                   T.C. Summary Opinion 2011-109



                      UNITED STATES TAX COURT



           EDWARD K. AND JERI L. GLOVER, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17042-09S.              Filed September 14, 2011.



     Ellin Vicki Palmer, for petitioners.

     Halvor R. Melom, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.   Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other

case.   Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code in effect for the years at
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issue, and Rule references are to the Tax Court Rules of Practice

and Procedure.

     Respondent determined deficiencies in petitioners’ Federal

income taxes of $1,019 for 2004 and $2,011.30 for 2005.

     The issue for decision is the location of Edward K. Glover’s

(petitioner’s) tax home with respect to certain unreimbursed

employee expenses for 2004 and 2005.1

     This case was submitted on a stipulation of facts and a

supplemental stipulation of facts.      The stipulated facts are so

found.   The stipulation of facts, the supplemental stipulation of

facts, and the attached exhibits are incorporated herein by

reference.    Petitioners resided in Missouri when the petition was

filed.

                             Background

     During the years at issue petitioners resided in Jackson,

Missouri.    Jeri L. Glover was employed by Southeast Missouri

Hospital Association in Cape Girardeau.     Petitioner was employed

by Reinauer Transportation Cos., L.L.C. (Reinauer), which is

headquartered in Staten Island, New York, and maintains an office



     1
      Respondent determined that petitioners had unreported
interest income of $14 for 2005. Petitioners failed to address
the issue in either their pretrial memorandum or the stipulation
of facts and supplemental stipulation of facts. The Court
considers petitioners to have conceded the issue. See Bradley v.
Commissioner, 100 T.C. 367, 370 (1993); Sundstrand Corp. v.
Commissioner, 96 T.C. 226, 344 (1991); Rybak v. Commissioner, 91
T.C. 524, 566 n.19 (1988).
                                 - 3 -

in East Boston, Massachusetts.     Petitioner was employed by

Reinauer as a merchant mariner aboard certain tugboats and barges

in 2004 and 2005.     Reinauer is in the business of transporting

petroleum and chemical products by tug and barge along the

eastern seaboard of North America.       Petitioner generally travels

to the New York City area to pick up tugboat and barge

combinations that are used to load and deliver petroleum or

chemical products, or both.     Petitioner’s pay begins when his

vessel leaves the local dock.     The collective bargaining

agreement (CBA) between Reinauer and the union to which

petitioner belonged for the years at issue states that Reinauer

will use its employees to perform work in the area of “The Port

of New York and vicinity” and “Any regular coastwise run having

as one of its terminal points a point in or north of Norfolk,

Virginia.”

     In addition, the CBA provides for reimbursement of employee

travel expenses if:    (a) The employee is required to go from one

vessel to another; (b) not more than once a month the employee is

given time off and must travel between his vessel and a common

carrier; or (c) not more than once a month the employee travels

round trip between his vessel and its home port or, if less

expensive, another city.
                                   - 4 -

     In 2004 petitioner worked on the east coast of the United

States from Maine through Virginia, and in 2005 he worked on the

east coast from New Hampshire through Florida.      Petitioner took

11 voyages in 2004 of which 9 originated in or around New York

City.       He disembarked from those trips five times in the New York

City area.      In 2005 petitioner voyaged 12 times, embarking from

the New York City area 9 times and disembarking there 9 times.

     Petitioner paid various expenses to travel between his

residence and the terminals from which he boarded and disembarked

from the tugboats and barges on which he worked.      Petitioner

paid:       (a) Vehicle expenses of $1,999 for 2005; (b) miscellaneous

parking fees, tolls, and transportation expenses of $4,499 in

2004 and $1,482 in 2005; and (c) travel expenses while away from

home overnight of $2,786 for 20042 and $3,702 for 2005.

     The parties stipulated various receipts as substantiation

for travel expenses and a summary table of the dates and

locations of petitioner’s voyages in the years at issue.      In

addition to the summary stipulated by the parties, they

stipulated copies of petitioner’s “U.S. Sea Time Employee

Schedule” (employee schedule) that lists for petitioner the

vessel and date for each of his voyages in both years.      The



        2
      Petitioners presented as substantiation a receipt from the
Baymont Inns and Suites in Lexington, Kentucky, for a stay from
June 28 to 29, 2004, but do not explain how it relates to
petitioner’s employment.
                               - 5 -

parties also stipulated copies of port listings for each of the

vessels on which he served, showing the loading terminal, loading

date, unloading terminal, and unloading date for each vessel.

     An examination of petitioner’s documentation raises some

questions that are not answered by other evidence in the record.

Petitioner presented receipts that show the purchase of a

Southwest Airlines ticket for a 5:10 p.m. flight from St. Louis,

Missouri, to Orlando, Florida, on September 27, 2005, and an

American Airlines ticket for a flight from St. Louis, Missouri,

to New York, New York, at 6:08 p.m. on the same date.   The

conflicting receipts are unexplained, although other stipulated

evidence indicates that petitioner went to Orlando for a Port

Canaveral embarkation on September 28, 2005.   Petitioner

presented an Airtran Airways receipt for a 8 p.m. flight from New

York to Newport News, Virginia, on June 29, 2004, while other

stipulated evidence indicates that he arrived in New York on that

date in preparation for an embarkation on June 30, 2004.

     Petitioner provided copies of ticket stubs showing that on

October 13, 2004, at 4:45 p.m. he left Norfolk, Virginia, on

Southwest Airlines, flew to Baltimore-Washington International

Airport, then to Chicago-Midway Airport, and finally to St. Louis

International Airport.   Petitioner also presented a copy of a

receipt for an American Airlines flight leaving New York at noon

and arriving in St. Louis at 1:47 p.m., on the same date, October
                               - 6 -

13, 2004.   The employee schedule shows vessel RTC 120’s having a

voyage beginning on October 6, 2004, and ending on October 12,

2004.   The 2004 port listing shows vessel RTC 120 loading at a

terminal in New Jersey on October 7 and unloading in Connecticut

on October 9, 2004, loading in Virginia on October 13 and

unloading in Massachusetts on October 20, 2004.   The summary

table indicates that petitioner disembarked in Manhattan on

October 13, 2004, and arrived in Jackson, Missouri, on October

14, 2004.   The record does not explain why petitioner’s documents

show him leaving Virginia for St. Louis and leaving Manhattan for

St. Louis on October 13; the summary shows him disembarking in

Manhattan on the 13th, and the port listing shows his vessel

loading in Virginia on the 13th.

     In any event, almost all of petitioner’s substantiated

flights were between St. Louis International Airport and La

Guardia Airport in New York City or Newark Liberty International

Airport.

                            Discussion

Burden of Proof

     The Commissioner’s determinations are presumed correct, and

generally taxpayers bear the burden of proving otherwise.   Rule

142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).    In some

cases the burden of proof with respect to relevant factual issues

may shift to the Commissioner under section 7491(a).   Petitioners
                                - 7 -

argue that the provisions of section 7491 apply and that the

burden of proof is on respondent.    Because petitioners have not

met all the requirements of section 7491(a)(2), the burden of

proof does not shift to respondent.

     Tax deductions are a matter of legislative grace, and the

taxpayer bears the burden of proving entitlement to the

deductions claimed.    Rule 142(a)(1); INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992).

Section 162 Expenses

     Section 162 generally allows a deduction for ordinary and

necessary expenses paid or incurred during the taxable year in

carrying on a trade or business.    An expense is considered

ordinary if commonly or frequently incurred in the trade or

business of the taxpayer.    Deputy v. du Pont, 308 U.S. 488, 495-

496 (1940).   An expense is necessary if it is appropriate and

helpful in carrying on a taxpayer’s trade or business.

Commissioner v. Heininger, 320 U.S. 467, 471 (1943); Welch v.

Helvering, supra at 113.    Services performed by an employee

constitute a trade or business for this purpose.    O’Malley v.

Commissioner, 91 T.C. 352, 363-364 (1988).

     Section 162(a)(2) allows a taxpayer to deduct traveling

expenses, including amounts expended for meals and lodging, if

such expenses are:    (1) Ordinary and necessary, (2) incurred

while away from home, and (3) incurred in the pursuit of a trade
                                 - 8 -

or business.   Commissioner v. Flowers, 326 U.S. 465, 470 (1946).

“The exigencies of business rather than the personal conveniences

and necessities of the traveler must be the motivating factors.”

Id. at 474.

     This Court has generally defined the word “home” (or tax

home) as used in section 162(a)(2) to mean the vicinity of a

taxpayer’s principal place of business.   Mitchell v.

Commissioner, 74 T.C. 578, 581 (1980); Daly v. Commissioner, 72

T.C. 190 (1979), affd. 662 F.2d 253 (4th Cir. 1981); Kroll v.

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

definition, commuting expenses are not deductible and are

considered personal expenses.    Anderson v. Commissioner, 60 T.C.

834, 835 (1973); see sec. 262.

     On the other hand, if a taxpayer accepts temporary

employment outside the vicinity of his principal place of

residence, his travel expenses are generally deductible because

it would be unreasonable for him to move his residence for

temporary employment.   Ireland v. Commissioner, T.C. Memo. 1979-

386 (citing Tucker v. Commissioner, 55 T.C. 783, 786 (1971)).

     If a taxpayer does not have a principal place of business,

his personal residence will be considered his tax home.     Johnson

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

Commissioner, 69 T.C. 920 (1978), Dean v. Commissioner, 54 T.C.

663 (1970), and Leach v. Commissioner, 12 T.C. 20 (1949)).     A
                                - 9 -

taxpayer must have a tax home from which to be away to be

entitled to a deduction under section 162(a)(2).    Henderson v.

Commissioner, T.C. Memo. 1995-559, affd. 143 F.3d 497 (9th Cir.

1998).   “Married couples that both work and file a joint tax

return may have separate tax homes.”     Allen v. Commissioner, T.C.

Memo. 2009-102; see Hammond v. Commissioner, 20 T.C. 285, 287-288

(1953), affd. 213 F.2d 43 (5th Cir. 1954); Chwalow v.

Commissioner, T.C. Memo. 1971-185, affd. 470 F.2d 475, 478 (3d

Cir. 1972).

     In order to decide what expenses petitioners are entitled to

deduct, the Court must first decide the location of petitioner’s

tax home.    The “determination of a taxpayer’s tax home is a

question of fact to be decided on the entire record.”     Nicholls

v. Commissioner, T.C. Memo. 1995-291 (citing Coombs v.

Commissioner, 608 F.2d 1269, 1274 (9th Cir. 1979), affg. in part

and revg. in part 67 T.C. 426 (1976)).

     Petitioners argue that petitioner’s employment is in the

“transportation industry” and on that basis alone he is entitled

to treat his personal residence as his tax home.    Petitioners

rely heavily on the cases of Johnson v. Commissioner, supra at

221, and Westling v. Commissioner, T.C. Memo. 2000-289.     In

Johnson the taxpayer husband was a merchant seaman who lived in

Freeland, Washington, and was the captain of a vessel that sailed

worldwide.    The primary office of the taxpayer husband’s employer
                                - 10 -

was in Jacksonville, Florida.    Johnson v. Commissioner, supra at

211.    The taxpayer husband and his crew flew to and from whatever

port around the world in which the vessel was docked to begin and

end each work shift.    Id. at 211-212.    The Court found that the

taxpayer husband had no principal place of business and that his

personal residence was his tax home.       Id. at 221.   To support its

finding the Court noted that the taxpayer husband’s family did

not travel with him and that there was no reason to second guess

the taxpayer husband’s decision to maintain his principal

residence in Washington State instead of Florida or one of the

many cities to which he traveled.     Id. at 222.

       In Westling v. Commissioner, supra, the Court discussed not

the taxpayer’s tax home but whether he was entitled to use the

Federal per diem rates to determine his incidental expenses for

his employment as a merchant seaman.       The primary office of the

taxpayer’s employer was in Juneau, Alaska, and the taxpayer

piloted a tugboat to various ports in and around southeast

Alaska.   Id.   The taxpayer also began and ended his shifts on the

tugboat at several different ports.       Id.   Although there was no

discussion of the taxpayer’s tax home, the Court found that the

taxpayer was entitled to deduct his incidental expenses using the

Federal per diem rate because the taxpayer’s meals and lodging

were supplied by his employer at no charge when he was working.

Id.
                              - 11 -

     Respondent takes the position that petitioner’s tax home was

in the vicinity of New York City and that he maintained his home

in Jackson for personal reasons.    The Court agrees with

respondent.

     Petitioner’s employment situation is factually different

from those of the taxpayers in Johnson and Westling.    The primary

office of petitioner’s employer was in Staten Island, a borough

of New York City.   Almost all of petitioner’s embarkations were

from the New York City area, and most of his disembarkations were

there, too.   In addition, the CBA provided for reimbursement of

employee travel expenses if petitioner had to go from one vessel

to another, was given time off, or had to travel between his

vessel and its home port or, if less expensive, another city.3

     Petitioner’s situation is more analogous to that of the

taxpayers in Swicegood v. Commissioner, T.C. Memo. 1989-467, and

in Dady v. Commissioner, T.C. Memo. 1981-440, affd. without

published opinion 696 F.2d 1006 (11th Cir. 1983).    In Swicegood,

the taxpayer was a pilot for an international airline that was

headquartered in New York City.    He maintained residences in

Hollywood, Florida, where his wife and daughter lived, and in

Freeport, Bahamas, which is 84 nautical miles from Hollywood.



     3
      Petitioners offered no evidence of the home ports of the
four vessels on which petitioner worked in the subject years, and
the Court infers from the record that the home port of the
vessels was in the New York City area.
                                - 12 -

Many but not all of the taxpayer’s flights originated or

terminated in New York City.    The taxpayer could have flown on

his own to the beginning or terminating airport of a particular

flight or he could have relied on his airline to provide

transportation between New York City and the other airport from

which he would depart.    If he chose the latter, he would be

responsible for transportation between his home and New York

City.    He argued, as petitioner does here, that he did not have a

regular place of employment and that therefore his residence was

his tax home.    The Court pointed out that New York City was his

“base station” as well as being the headquarters of his employer.

His employer took responsibility to get him between New York City

and any other airport where his flight would begin or end.       Upon

that basis and the taxpayer’s “significant work ties”, 16 of his

20 flights began and/or ended in New York City, the Court found

that his principal place of business was New York City.

     In Dady, the taxpayer was a tugboat captain who resided in

Lauderhill, Florida.     While the tugboat’s home port was in the

New York City area, the taxpayer might have reported to or been

relieved from duty at other East Coast locations or in Puerto

Rico.    The taxpayer flew between his residence and the various

ports.    His employer was required by union contract to pay only

half the expense of one round-trip ticket a month that he

“actually incurred” in travel originating in New York.     The
                              - 13 -

taxpayer offered no evidence of where he had boarded or

disembarked from the boat for a crew change or whether he had

boarded or disembarked more frequently in New York than somewhere

else.   The Court held that the taxpayer had not shown that his

tax home was other than New York.   Unlike the taxpayer’s

situation in Dady, the record here shows that almost all of

petitioner’s embarkations were from the New York City area and

most of his disembarkations were there as well.

     On the basis of the stipulated facts and the inferences

reasonably to be drawn from them, the Court finds that

petitioner’s tax home in 2004 and 2005 was in the New York City

area.   Petitioners are not entitled to deduct petitioner’s

unreimbursed employee expenses.

                            Conclusion

     We have considered all of the parties’ arguments, and, to

the extent not addressed herein, we conclude that the arguments

are moot, irrelevant, or without merit.

     To reflect the foregoing,


                                          Decision will be entered

                                    for respondent.
