                  T.C. Summary Opinion 2010-143



                     UNITED STATES TAX COURT



         ROCKWOOD GEWANNA SUMMERFIELD, JR., Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13856-09S.              Filed September 23, 2010.



     Peter Andrew Lowy, for petitioner.

     Benjamin J. Peeler, for respondent.



     ARMEN, 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, all subsequent section
references are to the Internal Revenue Code in effect for 2006,
the taxable year in issue, and all 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 in petitioner’s 2006

Federal income tax of $5,333.

     All but one of the issues in this case have been resolved by

the parties in a Stipulation Of Settled Issues.   The remaining

issue is whether petitioner is entitled to a deduction for travel

expenses as claimed on his Federal income tax return for 2006.

The resolution of this issue requires that we decide whether, in

2006, petitioner had a “tax home” within the meaning of section

162(a)(2).   If petitioner did not, then he is not entitled to the

deduction in issue; but if petitioner did, then we must also

decide where his tax home was and the amount of the deduction.

                              Background

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

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.

     At the time that the petition was filed, petitioner resided

in the State of Texas “due to taking a temporary job” with a

company in Houston, Texas.2




     2
        So stipulated. In the petition, petitioner listed a
mailing address in Texas, but specified Florida as his State of
legal residence. See sec. 7482(b)(1)(A).
                               - 3 -

     By profession petitioner is, and has been for many years, a

plumber/pipefitter.   As such, petitioner is a member of the

United Association of Journeymen and Apprentices of the Plumbing

and Pipe Fitting Industry of the United States and Canada (UA).3

     Throughout his professional career, petitioner has been a

member of UA Local 5, also known as Plumbers Local Union 5.4 UA

Local 5 has geographical jurisdiction over the metropolitan

Washington, D.C. area.   Petitioner was initiated into UA Local 5

as an apprentice in December 1984 and achieved journeyman status

in June 1988.

     Petitioner has never undertaken to transfer his membership

to another local union but has instead chosen to remain a member

of UA Local 5 throughout his professional career because of his

perception that, except for a period in the late ‘80s and early


     3
        The UA is a multicraft union with more than 325,000
members throughout the United States and Canada who engage in the
fabrication, installation, and servicing of various piping
systems. United Association, http://www.ua.org/aboutua.asp. The
UA includes pipefitters and plumbers, as well as other related
tradespersons such as welders, sprinklerfitters, and service
technicians for heating, ventilation, air conditioning, and
refrigeration (HVACR). Id. Pipefitters (also known as
steamfitters) lay out, fabricate, assemble, install, maintain,
and repair piping systems that typically operate under high
pressure and that transport all types of fluids, slurries, and
gases in industrial, commercial, and residential contexts. Id.
Plumbers install, repair, maintain, and service piping and
plumbing systems and equipment used for potable water
distribution, sanitary storm water systems, and waste disposal;
plumbers also work on technical installations for medical gas and
other health and safety systems. Id.
     4
         See http://www.local5plumbers.org.
                                - 4 -

‘90s, “Washington, D.C., always seems to have some kind of work

even when the rest of the country doesn’t.”

       For most if not all of his career as a journeyman,

petitioner has specialized in industrial and commercial projects

involving work on structures such as oil refineries, power

plants, hospitals, and schools.    Petitioner is also certified to

work on medical gas systems found in hospitals.

       As a journeyman, petitioner typically works in various

locations on projects of limited duration.    The length of these

projects generally ranges from a few days or a week to a couple

of months.

       Generally speaking, petitioner finds work by signing the

out-of-work list (Referral Book) at the business office of UA

Local 5 in Washington, D.C., and waiting for his name to come to

the top of the list.    In order to remain on the out-of-work list

and therefore be eligible for an assignment to a project,

petitioner is required to sign the Referral Book every 30 days

when he is without work, and he must do this in person by

returning to the business office of UA Local 5 in Washington,

D.C.

       Petitioner was formerly married, and he and his then-wife

lived in Maryland.    In 2001 the couple separated, and “a pretty

bitter divorce” followed in 2003.
                                - 5 -

     In November 2002, petitioner went to Florida at the request

of his father, who was retired and caring for petitioner’s

seriously-ill mother, who subsequently died in 2004.

Petitioner’s parents owned a house in Ocala, Florida.    Petitioner

obtained a Florida driver’s license and registered to vote in

Florida; he also registered his vehicles in Florida and paid

applicable licensing and registration fees.

     During 2006 petitioner worked for nine different employers

on nine different projects for the following periods and at the

following locations:

    Period                 Location
    9/12/05 -   1/23/06    Metro Washington, D.C.
    2/6/06 -    3/30/06    Chalmette, LA (Exxon-Mobil oil refinery)
    4/3/06 -    5/1/06     Fort Riley, KS (US Army base)
    5/9/06 -    5/19/06    Paducah, KY
    6/7/06 -    6/16/06    Metro Washington, D.C.
    6/19/06 -   6/22/06    Metro Washington, D.C.
    7/3/06 -    7/7/06     Metro Washington, D.C.
    7/10/06 -   7/30/06    McPherson, KS (Valero oil refinery)
    8/14/06 -   10/22/06   Washington, D.C. (Children’s Hospital)


     Petitioner traveled to all of the foregoing jobsites in his

Chevy Trailblazer.    He took with him worktools, as well as a

microwave oven, coffeepot, and other similar necessities of

everyday life.    He sought out economical accommodations and

negotiated for weekly rates.    On occasion he shared a room with

another pipefitter or tradesman in order to minimize expenses.

     Petitioner received no reimbursement from either his union

or any employer for travel expenses.
                               - 6 -

     When he was not working, petitioner returned to Florida.

Petitioner did not maintain a separate abode but stayed with his

father in Ocala.5   Petitioner did not pay rent; however, he did

contribute to household expenses, but only during the time that

he was actually staying with his father.6

     Petitioner was unemployed for the last 2 months of 2006

because of an injury sustained in a motorcycle mishap.   During

that period he collected unemployment insurance benefits from the

State of Florida.

     Petitioner filed a Form 1040, U.S. Individual Income Tax

Return, for 2006.   On his return, petitioner itemized his

deductions on Schedule A, Itemized Deductions.   Among those

claimed was one for unreimbursed employee business expenses.

Petitioner did not claim any deduction for either mortgage

interest or real estate tax.




     5
        Petitioner did maintain a storage unit in Orlando, Fla.,
for some of his personal effects.
     6
        At trial, petitioner testified that he did not pay rent
to his father, “the reason being because I’m running halfway
around the country three-quarters, nine-tenths of the year. When
I’m there, I do contribute to the household. I mean, I’m running
up his water because I’m taking showers, extra electricity, you
know, whatever the case.”
                               - 7 -

                            Discussion7

     Generally, outlays for food and shelter are considered

personal expenses and are not deductible.   Sec. 262.   However,

section 162(a)(2) allows a taxpayer to deduct traveling expenses

(including amounts expended for meals and lodging) that are paid

or incurred while “away from home” in the pursuit of a trade or

business.   Commissioner v. Flowers, 326 U.S. 465 (1946); Brandl

v. Commissioner, 513 F.2d 697 (6th Cir. 1975), affg. T.C. Memo.

1974-160; Bochner v. Commissioner, 67 T.C. 824, 827 (1977).

     Respondent contends that petitioner had no tax home and was

therefore not “away from home” when he incurred the expenses in

issue.   In contrast, petitioner contends that Ocala, Florida, was

his tax home and that he was therefore “away from home” when

working at various projects in Washington, D.C., and elsewhere

around the country.

     As a general rule, a taxpayer’s principal place of

employment is the taxpayer’s tax home.    Kroll v. Commissioner, 49

T.C. 557, 561-562 (1968).   An employee without a principal place

of business may treat a permanent place of residence at which the

employee incurs substantial continuing living expenses as his or

her tax home.   Weidekamp v. Commissioner, 29 T.C. 16, 21 (1957).

Where “the taxpayer has neither a principal place of business nor


     7
         We decide this case without regard to the burden of
proof.
                               - 8 -

a permanent residence, he has no tax home from which he can be

away.   His home is wherever he happens to be.”    Barone v.

Commissioner, 85 T.C. 462, 465 (1985), affd. without published

opinion 807 F.2d 177 (9th Cir. 1986); see Michel v. Commissioner,

629 F.2d 1071, 1073-1074 (5th Cir. 1980), affg. T.C. Memo.

1977-345.

     Was Ocala, Florida, Petitioner’s Tax Home?

     If petitioner did not have a principal place of employment,

as both parties implicitly assume, then resolution of the tax

home issue is simple and straightforward.   Thus, the law is clear

that the purpose of the “away from home” requirement of section

162(a)(2) is to mitigate the burden of the taxpayer who, because

of the exigencies of his or her trade or business, must maintain

two places of abode and thereby incur additional and duplicate

living expenses.   Henderson v. Commissioner, 143 F.3d 497, 499

(9th Cir. 1998), affg. T.C. Memo. 1995-559; Rosenspan v. United

States, 438 F.2d 905, 912 (2d Cir. 1971); Wirth v. Commissioner,

61 T.C. 855, 859 (1974); Kroll v. Commissioner, supra at 561-562;

Hicks v. Commissioner, 47 T.C. 71, 74 (1966).     An obvious

precondition to a taxpayer being away from home is that the

taxpayer have a home.   See Bochner v. Commissioner, supra at 828.

This means that the taxpayer must have incurred substantial

continuing living expenses at a permanent place of residence and

must also have paid the expenses incurred in connection with his
                                 - 9 -

or her business while on the road.       See Brandl v. Commissioner,

supra at 699; James v. United States, 308 F.2d 204 (9th Cir.

1962); Bochner v. Commissioner, supra at 828.

     In the instant case, petitioner did have some ties to the

State of Florida.   But significantly, and indeed determinatively,

petitioner bore no duplicate living expenses.      Petitioner did not

maintain a separate abode but stayed with his father in Ocala.

He did not make mortgage payments or pay rent, and he contributed

to household expenses only while he was actually staying with his

father.8   These contributions are not of the type considered to

be costs of maintaining a home such that the expenses related to

petitioner’s life on the road would be redundant.9      In short,

Ocala was not petitioner’s tax home in 2006.

     Was Metro Washington, D.C., Petitioner’s Tax Home?

     As previously indicated, both parties implicitly assume that

petitioner had no principal place of employment.      However, the

record belies such assumption.    Thus, we conclude, based on the

totality of the following six factors, that the metropolitan



     8
        At trial, petitioner acknowledged that his father paid
the mortgage on the house and that when his mother died in 2004
he (i.e., petitioner) did not inherit any interest in the house.
Presumably petitioner’s father also paid the real estate tax on
the house because petitioner claimed no deduction for real estate
tax on Schedule A of his 2006 return.
     9
        We reject any suggestion that payment of rent on a
storage unit is equivalent to maintaining a household.
                               - 10 -

Washington, D.C. area was petitioner’s principal place of

employment in 2006.

       First, petitioner was a member of UA Local 5 in Washington,

D.C.

       Second, petitioner was a member of UA Local 5 because, as he

testified at trial, “Washington, D.C. has work most of the time”.

       Third, petitioner generally found work by signing the

Referral Book at the business office of UA Local 5 in Washington,

D.C., and waiting for his name to come to the top of the out-of-

work list.

       Fourth, in order to remain on the out-of-work list and

therefore be eligible for an assignment to a project, petitioner

was required to sign the Referral Book in person at the business

office of UA Local 5 in Washington, D.C., every 30 days when he

was without work.

       Fifth, more than one-half of the jobsites where petitioner

worked in 2006 were in the metropolitan Washington, D.C. area.

       Sixth, approximately one-half of petitioner’s workdays in

2006 were spent at jobsites in the metropolitan Washington, D.C.

area.

       Because the metropolitan Washington, D.C. area was

petitioner’s principal place of employment in 2006, we hold that

metropolitan Washington D.C., was petitioner’s tax home for that

year.    See Kroll v. Commissioner, 49 T.C. at 561-562.
                               - 11 -

     Amount of Deduction

     Because petitioner had a tax home in 2006, he is entitled to

a deduction under section 162(a)(2) for traveling expenses.

Those expenses include lodging, meals and incidental expenses,

and mileage while on business “away from home”, i.e., away from

petitioner’s tax home in Washington, D.C.

     Regarding lodging, petitioner is entitled to deduct actual

expenses as stipulated by the parties variously as “lodging”,

“hotel”, and “hotel lodging”, except that petitioner is not

entitled to deduct either (1) hotel costs incurred on or about

August 6 and 22, 2006, in traveling between Washington, D.C., and

Ocala, Florida, as those costs were personal in nature; or (2)

rent paid in the metropolitan Washington, D.C. area, as

petitioner was not “away from home” when he was at his tax home.

In addition, petitioner is entitled to deduct the $8 daily

lodging cost he incurred in staying at the FEMA camp while he was

working at the Exxon-Mobil oil refinery in Chalmette, Louisiana.

     Regarding meals and incidental expenses, the parties appear

to agree that petitioner is entitled to a per diem allowance

based on Rev. Proc. 2005-67, 2005-2 C.B. 729, and Rev. Proc.

2006-41, 2006-2 C.B. 777, as applicable to the calendar year

2006.10   Naturally, petitioner is not entitled to any per diem



     10
        The allowance for meals is, of course, subject to the
50-percent limitation of sec. 274(n).
                             - 12 -

allowance for the times that he was working in the metropolitan

Washington, D.C. area, as he was not then “away from home”.

     Finally, regarding mileage, petitioner is entitled to an

allowance based on $0.445 per mile driven as stipulated by the

parties, see Rev. Proc. 2005-78, sec. 5.01, 2005-2 C.B. 1177,

1179 except that petitioner is not entitled to any allowance for

mileage between Washington, D.C., and Ocala, Florida, which

mileage was personal in nature.

                           Conclusion

     We have considered all of the arguments advanced by the

parties, and, to the extent that we have not expressly addressed

any, we conclude that none supports an outcome contrary to that

reached herein.

     To give effect to our disposition of the disputed issue, as

well as the parties’ Stipulation Of Settled Issues,


                                        Decision will be entered

                                   under Rule 155.
