                          T.C. Memo. 2002-192



                     UNITED STATES TAX COURT



                 TERESITA T. DAIZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10462-01.              Filed August 6, 2002.


     Teresita T. Daiz, pro se.

     Christian A. Speck and Daniel J. Parent, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     WOLFE, Special Trial Judge:     Respondent determined a

deficiency of $5,152 in petitioner’s 1997 Federal income tax.

The issues for decision are whether petitioner is entitled to

claimed deductions for:     (1) Automobile expenses incurred in

traveling between her residence and various job sites; and (2)

certain other unreimbursed employee expenses.
                                - 2 -

     Unless otherwise indicated, all 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.    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 Benicia, California.

                          FINDINGS OF FACT

     During the year in issue petitioner earned $24 hourly

working as a nurse and as a nursing consultant for Pleasant Care

Corporation (PCC).   Petitioner began working for PCC during the

early 1990s.   From that time through the year in issue petitioner

maintained an apartment in Stockton, California.    During her

first few years of employment by PCC, petitioner regularly worked

in or near Stockton.    From approximately March 31, 1996, until

2001, she was assigned to work at various facilities outside of

Stockton.    In 1997, the year in issue, petitioner was assigned to

work at facilities in the following cities:

                                               Round trip
Job site           Number of weeks        mileage from Stockton

Novato                    9                        171
Napa                      1                        141
Bakersfield              11                        491
Ukiah                    18                        337
Yuba City                10                        174

Petitioner was assured by her supervisor that the assignments

would only be temporary and that she would be reassigned to the
                                - 3 -

facility in Stockton.    The supervisor’s assurances about the

temporary nature of petitioner’s assignments during 1997 were

accurate.   The supervisor’s assurances that petitioner would be

reassigned to a PCC facility in or near Stockton proved to be

false.   PCC was expanding by acquiring additional facilities,

and, at least partly for this reason, petitioner repeatedly was

assigned to work at PCC’s facilities in various cities other than

Stockton until 2001.    Then petitioner gave up her hopes for

reassignment to Stockton, told her supervisor that she would not

be moved about any longer, and accepted a permanent position at a

PCC subsidiary’s facility in Vista, California.

     Petitioner owned only one vehicle during the year in issue,

a 1993 Toyota Corolla.    She commuted daily in that vehicle

between her apartment in Stockton and the job sites in Novato,

Napa, and Yuba City.    During the periods that she worked in

Bakersfield and Ukiah, she lodged overnight at the residence of a

coworker during the week and returned to her apartment in

Stockton on the weekends.    Although petitioner continued to live

in Stockton and seek assignment to a PCC facility in or near

Stockton, she did not work at the Stockton facility at any time

during the year in issue.

     On her 1997 Federal income tax return, petitioner reported

total income of $82,085 and itemized deductions of $26,353.      She
                               - 4 -

claimed unreimbursed employee expenses on Schedule A, Itemized

Deductions, as follows:

            Continuing education                $250
            Books/subscriptions/etc.             420
            Uniforms/maintenance               1,325
            Telephone                            625
            Vehicle                           17,190
            Total                            $19,810

She also deducted $192 for telephone expenses and $782 for

uniform/maintenance and $1,588 for car and truck expenses, among

other items, on Schedule C, Profit or Loss From Business.

Petitioner reported total business mileage of 59,610 miles, of

which 5,040 miles were reported on Schedule C.   Petitioner’s

income from her work in Bakersfield, unlike her income from her

work at the other locations, was reported as nonemployee

compensation on the Schedule C.

     During 1997 petitioner maintained a log of her vehicle’s

mileage.   According to the log, her vehicle was driven a total of

48,490 miles between January 16, 1997, the first day of her first

job assignments that year, and December 31, 1997.

     The record shows the number of round trips that were made as

well as the mileage between petitioner’s apartment in Stockton

and the facilities to which she drove.   The record establishes

that in addition to the undisputed 5,040 business miles that she
                                - 5 -


drove to and from Bakersfield, petitioner drove 24,598 miles for

business purposes during 1997 based on the following figures:

                Number of         Round trip         Total
Job site       round trips         mileage          mileage

Novato             50                171             8,550
Napa                3                141               423
Ukiah              19                337             6,403
Yuba City          53                174             9,222
                                                    24,598

     In the notice of deficiency, respondent disallowed all of

the unreimbursed employee expenses that petitioner claimed on her

Schedule A.   Respondent did not make any adjustments to

petitioner’s Schedule C.

                               OPINION

     Section 162(a)(2) generally permits a deduction for

traveling expenses incurred while away from home in the pursuit

of a trade or business.    See Commissioner v. Flowers, 326 U.S.

465, 470 (1946).   For a taxpayer to be considered “away from

home” within the meaning of section 162(a)(2), the taxpayer must

be on a trip requiring sleep or rest.      United States v. Correll,

389 U.S. 299 (1967).

     We have generally defined the word “home” as used in section

162(a)(2) to refer to the vicinity of a taxpayer’s principal

place of employment and not to the place where the taxpayer’s

personal residence is located, if that personal residence is

different from the principal place of employment.     Daly v.

Commissioner, 72 T.C. 190, 195 (1979), affd. 662 F.2d 253 (4th
                               - 6 -
Cir. 1981).   An exception is made if the taxpayer’s place of

employment in another area is temporary as opposed to indefinite;

in that case the taxpayer’s personal residence may be her tax

home.   Peurifoy v. Commissioner, 358 U.S. 59, 60 (1958); Mitchell

v. Commissioner, T.C. Memo. 1999-283.   Similarly, if a taxpayer

does not have a principal place of employment, her permanent

residence is her tax home for purposes of section 162(a)(2).

Johnson v. Commissioner, 115 T.C. 210, 221 (2000).

     A place of business is temporary if the employment is such

that termination within a short period could be foreseen.

Mitchell v. Commissioner, 74 T.C. 578, 581 (1980); see Michaels

v. Commissioner, 53 T.C. 269 (1969).    Conversely, employment is

indefinite if termination could not be foreseen within a

“reasonably short period”.   Stricker v. Commissioner, 54 T.C.

355, 361 (1970), affd. 438 F.2d 1216 (6th Cir. 1971).   Whether

employment is temporary or indefinite is a question of fact.

Peurifoy v. Commissioner, supra at 60-61.

     In Rev. Rul. 93-86, 1993-2 C.B. 71, 72 the Commissioner
ruled that under section 162(a)(2) if employment at a work
location is realistically expected to last (and does in fact
last) for one year or less, the employment will be treated as
temporary in the absence of facts and circumstances indicating
otherwise.1

1
 Rev. Rul. 94-47, 1994-2 C.B. 18, refers to the definition of a
                                                   (continued...)
                               - 7 -
     In the present case, petitioner’s expenses incurred in
traveling to Bakersfield and Ukiah required an overnight stay.
Those expenses are deductible, if at all, as traveling expenses
under section 162(a)(2).   Since petitioner’s traveling expenses
incurred with respect to her work activity in Bakersfield are not
at issue, we need only decide whether the expenses petitioner
incurred in traveling to Ukiah are deductible.    Petitioner worked
at six facilities in five cities during 1997.    At the time she
was assigned to work at the facility in Ukiah in June 1997, she
had already worked 9 weeks in Novato, 1 week in Napa, and 11
weeks at two facilities in Bakersfield between January and June
of 1997.   Her work at Ukiah lasted 18 weeks until she was
transferred to Yuba City where she worked during the remaining 10
weeks of 1997.   At the time of each assignment, petitioner was
assured that it would be temporary and that soon she would be
reassigned to the facility in Stockton.
     It is clear that petitioner’s work at the facility in Ukiah,
as well as at the other facilities where she worked in 1997, was
temporary, rather than indefinite.     Petitioner stayed overnight
in Ukiah during the week when she worked there and returned to
her apartment in Stockton only on weekends.    Accordingly, the


1
 (...continued)
temporary work location in the context of commuting expenses as
“any location at which the taxpayer performs services on an
irregular or short-term (i.e., generally a matter of days or
weeks) basis”. In Rev. Rul. 99-7, 1999-1 C.B. 361, released
after the year in issue, the Commissioner reconsidered the
definition of temporary work and replaced the description in Rev.
Rul. 94-47, supra, with a 1-year standard like that set forth in
Rev. Rul. 93-86, 1993-2 C.B. 71.
                                 - 8 -
traveling expenses she incurred on her trips to Ukiah are
deductible under section 162(a)(2) to the extent that they can be
substantiated.
     The expenses of daily commuting, unlike traveling expenses,
are not deductible under section 162(a)(2) because they do not
meet the sleep or rest requirement of United States v. Correll,
supra.   See Sanders v. Commissioner, 439 F.2d 296, 298 (9th Cir.
1971), affg. 52 T.C. 964 (1969).    Rather, commuting expenses are
deductible, if at all, under the “ordinary and necessary
expenses” provision of section 162(a).    Sanders v. Commissioner,
supra.   Generally, the expenses of daily commuting are not
deductible because they constitute personal expenses under
section 262.     Fausner v. Commissioner, 413 U.S. 838 (1973); sec.
1.262-1(b)(5), Income Tax Regs.    An exception exists for
commuting expenses to some jobs that are temporary, as opposed to
indefinite, in duration.2    See, e.g., Frederick v. United States,
603 F.2d 1292 (8th Cir. 1979).
     In cases involving a variety of circumstances, this Court
and other courts have established and applied the rule that
expenses incurred in commuting to a job site are deductible if
work at the job site is temporary, but not if it is for an
indefinite period.    See Ellwein v. United States, 778 F.2d 506,
511 (8th Cir. 1985); Dahood v. United States, 747 F.2d 46, 48


2
  As discussed above, the temporary or indefinite test serves a
similar function in the sec. 162(a)(2) context. Frederick v.
United States, 603 F.2d 1292, 1295 (8th Cir. 1979). The
underlying premise in both situations is the idea that a
taxpayer’s choice of residence is circumscribed by his expected
term of employment. Id.
                                 - 9 -
(1st Cir. 1984); Neal v. Commissioner, 681 F.2d 1157, 1158 (9th
Cir. 1982), affg. per curiam T.C. Memo. 1981-407; Kasun v. United
States, 671 F.2d 1059, 1061 (7th Cir. 1982); Williams v.
Commissioner, T.C. Memo. 1990-467; Epperson v. Commissioner, T.C.
Memo. 1985-382.
     In Epperson, the taxpayer was an ironworker who, during
1981, commuted daily to various job sites from his home in
Seffner, Florida:
                                              Round trip
Job site            Number of days       mileage from Seffner

New Wales                92                         44
Palatka                  26                        300
St. Petersburg           43                         30
Crystal River            37                        160
After finding that all of the jobs were temporary, rather than
indefinite, we held that the taxpayer’s commuting expenses to the
job sites in Palatka and Crystal River were deductible, but his
commuting expenses to the job sites in New Wales and St.
Petersburg were not deductible because they “were clearly within
the general area of the petitioner’s residence”.     Id.
     Other courts have likewise imposed a requirement that for a
taxpayer’s commuting expenses to be deductible the taxpayer’s
residence must be distant from the temporary job site.     In Dahood
v. United States, supra at 48, the Court of Appeals for the First
Circuit explained the rationale for permitting the deduction of
commuting expenses to temporary job sites:
     A judicial exception has been carved out of this
     general rule [that daily commuting expenses are not
     deductible] to cover instances when people commute long
     distances to their workplaces for business, rather than
                              - 10 -
     personal, reasons. This exception permits taxpayers to
     deduct commuting expenses to a job that is temporary,
     as opposed to indefinite, in duration. The exception
     has been deemed necessary because “it is not reasonable
     to expect people to move to a distant location when a
     job is foreseeably of limited duration.” Implicit in
     this exception is the requirement that the taxpayer
     commute to a worksite distant from his or her
     residence. Without such a requirement, the absurd
     result would obtain of permitting a taxpayer, who
     commuted to a succession of temporary jobs, to deduct
     commuting expenses, no matter how close these jobs were
     to his residence. [Emphasis added; citations omitted.]

See also Ellwein v. United States, supra at 512 (holding that a
taxpayer can deduct commuting expenses to a temporary job site if
it is outside the area of the taxpayer’s regular abode).
     Respondent argues that petitioner’s temporary travel to work
sites distant from her home in Stockton should be disallowed
under the so-called “two-prong test” of Rev. Rul. 94-47, 1994-2
C.B. 18.   In that ruling, largely devoted to respondent’s
explanation of his reasons for refusing to follow this Court’s
opinion in Walker v. Commissioner, 101 T.C. 537 (1993),
respondent stated: “A taxpayer may deduct daily transportation
expenses incurred in going between the taxpayer’s residence and a
temporary work location outside the metropolitan area where the
taxpayer lives and normally works.”
     Petitioner has satisfied the requirements of Rev. Rul. 94-
47, 1994-2 C.B. at 19 because of the peculiar circumstances of
this case.   As we have found, petitioner’s employment in issue
was temporary.   Plainly it was distant from her home in Stockton.
For years, including a portion of 1996, petitioner also had been
employed in Stockton.   Starting in 1996, at least partly because
                              - 11 -
her employer had acquired new facilities distant from Stockton,
petitioner agreed to a series of temporary assignments requiring
her to travel substantial distances from Stockton.    Her
supervisor repeatedly promised her reassignment to a facility in
the Stockton area.
     Petitioner had established her home near her place of
employment and only accepted temporary assignments outside that
area on the promise of reassignment within the Stockton area.
She had no reason to disbelieve her supervisor during the year in
issue.   In a later year, when she did cease to believe the
promises of her supervisor, she changed her place of employment.
Under these circumstances, in our view throughout the year in
issue petitioner properly regarded the Stockton vicinity as the
metropolitan area where she “lives and normally works”.
Therefore, even under respondent’s own revenue ruling, and the
rule advocated by respondent in this case, petitioner correctly
deducted transportation expenses incurred in going between
Stockton and her temporary work sites at Novato, Napa, and Yuba
City to the extent such expenses are substantiated.
     Respondent’s reliance on Aldea v. Commissioner, T.C. Memo.
2000-136, is unwarranted since the circumstances there were
entirely different from the present case.   In Aldea, we stated:
          Petitioner has not established any business reason
     for living in Yuba City; her decision to live there was
     entirely personal. * * * The record does not indicate
     that petitioner ever worked in, had the prospect of
     work in, or had any other business tie to Yuba City.
     The union hall where petitioner received her job
     assignments was in Sacramento, which is south of Yuba
     City, and all of petitioner’s work sites were south of
     Sacramento.
                              - 12 -

     The long commutes in Aldea were for personal reasons and

nondeductible; in contrast, the long commutes in this case were

for employment reasons and therefore are deductible to the extent

they are substantiated.

     Section 274(d) imposes stringent substantiation requirements

for claimed deductions relating to traveling expenses and to the

use of “listed property”, which is defined under section

280F(d)(4) to include “any passenger automobile”.   Under section

274(d), no deduction claimed with respect to the use of a

passenger automobile shall be allowed unless the taxpayer

substantiates specified elements of the use by adequate records

or by sufficient evidence corroborating the taxpayer’s own

statement.   These substantiation requirements supersede the

doctrine of Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930),

under which we may approximate expenses in certain cases where

the exact amount cannot be determined.   Sec. 1.274-5T(a),

Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov. 6, 1985).

     The elements that must be substantiated with respect to

deductible expenses for business use of an automobile are:     (1)

The amount of the expenditures; (2) the mileage for each business

use of the automobile and the total mileage for all use of the

automobile during the taxable period; (3) the date of the

business use; and (4) the business purpose for the use of the
                               - 13 -
automobile.   Sec. 1.274-5T(b)(6), Temporary Income Tax Regs., 50

Fed. Reg. 46016 (Nov. 6, 1985).

     To meet the adequate records requirements of section 274(d),

a taxpayer must maintain some form of records and documentary

evidence that in combination are sufficient to establish each

element of an expenditure or use.    Sec. 1.274-5T(c)(2), Temporary

Income Tax Regs., 50 Fed. Reg. 46017 (Nov. 6, 1985).    A

contemporaneous log is not required, but corroborative evidence

to support a taxpayer’s reconstruction of the elements of

expenditure or use must have “a high degree of probative value to

elevate such statement and evidence” to the level of credibility

of a contemporaneous record.    Sec. 1.274-5T(c)(1), Temporary

Income Tax Regs., 50 Fed. Reg. 46017 (Nov. 6, 1985).

     On her 1997 Federal income tax return, petitioner claimed

that during 1997 her vehicle was driven 62,730 miles, of which

59,610 were business miles.    On her Schedule A, petitioner

reported business mileage of 54,570 miles, and on her Schedule C,

she reported business mileage of 5,040 miles.    Her vehicle

expenses were computed using the appropriate standard mileage

rate for 1997 of 31.5 cents.    See Rev. Proc. 96-63, 1996-2 C.B.

420, 422.

     During 1997 petitioner maintained a log of the odometer

readings for her vehicle.   The log contains the names of the

cities to which petitioner drove.    The log shows that the vehicle
                                - 14 -
was driven a total of 48,490 miles between January 16, 1997, the

first day of her first job assignment that year, and December 31,

1997.   Petitioner submitted two vehicle maintenance receipts that

showed the odometer readings on October 5, 1997, and January 13,

1998.   The odometer readings on the receipts were consistent with

petitioner’s log.

     Although the log apparently accurately reflects petitioner’s

total mileage for the year, the record does not clearly show what

portion of the total miles was driven for business purposes.      The

mileage in petitioner’s log was not recorded precisely.    For

example, the mileage for any given day was generally identical to

the mileage from the day before, and her daily mileage was always

rounded to the nearest multiple of ten.    Petitioner testified

that she often estimated the mileage from the amount of time she

spent driving.    For example, she admitted that it was not unusual

for her to simply equate one hour of driving with a distance of

60 miles.

     Although revenue procedures permit taxpayers to use a per-

mile estimate of automobile expenses in lieu of documenting

actual expenses, taxpayers must still prove the actual business

miles driven during the year.    See Power v. Commissioner, T.C.

Memo. 1990-583.     The level of detail required to substantiate the

number of business miles driven may vary depending upon the facts

and circumstances.    Sec. 1.274-5T(c)(2)(ii)(C), Temporary Income
                              - 15 -
Tax Regs., 50 Fed. Reg. 46018 (Nov. 6, 1985).   Where a taxpayer

makes regular trips to a certain location, she may satisfy the

adequate record requirement by recording the total number of

miles driven during the year, the length of the route once, and

the date of each trip at or near the time of the trips.      Id.

     In the present case petitioner has substantiated the number

of round trips she made for business purposes between her

residence and her temporary work sites and the distance of each

round trip.   We have found that in addition to the undisputed

5,040 business miles that petitioner drove to Bakersfield, she

also drove 24,598 miles to various temporary work sites during

1997.   Since petitioner has satisfied the adequate record

requirement for this mileage and therefore substantiated this

business expenditure, we hold that petitioner is entitled to the

claimed deduction to the extent of the substantiated mileage

(24,598 miles plus the undisputed 5,040 miles) at the appropriate

rate for 1997.

     If a taxpayer’s otherwise deductible traveling expenses are

reimbursed by her employer, the taxpayer is entitled to a

deduction only for the amounts in excess of the reimbursements.

See Jackson v. Commissioner, T.C. Memo. 1999-226; sec. 1.162-

17(b)(3), Income Tax Regs.; sec. 1.274-5T(f)(2)(iii), Temporary

Income Tax Regs., 50 Fed. Reg. 46028 (Nov. 6, 1985).

     Petitioner admitted that her employer reimbursed her $525

for her vehicle expenses in 1997.   Petitioner did not report the
                               - 16 -
reimbursements on her tax return.    Thus, petitioner’s deduction

for employee expenses must be adjusted accordingly.

     In addition to disallowing petitioner’s vehicle expenses,

respondent also disallowed all of petitioner’s other unreimbursed

employee expenses, consisting of continuing education,

books/subscriptions, uniforms/maintenance, and telephone

expenses.

     Deductions are a matter of legislative grace, and a taxpayer

bears the burden of proving entitlement to any deduction claimed.

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

(1992).3    A taxpayer is required to maintain records sufficient

to enable the Commissioner to determine the correct tax

liability.    See sec. 6001; sec. 1.6001-1(a), Income Tax Regs.     We

recognize that under certain circumstances, the Court may

estimate the amount of a deductible expense.    Cohan v.

Commissioner, 39 F.2d at 543-544.    However, in order to estimate

the amount of an expense, we must have some basis upon which to

make the estimate.    Vanicek v. Commissioner, 85 T.C. 731, 742-743

(1985).    Without such a basis, any allowance would be sheer

unguided largesse.    Williams v. United States, 245 F.2d 559, 560

(5th Cir. 1957).




3
  We note that sec. 7491(a) does not affect the burden of proof
where a taxpayer fails to substantiate a deduction. Higbee v.
Commissioner, 116 T.C. 438, 443 (2001).
                             - 17 -
     At trial, petitioner did not introduce a single piece of

documentary evidence in support of any of the deductions in issue

except for her travel expenses.   Likewise, petitioner did not

offer testimony in support of any of those deductions.   Because

the record contains no evidence upon which we could base an

estimate, we must sustain respondent’s determinations in regard

to unreimbursed employee expenses other than motor vehicle

expenses.

     To reflect the foregoing,

                                         Decision will be entered

                                    under Rule 155.
