                  T.C. Summary Opinion 2006-36



                     UNITED STATES TAX COURT



          WILLIAM D. AND BETTY J. BOYD, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13780-02S.               Filed March 2, 2006.


     William D. and Betty J. Boyd, pro se.

     Thomas C. Pliske, for respondent.




     COUVILLION, Special Trial Judge:    This case was heard

pursuant to section 7463 in effect when the petition was filed.1

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

and this opinion should not be cited as authority.


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

     Respondent determined a deficiency of $3,418 in petitioners’

Federal income tax for 1999.

     The sole issue for decision is whether petitioners had a

“home to be away from” within the meaning of section 162(a)(2)

during 1999 entitling them to a deduction for employee business

expenses.

     Prior to trial, petitioners failed to execute an agreed

stipulation of facts pursuant to Rule 91(a), whereupon respondent

filed a motion to show cause why proposed facts in evidence

should not be accepted as established.   The response filed by

petitioners was not responsive to the Court’s order.   The Court,

accordingly, issued an order making the rule absolute declaring

the facts proposed by respondent established for purposes of this

case.   At the time petitioners filed their petition, they listed

an address at Nederland, Texas.

     William D. Boyd (petitioner) is a licensed Pentecostal

evangelist.   He does not have a church or a fixed base of

operation for the conduct of his ministry.   He and his spouse

(Mrs. Boyd) travel throughout the United States in a recreational

vehicle and conduct religious services at churches for either a

few days or a few weeks.   Mrs. Boyd assists petitioner as a

singer at each of their appearances.

     Petitioners call Prentice, Mississippi, their home.

Petitioners, however, do not own or rent any dwelling in
                               - 3 -

Mississippi or in any other State, except two burial plots in

Mississippi.   Petitioners have a daughter who lives in

Mississippi, and all mail to petitioners is sent to the daughter.

Whatever mail she receives, she mails it to petitioners wherever

they happen to be.   Most of the mail is from churches throughout

the United States inviting petitioners to appear at their

churches.   Petitioners occasionally visit Mississippi, and they

always stay as guests at the local church.   The local pastor is

also a contact person for persons interested in contacting

petitioners. During the year at issue, petitioners visited

Prentice, Mississippi, three times.

     Petitioners, therefore, had no home in Mississippi that they

maintained and, accordingly, incurred no expenses in maintaining

a home.   Petitioners, however, contend that Mississippi is their

home, and all their friends and relatives consider petitioners’

home as Mississippi.

     Petitioners filed a joint Federal income tax return for

1999.   They thereafter filed at least two amended returns.   On

each return, petitioners included a Schedule C, Profit or Loss

From Business, on which they reported the income and expenses of

their ministerial activity.   On each of these returns, the

expenses exceeded the reported gross income.   For the year at

issue, on the return that the Court believes represented the last

of the amended returns, petitioners reported Schedule C gross
                               - 4 -

receipts of $45,153, expenses of $61,219, and a net loss of

$16,066.2   In the notice of deficiency, respondent disallowed the

entire loss.

     For purposes of this case, respondent does not challenge the

accuracy of the claimed expenses or the amount of income

reported.   Respondent’s sole basis for disallowing the claimed

expenses is that, as a matter of law, petitioners are not

entitled to deductions for such expenses.   Petitioners contend

that the expenses were incurred in connection with their trade or

business, and, therefore, such expenses are deductible.

Petitioners also contend that, while their return was under

audit, they received a refund of $1.30, and, because of that

refund, petitioners believed that their claimed expenses had been

allowed.

     The issuance of a refund does not preclude Commissioner from

issuing a notice of deficiency.   Gordon v. United States, 757

F.2d 1157, 1160 (11th Cir. 1985); Beer v. Commissioner, 733 F.2d

435, 437 (6th Cir. 1984), affg. T.C. Memo. 1982-735; Warner v.

Commissioner 526 F.2d 1, 2 (9th Cir. 1975), affg. T.C. Memo.

1974-243.   The taxpayers in Gordon v. United States, supra, and


     2
      The Schedule C expenses consisted of:
     Meals & entertainment (net)                        $12,775
     Utilities                                              744
     Other expenses, identified only as dues of $250
       and per diem of $47,450                           47,700
The per diem was not described by petitioners at trial.
                                 - 5 -

in Warner v. Commissioner, supra, made the same argument as

petitioners; i.e., that respondent should not be able to make

refunds and then demand repayment.       To this the Courts of Appeals

replied:    “Alas, the Commissioner, confronted by millions of

returns and an economy which repeatedly must be nourished by

quick refunds, must first pay and then look.      This necessity

cannot serve as the basis of an ‘estoppel’.”       Gordon v. United

States, supra at 1160 (quoting Warner v. Commissioner, 526 F.2d

at 2).

     With respect to the principal issue, whether petitioners are

entitled to a deduction for trade or business expenses, section

162(a)(2) allows deductions for traveling expenses, including

amounts expended for meals and lodging, if the expenses are (1)

ordinary and necessary, (2) incurred while “away from home”, and

(3) incurred in pursuit of a trade or business.       Bochner v.

Commissioner, 67 T.C. 824, 827 (1977).       Respondent does not argue

that petitioners have failed to satisfy the first and third

tests.     Respondent contends that petitioners were not “away from

home” when they incurred the expenses.

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

employment is his “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 he

incurs substantial continuing living expenses as his tax home.
                               - 6 -

Weidekamp v. Commissioner, 29 T.C. 16, 21 (1957).    Where the

taxpayer has neither a principal place of business nor a

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

away.   His home is wherever he happens to be.   Brandl v.

Commissioner, 513 F.2d 697, 699 (6th Cir. 1975), affg. T.C. Memo.

1974-160; Rosenspan v. United States, 438 F.2d 905, 912 (2d Cir.

1971); James v. United States, 308 F.2d 204 (9th Cir. 1962).

     While the subjective intent of the taxpayer is to be

considered in determining whether he has a tax home, for purposes

of section 162(a)(2), this Court and others consistently have

focused more on objective financial criteria.    The section is

intended to mitigate the burden of a taxpayer who, because of the

travel requirements of his trade or business, must maintain two

places of abode and, therefore, incur additional living expenses.

Brandl v. Commissioner, supra; Kroll v. Commissioner, supra.

Section 162(a)(2) provides relief to a taxpayer who incurs

“substantial continuing expenses” of a home which are duplicated

by business travel away from home on a temporary basis by

allowing a deduction for the expenses of such travel.    A taxpayer

has a “home” for this purpose only when it appears he has

incurred substantial continued living expenses at the permanent

place of residence.   James v. United States, supra at 207-208.

     Whether petitioners had a tax home is a factual question and

is easily resolved in this case by the fact that petitioners made
                                - 7 -

only three visits to Mississippi during the year in question,

and, on each visit, they stayed at the local church rectory and,

perhaps, with their daughter.   While the length of those visits

was not established, the record indicates that the visits were

not for prolonged periods.   Most significantly, however,

petitioners bore no expenses in maintaining a home there in

addition to their recreational vehicle.      Thus, petitioners could

not be “away from home” within the intent and meaning of section

162(a)(2) because they had no “home” to be away from.       Barone v.

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

opinion 807 F.2d 177 (9th Cir. 1986); Wirth v. Commissioner, 61

T.C. 855, 859 (1974).   Where the taxpayer does not have a

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

away.   The home is wherever the taxpayer happens to be.      Brandl

v. Commissioner, supra.   Since that is the factual situation

petitioners were in, it follows that they are not entitled to the

expenses claimed as deductions on their 1999 Federal income tax

return.   Respondent, therefore, is sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                             Decision will be entered

                                        for respondent.
