioner began his employment with M.J. Electrical

in Topeka, Kansas, but at the time of trial worked for that

company in Morgantown, West Virginia.      M.J. Electrical pays for

petitioner’s living expenses while traveling and for trips to

Lake Mary.

     On his 2006 Federal income tax return petitioner claimed an

employee business travel expense deduction of $16,321.2

Respondent disallowed the entire deduction.     Petitioner conceded

that he overstated the deduction by $5,787; thus, $10,528 of the

deduction remains at issue.    The latter amount consists of

vehicle expenses, lodging, and meals and incidentals incurred as

a result of petitioner’s position with Meisner in Delray Beach.

                              Discussion

     Deductions are a matter of legislative grace, and the

taxpayer bears the burden of proving that he or she is entitled

to any deduction claimed.   Rule 142(a); Deputy v. du Pont, 308

U.S. 488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U.S.

435, 440 (1934).3




     2
        However, because of a math error on the return the
deduction should have been $16,315.
     3
        We decide the disputed issue without regard to the burden
of proof.
                               - 5 -

     Generally, a taxpayer may not deduct personal, living, or

family expenses, such as the costs of transportation, meals, and

lodging while traveling away from home.   Sec. 262; sec. 1.262-

1(b)(5), Income Tax Regs.   However, travel expenses may be

deducted under section 162(a)(2) if they are:   (1) Reasonable and

necessary; (2) incurred while the taxpayer was traveling “away

from home”; and (3) incurred in pursuit of a trade or business.

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

to “home” in section 162(a)(2) means the taxpayer’s “tax home”.4

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).

     As a general rule, a taxpayer’s tax home is determined by

the location of the taxpayer’s principal place of employment,

regardless of where the taxpayer’s personal residence is located.

Mitchell v. Commissioner, supra at 581; Kroll v. Commissioner,

supra at 561-562.   Under an exception to the general rule, a

taxpayer’s personal residence may be his tax home where the

taxpayer is away from home on a temporary rather than indefinite

basis.   Peurifoy v. Commissioner, 358 U.S. 59, 60 (1958).    The



     4
        The vocational “tax home” concept was first construed by
this Court in Bixler v. Commissioner, 5 B.T.A. 1181, 1184 (1927),
and has been steadfastly upheld by this Court. See, e.g., Horton
v. Commissioner, 86 T.C. 589 (1986); Leamy v. Commissioner, 85
T.C. 798 (1985); Foote v. Commissioner, 67 T.C. 1 (1976); Kroll
v. Commissioner, 49 T.C. 557 (1968).
                                 - 6 -

flush language of section 162(a) provides that a “taxpayer shall

not be treated as being temporarily away from home during any

period of employment if such period exceeds 1 year.”

       Employment is defined as “temporary” only if the taxpayer

can foresee its termination within a reasonably short period of

time or it is for a fixed duration.      Boone v. United States, 482

F.2d 417, 419 (5th Cir. 1973).    Indefinite employment is

employment where the prospect is that the work will continue for

an indefinite and substantially long period.      Id. (citing

Cockrell v. Commissioner, 321 F.2d 504 (8th Cir. 1963), affg. 38

T.C. 470 (1962), and Wright v. Hartsell, 305 F.2d 221 (9th Cir.

1962)).    Whether a taxpayer’s job is temporary or indefinite is

determined by the facts and circumstances.      Peurifoy v.

Commissioner, supra at 61.

       This Court has held that a taxpayer’s subjective intent as

to the length of time he may wish to remain in an indefinite

position is not controlling but the ultimate question is whether

the taxpayer’s decision not to move his residence while he works

somewhere else is attributable to personal choice rather than to

exigencies of his trade or business.      Tucker v. Commissioner, 55

T.C. 783, 786 (1971); Hendry v. Commissioner, T.C. Memo. 1981-

740.    This Court has further held that when a taxpayer’s

prospects for employment in his chosen profession are better away

from the area of his previously established residence than in it,
                                 - 7 -

then we may regard his decision to keep his residence there as

motivated by personal reasons unrelated to his trade or business.

Sanderson v. Commissioner, T.C. Memo. 1998-358 (citing Tucker v.

Commissioner, supra at 787).

     Petitioner contends that his position with Meisner in Delray

Beach was temporary, as he intended to stay in that position only

until he found a job closer to Lake Mary or employment on an

industrial project.   Respondent argues that petitioner’s position

with Meisner was in fact indefinite.     We agree with respondent.

     Given the circumstances surrounding his employment with

Meisner, we can understand why petitioner might consider his

position “temporary”, as that word is used in common parlance.

After all, at all relevant times it was his intention to resign

the position with Meisner as soon as possible for business as

well as personal reasons.

     Nevertheless, the position with Meisner was a permanent

position with no foreseeable terminus.    When petitioner accepted

the position with Meisner, he had a reasonable expectation that

the position would, and it in fact did, last more than 1 year.

Furthermore, petitioner’s job prospects in the Orlando area were

at best unpromising in light of his recent unemployment and the

scarcity of industrial projects.    Indeed, the job for which

petitioner resigned his position with Meisner was in Kansas, with

a company located in Michigan.    Petitioner kept his residence in
                                - 8 -

Lake Mary for reasons of personal choice despite, rather than

because of, the exigencies of his trade or business.

     Consequently, because petitioner’s position with Meisner in

Delray Beach was an indefinite position, Delray Beach was his tax

home for the relevant period.    Because petitioner was not “away

from home” within the meaning of section 162(a)(2) while in

Delray Beach, he is not entitled to a deduction for vehicle

expenses, lodging, and meals and incidentals incurred as a result

of his position in Delray Beach.   Instead, his costs were in the

nature of personal or living expenses.      We thus sustain

respondent’s determination on this issue.

                            Conclusion

     We have considered all of the other arguments made by

petitioner and, to the extent that we have not specifically

addressed them, we conclude that they do not support a holding

contrary to that reached herein.

     To reflect our disposition of the disputed issue, as well as

petitioner’s concessions,

                                        Decision will be entered

                                for respondent.
