                        T.C. Memo. 2000-8



                     UNITED STATES TAX COURT



        VLADIMIR D. & JOSEPHINE M. SARIC, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 16637-98.                   Filed January 10, 2000.


     Vladimir D. Saric, pro se.

     Gary M. Slavett, for respondent.


                       MEMORANDUM OPINION


     NAMEROFF, Special Trial Judge:     Respondent determined

deficiencies in petitioners’ 1994, 1995, and 1996 Federal income

taxes in the amounts of $2,250, $3,978, and $1,965, respectively.

Unless otherwise indicated, all section references are to the

Internal Revenue Code in effect for the years in issue.
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     After concessions,1 the issue for decision is whether

petitioners are entitled to deduct Schedule A “away from home”

expenses of $23,149, $36,402, and $22,532, for 1994, 1995, and

1996, respectively.

Background

     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 their

petition was filed, petitioners resided in Rowland Heights,

California.

     From January through April of 1994, Vladimir Saric

(petitioner) was unemployed.    He lived in Rowland Heights with

his wife and three daughters.    Through CDI Corp. or CDI Personal

Services, Inc. (collectively referred to as CDI), a temporary

employment agency, petitioner was assigned to work for Raytheon

Service Co. (Raytheon) as an electrical engineer for a Federal

Aviation Administration (FAA) project.    Raytheon’s office is

located in Manhattan Beach, California.    In obtaining the job

with Raytheon, petitioner was interviewed by Harry Moreau (Mr.

Moreau), an engineer with FAA who was overseeing a project in

Fremont, California (the Fremont project).    The objective of the

project was to install two diesel generators which would provide


     1
        The parties submitted a Stipulation of Settled Issues in
which petitioners conceded all issues except for the issue stated
above.
                                - 3 -

power for air flight controllers.    Mr. Moreau asked petitioner to

come to Fremont to work on the project, and petitioner agreed.

Fremont is approximately 400 miles from petitioner’s home.

     Petitioner stayed in Fremont from Monday through Friday, and

he drove back to Rowland Heights every weekend to stay with his

family.   While in Fremont, petitioner stayed in a motel.

Eventually, petitioner moved into an apartment with first a

weekly lease and then a monthly lease.     According to petitioner,

Mr. Moreau, at any time, could have told petitioner that he was

no longer needed.    Mr. Moreau would tell petitioner whether he

was needed on the project from week to week.     During the years in

issue, petitioner was needed in Fremont every week.

     A project such as the Fremont project usually takes about 2

years to complete.    The Fremont project consisted of two phases.

For the first phase, a building was constructed with all

underground utilities to house the diesel generators.     This phase

lasted from June 1994 to May 1995.      The second phase involved the

installation of control panels, switch gears, and the two diesel

generators.   Petitioner was asked to stay on for the second phase

which lasted from June 1995 to August 1996.     During the first

phase, petitioner was considered an employee of CDI.     In between

phases, petitioner was hired as an employee of Raytheon.     At no

time was petitioner reimbursed for his expenses.
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     Petitioners claim they are entitled to Schedule A “away from

home” employee business expense deductions of $23,149, $36,402,

and $22,532 for years 1994, 1995, and 1996, respectively.

Petitioner claims these expenses were for transportation to and

from Fremont and meals and lodging while in Fremont.

     Respondent disallowed the away from home expenses.

Discussion

     Deductions are a matter of legislative grace.   See New

Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).

Taxpayers bear the burden of proving that they are entitled to

their claimed deductions.   See Welch v. Helvering, 290 U.S. 111,

115 (1933).

     A taxpayer ordinarily may not deduct a personal expense.

See sec. 262.   Section 162(a), however, allows a taxpayer to

deduct traveling expenses incurred while away from home.    A

taxpayer may deduct traveling expenses under section 162(a)(2) if

he satisfies the following three conditions:   (1) The expense

must be reasonable and necessary; (2) it must be incurred while

away from home; and (3) it must be incurred in the pursuit of a

trade or business.   See Commissioner v. Flowers, 326 U.S. 465,

470 (1946).   A “taxpayer shall not be treated as being

temporarily away from home during any period of employment if

such period exceeds 1 year.”   Sec. 162(a).
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     Respondent contends that petitioner was not away from home

while he was working in Fremont.

     For purposes of section 162(a)(2), generally a taxpayer’s

home is the vicinity of his principal place of employment, not

where his personal residence is located.    See Mitchell v.

Commissioner, 74 T.C. 578, 581 (1980).     However, if a taxpayer’s

principal place of employment is temporary rather than

indefinite, the taxpayer’s residence may be considered the

taxpayer’s home, and the taxpayer may deduct the expenses

associated with traveling to and living at a job site.    See

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

     Petitioners contend that even though petitioner’s employment

on the Fremont Project lasted 2 years, it was temporary since it

was possible Mr. Moreau would have told him that he was not

needed.   In that sense, all employment is temporary in that

employees, unless tenured, generally serve at the will of the

employer.

     A place of business is a temporary place of business if the

employment is such that termination within a short period of time

could be foreseen.   See Albert v. Commissioner, 13 T.C. 129, 131

(1949).   Conversely, employment is categorized as indefinite,

substantial, or indeterminate if its termination cannot be

foreseen within a fixed or reasonably short period of time.     See

Stricker v. Commissioner, 54 T.C. 355, 361 (1970), affd. 438 F.2d
                                 - 6 -

1216 (6th Cir. 1971).    Employment which is temporary may become

indefinite due to changed circumstances or the passage of time.

See Norwood v. Commissioner, 66 T.C. 467, 470 (1976).     Whether a

taxpayer’s employment is temporary or indefinite is a question of

fact.     See Peurifoy v. Commissioner, supra at 61; cf. Harvey v.

Commissioner, 283 F.2d 491 (9th Cir. 1960), revg. 32 T.C. 1368

(1959).

        Petitioner worked on the Fremont project for 27 months.

While petitioner was an employee of a temporary services agency

(CDI) when first employed in Fremont, petitioner had no reason to

believe that such employment would be temporary.     In fact, it

ended up becoming a matter of long duration.     Thus his employment

was of an indefinite nature.     In May 1995, after working on the

project for 12 months, petitioner was hired as an employee of

Raytheon and was asked to stay for phase two of the project.

Indeed, petitioner remained in Fremont until August 1996.

Petitioner stated that a project such as the Fremont project

usually lasts around 2 years; therefore, there was a probability

that petitioner would work on the project for its entire

duration.     Furthermore, the statute specifically states that

employment in excess of 1 year is not temporary, see sec. 162(a),

and petitioner’s employment exceeded this limitation.

        At trial, petitioner stated that he drove back to Rowland

Heights every weekend for the personal purpose of being with his
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wife and daughters.   Petitioner also argued that he occasionally

had to go into the Raytheon office in Manhattan Beach because he

was required to attend safety training, or he had to pick up

supplies.   Petitioner has offered no evidence of the frequency,

if any, of these office visits, but they were not every weekend.2

Furthermore, petitioner argued that he was assigned to the

Raytheon office which was his principal place of business and

therefore his tax home.   Petitioner may have been

administratively assigned to the Raytheon office; however,

petitioner’s principal place of employment was at the Fremont

project where he was needed Monday through Friday for 27 months.

     Based on the record, we find that petitioner’s tax home for

purposes of section 162(a)(2) was in Fremont during the years at

issue.   We find that petitioner maintained his residence in

Rowland Heights out of personal preference and not for business

reasons.    See Commissioner v. Flowers, 326 U.S. 465 (1946).

Accordingly, we hold that petitioners are not entitled to claim

deductions for traveling and living expenses paid in connection




     2
        In petitioners’ posttrial brief, they state for the first
time that petitioner had to bring in his time sheet to the
Raytheon office every Friday. Petitioners offered no evidence at
trial to support this contention, and the record reflects
otherwise.
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with petitioner’s employment since he was not away from home.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.
