                          T.C. Memo. 2000-289



                       UNITED STATES TAX COURT



                 JIM L. WESTLING, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 649-98.                   Filed September 15, 2000.




     Steven R. Stolar and Kristina S. Keller, for petitioner.

     Ric D. Hulshoff, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     LARO, Judge:    Petitioner petitioned the Court to redetermine

a $4,255 deficiency in his 1996 Federal income tax.    The

deficiency stems from respondent’s disallowance of an $18,414

deduction that petitioner claimed as a miscellaneous itemized

deduction for travel expenses connected with his employment as a

merchant seaman.    Petitioner ascertained the amount of that
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deduction by using the full Federal per diem rates for meals and

incidental expenses (M&IE rates) referenced in Rev. Proc. 96-28,

1996-1 C.B. 686 (applicable to meal and incidental expenses paid

by an employee for travel while away from home after March 31,

1996), and Rev. Proc. 94-77, 1994-2 C.B. 825 (applicable to meal

and incidental expenses paid by an employee for travel while away

from home after December 31, 1994).      See, e.g., Rev. Proc. 96-28,

sec. 4.03, 1996-1 C.B. at 688.    Petitioner’s actual expenses

consisted solely of incidental expenses; while at work, his

employer furnished him with lodging and meals at no charge.

     We must decide whether petitioner may deduct the claimed

amount.   We hold he may not.   We hold that petitioner’s use of

the M&IE rates is limited to the incidental expense portion of

those rates and that his deductions must be determined

accordingly.   Unless otherwise indicated, section references are

to the Internal Revenue Code in effect for the subject year, and

Rule references are to the Tax Court Rules of Practice and

Procedure.

                          FINDINGS OF FACT

     Most facts were stipulated.    The parties’ stipulations of

fact and the exhibits submitted therewith are incorporated herein

by this reference.    The stipulations of fact are found

accordingly.   Petitioner resided in Everett, Washington, when his

petition was filed.    He resided during the subject year in a
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house that he owned in Lake Stevens, Washington,1 paying during

that year $5,882 of mortgage interest and $1,433 of real estate

taxes.     Lake Stevens is a city located near the Puget Sound

approximately 35 miles northeast of Seattle, Washington.2

        Petitioner’s sole source of income is his wages from Silver

Bay Logging, Inc. (Silver Bay), the primary office of which is in

Juneau, Alaska.     Silver Bay employs petitioner as the captain of

its tugboat (the tugboat), the Silver Bay I.     Petitioner pilots

the tugboat transporting barges in and through the waters off,

and to the various ports in and around, southeast Alaska.    On the

days which he works, petitioner generally must be on or around

the tugboat 24 hours a day.

     During 1996, petitioner worked on the tugboat a total of 307

days.    Those days and the corresponding locations in which he

worked were as follows:

                Dates            Days             Location

     Jan. 1 through Feb. 13      44          Seattle, Washington
     Feb. 14 through Feb. 23     10          Ketchikan, Alaska


     1
       In their stipulations of fact, the parties spell Lake
Stevens with a “ph” instead of a “v”. Petitioner’s accountant
also used that spelling on the face of petitioner’s 1996 tax
return. Our research, however, leads us to conclude that the
preferred spelling of Lake Stevens is with a “v” instead of a
“ph”. We use the preferred spelling throughout this report. We
note that the preferred spelling also appears in petitioner’s
mailing address as shown on both the notice of deficiency and his
1996 Form W-2, Wage and Tax Statement.
     2
         We have taken judicial notice of this fact.
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Feb. 24 through Feb. 25    2      Klawock, Alaska
Feb. 26 through Feb. 27    2      Juneau, Alaska
Feb. 28 through Feb. 29    2      Gustavus, Alaska
Mar. 1                     1      Juneau, Alaska
Mar. 2                     1      Gustavus, Alaska
Mar. 3 through Mar. 4      2      Juneau, Alaska
Mar. 7 through Mar. 8      2      Gustavus, Alaska
Mar. 9                     1      Juneau, Alaska
Mar. 10 through Mar. 11    2      Gustavus, Alaska
Mar. 12                    1      Juneau, Alaska
Mar. 13                    1      Ketchikan, Alaska
Mar. 14 through Mar. 15    2      Sitka, Alaska
Mar. 16 through Mar. 17    2      Juneau, Alaska
Mar. 18 through Mar. 19    2      Sitka, Alaska
Mar. 20 through Mar. 21    2      Ketchikan, Alaska
Mar. 22 through Mar. 25    4      Sitka, Alaska
Mar. 26                    1      Ketchikan, Alaska
Mar. 27 through Apr. 3     8      Seattle, Washington
Apr. 4 through Apr. 6      3      Tacoma, Washington
Apr. 7 through Apr. 11     5      Seattle, Washington
Apr. 12 through Apr. 15    4      Juneau, Alaska
Apr. 16                    1      Wrangell, Alaska
Apr. 17                    1      Gustavus, Alaska
Apr. 18 through Apr. 19    2      Sitka, Alaska
Apr. 20 through Apr. 22    3      Wrangell, Alaska
Apr. 23                    1      Juneau, Alaska
Apr. 24                    1      Gustavus, Alaska
Apr. 25 through Apr. 26    2      Juneau, Alaska
May 23 through May 29      7      Sitka, Alaska
May 30                     1      Juneau, Alaska
May 31 through June 1      2      Wrangell, Alaska
June 2 through June 3      2      Juneau, Alaska
June 4 through June 5      2      Ketchikan, Alaska
June 6                     1      Juneau, Alaska
June 7                     1      Sitka, Alaska
June 8                     1      Juneau, Alaska
June 9 through June 14     6      Sitka, Alaska
June 15 through June 18    4      Juneau, Alaska
June 19 through June 20    2      Metlakatla, Alaska
June 21                    1      Juneau, Alaska
June 22                    1      Ketchikan, Alaska
June 23                    1      Metlakatla, Alaska
June 24 through June 26    3      Ketchikan, Alaska
June 27                    1      Metlakatla, Alaska
June 28                    1      Klawock, Alaska
July 5                     1      Ketchikan, Alaska
July 6 through July 9      4      Juneau, Alaska
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July 10 through July 16     7      Ketchikan, Alaska
July 17                     1      Petersburg, Alaska
July 18                     1      Juneau, Alaska
July 19                     1      Sitka, Alaska
July 20 through July 21     2      Klawock, Alaska
July 22 through July 23     2      Ketchikan, Alaska
July 24 through July 25     2      Juneau, Alaska
July 26 through July 29     4      Wrangell, Alaska
July 30                     1      Klawock, Alaska
July 31 through Aug. 1      2      Juneau, Alaska
Aug. 2 through Aug. 3       2      Sitka, Alaska
Aug. 4                      1      Gustavus, Alaska
Aug. 5 through Aug. 8       4      Seward, Alaska
Aug. 9 through Aug. 10      2      Juneau, Alaska
Aug. 11                     1      Sitka, Alaska
Aug. 12                     1      Petersburg, Alaska
Aug. 13                     1      Ketchikan, Alaska
Aug. 14                     1      Juneau, Alaska
Aug. 15                     1      Ketchikan, Alaska
Aug. 16                     1      Klawock, Alaska
Aug. 17                     1      Juneau, Alaska
Aug. 18 through Aug. 30    13      Ketchikan, Alaska
Sept. 13 through Oct. 11   29      Ketchikan, Alaska
Oct. 18                     1      Ketchikan, Alaska
Oct. 19                     1      Klawock, Alaska
Oct. 20                     1      Juneau, Alaska
Oct. 21                     1      Klawock, Alaska
Oct. 22                     1      Juneau, Alaska
Oct. 23                     1      Gustavus, Alaska
Oct. 24 through Oct. 27     4      Juneau, Alaska
Oct. 28 through Oct. 30     3      Wrangell, Alaska
Oct. 31                     1      Juneau, Alaska
Nov. 1                      1      Sitka, Alaska
Nov. 2                      1      Petersburg, Alaska
Nov. 3                      1      Sitka, Alaska
Nov. 4                      1      Wrangell, Alaska
Nov. 5                      1      Klawock, Alaska
Nov. 6                      1      Juneau, Alaska
Nov. 7                      1      Gustavus, Alaska
Nov. 8                      1      Juneau, Alaska
Nov. 9 through Nov. 10      2      Sitka, Alaska
Nov. 11                     1      Petersburg, Alaska
Nov. 12 through Nov. 13     2      Klawock, Alaska
Nov. 14                     1      Sitka, Alaska
Nov. 15                     1      Juneau, Alaska
Nov. 22 through Nov. 24     3      Klawock, Alaska
Nov. 25                     1      Juneau, Alaska
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     Nov. 26                     1         Petersburg, Alaska
     Nov. 27                     1         Sitka, Alaska
     Nov. 28 through Nov. 29     2         Klawock, Alaska
     Nov. 30                     1         Petersburg, Alaska
     Dec. 1                      1         Sitka, Alaska
     Dec. 2                      1         Wrangell, Alaska
     Dec. 3 through Dec. 5       3         Ketchikan, Alaska
     Dec. 6                      1         Sitka, Alaska
     Dec. 7                      1         Klawock, Alaska
     Dec. 8                      1         Juneau, Alaska
     Dec. 9                      1         Seattle, Washington
     Dec. 10                     1         Ketchikan, Alaska
     Dec. 11                     1         Seattle, Washington
     Dec. 12 through Dec. 13     2         Edward Island, Canada
     Dec. 14 through Dec. 31    18         Seattle, Washington
        Total                  307

     While he was at work, Silver Bay furnished petitioner with

lodging and meals at no charge.   Petitioner had to and did

purchase his other “personal” items.   Petitioner purchased while

at work incidental travel items such as hygiene products, safety

equipment, float coats, work gloves, and grooming services.

     Petitioner claimed on his 1996 Federal income tax return a

miscellaneous itemized deduction of $18,414 for “deemed

substantiated” incidental travel expenses related to his claimed

employment away from home for 268 days.   Petitioner has no

receipts to support the amount of these expenses.   He ascertained

the amount by utilizing the per diem substantiation method of the

applicable revenue procedures and, more specifically, the full

M&IE rates for the various locations to which he had traveled on

business.   Petitioner reported that he had ascertained the

expenses as follows:
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            Area         Number     Reported
             of            Of         M&IE     Incidental
           Travel         Days        Rate      Expenses

       Juneau, Alaska     103         $80        $8,240
       Gustavus, Alaska    68          62         4,216
       Sitka, Alaska       56          58         3,248
       Ketchikan, Alaska   19          70         1,330
       Petersburg, Alaska 14           62           868
       Wrangell, Alaska     4          70           280
       Yakutat, Alaska      4          58           232
          Total           268                    18,414

     In total, petitioner reported $18,714 of miscellaneous

itemized deductions for 1996, and he claimed on his 1996 return

that he was entitled to deduct $16,956 of that amount after

taking into account the 2-percent floor of section 67.

Respondent determined that petitioner could not deduct any of the

$18,414.

                                OPINION

     We must decide whether petitioner may deduct the cost of the

incidental travel items which he purchased during the subject

year while working away from his home.      Petitioner argues he may.

Petitioner asserts that he incurred the costs while working away

from home on business.   Petitioner asserts that the applicable

revenue procedures dispense with the need to substantiate the

amount of those costs in order to deduct them.     Respondent argues

that petitioner may not deduct those costs.     Respondent asserts

primarily that petitioner had no tax home.     Respondent asserts

secondly that petitioner did not prove that he actually incurred
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the claimed expenses.   Respondent asserts thirdly that petitioner

may not use the subject revenue procedures to ascertain the

amount of his deductions because, respondent asserts, those

revenue procedures do not apply when only incidental expenses are

incurred.

     We agree with petitioner that he is entitled to the claimed

deductions, but we disagree with him as to the amount of those

deductions.   We hold that petitioner’s deductions are limited to

the incidental expense portion of the applicable M&IE rates.      See

Johnson v. Commissioner, 115 T.C.      (2000).   In Johnson, we

considered and rejected each argument advanced by respondent

here.   We held that the taxpayer, a merchant seaman similar to

petitioner, could deduct the cost of his incidental travel items

even though he could not establish the cost of those items by way

of written documentation.   We held that the taxpayer could

establish those costs by using the incidental expense portion of

the applicable Federal per diem rates for meals and incidental

expenses referenced in section 4.03 of Rev. Proc. 96-28, 1996-1

C.B. at 688, and its progenitors.   We held that the taxpayer

could deduct those amounts because his records met as to those

costs the time, place, and business purpose requirements of

section 1.274-5T(b)(2), Temporary Income Tax Regs., 50 Fed. Reg.

46014 (Nov. 6, 1985).   The taxpayer’s records showed clearly:

(1) The dates of his departure and return from each city that he
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visited while away from home (the time requirement), (2) the

cities or points of locality of travel (the place requirement),

and (3) the business nexus between his employment and his travel

(the business purpose requirement).    See Johnson v. Commissioner,

supra.

     Here, petitioner has introduced into evidence the log of the

tugboat for 1996 and a schedule that lists each of the locations

to which he traveled on business and the dates of that travel.

Although the log and schedule are somewhat inconsistent with each

other, as well as with respect to information that petitioner

reported on his 1996 tax return in support of his deduction,

respondent, for some unexplained reason, has conceded that

petitioner traveled to each of the cities stated on that schedule

and did so on the corresponding dates shown on the schedule.    We

believe that the business purpose nexus between petitioner’s

incidental expenses and his travel is met by virtue of those

documents when viewed in the context of the record at hand and

conclude that petitioner has met the time, place, and business

purpose requirements of section 1.274-5T(b)(2), Temporary Income

Tax Regs., supra, as to the incidental expenses which he incurred

during 1996.   Under the precedent of Johnson, we hold that

petitioner is entitled to deduct the incidental expense portion

of the applicable M&IE rates for his points of travel as set

forth on his schedule.
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Accordingly, to reflect those amounts,

                                   Decision will be entered

                              under Rule 155.
