                          T.C. Memo. 1997-526



                       UNITED STATES TAX COURT



                   JAMES LAWTON ROBERTSON AND
        LILLIAN JANETTE HUMBER ROBERTSON, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11901-96.               Filed November 20, 1997.




     Richard D. Gamblin, James Lawton Robertson, and Louis H.

Watson, for petitioners.

     Robert W. West, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION


     JACOBS,     Judge:    Respondent   determined   the   following

deficiencies in petitioners' Federal income taxes:
                                          - 2 -


                          Year            Deficiency

                          1990            $6,400.27
                          1991             5,841.34
                          1992             3,922.00

The issue for decision is whether reimbursement by the State of

Mississippi for certain travel, lodging, and meal expenses incurred

by James Lawton Robertson (petitioner) during his term as a Justice

of the Mississippi Supreme Court is excludable from petitioners'

income.     To the extent petitioner incurred unreimbursed travel,

lodging, and meal expenses, we must also decide whether those

expenses are deductible from petitioners' income.

       Unless otherwise indicated, all section references are to the

Internal Revenue Code as in effect for the years in issue.                            All

Rule   references      are   to    the    Tax     Court   Rules      of    Practice   and

Procedure.

                                  FINDINGS OF FACT

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

stipulation of facts and the attached exhibits are incorporated

herein by this reference.

       At the time the petition was filed, petitioner resided in

Jackson, Mississippi, and petitioner's wife, Lillian Janette Humber

Robertson (Mrs. Robertson), resided in Oxford, Mississippi.

Petitioner's Appointment            and    Election       as   a     Justice    to    the
Mississippi Supreme Court

       In   1965,    petitioner     began       practicing     law    in    Greenville,

Mississippi.        In 1979, petitioner became a full-time law professor
                                    - 3 -


at the University of Mississippi School of Law (the law school) in

University, Mississippi (which is adjacent to Oxford, Mississippi,

and which we will refer to as Oxford).                At that time, Mrs.

Robertson started to work as the news director in the public

relations department at the University of Mississippi in Oxford.

      On January 17, 1983, the Governor of Mississippi appointed

petitioner    a    Justice    on    the     Mississippi       Supreme     Court,

Mississippi's highest court. Petitioner was appointed to fill a

retired Justice's unexpired term which was to end on December 31,

1984. In November 1983, because there were more than 9 months left

in the unexpired term, petitioner was required under Mississippi

law   to   stand   for   election   for     the   remainder    of   the    term.

Petitioner was elected without opposition. In 1984, petitioner ran

for reelection, with opposition, and won a full 8-year term that

expired on December 31, 1992.

      The Mississippi Supreme Court, which is situated in Jackson,

Mississippi, consists of nine Justices and is divided into three

districts (northern, central, and southern); three Justices are

elected to each of the three districts.           Petitioner was elected to

the Third (Northern) District (which included Oxford).

      After petitioner's appointment and subsequent election to the

Mississippi Supreme Court, he continued to teach one course each

semester (except during the summer) at the law school in Oxford.

As an adjunct professor, petitioner was given an office at the law
                               - 4 -


school. He taught his course on Friday afternoons and participated

in other law school functions, including moot court judging, law

review writing, and teaching continuing legal education courses.

     At all relevant times, petitioners owned a home in Oxford.

Petitioners were registered to vote in Oxford; conducted their

banking in Oxford; registered their automobiles in Oxford; had

their three sons in public schools in Oxford; paid real estate

taxes and claimed a homestead exemption for their home in Oxford;

attended church in Oxford; and were involved in several civic

organizations in Oxford.

     Because the distance between Oxford and Jackson is 157 miles

one way, petitioner developed a weekly schedule to accommodate his

two employment positions: on Sunday afternoons, petitioner drove

from Oxford to Jackson; from Monday through Thursday petitioner

remained in Jackson and attended to his duties on the Mississippi

Supreme Court; on Thursday afternoons petitioner drove back to

Oxford; on Friday afternoons petitioner taught one course at the

law school; during the weekend petitioner resided at his home in

Oxford.

     Petitioner completed round trips between Oxford and Jackson 48

times during 1990, 45 times during 1991, and 30 times during 1992.

While in Jackson, petitioner resided in an apartment and paid

monthly rent.   While in Oxford, he resided with Mrs. Robertson and

their three sons.
                                   - 5 -


     As a Justice, petitioner had two primary duties in Jackson.

First,   petitioner     was   assigned   to   a    three-Justice   panel,   as

designated   by   the   Chief   Justice,      to   hear   cases.   When     the

Mississippi Supreme Court is in session, each panel hears cases 1

day during the week. Typically, each panel hears cases for a 6-week

period, followed by a 3-week period for writing opinions. Second,

petitioner heard cases at en banc conferences 1 day per week.               The

panel hearings and en banc hearings were generally on separate

days, and thus as a matter of practicality the Justices' presence

in Jackson was required at least 2 days out of each week.

     At the Mississippi Supreme Court, petitioner had an office,

staff, and access to the State library.            However, petitioner, like

other Justices, often preferred to conduct his research and draft

opinions at home in his district. Petitioner completed much of his

judicial work at the law school library in Oxford during the

weekends.

     Although not legally required to do so, petitioner, as well as

most other Justices, performed various nonjudicial civic functions

in his home district in Oxford.          The purpose of participating in

these civic activities was in part to secure reelection.             Some of

the activities included: (1) Visiting local judges' and clerks'

offices, bar associations, and colleges and universities; (2)

giving speeches at civic organizations, schools, churches, and

public dedications; and (3) participating in continuing legal
                                       - 6 -


education programs and administering oaths of office of public

officials.

     In 1992, petitioner ran for reelection as a Justice of the

Mississippi Supreme Court and was defeated.                Petitioner resigned

from the court on August 31, 1992, and began teaching at Fordham

University School of Law in New York in September 1992 as a

visiting   professor.       In   January    1993,    petitioner      returned   to

Jackson, Mississippi, and entered private practice.

Federal Income Tax Returns

     For each of the years in issue, petitioners filed a joint

Federal tax return.     Petitioners reported adjusted gross income of

$110,841.08 for 1990, $113,362.55 for 1991, and $138,690 for 1992.

     Petitioner's     wage       and   salary     income   (before     retirement

contributions) for the years in issue was as follows:

                                   1990           1991          1992

     Supreme Court               $75,000        $75,195       $49,988
     Univ. of Miss.               15,000         14,642         7,483
     Fordham Univ.                  ---            ---         49,185
          Total                   90,000         89,837       106,656

     Petitioner was reimbursed by the State of Mississippi for

travel,    lodging,   and    meal      expenses    incurred   while    attending

Mississippi Supreme Court sessions in Jackson and returning to

Oxford.    At the end of each month, petitioner prepared a schedule

of expenses and submitted them to the financial officer of the

court for reimbursement, and a check would be issued in that amount

to petitioner within 8 to 10 days.             Petitioners did not report the
                                           - 7 -


amount of reimbursement petitioner received from the State of

Mississippi on their Federal joint income tax returns for 1990,

1991, and 1992. Furthermore, petitioners deducted travel, lodging,

and   meal     expenses      that   were    not    reimbursed     by    the    State    of

Mississippi for petitioner's attendance at the court in Jackson.

Notice of Deficiency

        In   the   notice     of    deficiency,      respondent    determined      that

petitioners underreported their income for each of the years in

issue     by   the    amount       of   travel,     lodging,    and     meal    expense

reimbursements petitioner received from the State of Mississippi.

Respondent         further     disallowed          petitioners'        deduction       for

unreimbursed travel, lodging, and meal expenses for the years in

issue.

        At trial, respondent conceded that the transportation expenses

incurred by petitioner relating to his travel between jobs in

Jackson, Mississippi, as a Justice of the Mississippi Supreme Court

and Oxford, Mississippi, as an adjunct professor of law at the

University of Mississippi are deductible for those days in which

petitioner traveled from Jackson to Oxford for the purpose of

teaching classes. See Rev. Rul. 61-67, 1961-1 C.B. 25, modified by

Rev. Rul. 76-453, 1976-2 C.B. 86.

                                         OPINION

        Our task herein is to decide whether the travel, lodging, and

meal expense reimbursements paid to petitioner for his attendance
                                  - 8 -


at the Mississippi Supreme Court in Jackson are includable in

petitioners' income for 1990, 1991, and 1992. In addition, we must

decide whether any unreimbursed travel, lodging, and meal expenses

for   petitioner's   attendance    in     Jackson   are   deductible   from

petitioners' income for the years in issue.

      Petitioner asserts that his tax home was Oxford, Mississippi,

and therefore his travel to Jackson for court hearings was travel

"away from home".    Alternatively, petitioner contends that even if

it is determined that his tax home was Jackson, he still can

exclude the travel reimbursement and deduct unreimbursed travel

expenses because he was required to reside in Oxford to fulfill his

duties as a Mississippi Supreme Court Justice. Respondent counters

that petitioner's tax home was Jackson, not Oxford, and that

Mississippi law did not require petitioner to reside in Oxford.

For the reasons that follow, we agree with respondent.

      Gross income means all income from whatever source derived.

Sec. 61;   sec. 1.61-1(a), Income Tax Regs.; see also Commissioner

v. Glenshaw Glass Co., 348 U.S. 426 (1955).         Gross income does not

include the amount of reimbursed trade or business expenses of

employees that qualify under an accountable plan.           Sec. 62; sec.

1.62-2(c)(2), (4), Income Tax Regs.        An accountable plan is one in

which (1) the reimbursed expenses would otherwise be allowable as

a deduction to the employee under part VI of subchapter B of the

Internal Revenue Code (secs. 161-196), (2) the reimbursed expenses
                                   - 9 -


are substantiated by the employee, and (3) the employee returns any

amounts in excess of expenses.          Sec. 1.62-2(d)-(f), Income Tax

Regs.     The matter herein concerns only the first prong; namely,

whether the reimbursed expenses have a business connection and

would otherwise be deductible.

     Section 162(a) allows as a deduction ordinary and necessary

expenses incurred during the taxable year in carrying on a trade or

business.     Such expenses include traveling expenses (including

meals and lodging) while away from home in the pursuit of a trade

or business.    Sec. 162(a)(2).    Generally, for Federal tax purposes

a taxpayer's home under section 162(a)(2) is his principal place of

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

v. Commissioner, 72 T.C. 190, 195 (1979), affd. 662 F.2d 253 (4th

Cir. 1981); Kroll v. Commissioner, 49 T.C. 557, 561-562 (1968). If

a taxpayer maintains two businesses, this Court has determined the

taxpayer's home from three objective factors: (1) The place where

he spends more of his time; (2) the place where he engages in

greater business activity; and (3) the place where he derives a

greater proportion of his income.          Hoeppner v. Commissioner, T.C.

Memo. 1992-703; see also Gardin v. Commissioner, 64 T.C. 1079

(1975); Montgomery v. Commissioner, 64 T.C. 175 (1975), affd. 532

F.2d 1088 (6th Cir. 1976).

        Exclusions   and   deductions   from   income   are   a   matter   of

legislative grace and are narrowly construed.            INDOPCO, Inc. v.
                                     - 10 -


Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice Co. v.

Helvering, 292 U.S. 435, 440 (1934).             Consequently, the taxpayer

has the burden to show that an exclusion or deduction is allowable.

Interstate Transit Lines v. Commissioner, 319 U.S. 590, 593 (1943).

       We    conclude    that    petitioner's         tax    home     was   Jackson,

Mississippi, rather than Oxford, Mississippi.                   See Montgomery v.

Commissioner, supra; Thoma v. Commissioner, T.C. Memo. 1983-623.

In a typical week, petitioner spent 4 days in Jackson and 3 days in

Oxford.      While he was in Jackson, all 4 days were committed to

petitioner's work as a Justice on the Mississippi Supreme Court.

While in Oxford, only 1 day, Friday, was committed to petitioner's

work   as    an   adjunct     professor    at   the    law    school.       Further,

petitioner earned $75,000 per year from his work as a Justice, as

opposed to $15,000 per year from his work as a professor.

       Petitioner asserts that as a practical matter his work on the

Mississippi Supreme Court required him to be present in Jackson

only 2 days out of every week--for panel day and en banc day.                     He

also asserts that he did much of his substantive work as a Justice,

namely      research    and   opinion     drafting,     while    in    Oxford,   and

particularly at the law school library.                 Accepting petitioner’s

assertions, nonetheless the fact remains that petitioner spent 4

days in Jackson every week.             Further, petitioner's Mississippi

Supreme Court office and staff were in Jackson, not Oxford, even

though petitioner could have apparently maintained both in Oxford
                                     - 11 -


at his own expense if he had so chosen.           Ultimately, we are bound

by what actually occurred, not what might have happened.                 Don E.

Williams   Co.   v.   Commissioner,     429    U.S.    569,    579-580   (1977);

Commissioner v. National Alfalfa Dehydrating & Milling Co., 417

U.S. 134, 148-149 (1974).

     Because we find that petitioner's tax home for purposes of

section 162 was Jackson and not Oxford, except as set forth below

petitioner   may      not   deduct    the     travel    expenses    (including

transportation, meals, and lodging) incurred for traveling between

his residence in Oxford and his principal place of business in

Jackson.   In general, these expenses are considered nondeductible,

personal commuting expenses under section 262.                  See Fausner v.

Commissioner, 413 U.S. 838 (1973); Commissioner v. Flowers, 326

U.S. 465 (1946). However, the transportation costs that petitioner

incurred in traveling from Jackson where he served as a Mississippi

Supreme Court Justice to Oxford on days in which petitioner taught

classes at the law school are deductible as ordinary and necessary

business expenses, as respondent concedes.                    See Steinhort v.

Commissioner, 335 F.2d 496, 504 (5th Cir. 1964), affg. T.C. Memo.

1962-233; Kistler v. Commissioner, 40 T.C. 657, 665 (1963); Heuer

v. Commissioner, 32 T.C. 947, 951-952 (1959), affd. 283 F.2d 865

(5th Cir. 1960).

     The U.S. Court of Appeals for the Fifth Circuit, to which an

appeal of this case would lie, has addressed the deductibility of
                                        - 12 -


commuting      expenses    between      dual     residences       and    provided        an

exception to the general rule denying deductibility of these

expenses.1     In United States v. Le Blanc, 278 F.2d 571 (5th Cir.

1960), the Court of Appeals held that where a Louisiana Supreme

Court    Justice      (Justice    Le    Blanc)   was     required       by   the   State

constitution to maintain his district residence during his term in

office,   he    was    allowed    to    deduct    the    rental    expenses        of    an

apartment in New Orleans during his attendance on the court in the

latter    city.         Justice    Le     Blanc's       district    residence           was

approximately 75 miles from New Orleans, and after his work on the

court was completed each week, he returned to his home district for

the weekend.       Id. at 573.         The State constitution required the

Justices to maintain residency in their district for the 2 years

prior to election and provided for the immediate vacating of the




     1
          The U.S. Court of Appeals for the Fourth Circuit has
also addressed this issue. In Barnhill v. Commissioner, 148 F.2d
913 (4th Cir. 1945), the Court of Appeals held that a North
Carolina Supreme Court Justice who maintained his district
residence while attending court sessions in the State capital
could not deduct his travel expenses. The Justice involved in
that case maintained his district residence as a matter of
personal choice while serving on the court. Id. at 914. His
presence was required in the State capital while the court was in
session, but not otherwise. Id.
     The Court of Appeals for the Fifth Circuit has distinguished
Barnhill v. Commissioner, supra, from United States v. Le Blanc,
278 F.2d 571 (5th Cir. 1960), on the basis that in the latter,
the State required the Justices to maintain their district
residences. Ireland v. United States, 621 F.2d 731, 735 (5th
Cir. 1980); Steinhort v. Commissioner, 335 F.2d 496, 503 (5th
Cir. 1964), affg. and remanding T.C. Memo. 1962-233.
                                         - 13 -


office where the Justice changed his residence from the district to

which he was elected.           Id. at 575.

     With    regard        to    the     case    before      us,    the   Mississippi

Constitution provides that "The legislature shall divide the state

into three Supreme Court districts, and there shall be elected one

judge for and from each district".               Miss. Const. art. VI, sec. 145.

This section indicates, as petitioner asserts on brief, that the

Justices    must     reside       in     their    respective       districts     as   a

prerequisite to election (or appointment) to the court.                      However,

the section goes on to provide that "the removal of a judge to the

state capitol during his term of office shall not render him

ineligible as his own successor for the districts from which he has

removed."    Id.

     Petitioner and other present and former Justices testified

that this latter phrase means that there is no legal requirement

that Justices maintain their residences in their home districts

while     serving     on        the    Mississippi        Supreme     Court.     Their

interpretation      is   supported        by    two   different     State   statutes.

Section    25-1-61    of    the       Mississippi     Code   provides     that   State

officers who must remove themselves to another county for official

purposes will be deemed to maintain their home residence, unless

they choose to establish a new residence in the county where they

are performing their official duties. Miss. Code Ann. sec. 25-1-61
                                - 14 -


(1972).2   Section 9-1-23 of the Mississippi Code provides that only

circuit and county judges and chancellors must reside within their

respective districts and counties; there is no mention of such a

requirement for Supreme Court Justices.       Miss. Code Ann. sec. 9-1-

23.3

       Thus it is clear, as admitted by petitioner, that Mississippi

Supreme Court Justices are not legally required to maintain their

district residences    while   serving   on   the   court.   This   makes

petitioner's case factually distinguishable from United States v.

Le Blanc, supra. Nonetheless, petitioner requests us to expand the

holding in Le Blanc to circumstances other than a legal compulsion

to maintain a district residence.    Petitioner argues that a "legal

compulsion is but an indicia [of] whether in fact an appellate


       2
            Miss. Code Ann. sec. 25-1-61 (1972) provides:

            All public officers of this state who are required
       to, or who for official reasons, remove from the county
       of their actual household and residence to another
       county of this state for the purpose of performing the
       duties of their office shall be deemed in law in all
       respects to be householders and residents of the county
       from which they so remove, unless such officer elects
       to become an actual householder and resident of the
       county to which he removed for official causes.
       3
            Miss. Code Ann. sec. 9-1-23 provides:

            The judges of the supreme, circuit and county
       courts and chancellors shall be conservators of the
       peace for the state, each with full power to do all
       acts which conservators of the peace may lawfully do;
       and the circuit judges and chancellors shall reside
       within their respective districts and the county judges
       shall reside in their respective counties.
                                      - 15 -


judge is away from home in the pursuit of trade or business."

Thus, petitioner contends that economic, political, and other

practical necessities may also suffice to establish the fact that

a taxpayer is away from home.

      Petitioner and other present and former Mississippi Supreme

Court Justices testified regarding the political and practical

necessity    of   maintaining   a     high     profile   in   their      respective

districts    while   serving    on    the    court.      They     also    testified

regarding the State's public policy of encouraging such a profile

through the passage of section 25-3-41 of the Mississippi Code,

which provides for reimbursement of travel, lodging, and meal

expenses of State employees who are required to travel in the

performance of their official duties.             Miss. Code Ann. sec. 25-3-

41.

      This case is appealable to the Court of Appeals for the Fifth

Circuit, and consequently we are bound by its decisions. Golsen v.

Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir.

1971).    Nothing in United States v. Le Blanc, supra, permits us to

conclude that political, economic, or practical necessities can be

a basis for permitting the deduction of travel expenses between a

residence and a principal place of business.             See Ireland v. United

States,     621   F.2d   731,   735     (5th    Cir.     1980);    Steinhort    v.

Commissioner, 335 F.2d 496, 503 (5th Cir. 1964).                A State's public

policy to the contrary cannot control the operation of Federal tax
                                      - 16 -


laws unless otherwise expressly provided for by Congress.                    Burnet

v. Harmel, 287 U.S. 103, 110 (1932).            Even public policy designed

to encourage the recall of Federal judges cannot control the

operation of the Federal tax laws where the judges are not required

by law to maintain two different residences.                 Putnam v. United

States, 32 F.3d 911 (5th Cir. 1994).            The relief petitioner seeks

should     be   sought   from   Congress,      not   from   the    courts.     See

Montgomery v. Commissioner, 532 F.2d 1088, 1091 (6th Cir. 1976),

affg. 64 T.C. 175 (1975).

     We have considered all of petitioner's other arguments and

find them to be without merit.           Thus, we hold that petitioner's

travel, lodging, and meal expenses incurred due to his attendance

at   the    Mississippi     Supreme     Court    sessions     in    Jackson     are

nondeductible      expenses     under   section      262.     See    Fausner    v.

Commissioner, 413 U.S. 838 (1973); Commissioner v. Flowers, 326

U.S. 465 (1946).         Consequently, those expenses reimbursed by the

State of Mississippi are includable in income, Putnam v. United

States, supra at 920; sec. 1.62-2(c)(5), Income Tax Regs., and

those expenses not reimbursed by the State are not deductible, sec.

162(a)(2).

     To reflect the foregoing and the concessions of the parties,



                                                     Decision will be entered

                                            under Rule 155.
