                     T.C. Summary Opinion 2009-111



                        UNITED STATES TAX COURT



                   SUSAN D. THOMPSON, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 14031-07S.          Filed July 20, 2009.



        Susan D. Thompson, pro se.

        Blake W. Ferguson and Olivia Hyatt, for respondent.



     JACOBS, 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.
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     Respondent determined a $1,553 deficiency with respect to

petitioner’s Federal income tax for 2005.

     The issues for decision are:   (1) Whether $50 of interest

accrued on money in a bank account jointly held by petitioner and

her father is taxable to petitioner, and (2) whether petitioner

is entitled to claimed business expense deductions for:    (a)

travel of $1,560, and (b) meals of $4,158.1

     All section references are to the Internal Revenue Code in

effect for 2005, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

                             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.

     Until June 2005 petitioner resided in Galveston, Texas,

where she worked off and on as a licensed massage therapist,

earning minimal income.   She lived with her boyfriend in his

home.    She did not pay rent or utility expenses, but she did pay

the monthly DIRECTV satellite television bill.

     In June of 2005 petitioner accepted temporary employment

with CodyCole USA, Inc. (CodyCole), a security firm, to provide

on-site monitoring of a construction site in Shreveport,


     1
      It is unclear from the record whether petitioner properly
reduced the amount deducted for meals to comply with the
limitation of sec. 274(n).
                                 - 3 -

Louisiana.    Petitioner’s job, which was to last 6 months,

required her to live on the construction site and to provide 24-

hours-a-day, 7 days-a-week monitoring services.    To perform her

job, petitioner decided to live in her mobile home, which was

then stored at Rigsby Island, Washington.    She went to Rigsby

Island, retrieved the mobile home, and drove it to the

construction site in Shreveport.    Petitioner lived in her mobile

home for 189 days during 2005.

     Petitioner left personal belongings with her boyfriend in

Galveston, including a hydraulic massage table, stereo equipment,

and a television.    She intended to, and did, return to Galveston

upon termination of her employment with CodyCole.

     At all times during 2005 petitioner considered herself a

resident of Galveston.    Evidencing this intent were:   (1)

Petitioner’s mobile home was registered in Texas, (2) petitioner

paid Texas personal taxes on the mobile home, and (3) petitioner

maintained a bank account and post office box in Galveston.

     Petitioner engaged H&R Block to prepare her 2005 Federal

income tax return.    On Schedule C, Profit or Loss From Business,

attached to her 2005 tax return, petitioner deducted $4,158

as meal expenses (using the 2005 Federal per diem rate for meals)

and $1,560 as travel expenses incurred in connection with

petitioner’s driving her mobile home from Rigsby Island to

Shreveport.
                               - 4 -

      Petitioner and her father jointly held an interest-bearing

account at ALMACO Federal Credit Union.    During 2005 $50 of

interest accrued on the money held in that account.    Petitioner

did not report any of the $50 on her 2005 tax return.

      Upon audit of petitioner’s 2005 tax return, respondent

determined that (1) petitioner should have reported the entire

$50 of interest income on her 2005 tax return, and (2) the

aforementioned business travel and meal expenses were improperly

deducted on Schedule C.

                            Discussion

A.   Interest Income

      As noted above, respondent contends that petitioner

received, and should have included in gross income, the

aforementioned $50 of interest.   At trial petitioner credibly

testified that the money in the account, including interest, was

her father’s and that the sole reason petitioner had access to

the money was to pay her father’s bills.    We are satisfied with

this explanation and thus hold that, contrary to respondent’s

determination, no part of the $50 of interest is taxable to

petitioner.

B.   Meal and Travel Expense Deductions

      Section 162(a) allows a deduction for all ordinary and

necessary expenses paid or incurred in carrying on a trade or

business.   Section 162(a)(2) allows a taxpayer to deduct
                                 - 5 -

traveling expenses, including amounts expended for meals, if such

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

away from home, and (3) incurred in the pursuit of a trade or

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

Services performed by an employee constitute a trade or business

for this purpose.     O’Malley v. Commissioner, 91 T.C. 352, 363-364

(1988).

     Petitioner asserts that she is entitled to deduct $4,158 of

meal expenses and $1,560 of travel expenses as business expenses

related to her employment with CodyCole.    Petitioner’s

entitlement to the claimed deductions for business travel and

meal expenses turns on whether such expenses were “incurred while

away from home”.    To be “away from home” so as to claim traveling

expenses, a taxpayer must have a “tax home”.    This Court has held

that for purposes of section 162(a)(2) a taxpayer’s “home” is

generally the vicinity of the taxpayer’s principal place of

employment.     Mitchell v. Commissioner, 74 T.C. 578, 581 (1980);

Daly v. Commissioner, 72 T.C. 190, 195 (1979), affd. 662 F.2d 253

(4th Cir. 1981).

     A taxpayer’s residence, when different from the vicinity of

the taxpayer’s principal place of employment, may be treated as

the taxpayer’s tax home if the taxpayer’s employment is

“temporary” rather than “indefinite”.     Peurifoy v. Commissioner,

358 U.S. 59, 60 (1958).    Petitioner’s employment was clearly
                                 - 6 -

temporary; the job was to last 6 months and, in fact, lasted 189

days.    Therefore, we must determine whether petitioner’s previous

Galveston residence continued to constitute her “tax home” while

she lived in the mobile home on the construction site in

Shreveport.

     If a taxpayer does not have a tax home from which he/she can

be away, then he/she is not entitled to a deduction under section

162(a)(2).     A taxpayer without a tax home is deemed to have

“‘carried his home on his back’”, to have been an itinerant, and

is not entitled to a deduction because he/she was not “away from

home”.    See Henderson v. Commissioner, T.C. Memo. 1995-559

(quoting Hicks v. Commissioner, 47 T.C. 71, 73 (1966)), affd. 143

F.3d 497 (9th Cir. 1998); see also Wirth v. Commissioner, 61 T.C.

855, 859 (1974); Hicks v. Commissioner, supra at 74.

     The purpose of the “away from home” provision is to mitigate

the burden of the taxpayer who, because of exigencies of his/her

trade or business, must maintain two places of abode and thereby

incur additional and duplicate living expenses.     Kroll v.

Commissioner, 49 T.C. 557, 561-562 (1968); Hicks v. Commissioner,

supra at 74.    A taxpayer has a “home” when he/she has incurred

substantial continuing living expenses at a permanent place of

abode.   Barone v. Commissioner, 85 T.C. 462, 465 (1985), affd.

without published opinion 807 F.2d 177 (9th Cir. 1986); see James

v. United States, 308 F.2d 204, 208 (9th Cir. 1962).    The
                                - 7 -

question of whether a taxpayer has a tax home is factual.       Barone

v. Commissioner, supra at 466.

     In Barone, the taxpayer was a long-haul trucker.      He

deducted expenses for food purchased when he was on the road as

well as other expenses.    When he was not on the road, he resided

at his parent’s house.    The taxpayer paid his share of the

electric and telephone bills plus $2 a day when he was at his

parents’ house and $1 a day when he was on the road.    In

rejecting the taxpayer’s contention that his tax home was his

parent’s house, we stated:

          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 held that objective financial criteria
     bear a closer relationship to the underlying purpose of the
     deduction. 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. * * * Section
     162(a)(2) provides some relief for 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. * * *

           *      *        *      *      *      *      *

     Petitioner’s total payment to his parents for the use of a
     bedroom and bathroom in their house amounts to $503 for
     the taxable year 1981. This token amount together with the
     payments he made for his share of the electric and
     telephone bills does not constitute substantial, continuing
     living expenses. * * *

Id. at 465-466 (fn. ref. omitted).
                                - 8 -

     Before June 25, 2005, petitioner resided in Galveston with

her boyfriend at his home.    At no time during 2005 did she pay

rent or utilities.   Rather, until June 2005, she paid a modest

amount for the household’s DIRECTV satellite television

subscription.   Consequently, petitioner did not have substantial,

continuing living expenses at her boyfriend’s Galveston residence

while living in Shreveport.    At no time during 2005 did

petitioner maintain two places of abode.      Hence, she did not

incur additional and duplicate living expenses while living in

Shreveport.   Accordingly, petitioner is not entitled to the

travel and meals business expense deductions claimed.

     To reflect the foregoing, and because petitioner’s earned

income tax credit and self-employment tax must be recomputed,


                                             Decision will be entered

                                        under Rule 155.
