                  T.C. Summary Opinion 2007-76



                     UNITED STATES TAX COURT



         DANIEL P. AND GLENNA J. MARPLE, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24329-04S.                Filed May 21, 2007.



     Daniel P. and Glenna J. Marple, pro se.

     Jay A. Roberts, for respondent.



     POWELL, 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.1   Pursuant to section

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



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

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

for any other case.

     Respondent determined a deficiency of $4,800 in petitioners’

2002 Federal income tax.   After concessions,2 the issues are:

(1) Whether petitioners are entitled to deduct medical and dental

expenses in an amount greater than that allowed by respondent,

and (2) whether petitioners are entitled to deduct employee

business expenses in amounts greater than those allowed and

conceded by respondent.

                            Background

     At all relevant times, including throughout 2002 and at the

time they filed their petition, petitioners resided in

Burlington, West Virginia (Burlington).   As of the date of trial,

petitioners had lived in Burlington for approximately 33 years,

and their four children lived in the surrounding area.

     Petitioner Daniel P. Marple is a sheet metal worker by trade

and a member of the Sheet Metal Workers’ International

Association, Local Union No. 100 (Local 100).   The jurisdiction


     2
         Respondent concedes petitioners are entitled to deduct
$11,520 on Schedule C, Profit or Loss From Business, for wages
paid in taxable year 2002 and claim a deduction on Schedule A,
Itemized Deductions, for 3,304 business miles attributable to
petitioner Daniel P. Marple’s temporary employment with Eber
HVAC, Inc., in taxable year 2002.

     Petitioners concede they are not entitled to deduct $419 for
Mr. Marple’s union dues and assessments, which represents the
unsubstantiated portion of the union dues and assessments claimed
on Schedule A for taxable year 2002.
                                - 3 -

of Local 100 includes Washington, D.C., the States of Maryland

and Virginia, and seven counties in West Virginia (Berkeley,

Grant, Hampshire, Hardy, Jefferson, Mineral, and Morgan).3

During the relevant period, Mr. Marple procured work through the

Local 100 union hall in Cumberland, Maryland (Cumberland),4 which

was located approximately 23 miles from petitioners’ residence in

Burlington.5   Mr. Marple was considered a sheet metal worker

traveler by Local 100 and was referred by Local 100 to

contractors for nonpermanent employment on jobs involving sheet

metal work.    After a job ended, Mr. Marple would report to the

Local 100 union hall in Cumberland and sign the out-of-work list

for referral to a contractor for employment on another job.

Since 1998, Mr. Marple has worked for at least 18 different

contractors on Local 100-referred jobs, primarily at locations in

West Virginia and the adjacent State of Maryland.   Some of these

job locations were closer to petitioners’ home area of Burlington




     3
         We take judicial notice of the jurisdiction of Local 100
and its area offices. See Fed. R. Evid. 201(b).
     4
         The Cumberland area office of Local 100 covered the
Maryland counties of Allegany, Garrett, and Washington, and the
West Virginia counties of Berkeley, Grant, Hampshire, Hardy,
Jefferson, Mineral, and Morgan.
     5
         We take judicial notice of the approximate distance
between Burlington and the Local 100 union hall in Cumberland.
See Fed. R. Evid. 201(b).
                               - 4 -

or its environs, such as Romney, West Virginia, and Mineral

County, West Virginia, and some were further, such as Frederick,

Maryland, and Johnstown, Pennsylvania.

     In June 2001, Mr. Marple was sent by Local 100 to work for

API, Inc. (API) on a job at the Mount Storm Power Station in

Mount Storm, West Virginia (Mount Storm job).   The Mount Storm

job involved installing scrubbers on two of the generating units

at the Mount Storm Power Station, and API had contracted to

perform the insulation and lagging work.   At the time he took the

job, Mr. Marple knew that the Mount Storm job was a big project

that involved a lot of lagging work.

     Petitioner was initially employed by API on the Mount Storm

job from June 25, 2001, to October 10, 2001, at which time he was

laid off because of a reduction in workforce mandated by API’s

project schedule.   Almost 2 months later, Mr. Marple was referred

back to API for the Mount Storm job, and he worked for API on the

Mount Storm job from December 3, 2001, until August 22, 2002, at

which time he was again laid off by API.   Mr. Marple believed

this layoff would be the end of his work on the Mount Storm job.

     As a result of his layoff from the Mount Storm job, Mr.

Marple went to the Local 100 hiring hall in Cumberland and signed

the out-of-work list.   He was sent by Local 100 to work a job for

Eber HVAC, Inc. (Eber), in Johnstown, Pennsylvania (Johnstown).

Mr. Marple worked for Eber after his layoff from API on August
                               - 5 -

22, 2002, until the job ended the week of September 16, 2002.

The job at Eber was 118 miles from Mr. Marple’s residence in

Burlington.   Each day that Mr. Marple reported for work at Eber,

he drove his personal truck from his residence in Burlington to

Eber’s office in Johnstown and back to his residence in

Burlington after work.   Mr. Marple did not spend the night at or

near Johnstown at any time during his job with Eber.    Mr. Marple

did not receive any reimbursement from Eber or Local 100 for his

traveling or meal expenses incurred when working for Eber in

Johnstown.

     After the end of the Eber job, Local 100 referred Mr. Marple

back to work for API on the Mount Storm job.    Mr. Marple was

rehired by API on September 16, 2002, and worked for API on the

Mount Storm job until he was again laid off on February 13, 2003.

Mr. Marple was not rehired by API for the Mount Storm job after

his layoff on February 13, 2003.    API’s work on the Mount Storm

job continued until January 2004.

     The Mount Storm job site was located 2 miles west of

Bismarck, West Virginia (Bismarck).    Each day that Mr. Marple

reported for work on the Mount Storm job, he drove his personal

truck from his residence in Burlington to the Mount Storm job

site and then back to his residence in Burlington after work.

Mr. Marple did not spend the night away from his residence at or

near the Mount Storm job site when working on the Mount Storm
                                - 6 -

job.    The distance from Mr. Marple’s residence in Burlington to

the Mount Storm job site, via the most direct driving route of

Burlington to New Creek, West Virginia, to Bismarck, was 32

miles.    Mr. Marple would go to the Mount Storm job site by first

driving to Keyser, West Virginia (Keyser), where he would stop at

a Sheetz station to buy gas for his truck and breakfast.      The

Sheetz in Keyser was not the only gas station available to Mr.

Marple; however, he preferred this station to those closer to his

home or on the more direct route to the Mount Storm job site

because of, among other things, the price of the gas and the

quality of the food.    As a result of first driving to the Sheetz

in Keyser and then to the Mount Storm job site, Mr. Marple drove

51 miles from his residence in Burlington to the Mount Storm job

site on the mornings he reported to work during the year in

issue.    Mr. Marple did not receive any reimbursement from API or

Local 100 for his travel or meal expenses incurred in working on

the Mount Storm job.

       For taxable year 2002, Mr. Marple recorded his daily

business mileage on a calendar.    On each working day, Mr. Marple

wrote down on the calendar the number of miles he drove from his

residence to a job site and then back.    Mr. Marple considered

himself “out of town”, for the purpose of deducting business

mileage, at a distance of 45 to 50 miles from his residence in

Burlington.
                               - 7 -

     For taxable year 2002, Mr. Marple received taxable wages of

$44,606.03 from API.   API paid Mr. Marple weekly and issued him

an earnings statement for each weekly pay period.   These earnings

statements show that Mr. Marple received gross wages of

$45,719.28 from API for 2002 and that he made pretax

contributions totaling $1,113.25 for the year to a section 401(k)

plan.   The earnings statements also show a total of $5,714.54

listed under “Fringe Benefits” for “H&W” for 2002, which relates

to premiums for health insurance.   The $5,714.54 listed for

health insurance was not included in the calculation of Mr.

Marple’s gross wages from API for taxable year 2002, nor did

petitioners include this amount in income on their 2002 Form

1040, U.S. Individual Income Tax Return.

     For taxable year 2002, Mr. Marple received taxable wages of

$2,917.60 from Eber.   Eber also paid Mr. Marple weekly and issued

an earnings statement to Mr. Marple for each weekly pay period.

Mr. Marple’s earnings statements from Eber for taxable year 2002

do not indicate that any amount was allocated to health

insurance, nor do the earnings statements indicate that any

pretax contributions were made from Mr. Marple’s wages.   Mr.

Marple’s Eber earnings statements list an after-tax deduction

each pay period for “Union/%% Deduct”.

     In taxable year 2002, Mr. Marple purchased work boots and

clothes, including blue jeans, for wear in his job as a sheet
                               - 8 -

metal worker.   These items were normal clothes.   Petitioners

introduced copies of 12 receipts totaling $338.58 as

substantiation for purchases of these items.   The receipts

indicate that the dollar amounts for all of the items purchased

are generally small, ranging from a low of 50 cents to a high of

$14.99.   The receipts do not provide descriptions of the items

purchased or identify the stores from which petitioners purchased

the items.

     On their 2002 Form 1040, petitioners claimed medical and

dental expenses of $8,020 on Schedule A, Itemized Deductions,

attached to their return, which resulted in a deduction of $4,963

after application of the limitation in section 213(a).    Of the

$8,020 in claimed medical and dental expenses, petitioners

calculated $7,100 as paid for health insurance.    Respondent

disallowed the entire $8,020 of claimed expenses in the notice of

deficiency on the grounds that petitioners had not substantiated

payment of the expenses.6

     Also on Schedule A, petitioners deducted $11,741 as Mr.

Marple’s unreimbursed job expenses, made up of the following:

Vehicle expenses of $8,879 (24,325 business miles at the standard

mileage rate of 36-1/2 cents per mile); business meals and

entertainment expenses of $399 (after application of the 50-


     6
          As noted, petitioners submitted to respondent medical
and dental care receipts totaling $920, which respondent has
accepted.
                               - 9 -

percent limitation of section 274(n)); union dues and assessments

of $2,113; and work boots and clothing of $350.   In the notice of

deficiency, respondent allowed a deduction of $1,694 for the

substantiated amount of Mr. Marple’s union dues and disallowed

all of the remaining deductions.7

                            Discussion

     Deductions are a matter of legislative grace, and a taxpayer

must establish that he has satisfied the specific statutory

requirements for any deduction claimed.8   Rule 142(a); INDOPCO,

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

Co. v. Helvering, 292 U.S. 435, 440 (1934).   Furthermore, a

taxpayer is required to keep records sufficient to enable the

Commissioner to determine whether the taxpayer is liable for tax.

See sec. 6001; sec. 1.6001-1(a), Income Tax Regs.   A taxpayer

bears the burden of substantiating the amount and purpose of any

claimed deduction.   See Hradesky v. Commissioner, 65 T.C. 87

(1975), affd. per curiam 540 F.2d 821 (5th Cir. 1976).




     7
         As noted, respondent has conceded that petitioners are
entitled to a deduction on Schedule A for the 3,304 business
miles attributable to Mr. Marple’s temporary employment with Eber
in 2002.
     8
         Sec. 7491(a), which shifts the burden of proof as to
factual matters to the Commissioner under certain circumstances,
does not apply because petitioners have neither alleged its
application nor established that they have satisfied the
preconditions for its application.
                              - 10 -

A.   Medical Care Expenses

     As a general rule, section 262(a) prohibits a deduction for

“personal, living, or family expenses.”    An exception to this

general rule is provided by section 213 for certain medical care

expenses.   Gerstacker v. Commissioner, 414 F.2d 448, 450 (6th

Cir. 1969), revg. and remanding 49 T.C. 522 (1968).    Under

section 213(a), a taxpayer may deduct expenses paid during the

taxable year, not compensated for by insurance or otherwise, for

medical care of the taxpayer, the taxpayer’s spouse, or a

dependent, to the extent that such expenses exceed 7.5 percent of

adjusted gross income.   Expenditures for insurance covering

medical care are included in the definition of amounts paid for

medical care.   Sec. 213(d)(1)(D).   To substantiate a deduction

under section 213, a taxpayer must provide the name and address

of each person to whom payment was made and the amount and date

of each payment.   Sec. 1.213-1(h), Income Tax Regs.

     Petitioners claimed medical and dental expenses of $8,020 on

their 2002 Schedule A, and respondent has conceded that

petitioners have substantiated $920 of this amount.    Petitioners

essentially contend that the remaining $7,100 of their claimed

medical and dental expenses represents payments made by Mr.

Marple for health insurance through withholding by his
                              - 11 -

employers.   Petitioners submitted all of Mr. Marple’s earnings

statements from Eber and API for 2002 to substantiate the

payments for health insurance.

     Mr. Marple’s earnings statements from Eber for 2002 do not

indicate that any amounts were paid for health insurance.     Mr.

Marple’s earnings statements from API for 2002 indicate that a

total of $5,714.54 was listed under “Fringe Benefits” for health

insurance for the year.   This amount was not included in the

calculation of Mr. Marple’s gross wages from API for 2002, nor

did petitioners include this amount in income on their 2002 Form

1040.   Thus, the $5,714.54 was not paid by Mr. Marple; rather, it

appears that API paid that amount for Mr. Marple’s health

insurance.   A taxpayer may deduct amounts that the taxpayer has

paid for himself or his dependent, but not amounts that a third

party has paid on the taxpayer’s behalf.    See McDermid v.

Commissioner, 54 T.C. 1727 (1970).     Petitioners presented no

other evidence substantiating any medical care expenses,

qualified or otherwise, that would make up the $7,100 portion of

the medical and dental expenses claimed on their 2002 Schedule A.

We conclude that petitioners are not entitled to deduct the

$7,100 at issue as medical care expenses under section 213 for

taxable year 2002.
                              - 12 -

B.   Employee Business Expenses

     Section 162(a) allows a taxpayer to deduct all the ordinary

and necessary expenses paid or incurred during the taxable year

in carrying on any trade or business, including the trade or

business of performing services as an employee.   Primuth v.

Commissioner, 54 T.C. 374, 377-378 (1970).   As noted, however,

section 262 prohibits a deduction for expenses that are personal

in nature.   The statutory prohibition of section 262 regarding

the deductibility of personal expenses takes precedence over the

allowance provision of section 162, Sharon v. Commissioner, 66

T.C. 515, 522-525 (1976), affd. 591 F.2d 1273 (9th Cir. 1978),

and a taxpayer must demonstrate that the expenses at issue were

different from or in excess of what he would have spent for

personal purposes, Sutter v. Commissioner, 21 T.C. 170, 173-174

(1953).9




     9
         In addition to satisfying the criteria for deductibility
under sec. 162, certain categories of expenses, including
passenger automobiles, traveling, and meals and entertainment,
must also satisfy the strict substantiation requirements of sec.
274(d) before those expenses will be allowed as deductions. See
secs. 274(d), 280F(d)(4)(A)(i). Under these rules, a taxpayer
must substantiate the amount, time, place, and business purpose
of the expenditures and must provide adequate records or
sufficient evidence to corroborate his own statement. See sec.
274(d); sec. 1.274-5T(c)(1), Temporary Income Tax Regs., 50 Fed.
Reg. 46016 (Nov. 6, 1985). In order to meet the “adequate
records” requirements, a taxpayer is to maintain an account book,
diary, statement of expenses, or similar record and documentary
evidence (such as receipts, paid bills, or similar evidence)
                                                   (continued...)
                                 - 13 -

     1.       Vehicle Expenses

     Commuting expenses, which are expenses incurred in traveling

between a taxpayer’s residence and his or her principal place of

business or employment, are generally considered personal

expenses, deduction of which is prohibited by section 262.        See

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

Flowers, 326 U.S. 465 (1946); secs. 1.162-2(e), 1.262-1(b)(5),

Income Tax Regs.     The Commissioner has recognized an exception to

this general rule when the daily transportation expenses are

incurred in going between the taxpayer’s residence and a

temporary work location outside the metropolitan area where the

taxpayer lives and normally works.        See Rev. Rul. 99-7, 1999-1

C.B. 361, modifying and superseding Rev. Rul. 90-23, 1990-1 C.B.

28, and Rev. Rul. 94-47, 1994-2 C.B. 18, and obsoleting Rev. Rul.

190, 1953-2 C.B. 303.10


     9
     (...continued)
which, when combined, establish each element of the expense that
sec. 274(d) requires to be established. Sec. 1.274-5T(c)(2)(i),
Temporary Income Tax Regs., 50 Fed. Reg. 46017 (Nov. 6, 1985).
         10
         In Turner v. Commissioner, 56 T.C. 27, 33 (1971),
vacated and remanded on the Commissioner’s motion by an
unpublished order (2d Cir., Mar. 21, 1972), this Court disallowed
the deduction by an employee of expenses for transportation from
the employee’s residence to a distant temporary job, holding that
“Commuting is commuting, regardless of the nature of the work
engaged in, the distance traveled, or the mode of transportation
used.” The Commissioner, however, in Rev. Rul. 190, 1953-2 C.B.
303, allowed the deduction of expenses incurred for daily
transportation between a taxpayer’s principal or regular place of
employment and a temporary, as distinguished from indefinite,
                                                   (continued...)
                              - 14 -

     Respondent argues that the travel expenses at issue (21,021

of the 24,325 business miles claimed by petitioners on their

Schedule A) represent mileage Mr. Marple incurred commuting from

his home to the Mount Storm job site and thus are not deductible

under section 162.   Respondent further argues that Mr. Marple is

not entitled to deduct the mileage at issue pursuant to the

exception provided in Rev. Rul. 99-7, supra, because Mr. Marple’s

employment with API on the Mount Storm job, which lasted for all

of 2002 except for a 3-week break in service, was not temporary,

nor was the Mount Storm job site, which was 32 miles from Mr.

Marple’s home by way of the most direct route, outside the

metropolitan area where Mr. Marple lived and normally worked.

Petitioners contend otherwise, pointing out that none of Mr.

Marple’s jobs through Local 100 are permanent, and arguing that,

by Mr. Marple’s calculation, he drove 51 miles to get to the

Mount Storm job site each day.




     10
      (...continued)
job, when the job was outside the metropolitan area where the
taxpayer lived and ordinarily worked. Since Turner, we have
decided cases where the issue has been framed in terms of the
test of Rev. Rul. 190, supra. See, e.g., McCallister v.
Commissioner, 70 T.C. 505 (1978); Norwood v. Commissioner, 66
T.C. 467 (1976). Rev. Rul. 190, supra, has been modified or
clarified by the Commissioner over the years, as noted above.
For purposes of the instant case, Rev. Rul 99-7, 1999-1 C.B. 361,
applies, and the deductibility of Mr. Marple’s vehicle expenses
has been presented for decision under its provisions. Neither
party disputes the application of Rev. Rul. 99-7, supra.
                               - 15 -

     We recognize that all of Mr. Marple’s jobs through Local 100

are not permanent positions and that Mr. Marple understood at the

time he took the Mount Storm job that his employment with API

would not be permanent in nature.   The impermanence of

construction work, however, does not resolve the issue of whether

Mr. Marple’s employment with API was temporary for the purpose of

deducting business mileage.   See Commissioner v. Peurifoy, 254

F.2d 483, 486 (4th Cir. 1957), revg. 27 T.C. 149 (1956), affd.

per curiam 358 U.S. 59 (1958); Kasun v. United States, 671 F.2d

1059, 1061-1063 (7th Cir. 1982).    Moreover, prior jobs of short

duration are not evidence that the job at issue is temporary.

McCallister v. Commissioner, 70 T.C. 505, 509-510 (1978).

     We find it unnecessary, however, to resolve the question of

whether Mr. Marple’s employment with API on the Mount Storm job

was temporary or indefinite because we find that the Mount Storm

job site was not outside the metropolitan area where Mr. Marple

lived and normally worked.    See Harris v. Commissioner, T.C.

Memo. 1980-56, affd. in part and remanded in part without

published opinion 679 F.2d 898 (9th Cir. 1982).11




     11
         In Harris v. Commissioner, T.C. Memo. 1980-56, affd. in
part and remanded in part without published opinion 679 F.2d 898
(9th Cir. 1982), this Court found that the taxpayer, who relied
on Rev. Rul. 190, supra, to support the deductibility of his
transportation expenses, had not established that the work sites
at issue were outside the general area of his principal or
                                                   (continued...)
                              - 16 -

     The term “metropolitan area”, for purposes of deducting

daily transportation expenses under the exception found in Rev.

Rul. 99-7, supra, is not defined in that revenue ruling or the

prior revenue rulings on the subject.12   Courts that have

addressed the issue have generally looked at whether the work

site in question was within the general area of the taxpayer’s

principal or regular place of employment, see Harris v.

Commissioner, supra (for transportation expenses to be

deductible, the taxpayer must prove that temporary work sites are

outside the general area of the taxpayer’s principal or regular

place of employment); see also Aldea v. Commissioner, T.C. Memo.

2000-136; Carter v. Commissioner, T.C. Memo. 1988-189, as well as

the distance between the work site and the taxpayer’s residence,

see Ellwein v. United States, 778 F.2d 506, 511-512 (8th Cir.

1985) (daily transportation costs deductible only if the

temporary employment is outside the area of the taxpayer’s

regular abode); Dahood v. United States, 747 F.2d 46, 48 (1st

Cir. 1984); Boehmer v. Commissioner, T.C. Memo. 1986-315.

     With this background in mind, we believe it is appropriate

to interpret “metropolitan area”, as that term is used in Rev.


     11
      (...continued)
regular place of employment. We thus found, without deciding
whether the jobs were temporary, that the taxpayer was not
entitled to deduct the transportation expenses at issue.
      12
         Rev. Rul. 94-47, 1994-2 C.B. 18; Rev. Rul. 90-23, 1990-
1 C.B. 28; Rev. Rul. 190, supra.
                               - 17 -

Rul. 99-7, supra, by reference to its ordinary and common

meaning.    In Webster’s Third New International Dictionary (1993),

the word “metropolitan” is defined as “of, relating to, or

constituting a region including a city and the densely populated

surrounding areas that are socially and economically integrated

with it”.   In the instant case, Mr. Marple resided in Burlington,

and he reported to and received work referrals from Local 100’s

Cumberland office, which was located approximately 23 miles from

his residence.   He primarily worked jobs in West Virginia and

Maryland, several of which were within his home area of

Burlington and its environs.   Mr. Marple considered himself “out

of town” for purposes of deducting business mileage at 45 to 50

miles from his residence in Burlington.     We take this to mean

that Mr. Marple considered the area within a 45- to 50-mile

radius of Burlington to be his metropolitan area.     No evidence

was presented to convince the Court that this area should be

expanded or diminished, and we find that Mr. Marple properly

regarded this area to be the metropolitan area where he lived and

normally worked.   We further find, however, that the Mount Storm

job site was not outside this area.     The distance between Mr.

Marple’s residence in Burlington and the Mount Storm job site,

via the most direct route, was 32 miles, and thus the job site

was not distant from his residence.     See Harris v. Commissioner,

supra (work sites requiring round trips of 134, 162, and 100
                                - 18 -

miles from the taxpayer's home within the metropolitan area that

was the taxpayer's principal or regular place of employment).

Ellwein v. United States, 635 F. Supp. 1453 (D.N.D. 1986) (work

sites at distances of 39 miles and 45 miles within the work area

of the taxpayer's home), on remand from Ellwein v. United States,

supra.    The extra 19 miles that Mr. Marple calculated he drove

each day on his way to the Mount Storm job site were attributable

to his choice to buy breakfast and gas at the Sheetz gas station

in Keyser.    Mr. Marple admitted that this particular Sheetz was

not the only gas station available to him, and he further

admitted that he drove out of his way to go to this Sheetz each

morning because he liked the food and the price of gas at that

station.    Mr. Marple’s decision to drive the extra 19 miles each

morning was thus motivated primarily by personal considerations,

rather than by any requirement of his employer.    See Henry v.

Commissioner, 36 T.C. 879, 884 (1961); Sutter v. Commissioner, 21

T.C. at 173-174.     We find that the Mount Storm job site was not

outside the metropolitan area where Mr. Marple lived and normally

worked.    Accordingly, we conclude that petitioners are not

entitled to deduct business mileage under section 162 in excess

of the 3,304 miles conceded by respondent.

     2.      Meal Expenses

     Expenses paid or incurred for a taxpayer’s daily meals are

generally nondeductible under section 262 as personal, living, or
                                - 19 -

family expenses.   See United States v. Correll, 389 U.S. 299

(1967); Barry v. Commissioner, 54 T.C. 1210, 1212 (1970), affd.

per curiam 435 F.2d 1290 (1st Cir. 1970).   This is so because a

taxpayer’s expenses for his own meals would have been incurred

whether or not the taxpayer had engaged in any business activity.

Christey v. United States, 841 F.2d 809, 814 (8th Cir. 1988);

Moss v. Commissioner, 80 T.C. 1073, 1078 (1983), affd. 758 F.2d

211 (7th Cir. 1985).   Meal expenses may be deductible as

traveling expenses under section 162(a)(2) if a taxpayer can

prove that the meals were consumed while traveling away from home

in the pursuit of a trade or business.   To be considered “away

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

must be on a trip that requires the taxpayer to stop for sleep or

a substantial period of rest.    United States v. Correll, supra;

Strohmaier v. Commissioner, 113 T.C. 106, 115 (1999).

     During 2002, Mr. Marple did not stay overnight at either the

Mount Storm job site location or the Eber job site location but

instead returned in the evenings to petitioners’ residence in

Burlington.   There is no evidence that Mr. Marple’s daily round

trips in 2002 between petitioners’ residence and the job site

locations required Mr. Marple to stop for sleep or a substantial

period of rest.    See United States v. Correll, supra; Strohmaier

v. Commissioner, supra at 115.    We find that the meal expenses

were not paid or incurred while Mr. Marple was away from home
                              - 20 -

within the meaning of section 162(a)(2).    Accordingly,

petitioners are not entitled to deduct the cost of Mr. Marple’s

meals as a business expense under section 162.13

     3.   Work Clothing

     The cost of clothing is generally a nondeductible personal

expense within the meaning of section 262, even if the clothing

was in fact used exclusively for work.     See Barone v.

Commissioner, 85 T.C. 462, 469 (1985), affd. without published

opinion 807 F.2d 177 (9th Cir. 1986).    The cost of clothing may

be deductible as a business expense under section 162(a) where

(1) the clothing is required or essential in the taxpayer’s

employment, (2) the clothing is not suitable for general or

personal wear, and (3) the clothing is not worn for general or

personal purposes.   Yeomans v. Commissioner, 30 T.C. 757, 767-768

(1958).

     Mr. Marple purchased jeans and work boots during the year in

issue which he wore while employed as a sheet metal worker.   Mr.

Marple testified the items were “normal” jeans and work boots.

There is no evidence that the items were unsuitable for general

or personal wear, nor is there evidence that Mr. Marple did not



     13
         We note that expenses for meals are subject to strict
substantiation under sec. 274, discussed supra note 9.
Petitioners did not introduce any receipts or other documentary
evidence substantiating Mr. Marple’s meal expenses. Petitioners’
failure to meet the substantiation requirements of sec. 274(d)
for Mr. Marple’s meal expenses would appear to provide an
alternative basis for our holding disallowing petitioners’
claimed meal expense deduction.
                              - 21 -

wear the jeans and work boots outside of his employment.    We

conclude that petitioners are not entitled to deduct the cost of

Mr. Marple’s clothing as a business expense under section 162.14

     To reflect the foregoing,

                                      Decision will be entered

                                 under Rule 155.




     14
         We note in this regard that petitioners claimed a
deduction of $350 for Mr. Marple’s work clothes on their 2002
Schedule A, but introduced only 12 receipts totaling $338.58 as
substantiation for purchases of these work clothes. Moreover,
although Mr. Marple testified the receipts were for purchases of
work clothes, the receipts do not provide descriptions of the
items purchased or identify the stores where the items were
purchased.
